Davis v. City and County of Denver , 140 Colo. 30 ( 1959 )

Mr. Justice Doyle

delivered the opinion of the Court.

The plaintiffs in error in these several cases were defendants in the Superior Court of the City and County of Denver. They seek reversal of judgments imposing fines and jail sentences for violating an ordinance prohibiting the operation of a motor vehicle while operators’ licenses were suspended. We will determine the several writs of error in a single opinion. The cases were tried in January of the year 1957.. Apparently the prosecutions were separate and were conducted under the procedure which then obtained, that is to say, the cases were treated- as civil actions rather than as criminal prosecutions. The charge in each instance was that the defendant had violated Section 513.17-2 (1) [506.4] of the Denver Municipal Code which punishes the driving of a motor vehicle while the operator’s license has been suspended or revoked.

Various questions áre presented in the- briefs, but inasmuch as the prosecution of- the writs of error here had antedated our decision in City of Canon City v. Merris, 137 Colo. 169, 323 P. (2d) 614, supplemental briefs were requested on the question of applicability of that decision to thé present cases. These briefs are now submitted, and our disposition will be made on the supplemental issues. Determination of the original questions are unnecessary to the disposition of the issues now presented.

The ordinance under which the defendants were prosecuted reads as follows:

“513-17-2 (1). Driving while license denied, can-celled, suspended or revoked or driving without a license. It shall be unlawful for any person, either resident or non-resident, whose operator’s or chauffeur’s license or driving privilege has been suspended, or revoked as provided by the Motor Vehicle Division, State of Colorado, or any other state, to drive any motor vehicle on any public highway, street or alley, in the City and County of Denver at any time when said license or privilege is denied, cancelled, suspended or revoked * * *

The State of Colorado also has a statute dealing with the subject of driving while license is suspended or revoked. This is found in C.R.S. 1953, 13-3-31 (1), 1957 Cum. Supp. (as amended in 1955), and this provides:

“Driving while license is suspended or revoked — penalty.— (1) Any person who shall drive any motor vehicle upon any highway of this state at a time when his operator’s, minor operator’s or chauffeur’s license or driving privilege, either as a resident or nonresident, is denied, suspended, cancelled, or revoked, shall be guilty of a misdemeanor and upon conviction shall be punished by imprisonment for not less than one day or more than six months, or by a fine of not less than fifty dollars or more than five hundred dollars, or by both such fine and imprisonment.’ ’

A provision of the Denver Ordinances pertinent to the present inquiry is that which imposes penalty. This is a general penalty ordinance which provides for imposition of a fine not exceeding $300.00 and for imprisonment not to exceed 90 days. Section .10 Municipal Code.

It is noteworthy that although the definition of the offense contained in the statute, and that of the ordinance are substantially the same, the penalty prescribed by the ordinance is considerably less than that set forth in the statute.

1. The failure of the trial court to treat the cases as criminal and to extend to defendants the rights which belong to one charged with a criminal offense does not justify reversal of the cases under the circumstances presented by the records before us. Rather they are governed by our decision in Geer v. Alaniz, 138 Colo. 177, 321 P. (2d) 260, wherein it was held that such rights must be asserted and that failure to demand trial by jury, or other alienable rights to which persons charged with crime are entitled, results in a waiver.

2. The validity of the ordinance under which the prosecution was conducted is, however, subject to review and the judgment is subject to reversal if it is decided that the particular ordinance was void.

Determination of the question whether the City had authority to enact the ordinance which punishes the driving of a vehicle while license is revoked or suspended must be based upon a decision whether the matter is one of local or municipal concern or of general and state-wide concern.

A home-rule city is granted exclusive power over matters local and municipal. This authority is contained in the Constitution of Colorado, Article XX, Section 6, which in part provides:

“The statutes of the state of Colorado, so far as applicable, shall continue to apply to such cities and towns, except in so far as superseded by the charters of such cities and towns or by ordinance passed pursuant to such charters.”

