Schwartz v. People

• Decision Date: 06 July 1909
• Citation: 104 P. 92,46 Colo. 239,47 Colo. 483
• Parties: SCHWARTZ v. PEOPLE.
• Court: Colorado Supreme Court

104 P. 92

46 Colo. 239, 47 Colo. 483

SCHWARTZ v. PEOPLE.

Supreme Court of Colorado, En Banc.

July 6, 1909

Rehearing Denied Oct. 4, 1909.

Error to District Court, City and County of Denver; George W Allen, Judge.

N. L Schwartz was convicted of violating the local option law, and he brings error. Affirmed.

The Sixteenth General Assembly passed an act known as the 'Local Option Law,' which was duly approved March 25 1907, and went into effect June 23d next thereafter. Laws 1907, p. 495, c. 198. At the general election held in the city and county of Denver on May 19, 1908, a ward proposition was submitted, under the law, to the qualified electors of ward 12 therein, as to whether the ward should become anti-saloon territory, and a majority of the electors casting ballots thereon voted in the affirmative. Simultaneously with the ward submission, a separate and distinct like proposition was submitted to the electors of precinct 4 within ward 12 and a majority of the electors voting thereon declared against the question.

On June 27th following the submissions an information was filed in the court below charging the plaintiff in error with the unlawful sale of intoxicating liquors within the limits of ward 12, the same being then and there anti-saloon territory having become such by virtue of the vote upon that question above mentioned.

At the time such submissions were had the plaintiff was a duly licensed saloon keeper in precinct 4 and continued to do business under such authority. It is on account of sales so made, after said submissions, that the information herein was lodged against him. To the information the plaintiff in error filed a special plea in which it was stated, among other things, that the same was interposed 'without conceding or admitting the regularity or validity of such submissions, and without waiver of any right to question the same in any manner.'

The plea further avers that, at the election referred to in the information, the qualified voters of precinct 4, in which territory the unlawful sale of liquors charged therein was made, had by a majority vote thereof determined that such precinct should not become anti-saloon territory.

The special plea then stated in substance that the defendant, during all of the times mentioned in the information and long prior thereto, was duly and regularly licensed pursuant to law to sell intoxicating liquors in said precinct, and that he had never sold any of such liquors outside of the limits thereof, or except as authorized by said license.

To this plea a general demurrer was interposed and sustained. Thereafter upon plea of not guilty the cause came on regularly for trial. No testimony was introduced, but trial was had upon an agreed statement of facts and the cause submitted to the jury thereon. The essential features of the case, as thus agreed, are as follows: That pursuant to the provisions of the local option enactment the question was submitted to the voters of ward 12 in the county, and simultaneously to the electors of precinct 4 within ward 12, as separate and distinct propositions, whether the ward and precinct should become anti-saloon territory; that a majority of the electors of the ward voted in the affirmative, while at the same time a majority of voters in the precinct declared in the negative; that the alleged unlawful sale charged in the information occurred in the precinct; and that prior to and at the time of the alleged unlawful sale, which occurred after the election, the defendant was a duly licensed saloon keeper in the precinct, and that his license was in full force, because precinct 4 of ward 12 had not become anti-saloon territory by virtue of the vote on the submission in the ward.

Upon these facts, the defendant moved the court for an instructed verdict of not guilty, which motion was denied, and in lieu thereof the court instructed the jury that ward 12 of the city and county of Denver was antisaloon territory, throughout its entire extent, at the time the offense charged in the information was committed; a verdict of guilty was returned, and thereupon judgment was rendered imposing a fine of $100 upon the defendant, together with costs of the proceedings. Objections were taken and exceptions reserved to the ruling of the court in sustaining the demurrer to the special plea, and in refusing to direct the jury to return a verdict of not guilty; also to the instruction given to the jury by the court to the effect that ward 12 at the time of the commission of the alleged offense was antisaloon territory throughout its entire extent, which was in effect a direction for a verdict of conviction; and also to the verdict and the judgment rendered thereon as being unauthorized and contrary to law.

