People ex rel. Inter-Church Temperance Movement of Colo. v. Baker

• Decision Date: 16 April 1956
• Docket Number: No. 17615,INTER-CHURCH,17615
• Citation: 133 Colo. 398,297 P.2d 273
• Parties: PEOPLE of the State of Colorado ex rel.TEMPERANCE MOVEMENT OF COLORADO; Inter-Church Temperance Movement of Colorado, a non-profit corporation of the State of Colorado; Ida Payne Smith; Evelyn Kennedy Boston; Leslie Logan; C. P. Gehman; Frank G. Rutherford; and Kenneth Graul, Plaintiffs in Error, v. George J. BAKER, as Secretary of State of the State of Colorado, and Charles J. Lowen, as Manager of Safety and Excise of the City and County of Denver in the State of Colorado, Defendants in Error.
• Court: Colorado Supreme Court

Page 273

297 P.2d 273

133 Colo. 398

PEOPLE of the State of Colorado ex rel. INTER-CHURCH TEMPERANCE MOVEMENT OF COLORADO; Inter-Church Temperance Movement of Colorado, a non-profit corporation of the State of Colorado; Ida Payne Smith; Evelyn Kennedy Boston; Leslie Logan; C. P. Gehman; Frank G. Rutherford; and Kenneth Graul Plaintiffs in Error, v. George J. BAKER, as Secretary of State of the State of Colorado, and Charles J. Lowen, as Manager of Safety and Excise of the City and County of Denver in the State of Colorado, Defendants in Error.

No. 17615.

Supreme Court of Colorado, En Banc.

April 16, 1956.

Rehearing Denied June 4, 1956.

Wayne D. Williams, Kelly O'Neall, Jr., William H. Burnett, Denver, for plaintiffs in error.

John C. Banks, City Atty., Joseph E. Newman, Asst. City Atty., Denver, for defendant in error Charles J. Lowen, Manager of Safety & Excise, City and County of Denver.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Omer Griffin, Asst. Atty. Gen., for defendant in error George J. Baker, Secretary of State.

HOLLAND, Justice.

The People of the State of Colorado, ex rel. Inter-Church Temperance Movement of Colorado; Inter-Church Temperance Movement of Colorado, a non-profit corporation of the State of Colorado; Ida Payne Smith; Evelyn Kennedy Boston; Leslie Logan; C. P. Gehman; Frank G. Rutherford; and Kenneth Graul, as plaintiffs, began an action against George J. Baker (substituted for Homer M. Bruce) as Secretary of State of the state of Colorado, and Edward O. Geer (substituted for Charles J. Lowen) as Manager of Safety and Excise of the City and County of Denver in the State of Colorado, as defendants, in which plaintiffs sought relief under our Uniform Declaratory Judgment Act, declaring, determining and adjudging that chapter 149, Session Laws of Colorado 1953, is unconstitutional and void and violates Article XXII of the Constitution of the State of Colorado, or plaintiffs pray, in the alternative, for an injunction, because, they allege, said amendatory act violates the provisions of Article XXIV of our Constitution.

Defendants having answered, trial was had to the court without the intervention of a jury, and, at the conclusion of all of the evidence, judgment of dismissal was entered. Plaintiffs are here by writ of error seeking a reversal.

Article XXII of the Constitution of the State of Colorado prohibits the establishment or maintenance of any saloon and was adopted on November 8, 1932. Section 2 of Article XXIV of the Constitution of the State of Colorado provides, inter alia, that 85% of the net revenues derived from any and all excise taxes now or hereafter levied upon sales at retail, together with 85% of all license fees imposed under the provisions of chapter 189, S.L.1935, p. 1000, shall be made a part of the Old Age Pension Fund.

Under the provisions of the Liquor Code of 1935, chapter 89, section 18, '35 C.S.A. a restaurant was thus defined:

"Restaurant' means an establishment provided with special space and accommodations, where in consideration of payment, meals are habitually furnished to guests, and whose principal business is the sale of meals and in which room nothing is sold excepting meals, food, drinks, and tobaccos and where malt, vinous and spirituous liquors shall not be served at any place, excepting tables and lunch counters with stools securely fastened to the floor. * * *' (Emphasis supplied.)

This definition of a restaurant was amended in 1951, chapter 211, S.L. '51, p. 517, retaining in the amendatory 1951 act the exact wording of section 18, supra, herein set forth and adding thereto provisions which are not relevant or pertinent here.

