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Mosco v. Dunbar

Supreme Court of Colorado. En Banc
Apr 1, 1957
135 Colo. 172 (Colo. 1957)


banning automobile trading

Summary of this case from McGowan v. Maryland


No. 17,779.

Decided April 1, 1957. Rehearing denied April 29, 1957.

Declaratory judgment action to determine the validity of statute prohibiting the sale of automobiles on Sunday. From a judgment for defendants the plaintiffs bring error.


1. CONSTITUTIONAL LAW — Statutes — Validity — Presumption. It is elementary that every regularly adopted legislative act is presumed to be constitutional, and one attacking the validity thereof has the burden of showing its unconstitutionality beyond a reasonable doubt.

2. Federal Constitution — Fourteenth Amendment. The Supreme Court of the United States is vested with the final power to determine whether a law deprives a party of rights guaranteed by the Fourteenth Amendment.

3. STATUTES — Construction — Exceptions — Exclusions. The legislature may properly provide that farm tractors and other machines and tools used in the production, harvesting and care of farm products are not included in the definition of a motor vehicle as used in a Sunday closing law, such exclusion does not amount to an exception or render the statute indefinite.

Error to the District Court of Jefferson County, Hon. Martin P. Miller, Judge.

Messrs. MOSKO SLATKIN, for plaintiffs in error.

Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK E. HICKEY, Deputy, Mr. GEORGE O. PRIEST, District Attorney, First Judicial District, Pro Se and for Charles Foster and Carl Enlow, Sheriffs, defendants in error.


THIS matter is presented to this court on an agreed Statement of The Case, the pertinent provisions thereof being:

1. Plaintiffs in error, referred to herein as plaintiffs are engaged in the business of buying and selling motor vehicles, each is duly licensed as a motor vehicle dealer under C.R.S '53, 13-11.

2. Plaintiffs prior to April 8, 1955, had kept their places of business open on Sundays and desire to continue so to do.

3. The Fortieth General Assembly of the state of Colorado enacted a statute known as House Bill No. 45, effective April 8, 1955, now C.R.S. '53, 13-20-1, et seq., in words as follows:

"Section 1. — Definitions — The term 'motor vehicle' as used in this act shall mean every vehicle intended primarily for use and operation on the public highways, which is self-propelled; and every vehicle intended primarily for operation on the public highways which is not driven or propelled by its own power, but which is designed either to be attached to or become a part of a self-propelled vehicle; but not including farm tractors and other machines and tools used in the production, harvesting and care of farm products.

"Section 2. — Sunday closing — No person, firm or corporation, whether owner, proprietor, agent or employee, shall keep open, operate or assist in keeping open or operating any place or premises or residences whether open or closed, for the purpose of selling, bartering or exchanging, or offering for sale, barter or exchange, any motor vehicle or motor vehicles, whether new, used or second hand, on the first day of the week, commonly called Sunday; and provided, however, that this act shall not apply to the opening of an establishment or place of business on the said first day of the week for other purposes, such as the sale of petroleum products, tires, automobile accessories, or for the purpose of operating and conducting a motor vehicle repair shop, or for the purpose of supplying such services as towing or wrecking.

"Section 3. — Penalties — Any person, firm, partnership, or corporation who violates any of the provisions of this act shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than seventy-five dollars ($75.00) nor more than one thousand dollars ($1,000.00), or by imprisonment in the county jail for a period not to exceed six months, or the court, in its discretion, may suspend or revoke the Colorado Motor Vehicle Dealer's License issued under the provisions of Article II of Chapter 13, Colorado Revised Statutes 1953, or by such fine and imprisonment and suspension or revocation.

"Section 4. — Safety Clause — The General Assembly hereby finds, determines and declares that this act is necessary for the immediate preservation of the public peace, health and safety."

4. Plaintiffs contend that said House Bill No. 45 is unconstitutional and void; defendants contend that it is constitutional. The parties pray for a declaratory judgment resolving this constitutional question.

