City of Canon City v. Merris

Mr. Justice Moore

specially concurring:

The opinion of the court in this case is of utmost importance and will probably have a direct impact upon more citizens than any decision handed down within the past generation. The importance of the case is such that I desire my own views to be clearly expressed and I therefore file this specially concurring opinion.

The plain meaning of the constitutional provisions applicable to the controversy must be given their controlling effect. I shall quote from the constitution the pertinent language in the order in which it appears in Article XX, Section 6 under the caption “Home rule for cities and towns.”

First it is provided that:

“The people of each city or town of this state, having a population of two thousand inhabitants as determined *183 by the last preceding census taken under the authority of the United States, the state of Colorado or said city or town, are hereby vested with, and they shall always have, power to make, amend, add to or replace the charter or said city or town, which shall be its organic law and extend to all its local and municipal matters.”

By this language the city is vested with power to create its “organic law” the charter, and to amend, add to or replace it. We must however remember at all times that the power thus vested to create “organic law” in the form of charter provisions is expressly limited “to all its local and municipal matters.” No power whatever is given to adopt charter provisions dealing with matters of statewide concern.

Second, it is provided by the constitution that:

“Such charter and the ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict therewith.” This language, with the utmost certainty, limits the legislative powers of the city to matters that are of “local and municipal” concern as distinguished from those of general or statewide reference.

Third: The constitution then provides that the home rule city shall have “* * * all other powers, necessary, requisite or proper for the government and administration of its local and municipal matters, including power to legislate upon, provide, regulate, conduct and control: * * *” (Emphasis supplied.) (Here follows certain identified areas of legislative action all of which are well within the coverage of the term “local and municipal matters.”) This language serves to re-emphasize the limitations upon municipal legislative power to purely “local and municipal matters.” Included within the mentioned powers we find under subsection (h) the authority of the city to legislate in, “The -imposition, enforcement and collection of fines and penalties for the violation of any of the provisions of the charter, or of *184 any ordinance adopted in pursuance of the charter.” It is clear that no fine or penalty could be imposed, enforced or collected by the city for an asserted violation of a purported ordinance which did not concern a “local or municipal matter.”

Fourth — it is next provided by the constitution that:

“It is the intention of this article to grant and confirm to the people of all municipalities coming within its provisions the full right of self-government in both local and municipal matters and the enumeration herein of certain powers shall not be construed to deny such cities and towns, and to the people thereof, any right or power essential or proper to the full exercise of such right.”

Here again definite emphasis is given the limitations placed upon the delegated legislative power to “local and municipal matters.”

Fifth —the constitution 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.”

The meaning of this language is plain. There is no room for strained construction. The effect of it is that until such time as a home rule city enters a given field of legislative enactment by a proper exercise of the delegated legislative power, the applicable law of the state shall govern. If the state law is to be rendered ineffective within the city limits on a matter which is “local and municipal” the city council can adopt an ordinance which thereupon “supersedes” the state law within the city limits. By no stretch of the imagination can this constitutional provision be held to warrant the adoption of a city ordinance on a matter which is of general or statewide concern as distinguished from a “local or municipal matter.”

*185 Sixth, and of the utmost importance, it is provided by the constitution that:

“Any act in violation of the provisions of such charter or of any ordinance thereunder shall be criminal and punishable as such when so provided by any statute now or hereafter in force.” (Emphasis supplied.) This provision never has been mentioned in any of the several cases, decided by this court, which have considered the nature of a prosecution for the violation of a municipal ordinance.

When the fundamental law of the state, which takes precedence over all acts of the city council, states in plain English that conduct which violates a particular city ordinance “shall be criminal and punishable as such,” by what authority is this or any other court to decree that the alleged violation shall be deemed a civil action, not criminal, and shall be punishable under rules applicable to civil cases and not under procedures governing criminal cases? How can an illegal act be punishable, as a criminal act is punishable, when all the protections afforded one accused of a “criminal” act are denied to the accused upon his trial for an alleged violation of the ordinance based upon conduct which the constitution says must be held to be “criminal”?

