In re Interrogatories of the Governor on Chapter 118, Sess.Laws 1935

• Decision Date: 18 November 1935
• Docket Number: 13787.
• Parties: In re INTERROGATORIES OF THE GOVERNOR ON CHAPTER 118, SESS. LAWS 1935.
• Court: Colorado Supreme Court

52 P.2d 663

97 Colo. 587

In re INTERROGATORIES OF THE GOVERNOR ON CHAPTER 118, SESS. LAWS 1935.

No. 13787.

Supreme Court of Colorado, En Banc.

November 18, 1935

Modification Filed December 9, 1935.

Original proceedings in the matter of the interrogatories of the Governor on chapter 118, Session Laws 1935.

Interrogatories answered in accordance with opinion.

HOLLAND and BURKE, JJ., dissenting.

On Petition for Modification.

Paul P. Prosser, Atty. Gen., Norris C. Bakke Deputy Atty. Gen., and Shrader P. Howell, Asst. Atty. Gen (Hudson Moore, of Denver, of counsel), for Frank Seydel amicus curiae, affirming the constitutionality of the act.

Lee, Shaw & McCreery, of Denver, amici curiae, denying the constitutionality of the act.

HILLIARD Justice, delivered the opinion of the court.

Pursuant to section 3, article 6, of the Constitution, which provides that 'the supreme court shall give its opinion upon important questions upon solemn occasions when required by the governor,' his Excellency, Hon. Edwin C. Johnson, has inquired whether the act approved April 4, 1935 (chapter 118, p. 433, Session Laws 1935), is constitutional.

The Governor's concern grows out of the fact that certain merchants of Colorado, advised that the act in question contravened their constitutional right to conduct restaurants, and anticipating its effective date, filed their bill of complaint in the United States District Court of Colorado, against the Governor and Attorney General, and the State Board of Health, seeking to enjoin its enforcement. Thereupon, as the practice is, a three-judge federal court was convened to consider the matter. On hearing, one judge dissenting, the court issued its temporary restraining order. At this point the Governor made his appeal to us, and since the record indicates that pending our construction of the act the federal court is withholding its further consideration, we have resolved that the question is important and the occasion solemn.

The Attorney General and members of his staff, as well as voluntary private counsel, maintain that the measure is constitutional, while counsel for the merchants in the federal court, appearing here at our request, argue contra.

The legislative enactment is entitled: 'An Act relating to foods; to provide for the public health and safety by licensing places where food is prepared for human consumption, to be consumed on the premises, providing regulations, restrictions and conditions under which food may be prepared and sold for consumption therein; providing for the administration, disposition of funds, and penalties for the violation of the provisions of this act.'

The sections of the act important to our examination read as follows:

'Section 1. Purpose. The control and regulation of premises or places wherein food is prepared and sold or served for consumption on such premises; the establishment of standards of purity for foods; and the enforcement of sanitary safeguards imposed upon food handlers, being necessary, this Act shall be deemed an exercise of the police powers of the State for the protection of the social welfare and the health of the people of the State of Colorado.

'Section 2. Definitions. As used in this Act;

'(a) 'Person' shall mean natural person, partnership, co-partnership, association, company, corporation, organization, or manager, agent, servant, officer or employee of any of them.

'(b) 'Food' shall mean any substance used, or intended to be used, for human consumption, when the same is prepared for consumption to be consumed upon the premises where sold, which, among other things, shall include all meat, fish, vegetables, bread and condiments, whether simple, mixed or compounded, but shall not include soft drinks, ice cream or ices, and confections.

'(c) 'Restaurant' shall mean an establishment provided with special space and accommodations wherein, in consideration of payment, meals are habitually furnished to guests, or a place where food is prepared for human consumption to be consumed upon the premises, and whose principal business is the sale of meals, and in which room nothing is sold excepting meals, food, drink and tobaccos. Any establishment connected with any business whatsoever, excepting the hotel business and railway dining cars or any room in any place whatsoever, wherein any business is conducted excepting the sale of meals, foods, drinks and tobaccos, or hotel business, is hereby declared not to be a restaurant.

