Woolverton v. City and County of Denver , 146 Colo. 247 ( 1961 )

Mr. Justice Doyle

delivered the opinion of the Court.

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 $300.00 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 contro ver sy 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 suppress gaming and gambling houses, lotteries and fraudulent devices and practices, for the purposes of gaining or obtaining money or property, and to prohibit the sale or exhibition of obscene or immoral publications, prints, pictures or illustrations.”

The underscored 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 Canon City v. Merris, 137 Colo. 169, 323 P. (2d) 614, 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 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 underscored 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 statewide 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 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. 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. Denver v. Tihen, 77 Colo. 212, 235 Pac. 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, 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. Denver v. Henry, supra, and see also People ex rel. Stokes v. Newton, 106 Colo. 61, 101 P. (2d) 21, 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 Hospital v. State Board of Health, 122 Colo. 147, 220 P. (2d) 872, 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 responsibility of the state and locality in this field and the impossibility of easy categorization. It was there said:

“Under the provisions of Article XX of the Constitution and of its charter, the city acquired exclusive control of local and municipal affairs, but it remained ‘as much amendable to state control in all matters of a public, as distinguished from matters of a local, character, as are other municipalities.’ People ex rel. v. McNichols, 91 Colo. 141, 13 P. (2d) 266. Health is a matter which may he either of general or of municipal concern. Infectious diseases in particular recognize no city lines, and under its police power the state retains the right to regulate such matters affecting public health as are of general concern, including the right to license and regulate hospitals wherever situated. At the same time, congested living conditions within cities may produce health problems justifying further regulation than those deemed necessary by the legislature, and as to such matters cities may possess the police power of further regulation within their limits. We are not here confronted with any conflicting mandate of statute and ordinance or with challenge to any particular statutory command, but only with challenge to the broad right of the legislature to provide for the licensing of hospitals, within the limits of home-rule cities, in the interest of the general health. That challenge cannot be sustained.” (Emphasis supplied.)

Clear recognition is thus given to the concept that in a field of both local and state interest the municipality has not a superseding authority as contemplated by Article XX, sec. 6, supra, but an actual supplemental authority to deal with the added problems arising from municipal congestion.

Denver v. Tihen, supra, is generally regarded definitive of the extent and operation of Article XX, the home rule amendment. There the city of Denver, acting pursuant to authority granted by its charter, undertook to levy a tax against cemetery property. Denver’s position was that a state statute exempting cemeteries was superseded by the city’s exercise of authority to levy, assess and collect taxes, without recognizing any such exemption. The Court speaking through Mr. Justice Campbell recognized the local nature of the levy and assessment of ad valorem taxes but held that it did not supersede the state authority to declare exemptions. It was there said:

“* * * That public policy of the state applies to every portion of the state. It is just as applicable to the home rule cities now as it was and is to municipalities organized under general statutes.”

In concluding that the subject was not purely local, the Court said:

“* * * Applying the principle laid down in these decisions, we say that while the matter of the taxation and assessment of cemeteries in this state, not organized or maintained for private or corporate profit, is, in a sense, local to every city and county in the state, yet in the larger and fuller sense, considering the general sentiment of all civilized people that ground set apart for the burial place of the dead is sacred, it is a matter of state-wide importance and of governmental import, and not merely of local or municipal concern. Certainly in the absence of a specific contrary provision on the subject, this court should not hold that the people of the state did nor would consent that cemeteries in any part of the state should be subject to taxation or assessment.”

We draw from Denver v. Tihen, supra, that although the locality may possess a general power, nevertheless some aspect or part of it retains its identity as general and must give way to superior and dominant state-wide policy. An additional lesson to be derived from it is that the state can validly consent to local exercise of authority even though the subject is predominately state-wide.

Provident Loan Society v. City and County of Denver, 64 Colo. 400, 172 Pac. 10, is even clearer in its recognition that dual non-conflicting legislative authority is valid in areas where both the city and the state have interests. The legislative subject in that case was that of licensing and regulating pawnbrokers. An ordinance was upheld despite the fact the state had legislated on the subject. There, too, the supplemental authority of the city to act in dealing with its special problems was the determining factor. The Court’s reasoning appears in the following language:

“It is well settled that the mere fact that the state, in the exercise of the police power, has made certain regulations does not, however, prohibit a municipality from exacting additional requirements. So long as there is no conflict between the two and the requirements of the municipal by-law are not in themselves pernicious, as being unreasonable or discriminatory, both will stand. 19 R.C.L. 804, Sec. 110.”

