Glendinning v. City & County of Denver , 50 Colo. 240 ( 1911 )

Mr. Justice Garrigues

delivered the opinion of the. court:

The statute does not prohibit the sale of oleomargarine; it forbids, and makes it a misdemeanor to sell oleomargarine made in imitation of butter. The city does not require a license for the sale of oleomargarine; it requires a license to sell oleomargarine made in imitation of butter. Oleomargarine is white, and butter is yellow, naturally. The city requires a license for doing the very thing forbidden by the statute. All municipal ordinances must be in harmony with the general law of the state; if they are inconsistent or repugnant to such general law, they are void, ultra vires, and no- one can be convicted for violating' a void ordinance. — State v. Lindsay, 34 Ark. 372; Keefe v. People, 37 Colo. 317; McQuillin Municipal Ordinances, § 14.

The city cannot require a license for the sale of oleomargarine, as restricted and prohibited by the state statute; it can require a license for the sale of oleomargarine, but the party obtaining it must obey the statute. Such a license would be no protection against the right of the state to* prosecute for a violation of the statute. The ordinance should be comprehensive, for the sale of oleomargarine generally, and not include state prohibitions.

Suppose the city should require a license for the sale of intoxicating liquors to an habitual drunkard? It would be void, because prohibited by the statute; but the city may require a license for the sale of intoxicating liquor. The person obtaining it, however, must obey the state law; that is, he must not sell to minors, habitual drunkards, or keep open on Sunday. So a person obtaining a general license from the city to sell oleomargarine may be prosecuted by the state if he sells any made in.imitation of butter.

As long' as the sale of oleomargarine is not prohibited by statute, but its sale made in imitation of butter, is, the city may license the sale of oleomargarine. Said license will be no protection, however, to the licensee against a sale made in violation of the statute. The jurisdiction of the state extends over all municipalities within its boundaries, and no city ordinance can be enacted licensing an act prohibited by the state statute. Reversed.

Chief Justice Campbell and Mr: Justice Musser concur.