Woolverton v. City and County of Denver

• Decision Date: 24 April 1961
• Docket Number: No. 19275,19275
• Citation: 361 P.2d 982,146 Colo. 247
• Parties: Robert WOOLVERTON and Jess Bridwell, Plaintiffs in Error, v. CITY AND COUNTY OF DENVER, a Municipal Corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 982

361 P.2d 982

146 Colo. 247

Robert WOOLVERTON and Jess Bridwell, Plaintiffs in Error, v. CITY AND COUNTY OF DENVER, a Municipal Corporation,

Defendant in Error.

No. 19275.

Supreme Court of Colorado, En Banc.

April 24, 1961.

Rehearing Denied June 5, 1961.

Law, Nagel & Clark, Denver, for plaintiffs in error.

Donald E. Kelley, James P. McGruder, Denver, for defendant in error.

DOYLE, Justice.

Plaintiffs in error will be referred to as defendants as they appeared in the superior court where they were prosecuted by the City and County of Denver for gambling. On August 5, 1959, on trial to a jury, defendants were found guilty and sentenced to 90 days in jail and a $300 fine. They were charged with violating Sec. 821.1 Denver, Colo.Rev. Municipal Code (1950), which provides in part:

'821.1. Maintaining Gambling Devices, Playing Gambling Devices, Betting on Games Prohibited. It shall be unlawful for any person to * * * play for money or any valuable thing at any game with cards, dice, or with any article, device, or thing whatever, which may be used for the purpose of playing or betting upon, or winning or losing money or other property; or to bet on any game others may be playing.'

The evidence discloses that defendants engaged the complaining witnesses in a dice game which commenced in Jefferson County on June 26, 1958. The same parties engaged in a poker game in Jefferson County on June 27, 1958 and that evening continued to gamble at an address in Denver. It was this latter transaction which formed the basis for a prosecution in the municipal court of Denver.

Upon conviction in that court appeal was taken to the superior court. Important in determination of the controversy were two statutes of the State of Colorado. C.R.S. '53, 40-10-10 provides a penalty for gambling. This statute declares:

'40-10-10. Wagering upon games--penalty.--If any person shall play at any game whatsoever, for any sum of money or other property of value, or shall make any bet or wager for any sum of money or other property of value, upon the result of such game, every such person, on conviction thereof, shall be fined in any sum not less than fifty dollars nor more than one hundred and fifty dollars.'

Another section has authorized municipalities to enact policing regulations in various fields among which is that presently before us. 139-32-1(52) empowers the governing bodies of both cities and towns

'To suppress bawdy and disorderly houses, houses of ill fame or assignation, within the limits of the city or town, or within three miles beyond, except where the boundaries of two cities or towns adjoin the outer boundaries of the city or town; and also to suppress gaming and gambling houses, lotteries and fraudulent devices and practices, for the purpose of gaining or obtaining money or property, and to prohibit the sale or exhibition of obscene or immoral publications, prints, pictures or illustrations.'

The italicized portion pertains to gaming and gambling and is here pertinent.

The main contention advanced by defendants is that the City lacked legislative jurisdiction to enact the above quoted ordinance and was powerless to prosecute under it. They summarize their arguments by asserting:

'* * * The regulation of gambling being a matter of state-wide concern, the subject ordinance is in excess of the powers and jurisdiction of the City and County of Denver, and which power and jurisdiction to regulate has been withheld by statute to the people of the State of Colorado and not to the municipalities of the State.'

I.

The defendants' argument is a derivation and extension of the principles embodied in City of Canon City v. Merris, 137 Colo. 169, 323 P.2d 614, 621, wherein it was held that a home rule municipality lacked power to enact legislation prohibiting driving a motor vehicle while under the influence of intoxicating liquor. The gist of the Court's decision is found in these words:

'What is local and municipal is frequently difficult to determine. We hold that the operation of a vehicle by one who is under the influence of intoxicating liquor is a matter of state-wide concern. Ordinarily, regulation of traffic is a local and municipal matter.'