And concluded at p. 405:

“The city has the power to legislate upon local and municipal matters. If, as contended by plaintiff in error, the business of pawnbroking is a matter of state-wide interest, this fact does not prevent such business from being also a matter of municipal interest. The preservation of the health, safety, welfare and comfort of dwellers in urban centers of population requires the enforcement of very different and usually much more stringent police regulations in such districts than are necessary in a state taken as a whole.”

See also Bay v. City and County of Denver, 109 Colo. 74, 121 P. (2d) 886, where the validity of local legislation regulating interest rates on small loans which conflicted with legislation enacted by the state was considered. It was held, of course, that in such circumstances the state statute must prevail. At the same time it was pointed out that conflict is the only reason for voiding such an ordinance. If the two legislative acts are consistent they can exist side by side. The language in the opinion of Mr. Justice Knous, which succinctly expounds this proposition, is quoted:

“Both parties agree, as is a fundamental principle, that an ordinance which is in conflict with a state law of general character and state-wide application is invalid. Glendinning v. Denver, 50 Colo. 240, 114 Pac. 652. See, also 37 Am. Jur., p. 787, §165; 43 C.J. 215, §219; McQuillin on Municipal Corporation (2d ed.) vol. 2, p. 697, §683, As the legal basis for its position the city cites that, in. considering the application of this fundamental principle, the courts many times have held the mere fact that the state in the exercise of its police power has made certain regulations, does not prohibit the municipality from exacting additional requirements (see Provident Loan Society v. Denver, 64 Colo. 400, 172 Pac. 10; 37 Am. Jur. 790, §165; 43 C.J. 219, 220, §220), and asserts that the reduced rates to be charged on small loans in Denver under the promulgations of the ordinance are no more than additional requirements to the coexisting prohibitions of the statute. * * *”

If an ordinance and a statute which do not conflict can coexist, it would follow that a city, acting with the express consent of the state, can legislate on a subject within the legitimate sphere of both its interest and that of the state. Clear recognition of this consent principle is apparent in McCormick v. City of Montrose, 105 Colo. 493, 99 P. (2d) 969, which upheld a local ordinance declaring house to house non-consentual peddling a nuisance (involving Real Silk Hosiery salesman). A state statute authorized towns and cities to declare nuisances and the question was whether the ordinance was within the terms of a legislative grant to the city. The Court decided that the city had the power to punish the proscribed conduct irrespective of whether it was properly classified as a nuisance. The pertinent language in the opinion of Mr. Justice Young recognized that a city may exercise legislative authority, even assuming that the subject had a state-wide aspect, at least until such time as the state preempts the field by expressly assert-ting its right to legislate to the exclusion of the home rule city. The Court said:

“* * * The Twentieth Amendment to the Constitution gives home rule cities the right to exercise police power as to local matters, possibly subject to the limitation that they may not exercise police power in such manner as to interfere with the state’s exercise of its police power where it has elected to deal with the same subject matter. Denver v. Tihen, 77 Colo. 212, 235 Pac. 777. But no conflict is here involved, and we need not and do not concern ourselves either with the existence of a limitation or its extent, if there is one. Whether there shall or shall not be soliciting in or upon private residences within the city, at least until the state has seen fit to exercise its police powers with reference to it, is a matter of local concern only. If the city has the power to penalize the conduct declared by the ordinance to be a nuisance, we think that it is immaterial that it provided that such conduct shall first be given the name of nuisance, which defendant contends is not, and which may not be in fact, a fitting name. The real question is whether the city has the power to punish the proscribed conduct not whether it has the right to name it.”

It seems clear then that the cases have not recognized exclusive spheres of activity whereby the authority of the state and the city must be meticulously separated and the respective powers so isolated as to involve the severe penalty of death to any ordinance which strays onto state soil. On the contrary, the Courts have sensibly recognized the practical impossibility of such divisions.

