Mosko v. Dunbar, 17779
| Decision Date | 01 April 1957 |
| Docket Number | No. 17779,17779 |
| Citation | 309 P.2d 581,135 Colo. 172 |
| Parties | , 32 Lab.Cas. P 70,670 Max MOSKO and Lillian Meltz Mosko, co-partners, doing business under the name and style of Max Mosko Auto Wholesale, Plaintiffs in Error, v. Duke W. DUNBAR, Attorney General of the State of Colorado, George G. Priest, District Attorney for the First Judicial District in the State of Colorado, and Carl Enlow, Sheriff of the County of Jefferson of the State of Colorado, Defendants in Error. Jack P. PALMER, an individual, doing business under the name and style of The Bargain Lot, and Aaron Mosko and Jean Mosko, co-partners, doing business under the name and style of Aaron Mosko Motor Company, Plaintiffs in Error, v. Duke W. DUNBAR, Attorney General of the State of Colorado, George G. Priest, District Attorney for the First Judicial District in the State of Colorado, and Charles Foster, Sheriff of the County of Arapahoe, of the State of Colorado, Defendants in Error. |
| Court | Colorado Supreme Court |
Mosko & Slatkin, Denver, for plaintiffs in error.
Emory L. O'Connell, Denver, Kara & Rice, Grand Junction, Jenkins, Stewart & Tursi, Pueblo, Gail H. Haddock, Max D Melville, Fred M. Winner, Denver, amici curiae.
Duke W. Dunbar, Atty. Gen., pro se, Frank E. Hickey, Deputy Atty. Gen., George G. Priest, District Atty. First Judicial District, pro se and for Charles Foster, Sheriff, and Carl Enlow, Sheriff, Lakewood, defendants in error.
This matter is presented to this court on an agreed Statement of The Case, the pertinent provisions thereof being:
1. Plaintiffs in error, referred to herein as plaintiffs are engaged in the business of buying and selling motor vehicles, each is duly licensed as a motor vehicle dealer under C.R.S. '53, 13-11.
2. Plaintiffs prior to April 8, 1955 had kept their places of business open on Sundays and desire to continue so to do.
3. The Fortieth General Assembly of the state of Colorado enacted a statute known as House Bill No. 45, Laws 1955, p. 214, effective April 8, 1955, now C.R.S. '53, 13-20-1 et seq., in words as follows:
'Section 1.--Definitions--The term 'motor vehicle' as used in this act shall mean every vehicle intended primarily for use and operation on the public highways, which is self-propelled; and every vehicle intended primarily for operation on the public highways which is not driven or propelled by its own power, but which is designed either to be attached to or become a part of a self-propelled vehicle; but not including farm tractors and other machines and tools used in the production, harvesting and care of farm products.
'Section 2.--Sunday closing--No person, firm or corporation, whether owner, proprietor, agent or employee, shall keep open, operate or assist in keeping open or operating any place or premises or residences whether open or closed, for the purpose of selling, bartering or exchanging, or offering for sale, barter or exchange, any motor vehicle or motor vehicles, whether new, used or second hand, on the first day of the week, commonly called Sunday; and provided, however, that this act shall not apply to the opening of an establishment or place of business on the said first day of the week for other purposes, such as the sale of petroleum products, tires, automobile accessories, or for the purpose of operating and conducting a motor vehicle repair shop, or for the purpose of supplying such services as towing or wrecking.
'Section 3.--Penalties--Any person, firm, partnership, or corporation who violates any of the provisions of this act shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than seventy-five dollars ($75.00) nor more than one thousand dollars ($1,000.00), or by imprisonment in the county jail for a period not to exceed six months, or the court, in its discretion, may suspend or revoke the Colorado Motor Vehicle Dealer's License issued under the provisions of Article 11 of Chapter 13, Colorado Revised Statutes 1953, or by such fine and imprisonment and suspension or revocation.
'Section 4.--Safety Clause--The General Assembly hereby finds, determines and declares that this act is necessary for the immediate preservation of the public peace, health and safety.'
4. Plaintiffs contend that said House Bill No. 45 is unconstitutional and void; defendants contend that it is constitutional. The parties pray for a declaratory judgment resolving this constitutional question.
5. Plaintiffs contend that House Bill No. 45 is in contravention of:
(a) Article 5, Section 25 of The Colorado Constitution.
(b) Article 14, Section 1 of the Amendments to the Constitution of the United States.
6. The trial court found House Bill No. 45 constitutional. It is elementary that every regularly adopted legislative act is presumed to be constitutional, and that one attacking the validity thereof has the burden of showing it unconstitutional beyond a reasonable doubt. Rinn v. Bedford, 102 Colo. 475, 84 P.2d 827; Eachus v. People, 124 Colo. 454, 238 P.2d 885; Heitsch v. Kavanagh, 6 Cir., 200 F.2d 178, certiorari denied 345 U.S. 939, 73 S.Ct. 829, 97 L.Ed. 1365.
Under our system of government only the legislature can enact laws and it is the legislature's right and duty to determine what laws are desirable. It is well established by an unbroken line of decisions of this court, as well as of the Federal courts, that it is within the exclusive province of the legislature to determine the necessity, expediency, wisdom, fairness and justness of the law enacted.
The rule is well stated by Justice Moore in Journeymen Barbers, etc., Union v. Industrial Commission, 128 Colo. 121, 260 P.2d 941, 948, 42 A.L.R.2d 700:
In Heitsch v. Kavanagh, supra , the court uses the following language:
Plaintiffs contend that the statute under attack is in contravention of Art. XIV, section 1 of the Amendments to the Constitution of the United States, which section provides:
This contention is clearly without merit. The Supreme Court of the United States, vested with the final power to determine whether a law deprives a party of rights guaranteed by the 14th Amendment, has on numerous occasions ruled contrary to counsel's contentions.
In Petit v. State of Minnesota, 177 U.S. 164, 20 S.Ct. 666, 667, 44 L.Ed. 716, the Supreme Court of the United States passed on the question raised by counsel in this case. A Minnesota statute, Gen.St.1894, § 6513, M.S.A. § 614.29 prohibited any person from keeping open a barber shop on Sunday. Petit had been convicted of violation of the statute. The United States Supreme Court affirmed the conviction and said:
'The court pointed out that the law did not forbid a man shaving himself or getting someone else to shave him, but the keeping open a barber shop for that purpose on Sunday; that the object mainly was to protect the employees by insuring them a day of rest; and said: 'Courts will take judicial notice of the fact that, in view of the custom to keep barber shops open in the evening as well as in the day, the employees in them work more, and during later, hours than those engaged in most other occupations, and that this is especially true on Saturday afternoons and evenings; also that, owing to the habit of so many men to postpone getting shaved until Sunday, if such shops were to be permitted to be kept open on Sunday, the employees would ordinarily be deprived of rest during half of that day.''
In Noble State Bank v. Haskell, 219 U.S. 104, 31 S.Ct. 186, 188, 55 L.Ed. 112, on rehearing 219 U.S. 575, 31 S.Ct. 299, 300, 55 L.Ed. 341, the court passed upon the constitutionality of an Oklahoma statute, Laws 1907-8, p. 145 requiring all state banks to pay 1% of their average daily deposits into a depositors guaranty fund to secure full payment of all deposits in all state banks. Noble State Bank, without success, attacked this law in the Oklahoma courts on the ground that it contravened several provisions of the Constitution of the State of Oklahoma and on the further ground that it was in violation of the 14th Amendment. Justice Holmes, in holding the legislation free of constitutional inhibitions, said:
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