Public officials given a duty involving discretion may abuse that discretion if they fail to exercise it. See, e.g., Lamm v. Barber, 192 Colo. 511, 517, 565 P.2d 538, 542 (1977); People v. McNichols, 91 Colo. 141, 143, 13 P.2d 266, 267 (1932); Moody v. Larsen, 802 P.2d 1169, 1171-72 (Colo.App. 1990), superseded by statute on other grounds, Ch. 131, sec. 12, § 16-5-209, 2000 Colo. Sess. Laws 451, 454, as recognized in Schupper v. Smith, 128 P.3d 323 (Colo.App. 2005). When a public officer fails to exercise duty-bound discretion, "[c]ourts . . . will direct an officer to proceed and exercise the discretion vested in him by law."
It is first urged that the state board of health was without jurisdiction to issue or revoke a license to plaintiff in error in that its sanitarium is located within the City and County of Denver, which is a home-rule city; that said city has legislated in the field of licensing hospitals and sanitariums by ordinance covering the same field as the state statute and subsequent thereto and that its ordinance supersedes the statute within its territorial limits. [1, 2] Under the provisions of Article XX of the Constitution and of its charter, the city acquired exclusive control of local and municipal affairs, but it remained "as much amenable to state control in all matters of a public, as distinguished from matters of a local, character, as are other municipalities," People ex rel, v. McNichols, 91 Colo. 141 13 P.2d 266 Health is a matter which may be either of general or of municipal concern. Infectious diseases in particular recognize no city lines, and under its police power the state retains the right to regulate such matters affecting public health as are of general concern, including the right to license and regulate hospitals wherever situated.
" To the same effect are the cases of People ex rel. v. Earl, 42 Colo. 238, 94 Pac. 294; People ex rel. v. Hall, 8 Colo. 485, 9 Pac. 34; and the case of People ex rel. v. McNichols, 91 Colo. 141 ( 13 P.2d 266), where the court at page 147 said: "The Legislature has plenary power to legislate, subject only to the limitations imposed by the Constitution of the United States and that of the state. Unless its power is thus limited, it may impose upon municipalities a liability for state or general purposes.
The judgment was reversed, with the direction to the trial court to overrule the demurrer. People ex rel. Hershey v. McNichols, 91 Colo. 141, 13 P.2d 266. In compliance with the direction, the demurrer was overruled, whereupon the respondent answered, a demurrer to the answer was sustained, the respondent stood on his answer, and the alternative writ was made peremptory.
E.g., Associated Dry Goods Corp. v. United States, 521 F. Supp. 473, 478 n. 9 (CIT 1981) ("governmental agency" includes "subordinate creature[s] of federal, state or local government") (citing Black's Law Dictionary). The State of Colorado, whose decisions are not binding on this Court when applying procedural law, certainly considers its cities to be governmental agencies. E.g., Morgan v. Reser, 162 Colo. 165, 167, 425 P.2d 42, 44 (Colo. 1967); People v. McNichols, 91 Colo. 141, 150, 13 P.2d 266, 269 (Colo. 1932). Particularly when Rule 30(b)(6)'s only reference to a political unit is the general term "governmental agency," such a term should be given a broad interpretation.
This is so because as the State itself correctly points out to us in its brief the General Assembly has the power to compel a county to perform services for the State at the county's expense. See Colorado State Bd. of Social Servs. v. Billings, 175 Colo. 380, 384, 487 P.2d 1110, 1112 (1971); People ex rel. Hershey v. McNichols, 91 Colo. 141, 146-49, 13 P.2d 266, 268-69 (1932). Hence, insofar as the phrase "[s]ubject to appropriations" means anything in section 17-1-112(1), its most likely function is to make explicit the intent of the General Assembly that satisfaction of obligations to local governments for housing state prisoners would be dependent on future appropriations.
But the city is also an agency of the state for the purposes of government. People v. McNichols, 91 Colo. 151, 13 P.2d 266 (1932); see Keefe v. People, 37 Colo. 317, 87 P. 791 (1906). With respect to matters of statewide concern, home rule cities are subject to state legislation.
Thus, while "courts will not, by mandamus, direct the manner in which the discretion of an officer shall be exercised," they "will direct an officer to proceed and exercise the discretion vested in him by law." People v. McNichols, 91 Colo. 141, 143, 13 P.2d 266, 267 (1932) (duty to make an audit) (emphasis added). See Van DeVegt v. Board of County Commissioners, 98 Colo. 161, 55 P.2d 703 (1936) (duty to consider granting a liquor license); State Board of Corrections v. Denver, 61 Colo. 266, 156 P. 1100 (1916) (duty to consider caring for insane person in state hospital); People ex rel. Pettingell v. Grand County Commissioners, 53 Colo. 494, 127 P. 960 (1912) (duty to consider repairing bridge).
Such is of statewide concern, but more so of local concern in population centers where commercial activities are concentrated. Just as public health is a matter of both statewide and local concern, and may be regulated on a statewide basis and at the same time on a local basis, absent conflicting regulations ( People ex rel. Hershey v. McNichols, 91 Colo. 141, 13 P.2d 266), so is the regulation of weights and measures to prevent misrepresentations and frauds in commercial transactions between vendor and vendee, and such may be regulated under the police power at the state level and concurrently at the municipal level, providing there are no conflicting regulatory provisions. As stated in Woolverton v. Denver, 146 Colo. 247, 361 P.2d 982:
The language there used by the Court clearly recognizes the dual interest and responsibility of the state and locality in this field and the impossibility of easy categorization. It was there said: "Under the provisions of article XX of the Constitution and of its charter, the city acquired exclusive control of local and municipal affairs, but it remained 'as much amendable to state control in all matters of a public, as distinguished from matters of a local, character, as are other municipalities.' People ex rel. v. McNichols, 91 Colo. 141, 13 P.2d 266. Health is a matter which may be either of general or of municipal concern. Infectious diseases in particular recognize no city lines, and under its police power the state retains the right to regulate such matters affecting public health as are of general concern, including the right to license and regulate hospitals wherever situated.