Hurst, Harold E.

English

University of Denver

Denver Law Review Volume 38 Issue 3 Article 2 April 2021 One Year Review of Constitutional and Administrative Law Harold E. Hurst Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Harold E. Hurst, One Year Review of Constitutional and Administrative Law, 38 Dicta 154 (1961). This Article is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. MAY-JUNE, 1961ONE YEAR REVIEW OF CONSTITUTIONALAND ADMINISTRATIVE LAWBy HAROLD E. HURST*A great many constitutional law, and relatively few administra-tive law, decisions were handed down by the Colorado SupremeCourt in 1960. Only those decisions of major and current impor-tance are discussed here.I. CONSTITUTIONAL LAWA. Sovereign Immunity of the State from SuitThat a person who deals with the state in a contractual orquasi-contractual situation may recover against the state for dam-ages resulting from breach of contract seems to be settled in Colo-rado.' The theory applied in actions in contract brought against thestate was, in Ace Flying Serv., Inc. v. Colorado Dep't of Agricul-ture,2 that the state, in entering into a contractual relationship, im-pliedly waived its immunity from suit. However, in the Ace FlyingServ. case, a concurring opinion of Mr. Justice Moore argues atgreat length and in eloquently sweeping passages, that "Whatevermay have been the rule heretofore, I am of the firm opinion thatany citizen may resort to litigation to protect his life, liberty orproperty even though his adversary be the sovereign state of Colo-rado. The constitution cannot be so nullified as to permit the stateto deprive a citizen of 'property' without due process of law."'3 Someof the language in Mr. Justice Moore's concurring opinion is singu-larly reminiscent of language in the majority opinion of Boxberger.It is important to note, in analyzing cases decided in 1960, thatMr. Justice Moore held the opinion in Ace Flying Serv., Inc. thatsovereign immunity has never been a part of Colorado law and thatthe Colorado constitution was so written that every person wouldhave his day in court "even though his adversary be the sovereignstate of Colorado." He arrived at that conclusion by employing thefollowing language:It is a historical fact, that when the constitution of theState of Colorado was adopted it was patterned largelyupon the constitution of the State of Illinois. The constitu-tion of that state then, and even now, contains a provisionas follows:"The state of Illinois shall never be made defendant inany court of law or equity."That a similar provision was not incorporated in theColorado Constitution, although present in the instrumentwhich unquestionably was used as a model, is persuasiveevidence that the doctrine of sovereign immunity was dis-carded by its framers .... 4Shortly after Ace Flying Serv., Inc., the court was called upon*Professor Hurst is Acting Dean of the University of Denver College of Law.1 Boxberger v. State Highway Dep't, 126 Colo. 438, 250 P.2d 1007 (1952); see also Ace FlyingServ., Inc. v. Colorado Dep't of Agriculture, 136 Colo. 19, 314 P.2d 278 (1957).2 136 Colo. 19, 314 P.2d 278 (1957).3 Id. at 31, 314 P.2d at 284.4 Id. at 33, 314 P.2d at 285.DICTAMAY-JUNE, 1961to decide whether the sovereign immunity of the state preventedrecovery in Colorado Racing Comm'n v. Brush Racing Ass'n5 of thebreakage, which had been paid under protest to the state and whichwas held, in an earlier decision, Centennial Turf Club v. RacingComm'n,6 to be the property of the racing organization. The ques-tion there was whether, under the parimutuel racing act,7 thebreakage belonged to the state or to the track. The court foundnothing in the act which required the payment of the breakage tothe state, and consequently the license of Centennial Turf Club toconduct parimutuel betting seems not to have been conditionedupon payment of the breakage to the state.Relying upon Centennial, the plaintiff in Brush Racing Ass'nsought to recover payments of breakage which it had made in pastyears to the state. Again it is important to note, in analyzing the1960 decisions, that neither Centennial nor Brush Racing Ass'n canbe considered as cases based upon claims sounding in contract. Butin the latter case, judgment for the association was affirmed by thecourt in an opinion by Mr. Justice Hall without dissents or non-participants which said:Counsel for the State vigorously urge the doctrine thatColorado cannot be sued in its sovereign capacity, that theState enjoys sovereign immunity from suit, and cite num-erous decisions of this Court so holding. The cases reliedupon are outmoded by more recent pronouncements of this5 136 Colo. 279, 316 P.2d 582 (1957).6 129 Colo. 529, 271 P.2d 1046 (1954).7 