Gazotti v. City and County of Denver

Mr. Justice Moore

delivered the opinion of the Court.

An ordinance of the City and County of Denver provides that:

“It shall be unlawful for any person to take and carry away or to attempt to take and carry away, with intent to steal or purloin or convert to his own use or possession, anything of value to the owner.”

Gazotti, plaintiff in error, was found guilty of a violation of this ordinance, in the municipal court of the City and County of Denver. On appeal to the Superior Court the same result obtained and he was sentenced to a term in the county jail. He filed a motion to dismiss the action in the lower court, and among the grounds upon which the motion was based we find the following:

“A. This Court lacks jurisdiction over the person of the defendant and the subject matter of the action.

“B. The ordinance under which defendant is being tried is unconstitutional on its face and as sought to be applied to defendant in that:

“1. There exists a Colorado State Statute punishing the same conduct.

“2. The ordinance defendant is being tried under authorizes imprisonment as punishment and deprives def endant of his rights to due process.

“3. The conduct prohibited by said ordinance is of statewide concern.”

The trial court denied the motion to dismiss and submitted the case to a jury which returned a verdict of guilty, and the aforementioned judgment was entered. Gazotti, seeking review of the judgment, brings the cause here by writ of error.

QUESTION TO BE DETERMINED

Does a Home Rule city have the power to adopt and enforce in its municipal courts, an ordinance providing that: “It shall he unlawful for any person to take and carry away or to attempt to take and carry away, with intent to steal or purloin or convert to his own use or possession, anything of value to the owner.”?

The question is answered in the negative. It is clear that the subject of larceny is not a matter of local or municipal concern over which the City and County of Denver can exercise jurisdiction by virtue of provisions of Article XX of the Constitution of Colorado. The statute of the state defining the crime of larceny is in part as follows: (C.R.S. ’53, 40-5-2)

“Larceny is the felonious stealing, taking and carrying, leading, riding or driving away the personal goods or chattels of another. Larceny shall embrace every theft which deprives another of his money or other personal property, or those means or muniments by which the right and title to property, real or personal, may be ascertained * *

That section also provides that if the value of the property stolen or removed exceeds $50.00, then the same shall constitute grand larceny, and provides a penalty for such by confinement in the penitentiary for a term not less than one year nor more than ten years. It also provides that where the article stolen or removed does not exceed the value of $50.00, punishment therefor shall not exceed $300.00 or imprisonment at hard labor for a term not exceeding six months, or by both such fine and imprisonment.

C.R.S. 1953, 40-5-21, provides that larceny under $50.00 shall constitute a misdemeanor.

In recent opinions of this court we have discussed at length the issue of law involved in this case. Our opinions in Canon City v. Merris, 137 Colo. 169, 323 P. (2d) 614; Geer v. Alaniz, 138 Colo. 177, 331 P. (2d) 260; Zerobnick v. Denver, 139 Colo. 139, 337 P. (2d) 11; Davis v. City and County of Denver, 140 Colo. 30, 342 P. (2d) 674; and City and County of Denver v. Pike, 140 Colo. 17, 342 P. (2d) 688, point inescapably to the conclusion that the subject of the ordinance involves a matter of statewide concern covered by a state- statute as distinguished from a matter of local and municipal concern.

Our conclusion on the controlling question being decisive of the case, it becomes unnecessary to consider other matters relied on for reversal.

The judgment is reversed and the cause remanded with directions to dismiss the action.

Mr. Justice Hall and Mr. Justice Doyle specially concur.

Mr. Justice Knauss dissents.