Volume 194 — Colorado Reports

1. <bold>CONTRACTS</bold> — <italic>Memorandum of Agreement — City — Sewage Connection Fees —</italic><italic>Signatures — Assurance — Ratification</italic>. City's contention — that when memorandum of agreement was executed excusing subdivision's payment of sewage connection fees plaintiff's predecessor did not obtain the signatures of certain city officials whose signatures were necessary to bind the city — is without merit, since record clearly indicates: that city's representatives assured plaintiff's predecessor that the matter of signatures would be arranged properly; that city personnel drafted the contract and specifically provided labelled spaces in which city's representatives were to sign; and that subsequent agreement between these parties expressly referred to and ratified this contract, and it was signed by those city officials whose missing signatures are here claimed to<page_number>Page 5</page_number> be indispensable; in light of these facts, city would not be heard to complain of these missing signatures. 2. <italic>Ambiguities — Construed Against Drafter</italic>. Ambiguities in a contract must be construed against the party who drafted the contract. 3. <bold>ESTOPPEL</bold> — <italic>Annexation Agreement — Developer — City — Exemption — Fee —</italic><italic>Sewer Connections — Reliance — Approval — Negative — Ratification —</italic><italic>Benefits</italic>. In action in which successor in interest of developer of area sought declaration that annexation agreement entered into by developer and city exempted such plaintiff from fee charged by city for new sewer connections, city was estopped from relying on contention that terms of agreement were subject to approval of board of councilmen and had not been approved; particularly, in view of fact that language within agreement could not be read to withhold indefinitely city's final commitment, that board referred to agreement in later actions and thereby ratified its terms, and that city had accepted valuable benefits from the contract. 4. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Annexation Agreement — Exempt — Developer's</italic><italic>Successor — Fees — New Sewer Connections</italic>. Annexation agreement — which was entered into by city and developer of an area, which provided that developer was to construct sewage collection system for the area and convey it to city at no cost and which reserved to city only the power of "assessing the land" in the area for "sewage treatment fees" if such fees were also charged "on all real estate" within the city — exempted developer's successor in interest from payment of fee charged by city for new sewer connections. 5. <italic>Sanitation Services — Fees — Proper</italic>. Contracts providing for sanitation services and the fees to be charged for those services are within the proper scope of the proprietary and business powers of a municipal corporation. 6. <italic>Annexation Agreement — Sewage Collection System — Fee — New Sewer</italic><italic>Connection — Exemption — Void — Negative</italic>. Annexation agreement — which was entered into by city and developer of area, which provided that developer was to construct sewage collection system for area and convey it to city at no cost and which had effect of exempting developer's successor in interest from payment of a fee charged by city for new sewer connections — was not void on theory that it placed impermissible limitation on board of councilmen's legislative or police powers, in view of fact that such powers were not involved. 7. <italic>Annexation Agreement — Exemption — Fee — Sewer Connections — Law —</italic><italic>Negative — Business Contract</italic>. Annexation agreement — which was entered into by city and developer of area, which provided that developer was to construct sewage collection system for the area and convey it to city at no cost and which had effect of exempting developer's successor in interest from payment of fee charged by city for new sewer connections — was not a "law" within meaning of state constitutional provision prohibiting enactment of any "law . . . making any irrevocable grant of special privileges, franchises or immunities. . . ."; the agreement was simply a business contract. 8. <italic>Annexation Agreement — Exemption — Fee — Sewer Connections — Pledge —</italic><italic>— City's Credit — Negative</italic>. Annexation agreement — which was entered into<page_number>Page 6</page_number> by city and developer of area, which provided that developer was to construct a sewage collection system for the area and convey it to city at no cost and which had effect of exempting developer's successor in interest from payment of a fee charged by city for new sewer connections — did not involve a pledge of the city's credit in aid of a private corporation in contravention of <italic>Colo. Const</italic>. Art. XI, Sec. 2.