Colo. Rev. Stat. § 129-2-9 (1953).COEFFICIENT OF FRICTION TEST?One of the easiest ways to establish excessive speed of a skid-ding automobile is by the Coefficient of Friction Test. Thenew Am Jur PROOF OF FACTS explains it, shows you howto use it. Covering hundreds of "everyday" yet difficult sub-jects, PROOF OF FACTS helps you get facts across to ajury. Elements of Proof show what to prove. Elements ofDamages help your client get a fair settlement. Detailedquestions and answers help you examine witnesses.Test PROOF OF FACTS in your own office. Order volumes8, 9, and 10 for 30 days' free examination.BANCROFT-WHITNEY CO. BENDER-MOSS CO.San Francisco 1, California 1 3 5 5 M a r k e t S t r • e tMcAllister & Hyde Streets San Francisco 3, CaliforniaAComa 2-2194DICTAMAY-JUNE, 1961Court. In Colorado "sovereign immunity" may be a propersubject for discussion by students of mythology but findsno haven or refuge in this Court. Boxberger v. HighwayDept., [citation] . . . squarely in point and is a completeanswer to the State's archaic contention.8With that language, Pandora's box was opened, and small won-der. The sweep of the language adopted by a unanimous court inBrush Racing Ass'n was so broad as to admit of no exceptions orlimitations. Sovereign immunity was dead. The natural and prob-able result was the filing of numerous actions against municipali-ties, counties and the state to recover damages for personal injuriesalleged to have been the result of tortious acts of governmentalservants.Five such cases were decided by the Supreme Court in 1960,and astonished counsel and disappointed litigants discovered thata part, at least, of the doctrine of sovereign immunity had somehowbeen resurrected.The first of such cases, Denver v. Madison,9 reversed a judg-ment of the district court for the City and County of Denver infavor of an infant who had been found by the district court to havebeen seriously and permanently injured as a result of the negli-gence of employees of the local city hospital. The reversal was or-dered by a majority of four of the seven justices, invoking the rule:Very firmly settled in the law of this state is the rulethat a municipality is not liable for the acts of officers,agents or employees, committed by them in the dischargeof functions or duties which are governmental in natureand which are "exercised in virtue of certain attributes ofsovereignty delegated to it for the welfare and protectionof its inhabitants.' 10Counsel for the p!aintiff had relied upon the earlier cases" inwhich there was not a whisper of limitation in the eloquently eu-logized demise of sovereign immunity. But, said the court: "Therule announced in those cases has no application to actions ex de-licto." The court added that Ace Flying Serv., Brush Racing Ass'nand Stone v. Currigan12 were cases "in which the doctrine of sov-ereign immunity from suit in actions sounding in contract was re-pudiated." By what strained construction Brush Racing Ass'n wasconverted into an action "sounding in contract" we are not told.In a second hotly contested case, Liber v. Flor,13 the SupremeCourt divided again in a four to three decision in affirming a judg-ment of the trial court dismissing an action against a county fordamages allegedly resulting from tortious acts of county employees.The court, in affirming, stated its reason as follows:This court has not heretofore held that the state is lia-ble in damages for the negligence of its servants; nor hasit been held that other governmental corporate entities are8 136 Colo. 279, 284. 316 P.2d 582, 585 (1957).9 351 P.2d 826 (Colo. 1960).10 Id. at 829.11 Ace Flying Serv., Inc. v. Colorado Dep't of Agriculture, 136 Colo. 19, 314 P.2d 278 (1957);Colorado Racing Comm'n v. Brush Racing Ass'n, 136 Colo. 279, 316 P.2d 582 (1957); and Stone v.Currigan, 138 Colo. 442, 334 P.2d 740 (1959).12 Stone v. Currigan, 138 Colo. 442 ?34 P.2d 740 (1959).13 353 P.2d 590 'Colo. 1960).DICTAMAY-JUNE, 1961liable for the tortious acts of their servants performingduties in furtherance of a governmental function, as distin-guished from a proprietary function. Numerous decisionsof this court have established the rule of no liability insuch cases.'4An interesting feature of the case just discussed is one whichwill no doubt lead all administrative officers of cities, counties,school districts, the state, and many kinds of political subdivisionsto make themselves personally judgment proof as soon as possibleafter election or appointment. It is the ruling in Liber v. Flor thatalthough the county could not be liable for the torts of its em-ployees, the county Commissioners as individuals could, neverthe-less, "be held liable in all respects as other tort-feasors."''5 In thecase under