Summary
concluding reckless or careless driving to be a “relative thing” and “wholly dependent upon so many variables and circumstances that conviction thereof could not have uniform application throughout the state”
Summary of this case from Webb v. City of Black HawkOpinion
No. 19,076.
Decided March 28, 1960. Rehearing denied May 23, 1960.
Original proceeding in prohibition to restrain municipal court from exercising jurisdiction in prosecution for violation of traffic ordinance. Rule to show cause issued.
Rule Discharged.
1. MUNICIPAL CORPORATIONS — Ordinance — Traffic Regulation — Validity. Deletion from a municipal ordinance of a provision that no party would be entitled to a jury trial in the municipal court, left a complete, workable and enforceable ordinance, affording one charged with a violation thereof the right to be tried in accordance with criminal procedure.
2. Traffic Regulation — Conflict — State Statute. Regulations pertaining to the establishment of one way streets, stop signs, traffic signals, varying speed limits, and the like are primary functions of local government, in a field of motor vehicle traffic regulation local in nature.
3. Traffic Regulation — Ordinance — Reckless Driving — Statute — Conflict. Reckless and careless driving is a relative thing, dependent upon variable and local circumstances, and could not have uniform application throughout the state.
4. Ordinances — Violation — Prosecution — Criminal Procedure. Where trials for municipal violations in municipal courts are to be conducted in accordance with criminal process, no person charged under a municipal ordinance can be prejudiced by leaving as much of local law intact as can be done without violating individual rights, or undermining state sovereignty.
Original Proceeding.
Messrs. YOUNG, YOUNG CATES, for petitioner.
Mr. F. T. HENRY, Mr. EDWIN STRAND, for respondents.
THIS is an original proceeding in the nature of prohibition challenging the jurisdiction of the municipal court in the city of Colorado Springs to try the petitioner, Retallick. Pursuant to the prayer of the petition, a rule to show cause was issued directed to respondents.
This court in Geer v. Alaniz, 138 Colo. 177, 331 P.2d 260, has already decided one of the points raised by petitioner. It was there held, and is controlling here, that a section of a city charter providing that no party shall be entitled to a jury trial in the municipal court is invalid. The sentence deleted from section 53 of the Home Rule Charter adopted by vote of the people of the city of Colorado Springs leaves remaining a complete, workable and enforceable provision, affording this petitioner, charged with violation of city ordinance, having a counterpart criminal statute, the right to be tried in accordance with criminal procedure.
The only other point raised by this challenge to the jurisdiction of the municipal court is that petitioner was charged therein with reckless driving and careless driving under a city ordinance. It is asserted that the offense is one of statewide concern rather than local and municipal; that it has a counterpart criminal statute enacted by the legislature of the state of Colorado; that the statute takes precedence over the municipal ordinance and requires filing of an information in a state court rules prescribed for the conduct of criminal cases for violation of the state criminal statute.
To accept the contention of petitioner would be to adopt a doctrine of virtual preemption by the state in all matters upon which the legislature has taken cognizance through enactment of a state statute. It would also strip all of the home rule cities of the state of every last vestige of local rule and local control with the possible exception of a few regulatory and licensing ordinances.
The particular ordinances with which petitioner stands charged in the Colorado Springs municipal court are as follows:
"RECKLESS DRIVING.
It shall be unlawful for any person to drive any vehicle in this city in willful or wanton disregard for the safety of persons or property. Any violation of section 24-108 of this Code where the rate of speed is fifty-five miles per hour or more shall be prima facie evidence of reckless driving. The charge of reckless driving shall include as a lesser offense the charge of careless driving as defined in section 24-107 of this Code. (Ord. No. 2432, g 1.)"
"CARELESS DRIVING UNLAWFUL.
Every person operating a vehicle on a highway, street or other public way in the city shall drive the same at a speed and in a manner which is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing; and every driver of a vehicle, in compliance with the legal requirements and the duty to use due care, shall use every reasonable means to avoid endangering or colliding with any person, vehicle or other conveyance on, or entering the highway, street or public way.
(Ord. No. 2432, g 1.)"
The ordinance on reckless driving has no identical counterpart in the state statute. The provisions therein that a speed of 55 miles an hour on the city streets of Colorado Springs is a prima facie evidence of wanton and reckless disregard of human life and safety on said streets could not be enforced under the state statute. We can take judicial notice of the fact that a speed of 55 miles an hour on open country roads and on the state highway could be well under the prima facie speed limits of 60 and 70 miles per hour, and, except in occasional posted areas, would not be a violation of state speed laws.
It is generally held in most jurisdictions that the individual regulation pertaining to the establishment of one-way streets, posting of stop signs, installation of traffic signals, establishment of varying speed limits, and all regulations governing movements of vehicles, street cars, and of pedestrians on streets and sidewalks is the primary function of local government. McQuillin on Municipal Corporations, sec. 24.609, et seq. And this court said in People v. Graham, 107 Colo. 202, 110 P.2d 256, that there still is a field in motor vehicle traffic regulation, local in its nature, which cannot be questioned. In Denver v. Henry, 95 Colo. 582, 38 P.2d 895, it was held that traffic regulation in street intersections was local, and to which holding this court adhered in the Graham case.
Reckless or careless driving is a relative thing and is wholly dependent upon so many variable and local circumstances that conviction thereof could not have uniform application throughout the state. In the great majority of cases where a party is charged with reckless driving, his conduct usually involves a violation of one or more local traffic ordinances but in a manner such as to indicate a heedlessness and wanton disregard of persons and property. To say that the city could charge a violator with any one or more infractions of separate regulations in municipal court but could not also group the offenses in the general charge of recklessness when the circumstances indicate an attitude of deliberateness or wantonness, would so narrow the local police powers as to render them ineffective. Many times the courts find the evidence insufficient to warrant a conviction of reckless driving, but find substantial evidence of violation of single or multiple ordinances, and so dismiss the one but convict on the others. To try offenses arising out of the same driving conduct in two jurisdictions would be unwieldy as well as prejudicial to the person accused. Acquittal in the state court would not necessarily be controlling on the municipal court and subject the offender to two trials on separate, though related, offenses. What compelling reasons are there for such a course of judicial action? We think none.
It is to be noted that although the Merris case did establish the offense of drunken driving to be of statewide concern and governed by state statute, the most significant contribution to law in this state which arose out of that case was a guaranty to all citizens that trials for municipal violations in municipal courts would be in accordance with criminal process. That being the case, no person charged under a municipal ordinance can be prejudiced by leaving as much of local law intact as can be done without violating individual rights or undermining state sovereignty.
Accordingly the rule is discharged.
MR. JUSTICE DOYLE specially concurs.
MR. JUSTICE HALL and MR. JUSTICE FRANTZ dissent.
MR. CHIEF JUSTICE SUTTON does not participate.