1. <bold>GAMING</bold> — <italic>"To Aid" — General Definition — Applicable — Gambling Statute</italic>. The general statutory definition of "to aid" — although not defined within the gambling statute but which is defined in the Colorado Criminal Code as follows: "To aid or to assist includes knowingly to give or lend money or extend credit to be used for, or to make possible or available, or to further the activity thus aided or assisted" — is considered applicable to the gambling statute, section <cross_reference>18-10-102</cross_reference>(8). 2. <italic>"To Aid" — Broad Definition — Excepted — "Social" Gambling</italic>. The allegedly broad definition of "to aid" within the professional gambling statute did not embrace every activity remotely related to gambling inasmuch as the legislature has avoided this dilemma by specifically excepting from prohibitions of the statute certain forms of gambling such as "social" gambling. 3. <italic>Model Anti-Gambling Act — Prohibited List — Colorado — Excepts</italic>. The Model Anti-Gambling Act — which was relied upon in part by the Colorado legislature in drafting the gambling statute and which specifically enumerates various types of activities which should be construed as falling within the definition of professional gambling — does not mean that the definition in the Colorado statute should be similarly construed inasmuch as Colorado does not provide a specific list of prohibited activities as in the Model Act, but specifically excepts certain forms of gambling activity.<page_number>Page 16</page_number> 4. <italic>Furnishing Place — Facilities — Activity — "To Aid" — "Induce" —</italic><italic>Statute</italic>. Where defendants knowingly and for profit furnished a place for the purposes of gambling as well as all the necessary facilities, including poker tables, chairs, cards, and change, <italic>held</italic>, under these circumstances, defendants' activity falls directly within the general statutory definition of "to aid" under section <cross_reference>18-1-901</cross_reference>(3)(a), C.R.S. 1973, and within the term "induce" as used in the statute defining professional gambling. 5. <italic>Active Participation — Unnecessary — Professional Gambling — "Cut</italic><italic>of Pot" — Chair Rental Fee — "Profit</italic>." It is not necessary in Colorado that someone actively participate in the gambling process in order to be engaged in professional gambling. 6. <italic>"Taking a Cut" — "Charging Hourly Chair Rental" — "Profit</italic>." There is no significant distinction between "taking a cut of the pot" and charging an hourly chair rental fee which permits a player to engage in gambling; in both instances, the individual receiving the money is deriving a "profit" from the gambling activity. 7. <italic>Poker Club — Profit — Gambling — Social Gambling Exception —</italic><italic>Negative — Statute</italic>. Poker club which was deriving a profit from the gambling activity being carried on in its premises does not fall within the "social gambling" exception of section <cross_reference>18-10-102</cross_reference>(2), C.R.S. 1973, for two reasons: first, the poker playing is not incidental to a bona fide social relationship, and secondly, there is participation in professional gambling. 8. <italic>"Aiding or Inducing" — Constitutional — Statute</italic>. The phrase "aiding or inducing" — as employed in section <cross_reference>18-10-102</cross_reference>(8), C.R.S. 1973, when read in light of the general legislative intent to protect the people of this state from persons seeking to profit from gambling activities (section <cross_reference>18-10-101</cross_reference>(1), C.R.S. 1973), together with the specific exception provided for social gambling — is sufficiently clear to meet the constitutional tests regarding vagueness; and in this context, the use of the phrase "aiding or inducing" is not unconstitutionally vague. 9. <italic>"Profit" — Thrust — Statute — Prohibit — Activities — Benefit —</italic><italic>Gambling</italic>. Thrust of statute (section <cross_reference>18-10-102</cross_reference>(1), C.R.S. 1973) defining a "profit" as any other realized or unrealized benefit, direct or indirect, including without limitation benefits from proprietorship, management, or unequal advantage in a series of transactions, is to prohibit activities which derive a substantial benefit from promotion and operation of gambling. 10. <italic>"Profit" — Unconstitutionally Vague — Negative — Statute</italic>. The definition of the word "profit" as defined in section <cross_reference>18-10-102</cross_reference>(1), C.R.S. 1973 is not unconstitutionally vague when read in the context of the gambling statute; actually, the defendants' activities fall clearly within the ambit of the statutory prohibition, for the profit to the defendants comes directly and for all practical purposes exclusively from the gambling activity itself. 11. <italic>Statute — Impinge — Free Expression — Right to Privacy — Negative</italic>. Gambling statute does not impinge on free expression and the right to privacy on the part of individuals engaged in gambling on premises organized as a social club; moreover, reviewing court is unable to conclude<page_number>Page 17</page_number> that any of the activity arguably reached by the statute could be characterized as free expression or involving any right to privacy as that right has previously been defined. 12. <bold>APPEAL AND ERROR</bold> — <italic>Presumption — Not Raised — Not Considered</italic>. Presumption in statute — that any place where a gambling device is found is presumed to be intended to be used for professional gambling — which has not been raised in any of the proceedings against defendants to date nor relied upon by district court in its decision has no application to instant case and would not be considered on review.