Under the above section, once it is clear that the subject matter is local and municipal, the enactment of an ordinance supersedes a state statute. Denver v. Henry, 95 Colo. 582, 38 P. (2d) 895. Matters local are then the exclusive domain of the municipality. Where the matter is not local and municipal, the City, even though a home-rule municipality, derives no authority from Article XX.

There is no constitutional provision corresponding to Article XX which confers jurisdiction on the State and requires that in matters of general interest the regulation be conducted by the State alone to the exclusion of the City. It would thus seem to follow that outside and beyond Article XX, in the area of State control, the City is an agency of the State and is subject to control by the Assembly. Denver v. Tihen, 77 Colo. 212, 235 Pac. 777; Denver v. Hallett, 34 Colo. 393, 83 Pac. 1066; Londoner v. Denver, 52 Colo. 151, 119 Pac. 156; People v. McNichols, 91 Colo. 141, 13 P. (2d) 266.

The City does not, and indeed could not, contend that the licensing and regulation of vehicle operators is a matter exclusively local and municipal within Article XX, Section 6, supra, so that enactment of the ordinance would supersede a statute on the same subject. Counsel argue that even though the subject is general in scope, the City is not precluded, from enacting an ordinance in the aid of the policy declared in the statute. The difficulty with this position is that under our governmental system it is not possible for the City to derive authority from Article XX, supra, based upon the fact that a subject is a “little bit” local. If the subject is local, the City has, under Article XX, exclusive authority. If it is predominantly of general interest, the State has the power to act and in this latter situation the City can exercise authority only with the consent of the State.

Undoubtedly the State was motivated by the necessity for establishing a uniform and integrated statewide policy fixing standards for the issuance of operators’ licenses to persons driving vehicles. Even though the problem may be particularly serious within the borders of a municipality, it is nevertheless apparent that varying standards would create an intolerable condition. Power to establish a licensing system would seem to carry with it authority to make provision for revocation and furthermore to penalize the driving of a motor vehicle without a license or while such license is revoked or suspended. These considerations dictate our conclusion that the subject is predominantly state-wide and general. The City, of course, is interested in preventing unlicensed drivers on its streets. However, it is impossible to perceive any beneficial result from an ordinance which deals with the identical subject covered by a state statute.

The City maintains that Canon City v. Merris, supra, envisaged the condition which is now presented, that is, an ordinance and a statute on the identical subject existing side by side when it was said therein:

“Even though an ordinance effectually covers a local and municipal matter, and it is a counter-part of a law of the state, its violation is triable and punishable as a crime where so designated by the statute.”

When the above language is considered in full context, it is apparent that the Court was referring to the necessity for recognition of criminal trial standards in those areas of local and municipal affairs wherein there is a state statute which recognizes the act or conduct as-a crime. This language was not intended to approve concurrent legislation on matters of general concern. A “counter-part” ordinance mentioned in. the Merris case is one which deals with a local and municipal matter, enactment of which supersedes the state statute on the subject within the boundaries of the municipality.

3. The question remains whether the City is at liberty to adopt an ordinance in furtherance of the policy of the State as expressed in a statute. This question must, under the present circumstances, be answered in the negative. Article XX of the Constitution does not grant to the City authority to regulate matters of general and state-wide concern and, as indicated above, this power can be exercised by municipalities only if the State consents to its exercise and provided that the matter, although predominantly general, is one in which the municipality has sufficient interest to warrant the delegation of power to it. It is well settled that delegation of legislative authority from the State to the municipality is proper in these circumstances, 37 Am. Jur. 720, Sec. 111, Municipal Corporations; 11 Am. Jur. 935, Constitutional Law, Sec. 224; 2 McQuillin Municipal Corporations 592, Sec. 10.08 (3d ed.); Rhyne, Municipal Law 73, Sec. 4-9; 147 A.L.R. 1342 (a note); 2 Dillon Municipal Corporations (5th ed.), Sec. 632, p. 967. The latter text clearly recognizes the propriety of such delegation and cites the Colorado case of Hughes v. People, 8 Colo. 536, 538, 9 Pac. 50, in support of the following statement:

