Vela v. People, C--45

• Citation: 174 Colo. 465,484 P.2d 1204
• Decision Date: 10 May 1971
• Docket Number: No. C--45,C--45
• Parties: Consuelo Regina VELA et al., Petitioners, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Supreme Court of Colorado

Page 1204

484 P.2d 1204

174 Colo. 465

Consuelo Regina VELA et al., Petitioners, v. The PEOPLE of the State of Colorado, Respondent.

No. C--45.

Supreme Court of Colorado, En Banc.

May 10, 1971.

Alperstein & Plaut P.C., Frank Plaut, Lakewood, for petitioners.

No appearance for respondent.

ERICKSON, Justice.

Petitioners seek review of an Order of the Weld County District Court affirming their conviction for disturbance under 1965 Perm.Supp., C.R.S.1963, 40--8--1. They contend that the County Court lacked jurisdiction to proceed with the trial of the charges against them, because the state statute under which they were prosecuted and convicted was superseded by applicable ordinances of the home rule city of Greeley.

In purely local and municipal matters, home rule cities may exercise exclusive jurisdiction by passing ordinances which supersede state statutes. Until they do so, however, the Colorado Constitution provides that state statutes shall continue to apply. Whether a particular state statute has been superseded is governed by Article XX, Section 6 of the Colorado Constitution, which states:

'Such charter (of the home rule city or town) and the ordinances made pursuant thereto in (local and municipal) matters shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict therewith.'

Thus, for a statute to be superseded by an ordinance of a home rule city, two requirements must be met. The state statute and the ordinance must be in conflict, and the ordinance must pertain to a purely local matter. Where both of these conditions exist, the state statute is clearly without effect within the jurisdiction of the home rule city. See, e.g., City and County of Denver v. Henry, 95 Colo. 582, 38 P.2d 895 (1934).

This Court, in Ray v. City and County of Denver, 109 Colo. 74, 121 P.2d 886 (1942), set forth several tests for determining whether a statute and a local ordinance are in conflict. One test, which we find applicable here, is:

'(W)here both an ordinance and a statute are prohibitory and the only difference between them is that the ordinance goes further in its prohibition, but not counter to the prohibition under the statute, and the municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required, there is nothing contradictory between the provisions of the statute and the ordinance because of which they cannot coexist and be effective.'

The legislation to be examined in light of this test follows:

'1965 Perm.Supp., C.R.S.1963, 40--8--1. Disturbance--jurisdiction of county court--If any person shall maliciously or willfully disturb the peace or quiet of any neighborhood or family, by loud or unusual noises, or by tumultuous or offensive carriage, threatening, traducing, quarreling, challenging to fight, or fighting, every person convicted thereof shall be fined in a sum not exceeding fifty dollars, or imprisoned in the county jail not exceeding two months. The county courts, within their several counties, shall have jurisdiction of the offenses in this section mentioned subject to the right of appeal, as provided by law.'

'Ordinance, City of Greeley, Section 15--59. Disturbing the peace; profanity; fighting; permitting such acts.

'It shall be unlawful for any person to disturb or to tend to disturb the peace of others by violent, tumultuous, offensive or obstreperous conduct, or by loud or unusual noises, or by unseemly, profane, obscene or offensive language, calculated to provoke a breach of the peace; or by assaulting, striking or fighting another, or...