Third, the post-Merris cases have recognized that sometimes both the state and the city has a legitimate interest in the subject justifying legislation on the part of both. See, for example, City of Golden v. Ford, 141 Colo. 472, 348 P. (2d) 951, holding that the statutory town of Golden could not enact an ordinance against picketing because the state had asserted its power to legislate covering the entire field of labor disputes. Speaking through Mr. Justice Sutton, the Court said:

“* * * The ordinance in question, insofar as it deals with the conduct of parties to a ‘labor dispute’ is clearly an attempt to cover in a different and sometimes conflicting manner the same field as is covered by the ‘Labor Peace Act.’ As such, it must be held without force or effect.”

In Sierota v. Scott, 143 Colo. 248, 352 P. (2d) 671, the Court construed the terms used in granting authority to a municipality in determining whether it was acting within the power granted, and concluded that the ordinance there in question was outside the power granted by the General Assembly.

City of Aurora v. Mitchell, 144 Colo. 526, 357 P. (2d) 923, was also a preemption case. It recognized that a statutory city is entirely subject to statutory authorization. Davis v. City and County of Denver, 140 Colo. 30, 342 P. (2d) 674, considers in detail the validity of the consent principle now under discussion and declares that a state may grant legislative authority to a home rule municipality on a subject such as that now before us which has both general and local attributes.

III.

Proceeding on the premise that some subjects are neither strictly local nor exclusively state-wide and that the mutual exclusion doctrine is not applicable to these intermediate subjects, we turn to the next inquiry, i.e., whether gambling is to be fitted into one of the extreme categories or is a problem having both general and local interest.

Historically, gambling was not regarded as a matter subject exclusively to state regulation. See 4 Bacon’s Abridgement 450, where the history of gaming is outlined. See also Stuttfield, Laws on Betting (1899) 149. The Bacon text tells us that under the common law, in England at least, gambling was not always considered a crime. The following quotes demonstrate that gambling was certainly not a crime malum in se:

“It seems that by the common law, the playing at cards, dice &c., when practiced innocently and as a recreation, the better to fit a person for business, is not at all unlawful, nor punishable as any offence whatsoever.

* * *

“And although gaming, in the manner as has been said, may be lawful, yet if a person be guilty of cheating, as by playing with false cards, dice, &c., he may be indicted for it at common law, and confined and imprisoned according to the circumstances of the case and heinousness of the offence.

“Also, from the destructive and pernicious consequences which must necessarily attend excessive gaming, both the courts of law and equity have- shown their abhorrence of it. Hence in a case where A came to the house of B and won of him 900 £. which he carried away, and afterward won 1500 £. more, which he had in his possession, but which B and his servants took from him by violence, upon which A brought an action of trespass, the Court of Chancery granted an injunction.”

The prohibition or regulation of gambling was not considered the exclusive prerogative of the sovereign. Only the incidental consequences were regarded as anti-social and subject to prohibition, and the extent of common law prohibitions and sanctions is now uncertain. Therefore it differs from offences such as larceny, the prohibition of which was the exclusive province of the sovereign. Cf., the concurring opinion in Gazotti v. Denver, 143 Colo. 311, 352 P. (2d) 963. In the United States it appears from an examination of the texts that gambling has been regulated by both the municipalities and the states. See Rhyne, Municipal Law, 621, 622 and 24 Am. Jr., Gaming and Prize Contests, sec. 6 at 402. An observation appears in Provident Loan Society v. Denver, supra, showing the attitude of the Court toward the problem in the year 1918. The Court took it for granted that an ordinance such as that before us was feasible when it said:

“Thus, a municipal ordinance making it an offense to permit gaming in the place or house of any person is not invalid because the state had enacted a statute which prohibited such acts in public places. Greenville v. Kemmis, 58 S.C. 427, 36 S.E. 727, 50 L.R.A. 725. An ordinance declaring it unlawful for an automobile to be driven on public streets at a greater rate of speed than six miles per hour, was held not to be in conflict with a statute prohibiting the driving of automobiles ‘within the thickly settled or business portion of any city at a greater speed than twelve miles per hour.’ * * *”

The Greenville case, cited with approval above, held that a municipality could prohibit gambling even though the state had defined and prohibited the offense. It was said that the city was authorized by virtue of a charter provision allowing the city to pass ordinances necessary for securing the peace and good government of the city.