1. <bold>ATTORNEYS AT LAW</bold> — <italic>Partners — Unsatisfactory Circumstances — Excuse</italic><italic>— Misconduct — Negative — Factors to be Considered</italic>. Unsatisfactory circumstances between law partners as to management of partnership, division of partnership profits, reimbursement for travel expenses when litigating out of town, and right to accounting of capital contribution to law firm, although they do not excuse professional misconduct, nevertheless, they are factors to be considered in imposing discipline in case arising out of disagreement between partners.<page_number>Page 105</page_number> 2. <italic>Failure to Account — Fees — Lawyer Partnership — Suspension —</italic><italic>Mitigation</italic>. In view of certain mitigating circumstances, attorney — who violated rules of Code of Professional Responsibility and theft statute by failing to account to his three-lawyer partnership firm for partnership attorney fees which he received and which were appropriated by him in violation of his partnership obligation — suspended from the practice of law for a period of six months.

1. <bold>INITIATIVE, REFERENDUM, RECALL</bold> — <italic>Purpose — Constitution</italic>. The purpose of the initiative and referendum powers under Article V of the Colorado Constitution is to expeditiously permit the free exercise of legislative power by the People. 2. <italic>Terms — Article — Constitution — Liberal Construction</italic>. The terms of Article V of the Colorado Constitution, being a reservation of powers to the People, are to be liberally construed. 3. <italic>Constitution — Vest — Legislative Power — People</italic>. The intention evidenced by Article V of the Colorado Constitution is to vest only legislative power directly in the People. 4. <bold>CONSTITUTIONAL LAW</bold> — <italic>Constitutional Provisions — Article — Apply — Acts</italic><italic>— Legislative</italic>. The constitutional provisions in Article V of the Colorado Constitution apply only to acts which are legislative in character. 5. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Charter — Limit — Powers — Constitution —</italic><italic>Negative — Exceed — Effect</italic>. City Charter provisions cannot limit powers reserved by the Constitution; however, if the powers reserved by the Charter exceed the powers reserved by the Constitution, those powers are operative and will be given effect. 6. <italic>Charters — "All Ordinances" — Meaning — Legislative</italic>. References in<page_number>Page 193</page_number> municipal charters to "all ordinances" have generally been interpreted as meaning only ordinances which are legislative in character. 7. <bold>INITIATIVE, REFERENDUM, RECALL</bold> — <italic>Applicable — Acts — Legislative</italic>. Although initiative and referendum provisions widely differ in their terminology, it is the general rule that they are applicable only to acts which are legislative in character, and not to those dealing with administrative or executive matters. 8. <italic>Charter — City of Aurora — Reserve — Power — Legislative Ordinances</italic>. Charter of the City of Aurora reserved the referendum power only as to all legislative ordinances with the exception of four exempted matters. 9. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Actions — Legislative — Permanent or General —</italic><italic>Temporary — Negative</italic>. Generally, municipal corporation's actions which relate to subject of a permanent or general character are legislative, while those actions which are temporary in operation and effect are not. 10. <italic>Legislative Policies — Acts — Administrative — Declaration of</italic><italic>Public Policy — Legislative</italic>. Municipal corporation's acts that are necessary to carry out existing legislative policies and purposes or which are properly characterized as executive are deemed to be administrative, while acts constituting a declaration of public policy are deemed to be legislative. 11. <italic>Ordinances — Utility Rate — Administrative</italic>. Utility rate ordinances are administrative in character. 12. <italic>Water Utility Rates — Raise — Ordinance — Administrative — Not</italic><italic>Subject to Referendum Powers</italic>. Municipal ordinance which raises municipal water utility rates is administrative rather than legislative in character and is therefore not subject to the referendum powers reserved to city electors by either the Colorado Constitution or the Aurora Charter.