5. Plaintiffs contend that House Bill No. 45 is in contravention of:

(a) Article 5, Section 25 of the Colorado Constitution.

(b) Article 14, Section 1 of the Amendments to the Constitution of the United States.

6. The trial court found House Bill No. 45 constitutional.

It is elementary that every regularly adopted legislative act is presumed to be constitutional, and that one attacking the validity thereof has the burden of showing it unconstitutional beyond a reasonable doubt. Rinn v. Bedford, 102 Colo. 475, 84 P.2d 827; Eachus v. People, 124 Colo. 454, 238 P.2d 885; Heitsch v. Kavanagh (Mich.), 200 F.2d 178, cert. denied 345 U.S. 939, 97 L. Ed. 1365.

Under our system of government only the legislature can enact laws and it is the legislature's right and duty to determine what laws are desirable. It is well established by an unbroken line of decisions of this court, as well as of the Federal courts, that it is within the exclusive province of the legislature to determine the necessity, expediency, wisdom, fairness and justice of the law enacted.

The rule is well stated by Justice Moore in Barbers Union v. Industrial Commission, 128 Colo. 121, 260 P.2d 941:

"* * * In the construction of statutes courts are not guardians of the rights of the people except as those rights are secured by constitutional provision, and if a statute does not offend the constitution it is the duty of courts to carry it into execution according to its intent and purpose. 'We cannot pass upon its expediency or policy; those are questions upon which the legislature has passed, and its judgment cannot be reviewed by the Courts.' People ex rel. v. Fleming, 10 Colo. 553, 16 Pac. 298."

In Heitsch v. Kavanagh, supra, the court uses the following language:

"It was within the power of Congress to tax both gifts and estates and its motives are not open to judicial scrutiny * * *. The motives of Congress in enacting laws are beyond the scope of judicial inquiry for the purpose of questioning such legislation. The burden is upon one who attacks the constitutionality of a statute, and the presumption is in favor of constitutionality."

Plaintiffs contend that the statute under attack is in contravention of Art. XIV, section 1 of the Amendments to the Constitution of the United States, which section provides:

"Citizenship defined — privileges of citizens. — All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

This contention is clearly without merit. The Supreme Court of the United States, vested with the final power to determine whether a law deprives a party of rights guaranteed by the 14th Amendment, has on numerous occasions ruled contrary to counsel's contentions.

In Petit v. Minnesota, 177 U.S. 164, 20 S. Ct. 666, 44 L.Ed. 716, the Supreme Court of the United States passed on the question raised by counsel in this case. A Minnesota statute prohibited any person from keeping open a barber shop on Sunday. Petit had been convicted of violation of the statute. The United States Supreme Court affirmed the conviction and said:

"The court pointed out that the law did not forbid a man shaving himself or getting someone else to shave him, but the keeping open a barber shop for that purpose on Sunday; that the object mainly was to protect the employees by insuring them a day of rest; and said: 'Courts will take judicial notice of the fact that, in view of the custom to keep barber shops open in the evening as well as in the day, the employees in them work more, an during later, hours than those engaged in most other occupations, and that this is especially true on Saturday afternoons and evenings; also that, owing to the habit of so many men to postpone getting shaved until Sunday, if such shops were to be permitted to be kept open on Sunday, the employees would ordinarily be deprived of rest during half of that day."

In Noble State Bank v. Haskell, 219 U.S. 104, 31 S. Ct. 186, 55 L. Ed. 112; on rehearing 219 U.S. 575, 31 S. Ct. 299, 55 L. Ed. 341, the court passed upon the constitutionality of an Oklahoma statute requiring all state banks to pay 1¢ of their average daily deposits into a depositors guaranty fund to secure full payment of all deposits in all state banks. Noble State Bank, without success, attacked this law in the Oklahoma courts on the ground that it contravened several provisions of the Constitution of the State of Oklahoma and on the further ground that it was in violation of the 14th Amendment. Justice Holmes, in holding the legislation free of constitutional inhibitions, said:

"It may be said in a general way that the police power extends to all the great public needs. Camfield v. United States, 167 U.S. 518. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.