'(d) 'Board' shall mean 'State Board of Health' and its authorized inspectors, agents and employees.

'(e) 'License' shall mean a grant to a licensee to conduct a 'restaurant,' as defined in this Act.

'Section 3. From and after a period of thirty (30) days after the effective date of this Act, it shall be unlawful:

'(a) For any person to conduct a 'restaurant' without having obtained a license so to do from the State Board of Health and in accordance with the provisions of this Act.

'(b) To sell or serve to any person or to the public, any 'food' except the same shall be sold or served in a licensed 'restaurant,' as defined in this Act; Provided, however, that nothing in section 3 of this Act shall prohibit or limit the operation of private boarding houses, or the serving of food by individuals, organizations or charitable institutions, engaging only in the occasional sale or serving of food.

'(c) For any person to violate any of the provisions of this Act, or the sanitary rules and regulations made hereunder, or to violate any of the rules and regulations of the State Board of Health made pursuant to the provisions of this Act.

'Section 4. For the purpose of regulating and controlling 'restaurants' establishing of sanitary conditions therein and the enforcement and administration of this Act, the State Board of Health is hereby designated, empowered, and authorized as the state licensing and inspection agency.

'Section 5. The duties and authority of the State Board of Health shall be as follows:

'(a) To grant, refuse, suspend or revoke licenses provided by this Act.

'(b) To establish a uniform code of sanitary rules and regulations for the preparation, sale and serving of 'food'; to make such other rules and regulations for the effective administration and enforcement of this Act not inconsistent with the provisions of this Act.

'(c) To hear and determine all complaints against licensees, and to administer oaths, and issue subpoenas to require the presence of person or persons necessary to the determination of any hearing so held.

'(d) To keep in its office a complete record of all the acts and transactions of the Board, which record shall be open to inspection by the public.

'(e) To enforce the provisions of this Act and the code of sanitary rules and regulations, and other rules and regulations made hereunder.

'(f) To cause to be inspected all places licensed by it, at any or all reasonable times.

'Section 6. Any person owning and/or operating a 'restaurant' within this State shall within thirty (30) days after the effective date hereof, make application to the State Board of Health for a license as herein provided. Any other person desiring to own and/or operate a 'restaurant' in this State shall, Before undertaking such business, make application to the State Board of Health, as herein provided. Application for licenses under the provisions of this Act shall be made to the State Board of Health, on forms prepared and furnished by the Board, and shall set forth such information as the director may require, including the name and address of the applicant, together with all the other information deemed necessary by the Board. Before granting any license for which application has been made, the Board may visit and inspect the 'restaurant' or property in which the applicant conducts or proposes to conduct his business. The Board may refuse a license for failure to comply with the sanitary code, or other rules and regulations, or, if in its opinion, the premises on which the applicant conducts or proposes to conduct his business do not meet the requirements of this Act. Upon written demand by an applicant who has been refused a license, the Board shall state in writing its reason for such refusal. The refusal of the Board to grant a license according to the provisions of this Act may be reviewed upon application for writ of mandamus or otherwise by any court of general jurisdiction having jurisdiction of the place for which the application for license was made, and if such court shall determine that such action was without good cause, it shall order the Board to issue such license.

'Section 7. Licenses herein provided shall be granted for a period of one calendar year, or portion there of remaining at the time of making application for said license, but where application is made for a portion of such calendar year there shall be no reduction of the license fees provided herein because of such fact. All licenses shall expire December 31st of the year for which issued and application for the renewal of licenses shall be made during the month of December of each year. Once a license has been granted under the provisions of this Act, the Board may refuse to renew the same only for violations of this Act or the sanitary code or other rules or regulations established hereunder, unless otherwise provided by law.

'Section 8. Licenses herein provided for shall specify the date of issuance, the period which is covered, the name of the licensee, and the place licensed. Such license shall be conspicuously displayed at all times in the place thereby licensed, and all constables, sheriffs and police officers shall see to it that every person selling 'foods' and conducting a 'restaurant...