“ * * * Where the act is, in its nature, one which constitutes two offences, one against the State and one against the municipal government, the latter may be constitutionally authorized to punish it, though it be also an offence under the State law; but the legislative intention that this may be done ought to be manifest and unmistakable, or the power in the corporation should be held not to exist.”

The power to so delegate is, of course, subject to the limitation that the State cannot surrender its sovereignty with respect to subjects exclusively state-wide and general. However, the authority of the State to delegate police powers to the municipality in those areas where the subject matter, although predominantly general is also to some extent municipal, seems to be approved practice. See 16 C.J.S. 909, 910, Constitutional Law, Sec. 178. See also 62 C.J.S. 286, 287, Municipal Corporations, Sec. 143. The author of this text declares:

“ * * * The legislature may delegate to municipal corporations power to adopt and enforce particular ordinances, even though general statutes exist relating to the same subjects; and, where the charter or legislation confers on a municipality express power to legislate on a particular subject, both state and city may legislate thereon even though it is not a subject of local concern. If an affair is partly state and partly local, the city is free to act until the state has intervened. The legislature can itself exercise in the first instance any power to that end which it could delegate to its municipalities, and it can enact directly for such municipalities any law that it could indirectly enact by delegating to them the power to pass it.

“Police power. A municipal corporation may exercise police power on the subjects connected with municipal concerns which are also proper for state legislation, and, where the state has not spoken, the position of a municipal corporation in this regard is analogous to that of the state to the federal government with reference to matters of interstate commerce. In the absence of constitutional limitations the legislature may confer police power on a muncipal corporation over subjects within the provisions of existing state laws, and ordinarily, if there is no conflict with general law, municipal corporations, under their general police powers, may regulate on municipal subjects on which the state hás acted.”

It is possible to find general language in decisions which apparently forbids this type of delegation. In. fact, it is a subject with respect to which there exists a great deal of confusion. However, it would appear that a majority of courts in the United States approve the-type of limited delegation which is described above. A representative decision dealing with a traffic situation is that of the Supreme Court of Illinois in City of Evanston v. Wazau, 364 Ill. 198, 4 N.E. (2d) 78. There the-municipality of Evanston had enacted an ordinance providing for compulsory inspection of motor vehicles owned by residents of that city. The ordinance was based upon an Illinois statute authorizing cities and towns to enact legislation providing for such inspection. The validity of this delegation of authority was expressly questioned. The Illinois Court in upholding the procedure said:

“ * * * Neither the Fourteenth Amendment to the-Federal Constitution nor any provision of the Constitution of this state was designed to interfere with the police power to enact and enforce laws for the protection of the health, peace, safety, morals, or general welfare of the people. Fenske Bros. v. Upholsterers’ Union, 358 Ill. 239, 193 N.E. 112, 97 A.L.R. 1318; People v. Anderson, 355 Ill. 289, 189 N.E. 338. The same tests are applied to municipal ordinances (Koos v. Saunders, 349 Ill. 442, 182 N.E. 415), and the Legislature may confer upon cities police power over subjects which are also within the provisions of the state laws. City of Chicago v. Union Ice Cream Mfg. Co., 252 Ill. 311, 96 N.E. 872, Ann. Cas. 1912D, 675. Common knowledge of the enormous and steadily increasing toll of deaths and injuries from automobile accidents undoubtedly actuated the Legislature in enacting the statutes requiring safe equipment and enabling municipalities to assist in the safety-program by periodical inspection.”