discussion, the Supreme Court reversed the trial court'sdismissal of the action against the county commissioners, named inthe complaint individually as defendants, and sent the case backfor trial upon the issue of negligence of the commissioners, as in-dividuals, in the supervision of their employees.In three other cases coming before the court in 1960,16 the ques-tion of the liability of the state or a county for torts of their agentswas decided adversely to the plaintiffs, all of whom appear to haverelied upon the sweeping, unrestrained, unlimited and unanimousruling in Brush Racing Ass'n. What appeared to be solid groundupon which the doctrine of sovereign immunity was laid to restturned out to be the sinking sand of grandiose obiter dictum, trap-ping the plaintiffs and carrying down with them the price of costlyappellate proceedings.B. Definiteness and Certainty of StatutesTwo cases in 1960 required decision regarding the constitutionalsufficiency of vague and indefinite satutory definitions of prohibit-ed conduct.The most important case, involving most of the major andminor oil companies, was Flank Oil Co. v. Tennessee Gas Trans.Co."7 The plaintiff sought injunctive relief from allegedly injuriousviolations, by the defendants, of the Colorado Unfair Practices Act"Mwhich prohibits sales of merchandise at less than cost for the pur-pose of injuring competitors and destroying competition. The actdefined what was meant by "cost" with considerable particularity.The defendants moved to dismiss, arguing that the prohibited con-duct was stated in terms so vague and indefinite that persons sub-ject to it could not determine whether theirs was a lawful courseof conduct, and on its face irreconcilable with the due process re-quirements of article XIV of the United States Constitution. Thetrial court dismissed, but was reversed in the Supreme Court. Thecourt felt that the statutory definition, which included specifickinds of expenses that were to be considered in determining "cost,"was not too indefinite on its face, and that evidence must be takenbefore it could be determined that the complexity of the oil com-14 Id. at 592.15 Ibid.16 Faber v. State, 353 P.2d 609 (Colo. 1960); Berger v. Dep't of Highways, 353 P.2d 612 (Colo.1960); M. & M. Oil Transp. v. County Comm'rs, 353 P.2d 613 (Colo. 1960).17 349 P.2d 1005 (Colo. 1960).18 Colo. Rev. Stat. §§ 55-2-1, -2 (1953).DICTAMAY-JUNE, 1961pany business and production practices made it impossible to applythe statutory standards.Another case, Memorial Trusts, Inc. v. Beery,19 turned on thesame question-whether the statutory definition of prohibited con-duct was adequate to meet the constitutional requirements of thedue process clause of the state constitution 20 and the fourteenthamendment of the federal constitution. The statute 21 required thatall funds received as premiums on prepaid funeral benefits "shallbe invested, until properly expendable, in securities . . . " and vio-lations were punishable as crimes. The gist of the statutory re-quirement was to require trustees to hold the assets "until properlyexpendable," but nowhere in the statute were "proper expendi-tures" defined or identified. Quoting from the leading case -2 2 on thesubject, the court struck down the statute.These two cases seem to be quite consistent and compatible.And in their compatibility would seem to lie a lesson for legislativedraftsmen. In Flank Oil Co.,23 a statute which prohibited sale be-low "cost"-a term obviously open to questionable meanings-in-19 356 P.2d 884 (Colo. 1960).20 Colo. Const. crt. II, 9 25.21 Colo. Rev. Stat. §§ 72-17-1 to -7 (1953).22 Conclly v. General Constr. Co., 269 U.S. 355 (1926).23 Supra note 17.reach for the CA[[director...a new telephone product for businessThe Call Director is designed for the businessman who needsmore than six pushbuttons on his phone or the secretary whoanswers for a number of people. With the Call Director, you canhold calls, intercommunicate, and set up interoffice conferencecalls. For complete information on this time-saving new product,call the Telephone Business Office and ask for a CommunicationsConsultant. MOUNTAIN STATES TELEPHONE 0DICTAMAY-JUNE, 1961cluded other provisions defining that term with particularity suf-ficient that the court thought it might, without guessing, determinefrom the evidence whether a defendant was in compliance or vio-lation. But in Memorial Trusts, Inc., the mandate that funds beheld "until properly expendable," unaided by any statutory lan-guage as to what were or were not "proper expenditures," neces-sarily required persons to guess whether their conduct compliedwith, or violated, the legislative policy and consequently violatedthe standards of definiteness and certainty