It is to review this judgment and the various rulings of the court leading up to it, that plaintiff in error bings the case here.

Ernest Morris and Dixon & Dixon (John M. Waldron, special counsel), for plaintiff in error.

W. H. Dickson, Atty. Gen., George D. Talbot, Asst. Atty. Gen., John T. Barnett, Atty. Gen., and James M. Brinson, Asst. Atty. Gen. (Halstead L. Ritter and Edward P. Costigan, of counsel), for the People.

BAILEY, J. (after stating the facts as above).

On this review but two propositions are presented and argued by counsel: First. Is the so-called local option law a valid and constitutional one? Second. If yes, then when a ward proposition is submitted under it to the qualified electors thereof as to whether the ward shall become anti-saloon territory, and at the same time a separate and distinct like precinct proposition is submitted to the qualified electors of a precinct within the ward, and the ward votes yes and the precinct votes no, what is the legal effect of such vote?

The validity of the local option law seems not to have been directly challenged or passed upon in the court below, as being obnoxious to any provision of our state Constitution. However since that question is now urged, and since it is fundamental, the duty of the court to meet and dispose of it seems plain, for it must be that if the law is void a conviction or sentence under it may not be upheld or enforced, and the defendant should go free. If the law upon which the prosecution is based is unconstitutional, then it is no law and there can be no offense for the supposed violation of its terms. Whenever that question is presented and urged, although it be for the first time in a court of review, if it clearly appears, upon the face of the undisputed record, to be fairly involved, manifestly it commands and deserves the consideration and judgment of the court. Especially is this so in a criminal case where the very foundation of the cause rests upon the validity of the statute, and in which alone is found the power and authority of the court to act at all, else there might appear the anomaly of a person being found guilty of an offense under, and paying the penalty for a violation of, despite a protest on this ground, the provision of a pretended law which in fact had and has no valid existence and is not a law. The facts are agreed, the statute law upon which the case is founded is before the court, and if it appears upon its face, when read and considered in connection with the organic law of the state, to contravene the latter, it is too clear to require argument that at least no judgment of conviction based on such law should be affirmed, leaving that question undetermined, although not directly urged in or decided by the trial court. In any event, we are the more inclined to decide this question because of its great public importance; beside no point is made against its determination because not considered and passed upon below, on the contrary, both sides join in an earnest appeal to the court for a decision thereof.

By the local option law power and authority is conferred upon the qualified electors of certain specified political subdivisions of the state to determine by popular vote whether a given district or political subdivision shall become anti-saloon territory, or having by said vote become anti-saloon territory, whether it shall so remain. When a majority of the qualified voters within such district or subdivision voting on the question declare in favor of anti-saloon territory, then the statute provides that it shall be unlawful to sell intoxicating liquors at all therein, except as otherwise provided by the act. In other words, it makes such district or subdivision absolute prohibition territory and fixes penalties by way of fines and imprisonment, either or both, in the discretion of the court, against those who shall sell intoxicating liquors within its limits. The term 'intoxicating liquors,' as used in the act, is defined as including any fermented, distilled, malt, vinous or other intoxicating liquors. The entire field is broadly covered.

By the act, in most definite and specific terms, the Legislature has delegated, to the qualified voters of the various subdivisions of the state therein mentioned, the power and right to decide by local vote whether the sale of any fermented, distilled, malt, vinous or other forms of intoxicating liquors shall thereafter be permitted within the district affected by the vote, and if the vote be in the affirmative it absolutely prohibits such sale of any liquors whether pure or otherwise.

Counsel for plaintiff in error contend that the right has been withdrawn from the Legislature by constitutional provision to directly enact any law whatsoever in prohibition of the power to sell pure liquors in this state, and if such right is not with the Legislature, then it is equally without right or authority to delegate, as it has done by their act, to the people the power by popular...