* * *

"* * * We cannot say that the public interests to which we have adverted, and others, are not sufficient to warrant the state in taking the whole business of banking under its control. On the contrary, we are of opinion that it may go on from regulation to prohibition except upon such conditions as it may prescribe. In short, when the Oklahoma legislature declares by implication that free banking is a public danger, and that incorporation, inspection, and the above-described co-operation are necessary safeguards, this court certainly cannot say that it is wrong. * * *"

On petition for rehearing Justice Holmes, by way of clarification, made the following observations:

"* * * We fully understand the practical importance of the question, and the very powerful argument that can be made against the wisdom of the legislation, but on that point we have nothing to say, as it is not our concern. * * * The propositions with regard to it, however, in any form, are rather in the nature of preliminaries. For in this case there is no out-and-out unconditional taking at all. The payment can be avoided by going out of the banking business, and is required only as a condition for keeping on, from corporations created by the state. * * *"

When and if plaintiffs' contentions are presented to the United States Supreme Court, the last quotation from Justice Holmes, properly paraphrased, might well be the comfortless answer to plaintiffs' contentions that they are being deprived of rights guaranteed by the 14th Amendment.

The Supreme Court of the United States in Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 75 S. Ct. 461, 99 L. Ed. 563, decided March 28, 1955, fourteen days prior to the effective date of House Bill No. 45, seventeen days prior to the inception of this litigation, in a broad and far-reaching decision, without any dissent, answers plaintiffs' contentions in the following language;

"The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may by unwise, improvident, or out of harmony with a particular school of thought * * *. We emphasize again what Chief Justice Waite said in Munn v. State of Illinois, 94 U.S. 113, 134, 24 L. Ed. 77, 'for protection against abuses by legislatures the people must resort to the polls, not to the courts.'"

Plaintiffs in their brief as grounds for holding House Bill No. 45 unconstitutional, state:

"The statute is void because it does not uniformly require closing on Sunday by all persons in a certain business."

In other words plaintiffs contend that this is class legislation prohibited by Article 5, section 25, Colorado Constitution, which provides:

"Special legislation prohibited. — The general assembly shall not pass local or special laws in any of the following enumerated cases, that is to say; for granting divorces; * * *. In all other cases, where a general law can be made applicable, no special law shall be enacted."

Complete answer to plaintiffs' contention is found in Rosenbaum v. Denver, 102 Colo. 530, 81 P.2d 760, in which this court held that an ordinance of the City of Denver, in words almost identical with the wording of House Bill No. 45, certainly containing no substantial difference, was valid and not in contravention of the State or Federal Constitutions.

Justice Knous delivered the opinion of the Court, with only Justice Bouck, for unexpressed reasons, dissenting. At pages 533 and 534 of the opinion appears the following:

"This leaves as the only matter remaining for consideration the question of whether or not the ordinance violates section 25, article V of the state Constitution because it is class or special legislation. * * *

* * *

"The inhibition against class legislation in Sunday regulations arises when the effect of the law is to prohibit a carrying on of a legitimate business or occupation while allowing other businesses or occupations not reasonably to be distinguished from those prohibited to be carried on freely. Denver v. Bach, 26 Colo. 530, 58 Pac. 1089.

"It is to be observed that the ordinance before us applies alike to all those who are engaged in selling, bartering or exchanging new, used or secondhand motor vehicles. At least, so far as the record discloses, the business of selling automobiles new or secondhand is as particular and distinct as the business of barbering. It is reasonably to be distinguished from all other businesses and no general merchandising business is competitive as against it.