The earlier Illinois decision of Chicago v. Union Ice Cream Mfg. Co., cited in the Evanston case, was a fully reasoned pronouncement involving exercise by the City of Chicago with the consent of the Legislature of authority to enact a pure food ordinance. That case held that both the state law and the municipal ordinance could exist within the municipality and that there could be separate prosecutions for violation of the ordinance and statute. This latter we regard as the substantive evil to be avoided in allowing both the state statute and an ordinance to exist within the municipality boundaries. However, in Canon City v. Merris, it was held that such double prosecutions are unconstitutional and invalid and we adhere to this salutary decision and when this safeguard is recognized and enforced, we are unable to see that any dire consequences can follow a ruling which recognizes the right of the general assembly to authorize municipalities to legislate on subjects which the assembly finds susceptible to municipal regulation, even though there is a statute on the same subject.

The case of Blumenthal v. City of Cheyenne, 64 Wyo., 75, 186 P. (2d) 556, cited with approval in Canon City v. Merris, recognizes the propriety of the type of delegation which is here under discussion.

To hold that matters which are general are the exclusive preserve of the state, just as matters local and municipal can be regulated only by the city (once the city has acted) would create a highly inflexible system and would require the state or city to obtain a continuous stream of rulings from this Court as to whether a subject is local or state-wide. This kind of strait-jacket” rule is inappropriate to the changing society in which we live and Canon City v. Merris, supra, should not be construed as so holding.

The comment of Professor Austin Scott, Jr., in 30 Rocky Mountain Law Review, 267 at page 283, is pertinent:

“ * * * As to the other great point of the Merris case — the-rule of mutual exclusion of state and home rule municipal power — the court is on less firm ground. Why should not both city and state have concurrent power in some situations to punish the same conduct? True, the offender should not be separately punished by both city and state, but the way to prevent double punishment is not to restrict the city’s ordinance power; characterizing the municipal violation as criminal, and recognizing the fact that the city is not a separate sovereign from its creator the state, will effectively preclude double punishment. In view of the fact that law enforcement is necessarily primarily in the hands of the municipal police forces, which in manpower greatly outnumber the members of the state police forces (to be found in the state highway patrol and the sheriffs’ offices) it seems unfortunate so radically to reduce municipal power to deal with the minor offenses.”

See also 72 Harvard Law Review 737, Conflicts Between State and Municipal Ordinances.

The system which allows a state to delegate legislative power to municipal corporations and which permits the general assembly to find that it is necessary and appropriate to delegate the authority violates neither the Constitution nor any substantive principle. It appeals to us as a sensible approach to the solution of the continuing conflicts between state and municipal laws.

In the instant case neither the Motor Vehicle Code nor any other state statute has delegated or consented to the exercise of the particular authority which is here in question. C.R.S. 1953, 13-4-7, recognizes the power of municipalities to regulate in particular areas of traffic, and acknowledges the right of the municipality to regulate on subjects such as parking of vehicles, flow of traffic through control signals, creation of one-way streets, regulating speed and traffic at intersections, but it does not specifically approve the right of a municipality to punish the operator of a vehicle who drives without a license. Consequently, we must conclude that this authority has been pre-empted by the State and has been withheld from the -municipality.

4. Another and independent reason for holding that the ordinance in question is ultra vires is the conflict in penalty which has been pointed out. The ordinance imposes a jail sentence of 90 days, whereas the statute imposes a jail sentence of 6 months. This reason, apart from the failure of the general assembly to manifest a consent to the exercise of authority, furnishes a basis for declaring the ordinance to be void. Ray v. Denver, 109 Colo. 74, 121 P. (2d) 866, 2 McQuillin (2d ed.) 683, 684.

We conclude, therefore, that the City lacked jurisdiction or authority to enact Section 513.17-2 (1), hence the ordinance was and is void and the convictions thereunder must be set aside.

The judgments are reversed with directions to dismiss the charges.

Mr. Justice Frantz and Mr. Justice Hall specially concur.