1. <bold>HOMICIDE</bold> — <italic>Vehicular — More Severe Penalty — Denial of Equal Protection</italic><italic>— Negative — People v. Hulse</italic>. Where legislature decided to provide more severe penalty for vehicular homicide than for criminally negligent homicide, this, as such did not result in a denial of equal protection of laws since vehicular homicide statute requires for conviction that prosecution prove additional element of death caused through the use of a motor vehicle, and <italic>People v. Hulse</italic>, <cross_reference>192 Colo. 302</cross_reference>, <cross_reference>557 P.2d 1205</cross_reference>, is dispositive of the instant case. 2. <bold>MOTOR VEHICLES</bold> — <italic>Vehicular Homicide — Vehicular Assault — Statutes —</italic><italic>Due Process — Substantial Justice</italic>. The statutes relating to vehicular homicide and vehicular assault do not — because of vagueness — deny due process of law and substantial justice.

1. <bold>DEATH</bold> — <italic>Damages — Negligence — Limitation — Forty-Five Thousand Dollars</italic><italic>— Statute</italic>. Under the "Damages for Death by Negligence" statute (section<cross_reference>13-21-201</cross_reference>, <italic>et seq</italic>., C.R.S. 1973), particularly section 203, the legislature — while permitting the maintenance of actions and recovery of damages for wrongful death — has set a limitation on damages not to exceed forty-five thousand dollars for wrongful death. 2. <italic>Wrongful — Recovery — Limited — Net Pecuniary Loss</italic>. Historically, the amount of recovery in all such actions for wrongful death has been limited to the net pecuniary loss sustained by the person seeking recovery. 3. <italic>Statute — Furthers — Legitimate State Interest — Equal Protection</italic>. Where legislation challenged on an equal protection basis does not involve an intrinsically suspect classification, the test to be applied is whether the classification promulgated by the statute rationally furthers any legitimate state interest; and in instant case pertaining to the "Damages for Death by Negligence" statute (section <cross_reference>13-21-201</cross_reference>, <italic>et seq</italic>., C.R.S. 1973), since the classification involved does so further a legitimate state interest, plaintiff's contention — that the division into two classes of plaintiffs, one of which is subject to the $45,000 limitation on recovery while the other is not, is a denial of equal protection — is without merit.<page_number>Page 381</page_number>

1. <bold>SEARCHES AND SEIZURES</bold> — <italic>Warrants — Non-Forcible Entry — Failure to</italic><italic>Announce — Plain View — Arrest — Contraband — Admissible — "Forced Entry" —</italic><italic>Negative</italic>. Where police officers, in possession of valid arrest warrants, made a non-forcible entry into defendant's apartment before announcing their identity and purpose, and then inadvertently discovered stolen cabinets in plain view on the premises, <italic>held</italic>, under these circumstances, legally seized contraband in plain view was clearly admissible as evidence, and defendant's characterizations of officers' actions as a "forced entry" is without merit. 2. <italic>Police Officers — Legitimately on Premises — Seize — Stolen Property</italic><italic>— Plainly Visible</italic>. Police officers who are legitimately on certain premises are entitled to seize stolen property plainly visible to them, even though they had originally come for another purpose. 3. <italic>Arrest Warrants — "Forced Entry" — Negative — Statements —</italic><italic>Admissible</italic>. Where police officers, in possession of valid arrest warrants, peacefully opened screen door and entered house in response to invitation from within before announcing identity and purpose of executing the warrants, <italic>held</italic>, under such circumstances, statements of defendant made subsequent to arrest and after being advised of his constitutional rights should not have been suppressed; there was no illegal "forced entry," the officers' initial entry was clearly lawful.