"No showing is made, nor is it suggested, that by virtue of exceptions in the ordinance under consideration or any other ordinance of the city of Denver is it lawful for any person to sell motor vehicles of any type in Denver on Sunday. By this circumstance any charge of discrimination, a characteristic of class or special legislation, is eliminated."

Rosenbaum v. Denver, supra, was decided July 11, 1938. It is common knowledge that since that date the automobile business has expanded, grown and developed until as of April 8, 1955, it is difficult to conceive of any individual, group of individuals, corporation, private or municipal, State or Nation, that has not felt the impact of the automobile industry.

The first legislation in Colorado touching on automobiles was by the Seventeenth General Assembly in 1909. That Assembly provided the first Colorado legislative definition of an automobile as follows:

Chapter 137, Session Laws 1909.

"Section 1. For the purpose of this act the term 'automobile' shall be held to embrace and mean and is hereby defined to mean any vehicle driven by motive power other than animal power or motive power supplied solely by the muscular exertion of a human being."

Section 2 of the act provided punishment for any person who shall, "tamper with * * * enter upon and start in motion * * * any automobile without the knowledge and consent of the owner * * *."

A modest beginning. Not until 1913 did the legislature impose any restrictions upon the ownership or use of automobiles. Since 1917 every General Assembly of the State of Colorado has enacted legislation affecting automobiles or motor vehicles. The Fortieth General Assembly (1955) not only enacted House Bill No. 45 but also enacted fifteen additional bills touching on some branch of the motor vehicle business or the use of motor vehicles.

Today the automobile has become a definite and well-established part of our way of life; its use, operation, manufacture, sale, license, registration, taxation, insurance, theft and many other related matters have received special legislative recognition and attention. Certainly the legislature has treated the motor vehicle business as a special type of business. The public has accepted it as such. Were we to hold that it is arbitrary and unreasonable action on the part of the legislature to place motor vehicle dealers in a classification separate and apart from merchants in general, it would be to close our eyes to reality. March of time and events subsequent to Rosenbaum v. Denver, supra, only serve to confirm the correctness of that decision.

Gundaker Central Motors, Inc. v. Gassert, et al, (N.J.) 127 A.2d 566, decided December 17, 1956, holds that a statute of the State of New Jersey prohibiting the sale of new or used cars on Sunday was not in contravention of the New Jersey Constitutional provisions or due process as defined by the U.S. Construction.

Vanderbilt, C.J., in his opinion, used the following language:

"The State has the power, in the interests of the common good, to enact all manner of laws reasonably designed for the protection of the public health, welfare, safety and morals. The exercise of the power may cause individual hardship, or even limit the freedom of individual action; but so long as there is some degree of reasonable necessity to protect the legitimate interests of the public, and the regulation resulting from the use of the power is not arbitrary or oppressive, the greater good for the greater number must prevail and individual inconveniences must be suffered as the price to be paid for living in a well-ordered society. * * *

* * *

"Accordingly, the constitutional guarantees of due process and equal protection are elements to be accounted for in the exercise of the State's police power; they are not elements that in any way limit the subjects over which the State may exercise its power, but elements which condition the exertion of that power by their fundamental demands. * * *

* * *

"Moreover, 'equal protection of the laws,' which demands that all persons similarly situated be dealt with alike, is accomplished by the avoidance of 'arbitrary discrimination between persons similarly circumstanced,' Id., 9 N.J. at page 418, 88 A.2d at page 613. Thus, legislation that treats all persons within a class reasonably selected for regulation in a like or even merely in a similar manner, satisfies the mandates of the State and Federal Constitutions. * * *

* * *

"While a measure grounded in the exercise of the police power must tend to accomplish the basic purpose of its enactment, a large measure of discretion is vested in the Legislature to determine not only what regulations are necessary to protect the public good and welfare but also the appropriate means of accomplishing these ends. Its wisdom or the means selected are not subject to review or interference by the courts except in the protection of fundamental constitutional rights, * * *