I hold that this portion of the constitution amounts in substance to a reaffirmance of the Bill of Rights. It recognizes that any person who is accused of committing an act, which is a crime under the general law of the state, is entitled to be tried before a jury for that alleged offense under the time honored and well established rules applicable to criminal cases. It means that a person who is alleged to have committed the same act within the boundaries of a home rule city cannot be deprived of the basic protections guaranteed by the Bill of Rights simply because the effort to subject him to fine or imprisonment takes the form of an alleged violation of a city ordinance.

In every prosecution by a home rule city, in a munici *186 pal court, for the purpose of assessing a fine or adjudging a sentence of imprisonment for an alleged violation of an ordinance there is at once presented the question as to whether the ordinance was one dealing with a “matter of local and municipal” concern and thus within the power of the city council to enact. If the ordinance in question purports to impose fines or imprisonment for conduct which is of statewide concern and which is not a “local or municipal matter,” the ordinance is void and unenforceable in any court.

The second question which presents itself in proceedings to collect fines and impose penalties for alleged violation of such municipal ordinances is no less important. I state it thus: Where the ordinance in question is admittedly one which concerns a “local and municipal matter”; where the conduct which allegedly violates the city ordinance would subject the accused to criminal prosecution under the statutory law of the state, if committed outside the city; can the offender be tried in the municipal court and thereby be deprived of any rights to which he would be entitled in the trial of a criminal case? This question requires an emphatic negative answer. In such a case the state law is inoperative within the home rule municipality. It has been “superseded” therein by the adoption of an ordinance relating to a “local and municipal matter.” The prosecution in the municipal court is the only lawful one to be had. A prosecution in the state court could not be sustained for the reason that the state law has been “superseded” within the municipality. The constitution provides however that the proceedings at the municipal court level shall continue to be “criminal and punishable as such.” This positive language cannot be construed to mean that the proceedings shall be considered civil in nature and /prosecutions thereunder governed by the rules applicable to 'civil cases.

By constitutional definition the alleged act of the accused in the instant case was “criminal and punishable *187 as such.” Article II, Section 16 of the Constitution of Colorado provides:

“In criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.”

Even assuming that the ordinance was enacted in connection with a “local and municipal matter” and that the municipal court had jurisdiction to try the case, the defendant could not be deprived of these basic rights.

There is yet another firm ground upon which the affirmance of the judgment is imperative. The prohibition against driving an automobile under the influence of intoxicating liquor is not a “local or municipal matter.” It is a matter of greatest concern to every citizen of the state. It is of statewide importance and is covered by statutes of statewide application. The only courts empowered to conduct prosecutions for this type of offense are the courts of the state. The home rule cities have not been delegated the power to legislate in this matter of statewide concern.

I deem it to be the duty of this court to breathe life and vitality into the constitutions of the state and the nation, to the end that they shall in a practical way accomplish for the individual the objectives intended by the people who adopted them as the supreme law of the land. I am not interested in mental gymnastics, the purpose of which is to search for some plausible excuse for holding a constitutional provision to be an empty shell when resorted to by one for whose benefit the provision was unquestionably intended.

The danger which threatens our democratic processes does not stem from the actions of appellate courts which give strength, vitality and new life to constitutional *188 provisions. The danger is that all too often courts of last resort fritter away constitutional protections, and little by little destroy the basic freedoms of which we speak so often and which we actually apply too seldom in bringing them within the reach of the citizen.

Article XX of the Colorado Constitution was not intended to repeal the Bill of Rights, or any part thereof. A practice, even though long continued, under the purported authority of a municipal ordinance, cannot prevail over the constitutional right of one threatened with fine or imprisonment to be tried under the minimum safeguards provided by the Bill of Rights and under procedures which measure up to the requirements of due process of law.