required by the dueprocess clauses of the state and federal constitutions.C. More Merris ConfusionThe wake of the Merris case2 4 grows wider, and with it the con-fusion of both court and counsel as to just what Merris stands for.Primary responsibility for the confusion rests solidly with the court,which at one time holds one way and subsequently another, with-out persuasive logic, that municipal ordinances can or cannot beenforced.A trio of cases decided in 1960 added to the growing list ofexamples of municipal regulation either: (1) sustained as involv-ing matters of local and municipal concern, on the one hand, or (2)struck down as involving matters of state-wide concern. Retallackv. Police Court of Colorado Springs2 5 held that reckless and care-less driving belonged in the first category even though there exist-ed a state statute26 regulating the matter. Gazotti v. Denver-2 7placed the regulation and punishment of larceny in the second cate-gory and struck down the Denver ordinance under which Gazottiwas convicted. Mr. Justice Hall, specially concurring in the lattercase, was led to announce his dissatisfaction with the apparent lackof logic in the two decisions:As I view the situation, it is impossible to reconcileRetallack with the case at bar [Gazotti ]-they are parallelcases-all the arguments presented in Retallack can beurged with equal force in this case-all the arguments ad-vanced in this case apply with equal force to Retallack.Any effort to distinguish the cases can lead only tofrustration, futility and failure....Though the majority opinion serves the useful purposeof giving to Gazotti his freedom . . . it is, as I view it,wholly inadequate and will, I fear, serve only to create con-flict and confusion.2 8A third case2 9 held that school light legislation was a matter oflocal and municipal concern.Perhaps it is time for the court to re-examine its position andto begin with fundamental constitutional principles. The legislativepower of the state is vested in the General Assembly,""t not in mu-nicipalities. Further, the power cannot be redelegated by the Gen-eral Assembly to municipalities except in those instances in which24 Canon City v. Merris, 137 Colo. 169, 323 P.2d 614 (1958).25 351 P.2d 884 (Colo. 1960).26 Colo. Rev. Stat. §§ 13-4-31, -32 (1953).27 352 P.2d 963 (Colo. 1960).28 Id. at 965.29 Pickett v. Boulder, 356 P.2d 489 (Colo. 1960).30 Colo. Const. art. V, § 1.'DICTAMAY-JUNE, 1961local option is proper.31 Consequently, it becomes material in everycase to determine whether (1) the municipal power claimed is onewhich can be given, under the constitution, and (2) whether it wasgiven by the legislature. The Home Rule Amendment 32 raisesslightly different but no more difficult questions.It may be granted that application of such principles will stillleave a narrow band of indecision demarking state power from mu-nicipal power. But that approach would provide some consistentbasis for decision and afford a satisfactory degree of predictabilityin most cases.II. ADMINISTRATIVE LAWAdministrative law cases in the Supreme Court were surpris-ingly few in number in 1960, and none of the cases involved novelor difficult questions.Perhaps the principal factor contributing to the paucity ofcases in 1960 was the enactment of the Administrative PracticesAct. 33 At any rate, lawyers in Colorado have, for the first time, anadministrative procedure code which serves essentially the samepurpose, in practice before Colorado administrative agencies, thatthe Rules of Civil Procedure serve in regulating step by step pro-cedure in courts of record. Lawyers, armed with the new act, willnot only be better informed as to the rights of their clients, butwill also become instructors to administrative agencies in mattersof procedure.The act was hammered out over a number of years by the Ad-ministrative Law Committee of The Colorado Bar Association un-der the successive chairmanships of Glenn Donaldson, Esq., andHubert D. Henry, Esq. It should be studied by all Colorado lawyers.It will eliminate much of the arbitrariness formerly occurring inadministrative hearing procedure and it will forestall many need-less appeals.31 See opinion of the justices in In re Municipal Suffroge to Women, 160 Mass. 586, 36 N.E. 488(1894); Stoutenburgh v. Hennick, 129 U.S. 141 (1889); 2 McQuillin, Municipal Corporations §§ 4.13 to4.15 (3rd ed. 1949).32 Colo. Const. art. XX.33 Colo. Sess. Laws 1959, chs. 33-38.Trust The Moving and Storage RequirementsOf Yourself and Your Clients-To Men Who Understand Your Problems.CONFER WITH DON JOHNSONJOHNSON STORAGE & MOVING CO.Affiliated With United Van Lines221 PearlBroadway Local and World-wide 3-2433DICTA

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