"Consequently, it is the duty of this court to uphold legislation unless there is no room for doubt as to its violation of constitutional provisions, * * *

"The statutes in question here apply to all automobile dealers within the State, without distinction as to class, type, location or otherwise. All are required to close. Fundamentally then, they satisfy the initial inquiry as to equal protection. No economic advantage can be gained by any one within this State by reason of the Sunday regulation because no persons other than those covered by the enactments can engage in the business of selling motor vehicles, R.S. 39:10-19, N.J.S.A. Thus, all motor vehicle dealers are protected in their business and no substantial loss of revenues can result where the product they deal in is unobtainable elsewhere within the State. The cars that would be sold on Sunday will now be sold on the other days in the week and probably to the same prospective purchasers.

"The fact that the sale of motor vehicles is singled out for legislative treatment is no ground for complaint if there is any reasonable basis for such action, Washington National Insurance Co. v. Board of Review, 1 N.J. 545, 64 A.2d 443 (1949); Jamouneau v. Harner, 16 N.J. 500, 109 A.2d 640 (1954) certiorari denied 349 U.S. 904 75 S. Ct. 580. 99 L. Ed. 1241 (1955); Guill v. Mayor and Council, of City of Hoboken, supra, 21 N.J. 583, 122 A.2d 881 (1956). And there is reasonable basis if the buying and selling of motor vehicles on Sunday has effects inimical to the public good and welfare. Under the police power 'the State may protect its citizens from physical and moral debasement which comes from uninterrupted labor'; see State v. Fair Lawn Service Center. Inc., supra, 20 N.J. 468, 474, 483, 120 A.2d 233, 241 (1956)."

In McClelland v. The City of Denver, 36 Colo. 486, 86 Pac. 126 this court held an ordinance of the City of Denver requiring all barber shops to close on Sunday was valid and did not deprive barbers of any constitutional rights.

Plaintiffs as a final contention claim that House Bill No. 45 is void, "for the reason that it unduly prefers a dealer in motor vehicles used for one purpose over the identical vehicles used for another purpose."

In support of this contention counsel points out that House Bill No. 45 covers all self-propelled vehicles intended primarily for use on the public highways and in the same section there is excepted from the operation of the act farm tractors and other machines and tools used in the production, harvesting and care of farm products. The contention is novel but abortive. Nothing is excepted from the operation of the act; its definition of a motor vehicle in section 1 of the act is in clear and concise language. The fact that such definition states that motor vehicle as defined does not include farm tractors and other machines and tools used in the production, harvesting and care of farm products does not create an exception or render the statute indefinite or present any added problem of interpretation. The fact that the statute expressly states that it does not prohibit keeping open for "other purposes" creates no ambiguity. These are only statements of the obvious.

Section 2 of the act provides:

"No person * * * shall keep open * * * any place * * * for the purpose of selling * * * any motor vehicles, whether new, used or second hand, on * * * Sunday."

There are no provisos or exceptions in House Bill No. 45. The alleged ambiguities and exceptions are more imaginary than real.

The finding and determination of the trial court that House Bill No. 45, being Chapter 81 of the 1955 Session Laws of the state of Colorado, does not offend against the constitutional provisions mentioned was correct.

The judgment is, therefore, affirmed.

MR. JUSTICE FRANTZ specially concurs.


Summaries of

Mosco v. Dunbar

Supreme Court of Colorado. En Banc
Apr 1, 1957
135 Colo. 172 (Colo. 1957)

banning automobile trading

Summary of this case from McGowan v. Maryland

Dissenting Opinion

Summary of this case from Tinder, Pros. Atty. et al. v. Clarke Auto Co., Inc.
Case details for

Mosco v. Dunbar

Case Details


Court:Supreme Court of Colorado. En Banc

Date published: Apr 1, 1957


135 Colo. 172 (Colo. 1957)
309 P.2d 581

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