Rogers v. People

• Decision Date: 24 January 1887
• Citation: 12 P. 843,9 Colo. 450
• Parties: ROGERS v. PEOPLE.
• Court: Colorado Supreme Court

12 P. 843

9 Colo. 450

ROGERS v. PEOPLE.

Supreme Court of Colorado

January 24, 1887

Error to criminal court, Arapahoe county.

Rogers & McCord, for plaintiff in error.

Theo. H. Thomas, Atty. Gen., for the People.

HELM J.

The principal question presented in this case may be briefly stated as follows: Does the statute of 1885 which confers upon the city council of Denver power, by ordinance 'exclusively to prohibit and suppress * * * dance-houses bawdy-houses, disorderly houses, houses of ill fame or assignation, or any place for the practice of lewdness or fornication within said city,' have the effect of suspending, within the corporate limits of the city, the operation, pro tanto, of section 839 of the General Statutes, which reads as follows: 'If any person shall be guilty of open lewdness, or other notorious acts of public indecency, tending to debauch the public morals, or shall keep open any tippling or gaming house on the Sabbath day or night, or shall maintain or keep a lewd house or place for the practice of fornication, or shall keep a common, ill-governed, and disorderly house, to the encouragement of idleness, gaming, drinking, fornication, or other misbehavior, every such person shall, on conviction, be fined not exceeding one hundred dollars, or imprisoned in the county jail not exceeding six months?'

This general provision was adopted upwards of 20 years ago, and has never been repealed. The special act above mentioned is the later of the two. Therefore, if both are valid, and if both cannot be given full force and effect, the former must give way to the extent of the conflict existing between them.

The original charter and various amended charters enacted for the government of the city of Denver, in so far as they do not refer to matters within the expressly enumerated constitutional inhibitions, are not obnoxious to objection under section 25, art. 5, of the constitution, which treats of local or special legislation. And, in general, a legislative amendment of the charter will not be reviewed by this court for the purpose of determining whether, under the concluding sentence of this constitutional provision, the changes incorporated could be made by general law. Brown v. City of Denver, 7 Colo. 305; S.C. 3 P. 455; Carpenter v. People, 8 Colo. 116; S.C. 5 P. 828; Darrow v. People, 8 Colo. 426; S.C. 8 P. 924.

The use by the general assembly of the word 'exclusively,' in conferring power to prohibit and suppress bawdy-houses, indicates a design to place that matter entirely under the control of the city council. A provision relating to the prohibition and suppression of bawdy-houses has existed in the charter since 1874, but until the last session of the legislature the authority thus vested in the council was not exclusive. This fact demonstrates that the word 'exclusively' could hardly have found its way into the enactment through inadvertence or mistake. The intention of the legislature in the premises is too plain to admit of serious doubt.

The pleadings show that the city council accepted and duly exercised the authority conferred; that an ordinance was passed in strict conformity with the statute in question, and fully covering the subject. Under the circumstances, unless the general assembly was powerless to delegate such exclusive control, or unless the legislative action be in conflict with some constitutional provision other than the one above mentioned, it follows that all prosecutions for committing the forbidden act within the limits of Denver must take place under the city ordinance.

Can the general assembly confer upon the council exclusive legislative control over this subject? A house of prostitution is a constant menace to the public peace and good order of the community in which it exists. It is a nuisance, and its keeping a misdemeanor, at common law. Its suppression and punishment are proper subjects of police regulation. In one form or another the authority to prohibit and suppress is very generally given to cities and towns, and quite as generally exercised by them. It is true, the general policy of our statutes and of the common law is to wholly inhibit these places, and it is also true that the people of the entire state are, to some extent, interested in the suppression thereof. But, in the first place, the statute gives the council no authority to license or regulate--they can only prohibit and suppress--the evil; and, secondly, the existence of such houses within the corporate limits is a matter that peculiarly concerns the citizens of Denver. They, more than the people elsewhere, are brought into contact therewith, and suffer through the vicious influences emanating therefrom. Moreover, the subject is one with which, from its very nature, the local authorities can more intelligently and effectively deal than can the general assembly. It is a matter fairly pertaining to the province of 'local self-government.' It was competent for the legislature to give the city council legislative control. Cooley, Const. Lim. 228, and note. See, also, page 261. And we discover no sufficient reason for holding that this authority shall not be made exclusive and plenary, controlled only by such express constitutional inhibitions or mandates as may be found applicable. State v. Clarke, 54 Mo. 17; State v. DeBar, 58 Mo. 395; Davis v. State, 2 Tex. App. 425; Berry v. People, 36 Ill. 425; State v. Gordon, 60 Mo. 383; Hetzer v. People, 4 Colo. 45; Huffsmith v. People, 8 Colo. 175; S.C. 6 P. 157; Seibold v. People, 86 Ill. 33, and cases.

In Berry v. People and State v. Gordon, above cited, the offenses charged were gambling and disturbance of the peace, respectively. In the cases of Hetzer, Huffsmith, and seibold v. People, the prosecutions related to tippling-houses, or the vending of intoxicating liquors. But, so far as the delegation of exclusive legislative control is concerned, we think these decisions may fairly be cited in support of our conclusion in the case at bar.

It is insisted that the power 'to prohibit and suppress' does not include the power to provide for punishment. This proposition is not tenable. The right to pass ordinances usually carries with it 'the incidental right to enforce them by reasonable pecuniary penalties.' 1 Dill. Mun. Corp. §§ 338, 376, and note 1; Bish. St. Crimes, § 21. Besides, section 18 of the act in question reads as follows: 'The city council is hereby authorized to provide for the punishment of all offenses against the ordinances of the city, by imprisonment,' etc. Having the authority to pass an ordinance to prohibit and suppress bawdy-houses, and having power 'to provide for the punishment of all offenses against the ordinances,' it follows that the council is authorized to provide for the punishment of those who violate the ordinance imposing this particular inhibition. The phrase 'to provide for the punishment,' as used, confers at least concurrent power over the subject of punishment. Such power, must, of course, be exercised subject to constitutional requirements in relation to courts, their procedure and practice.

But a further and more embarrassing question is presented. Section 28, art. 6, of the constitution, provides as follows: 'All laws relating to courts shall be general, and of uniform operation throughout the state; and the organization, jurisdiction, powers, proceedings, and practice of all the courts of the same class or grade, so far as regulated by law, and the force and effect of the proceedings, judgments, and decrees of such courts severally, shall be uniform.'

Since the effect of the act now under consideration is to repeal within the corporate limits of Denver, a part of section 839 of the General Statutes, and since no prosecutions for offenses committed within the city can be maintained under the provision thus repealed, the indirect result is that the territorial jurisdiction of the criminal court of Arapahoe county over certain misdemeanors is correspondingly curtailed; while the power of the criminal courts in Lake and Pueblo counties to entertain prosecutions...