Parsons v. People

• Decision Date: 07 March 1904
• Parties: PARSONS v. PEOPLE.
• Court: Colorado Supreme Court

76 P. 666

32 Colo. 221

PARSONS v. PEOPLE.

Supreme Court of Colorado

March 7, 1904

Error to La Plata County Court; Chas. A. Pike, Judge.

Action by the people against John L. Parsons. From an adverse judgment, defendant brings error. Affirmed.

The constitutionality, and, as to druggists, the applicability of sections 18 and 19 of our general revenue law (Sess. Laws 1902, pp. 47, 48, c. 3), have been called in question by the State Druggists' Association, of which defendant is a member, and by others embraced within its provisions, who have refused to pay the license fee therein prescribed. The Attorney General and opposing counsel concur in the statement that the defendant, who is a reputable business man, not intending to violate any valid law of the state, but for the purpose of setting at rest the controversy over these sections, at the instance of those directly concerned, made the sales which gave rise to this prosecution. While therefore, this is a real, and not a feigned, action, the defendant's conduct which gave rise to it is not to be censured as a willful violation of a public law which he knew to be valid, but should be considered as a bona fide attempt by one who believes the law to be void, to bring to an issue in which counsel for both sides have co-operated, the controversy which the state and those affected by the act, if valid, wish to have settled.

The salient facts are not in dispute. The defendant is a druggist doing business in the city of Durango, which is a municipal corporation organized under the general statutes. From the United States government he holds a license to sell liquors and a permit from the city council of the city of Durango for the sale of liquor for medicinal, mechanical, sacramental, and chemical purposes only; and under such authority, but without having a license issued to him by the state treasurer therefor, he sold within the city of Durango a half pint of liquor for medicinal purposes, and at the time this action was brought was selling liquor generally in that city, but only for the purposes specified in the permit.

Section 18 reads: 'Every person, company or corporation selling any malt, vinous or spirituous liquors shall, in addition to other license fee exacted by law, or by the ordinances of any municipality, pay to the state of Colorado an annual license fee of twenty-five dollars per annum in advance, for each and every saloon, restaurant, hotel, club, drug store, liquor store or other place where any said liquors shall be sold. The license aforesaid shall be issued by the Treasurer of State, to whom the license fee aforesaid shall be paid; the said license to specify the date of issuance, the period which it covers, the name of the licensee, the place licensed, and that such license is issued subject to the ordinances of the city or town and to the regulations of the county on the subject, in which the place so licensed is located. Said license shall be conspicuously exposed at all times in the place thereby licensed; and all constables, sheriffs and police officers shall see to it that every such person, company and corporation within his jurisdiction has procured such license. Neither the county authorities of any county, nor the officers of any municipality, shall issue, transfer or renew any license to sell any malt, vinous or spirituous liquors until such person, company or corporation shall in the first instance produce a state license, as provided herein, covering the whole period for which a license or a renewal or transfer thereof is asked from any county or municipality: provided, that, the said license may be transferable to successors in business.'

Section 19 prescribes the penalty for a violation of the provisions of section 18, which is a fine of $100 for the first offense, and for a second offense a forfeiture of any state or municipal license which the accused has theretofore held.

The constitutional and statutory provisions considered in the opinion are section 9 of article 4, sections 2, 3, 11, and 16 of article 10, and section 4403, par. 18, 3 Mills' Ann. St. (Sess. Laws 1895, p. 221, c. 96), the portions of which, so far as pertinent here, read:

Article 4.

'Sec. 9. The Governor may, or extraordinary occasions, convene the General Assembly, by proclamation, stating therein the purpose for which it is to assemble; but at such special session no business shall be transacted other than that specially named in the proclamation. * * *'

Article 10.

'Sec. 2. The General Assembly shall provide by law for an annual tax, sufficient, with other resources, to defray the estimated expenses of the state government for each fiscal year.

'Sec. 3. All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws, which shall prescribe such regulations as shall secure a just valuation for taxation of all property, real and personal. * * *'

'Sec. 11. The rate of taxation on property, for state purposes, * * * whenever the taxable property within the state shall amount to one hundred million dollars, * * * shall not exceed four mills on each dollar of valuation. * * *'

'Sec. 16. No appropriation shall be made nor any expenditure authorized by the General Assembly whereby the expenditure of the state during any fiscal year shall exceed the total tax then provided for by law and applicable for such appropriation or expenditure unless the General Assembly making such appropriation shall provide for levying a sufficient tax not exceeding the rates allowed in section eleven of this article to pay such appropriation or expenditure within such fiscal year. * * *'

The following is one of the grants to municipal corporations organized under the general municipal corporation act (3 Mills' Ann. St. § 4403):

'Eighteenth. To have the right, subject to the laws of the state, to license, regulate or prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquor within the limits of the city or town, or within one mile beyond the outer boundaries thereof, except where the boundaries of two cities or towns adjoin; the license not to extend beyond the municipal year in which it shall be granted, and to determine the amount to be paid for such license; provided, that the city council in cities, or board of trustees in towns, may grant permits to druggists for the sale of liquor for medicinal, mechanical, sacramental and chemical purposes only, subject to forfeiture, and under such restrictions and regulations as may be provided by ordinance; provided, further, that in granting licenses, such corporate authorities shall comply with whatever general law of the state may be in force relative to the granting of licenses, saloons, and keeping open saloons, bar or tippling houses on Sunday, or the first day of the week.'

The county court held the statute valid and applicable to druggists, found defendant guilty of a violation of the provisions of section 18, and imposed a fine of $100, the minimum amount fixed by section 19.

John T. Bottom, for plaintiff in error.

N.C. Miller, Atty. Gen., and Henry J. Hersey, Asst. Atty. Gen., for the People.

CAMPBELL, J. (after stating the facts).

That the objections of defendant to this legislation may be clearly apprehended, we reproduce them here, as summarized by his counsel: (1) These particular sections are not within the Governor's proclamation, under which was convened the special session of the General Assembly at which the revenue act in question was passed. (2) They are not applicable to druggists doing business in towns and cities organized under the general laws of this state, because, by the provisions of subdivision 18 of section 4403, 3 Mills' Ann. St hereinabove quoted, druggists may be given permits by the city council to sell for the designated purposes; and one holding a permit, as defendant does, is not within the purview of section 18, c. 3, p. 47, of the act of 1902, as the latter relates only to licenses, and not to permits, and the latter statute, general in its terms, does not repeal or qualify the former law in so far as it concerns permits to druggists. (3) All licenses or taxation of trades, professions, businesses, or occupations imposed to produce revenue for state purposes are inhibited by the provisions of our Constitution, since only direct taxes upon property, at the limited rate prescribed by section 3 of article 10, can be levied therefore, and appropriations and disbursements for all state purposes are limited to revenue thus raised. (4) The subject-matter of these sections is not within the title of the act. (5) If what section 18 calls a 'license fee' is in fact, a tax for revenue, it violates the uniformity and equality clause of section 3 of article 10, and constitutes a levy on the property of druggists in excess of the limited rate of 4 mills prescribed by section 11 of the same article. (6) As the Constitution empowers the General Assembly to vest in the corporate authorities of counties, cities, and towns the exclusive power to license the sale of liquors, and the General Assembly has, with respect at least to the city of Denver, exercised this authority by a special act in the nature of a charter, and such exclusive power is now conferred by article 20 of the Constitution, such delegation of power, having once thus been made, cannot be recalled by the provisions of a general revenue law, nor is it competent for the General Assembly to abrogate the grant of power to the city of Denver resulting from the adoption of the twentieth article. (7) The general objection that the provisions of these sections violate the letter and spirit of ...