In the course of the opinion, Article XX, sec. 6, subd. h, was commented upon as follows "Supersede' is defined 'as meaning to supplant * * *; to replace, displace, or set aside and put another in the place of; to take the place of by reason of superior worth, appropriateness, efficiency, or right.' 83 C.J.S. p. 889. In the company of words, appearing in Article XX, Section 6, the term 'supersede' means that the law of the state is displaced on a local and municipal matter where there is an ordinance put in its place. Where, however, the matter is of state-wide concern, supersession does not take place. Application of state law or municipal ordinance, whichever pertains, is mutually exclusive.' (Emphasis supplied.)

The italicized sentence in the above quotation, which was given by way of dictum, carries with it the following implied corrollary rules:

1. Article XX, sec. 6 of the Constitution of Colorado authorizing home rule municipalities, not only serves as a grant of power to such municipalities but also to strictly limit the powers of such municipalities. Its legislative powers are limited to matters strictly and exclusively local in nature, thus rendering abortive any attempt of a city to legislate on a subject having a semblance of general or state-wide character.

2. That the state is limited in its authority to matters having a state-wide or general nature so that its efforts to legislate on matters having local quality are also void.

If these definitions were to be carried to an extreme conclusion, it would become necessary to void the ordinance now before us, since it has both local and state-wide aspects. The mutual exclusion concept would create two distinct spheres of exclusive legislative jurisdiction and two distinct bodies of law; the one local, the other state-wide. Since neither could exercise power in the area belonging to the other, it would then become necessary for each subject to be treated and classified by this Court as general or local, to the end that the legislative jurisdiction of the state and that of the local authority could be properly circumscribed.

The first inquiry is whether such a rigid and narrow approach is required by the language of the constitution. Article XX, sec. 6, subd. h, does indeed grant to home rule cities exclusive jurisdiction over subjects local and municipal. The municipality, by passage of an ordinance dealing with a strictly local subject, supersedes an existing statute on the same subject. City and County of Denver v. Henry, 95 Colo. 582, 38 P.2d 895. By the same token, if the subject matter is inherently and entirely a matter of state sovereignty, the state, by asserting its authority, effectively thwarts any attempted exercise by the city of legislative jurisdiction in the same field. City and County of Denver v. Tihen, 77 Colo. 212, 235 P. 777. It follows that the doctrine of mutual exclusion pronounced in the Merris case has validity as between the home rule city and the state where the subject matter is unquestionably and wholly local or is strictly state-wide. For example, it could not be contended that the home rule municipality could, even with the consent of the state, define felonies or that the state could assume authority of traffic regulation within the home rule city, City and County of Denver v. Henry, supra.

II.

Accepting the foregoing premise that there are black and white areas of state and local mutually exclusive legislative jurisdiction, the question remains whether all subjects must be so categorized. Is it necessary that each and every legislative subject be classified and so fitted into either a state-wide or local and municipal category, with the result that either the home rule city or the state, but not both, is empowered to exercise exclusive authority with respect thereto? We are of the opinion that such approach is arbitrary, highly impractical and not demanded by either the constitution or by our decisions.

First, Article XX, sec. 6, does not impose any such strict requirement. It recognizes that a state statute on a subject over which the city has exclusive power--that which is local and municipal--continues in force until it is superseded by a local ordinance. A pure application of the mutual exclusion idea would preclude any legislative action in a field reserved for local regulation. City and County of Denver v. Henry, supra, and see also People ex rel. Stokes v. Newton, 106 Colo. 61, 101 P.2d 21, 24, which recognized the authority of the state to create an independent legal entity to deal with public housing notwithstanding that public housing was there conceded to be '* * * a matter of local concern.' It was there held that since Denver had not exercised the authority to legislate by amending its charter, the state law was controlling.

The constitution, furthermore, does not expressly deal with those subjects having both state-wide and municipal problems, thus leaving these matters to legislative implementation. Thus a strict and unflexible application of the mutual exclusion theory to a municipal ordinance is not required by either the express or implied provisions of the constitution.

Secondly, pre-Merris decisions of this Court have long recognized the existence of subjects neither exclusively state-wide nor exclusively local, but having the attributes of both. Public health is of such a nature. See Spears Free Clinic and Hospital for Poor Children v. State Board of Health, 122 Colo. 147, 220 P.2d 872, 874, where it was recognized that there are facets of public health which are local while others are state-wide, and that the licensing of hospitals is of the latter type. The language there used by the Court clearly recognizes the dual interest and...