That the State of Colorado has depended upon the cities to adopt ordinances prohibiting and punishing gambling is disclosed not only by sec. 139-32-1 (52) but also by the fact that the state statute on this subject prescribes highly inadequate remedies. The minimum fine is $50.00, and the maximum $150.00. No jail sentences are prescribed. No doubt the professional gambler would submit without complaint to the payment of such a fine on a regular basis, regarding it as nothing more than a modest license fee, and would not be deterred by such penalties. This manifests clearly that the state has asserted no intent to preempt or monopolize this field.

Although the precise question before us has not been heretofore decided, our recent decisions do not disclose a tendency to treat it as one exclusively statewide or general. In Zerobnick v. Denver, 139 Colo. 139, 337 P. (2d) 11, the Court reviewed a conviction for gambling arising under a municipal ordinance and failed even to comment on its validity from the standpoint now being considered. So also in McIntosh v. City and County of Denver, 144 Colo. 59, 355 P. (2d) 97, involving a municipal ordinance relating to prostitution, the Court affirmed a conviction thereunder and again failed to comment on whether legislative jurisdiction to prohibit and punish prostitution (which for the present purpose is substantially similar to gambling) resided in the state or in the municipality. It must be conceded that gambling is a matter in which the state as a whole has a strong interest in regulating and perhaps prohibiting. On the other hand, it is idle to argue that such problems do not arise in the cities as a result of urban congestion, justifying local prohibition and penalties. Recognizing this dual interest, we are persuaded that the subject of gambling is not such that it must be categorized as either strictly local or strictly state-wide in nature.

IV.

The final question is whether the exercise of municipal jurisdiction, under the present circumstances, is valid. We have concluded that the subject is not one on which mutual exclusion operates, and further that the municipality has a sufficient interest to exercise jurisdiction in the absence at least of some state prohibition. Since the state has not asserted its authority so as to exclude the city as in Denver v. Tihen, supra, and has in fact manifested consent to the adoption of such an ordiance by 139-32-1 (52), it follows that the ordinance before us is a valid exercise of municipal authority.

It might be argued that the consent statute cited above applies to non-home rule towns and cities only. The cases do not hold to such a distinction. See McCormick v. City of Montrose, supra, wherein a home rule city adopted a prohibitory ordinance based upon a consent statute. Although the state statute there was less specific than here, the tenor of the McCormick case is approval of such authority. To hold that a statutory city has more power than a home rule city would be anomalous indeed. Yet a determination that gambling is statewide and that a home rule city is powerless to act in that field, at once recognizes the superiority of the statutory city over a charter city organized under the XXth Amendment.

V.

In holding that in limited circumstances the city can legislate on a subject also within the power of the state, in no way compromises the salutary holdings of the Merris case requiring criminal law safeguards to be observed in municipal prosecutions where counterpart statutes declare crimes. The mere fact that the city has the power to legislate does not mean that there could ever be recognition of dual sovereignty or double prosecutions. The Twentieth Amendment decisions such as in Durango v. Reinsberg, 16 Colo. 327, 26 Pac. 820; Huffsmith v. People, 8 Colo. 175, 6 Pac. 157 and Hughes v. People, 8 Colo. 536, 9 Pac. 50, are not hereby resurrected. This holding clearly recognizes, just as the General Assembly has recognized, that it is more practical for the city to prohibit and punish gambling within its borders than for the state to do so, and that those ordinances adopted with the consent or approval of the state are valid. The present determination that there is nothing basically invalid about legislation on the same subject, by both a home rule city and the state, does not effect the prohibition against double prosecution, nor does it undermine any basic safeguards.

It follows that sec. 821.1 of Denver, Colo. Rev. Municipal Code (1950), defining and punishing gambling, is a valid exercise of the municipal legislative authority, and that Denver was engaged in the valid legal exercise of its power and authority in prosecuting defendants pursuant to this ordinance.

Other errors urged by defendants, we consider unnecessary to discuss. A review of the record persuades us that defendants were afforded a fair and impartial trial and that no prejudicial error was committed.

The judgment is affirmed.

Mr. Justice Moore concurs in the result.

Mr. Justice Frantz and Mr. Chief Justice Hall dissent.