1. <bold>PROCESS</bold> — <italic>"Long-Arm Statute" — Interpretation</italic>. The "long-arm statute" (section <cross_reference>13-1-124</cross_reference>, C.R.S. 1973) is to be interpreted as extending jurisdiction of Colorado state courts to the fullest extent permitted by the due process clause of the United States Constitution. 2. <italic>"Long-Arm Statute" — Minimum Contacts — Test — In Personam</italic><italic>Jurisdiction</italic>. To determine whether the constitutionally required minimum contacts are present in any case involving the application of the "long-arm statute," the following three-pronged test is used to define the present outer limits of <italic>in personam</italic> jurisdiction based on a single act: (1) the defendant must purposefully avail himself of the privilege of acting in the forum state or of causing important consequences in that state; (2) the cause of action must arise from the consequences in the forum state of the defendant's activities; and (3) the activities of the defendant or the<page_number>Page 520</page_number> consequences of those activities must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. 3. <italic>Execution — Agreement — Colorado — Non-Resident — Sufficient</italic><italic>Contact — Long-Arm Jurisdiction</italic>. Execution of a memorandum agreement in Colorado whereby non-resident — who resided in Connecticut — personally bound himself to pay money to a foreign corporation to enable it to pay its debt to a Colorado corporation constituted sufficient contact to permit the establishment of long-arm jurisdiction over the non-resident pursuant to Colorado's long-arm statute.

1. <bold>CRIMINAL PROCEDURE</bold> — <italic>Speedy Trial — Rule — Six Months — Two Mistrials —</italic><italic>Final Day — Twenty-Eight Days — Remained for Trial</italic>. Although defendant was not brought to trial within six months after entry of his not-guilty plea (Crim. P. 48(b)(1)), the fact remains that a fourteen-day delay was caused by the first mistrial, an additional thirteen-day delay was caused by the second mistrial, and additionally the final day of the six-month period, April 25, must also be excluded, since defendant's own successful motion to dismiss prevented him from being brought to trial on that date; thus, at the time the trial court dismissed the case, twenty-eight days remained in the six-month period in which defendant could still be brought to trial. 2. <bold>TRIAL</bold> — <italic>Mistrial — Court — Broad Discretion — Irregularities — Fair</italic><italic>Trial</italic>. A trial court has broad discretion to declare a mistrial at any point during trial when it appears that, because of irregularities in the proceeding, either party will not receive a fair trial. 3. <italic>Mistrial — Delay — Speedy Trial — Rules — Dismiss Jurors — Compute —</italic><italic>— Jeopardy — Irrelevant</italic>. If court is forced to dismiss jurors, or prospective jurors, and reschedule trial, whether jeopardy has yet attached is irrelevant in computing delay caused by "mistrial" for purposes of speedy-trial rule, Crim. P. 48(b)(1). 4. <bold>CRIMINAL PROCEDURE</bold> — <italic>Speedy Trial Rule — No Distinction — Delay —</italic><italic>Prosecutorial Misconduct</italic>. The speedy trial rule (Crim. P. 48) provides for exclusion of periods of delay "caused by <italic>any</italic> mistrial," and does not make the distinction pertaining to that type of delay caused by prosecutorial misconduct. 5. <italic>Speedy Trial Rule — Computing Time — Two Mistrials — Excluded — Due</italic><italic>Process — "Fundamental Fairness" — Rules</italic>. In computing the period of time in which defendant had to be brought to trial under Crim. P. 48, trial court should have excluded the periods of delay caused by two mistrials, even though jeopardy had not attached before the first mistrial had been declared, and even though the second mistrial was allegedly caused by prosecutorial misconduct; moreover, defendant was not denied due process or "fundamental fairness" by errors and delays in the proceedings.<page_number>Page 558</page_number>