Chapter 149, Session Laws of Colorado 1953, p. 397, amended section 18, chapter 89, '35 C.S.A., and so far as necessary for our consideration here it reads: "Restaurant' means an establishment with special space and accommodations, where in consideration of payment, food, drinks, tobaccos and candies are furnished to guests, and in which room nothing is sold excepting food, drinks, tobaccos and candies, and where malt, vinous and spirituous liquors shall not be served at any place, excepting tables and counters with stools.' (Emphasis ours.)

The Secretary of State is the state licensing authority, C.R.S. '53, 75-2-6; the Manager of Safety and Excise is the local licensing authority in the City and County of Denver; the council or board of trustees is the local licensing authority in any other city or town, and the board of county commissioners is the local licensing authority outside the limits of cities and towns. C.R.S. '53, 75-2-9.

Plaintiffs' complaint contains three causes of action (claims), in each of which it is alleged that the Inter-Church Temperance Movement of Colorado is a nonprofit corporation organized and existing under the laws of the state of Colorado, its membership consisting of churches and religious denominations. It is dedicated to the principles of sobriety, good citizenship and temperance, and, as such, is interested in the enforcement of Article XXII of the Constitution of the State of Colorado. It brings the action on behalf of itself and all others similarly situated. The individual plaintiffs are all citizens and taxpayers of the City and County of Denver and all, except Logan, are owners of real estate situated in the vicinity of 'an unlawfully licensed saloon.' They sue on their own behalf and all other property owners similarly situated.

George J. Baker is the duly elected, qualified and acting Secretary of State, and as such is the authorized liquor licensing authority for the state of Colorado. Defendant Geer is the duly authorized licensing authority for the City and County of Denver.

It is alleged that defendants, acting under the amendatory act hereinbefore referred to, have issued 'hotel and restaurant' licenses and 'beer and wine' licenses, and in so doing are authorizing the establishment and maintenance of saloons in violation of said Article XXII of the Constitution. Plaintiffs further allege that they have no adequate remedy at law and that the granting of the relief by them sought will avoid a multiplicity of suits and settle a question of vital importance.

In the second cause of action (claim) the allegations of the first cause of action (claim) are incorporated by reference, and it is further alleged that defendants have and threaten to continue issuing licenses known as 'hotel and restaurant licenses' to licensees whose principal business is other than the sale of food and meals whether measured by gross sales, numbers of sale or gross profits, and where malt, vinous and spirituous liquor are sold at retail by the drink for consumption on the premises without food and meals.

The third cause of action (claim), for all purposes necessary for our consideration, is identical to the second cause of action (claim).

Defendants filed their joint answer consisting of fifteen separate defenses, the second of which is the only one which we deem necessary for our consideration and determination. We specifically decline to express any opinion whatever as to other defenses contained in the answer, as well as the other interesting and important questions presented.

The second defense, to which we direct our attention, concerns the absence of indispensable parties who may be affected by the relief sought, having been neither joined nor appeared as defendants herein.

Plaintiffs' evidence discloses that on December 13, 1954, there were 342 restaurant and hotel licenses issued in the City and County of Denver where malt, vinous and spirituous liquors were sold, and at the same time there were 1174 such licenses issued in the state of Colorado. Each licensee under the provisions of C.R.S. '53, 75-2-22, has paid to the Department of Revenue an annual license fee of $25 for his state license and has paid to the town, city, county or city and county local licensing authorities an annual fee of $325. If the 1174 licensees mentioned are operating their business in strict compliance with the provisions of chapter 149, S.L. '53, and this act is declared to be unconstitutional as violative of the provisions of Article XXII or Article XXIV of our state Constitution, their licenses, which are quasi property interest, will become null and void by a judgment of this court in an action in which they are not made parties, and in which they have no representation. Furthermore, defendant Geer, as manager of safety and excise in the City and County of Denver, is sued as a local licensing authority and does not by any reference in the complaint act as a representative of the local licensing authorities in towns, cities or counties.

Our Declaratory Judgment Act is incorporated in the Rules of Civil Procedure, and is therein found as Rule 57, R.C.P.Colo. It provides that its purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and likewise provides, (f) 'The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.' It also provides, (j) 'When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. * * *' (Italics ours.)

It seems plain to us, notwithstanding authority to the contrary, that all 'parties who have or claim any interest which would be affected by the declaration' must be made parties to the proceeding, for neither in the declaratory judgment action nor in any other judicial proceeding called to our attention may the rights of persons not parties to a judicial proceedings be bound by the action of a court in that proceeding. The court should have refused to...