dissenting:
I respectfully dissent.
In my view, the Court has today struck down what it had thought for many years to be a procedural requirement of Article II, Section 7 of the Colorado constitution, and what the United States Supreme Court had thought to be a requirement of the Fourth Amendment to the Constitution of the United States. I cannot subscribe to this emasculation, of the Fourth Amendment and Article II, Section 7 in the name of simplified procedure, nor do I agree with the majority that the Legislature was empowered to do so. Neither the Colorado Supreme Court nor the United States Supreme Court has ever interpreted the provisions of the Bill of Rights involved here as narrowly as does the majority today.
In my view, procedural due process granted by the constitution is basic to the concept of ordered liberty. A provision which our own Court has long declared to be such a procedural constitutional safeguard should not now be lightly tossed aside on the basis of a dissenting opinion in New York and what amounts to pure dictum in Illinois.
It may be that the pronouncements of our Court and *555those of the United States Supreme Court regarding the the issue here were dicta, although I doubt it; but these constitutional interpretations were stated in such positive, direct and unequivocal fashion that there is no mistaking their meaning.
In Lustig v. People, 18 Colo. 217, 218, 32 P. 275, in a portion of the opinion not quoted by the majority, Chief Justice Hayt, speaking for a unamimous Court, said:
“* * * The language of this section is too plain to admit of misconstruction. An information can serve no practical purpose in the administration of the criminal law, unless a legal warrant can he issued thereon. And to justify a warrant there must he a charge under oath, reduced to writing. The public prosecutor is no longer authorized to institute a criminal prosecution against any person by reason of his official signature merely. To allow him to do so would be contrary to the express provisions of the Bill of Rights quoted. * * *” (Emphasis added).
And in Bergdahl v. People, 27 Colo. 302, 61 P. 228, Mr. Justice Gabbert, again speaking for a unanimous Court, points out that the verification provisions contained in the statute are intended to and do carry out the requirements of Section 7, Article II of the Bill of Rights. In United States v. Morgan, 222 U.S. 274, 282, 32 S. Ct. 81, 82, 56 L.Ed. 198, 200, Mr. Justice Lamar, also speaking for a unanimous Court, makes the following statement:
“* * * A further answer is, that as to this and every other offense the Fourth Amendment furnishes the citizen the nearest practicable safeguard against malicious accusations. He cannot be tried on an Information unless it is supported by the oath of some one having knowledge of facts showing the existence of probable cause. * * * (Emphasis added).
Not one word is spoken about a warrant of arrest. The interdiction here is clear and absolute. He [the defendant] cannot he tried, the United States Supreme *556Court says, on an information unless it is supported by an oath.
The New York Court of Appeals in the majority opinion in People v. Scott, 3 N.Y.2d 148, 143 N.E.2d 901, 164 N.Y.S.2d 707, dealt with the so-called uniform traffic summons and complaint which is in issue here. That opinion, which the majority here discards in favor of the dissenting opinion, puts the problem in proper perspective by pointing out that the requirement for verification is an essential guarantee of a fundamental right: that [the accused] be not punished for a crime without a formal and sufficient accusation. In short, in my view, what the New York Court, the Colorado Supreme Court, and the United States Supreme Court have said is that the Fourth Amendment requires that no citizen should be made to answer to a criminal charge unless the charge be made upon the oath of a competent person.
It will not do to say that we need not be alarmed since the statutes of this state still require that a felony complaint or a complaint by a private citizen be verified. If the Legislature may remove the requirement for a misdemeanor it may do so for a felony. If it may remove the requirement for complaints filed by peace officers, it may do so for complaints filed by private citizens. Moreover, the practice is dangerous, even for misdemeanors. There are countless misdemeanors which the average citizen may commit, often inadvertently, in his daily life. To permit him to be held to answer for charges arising out of such circumstances upon the complaint of anyone unsupported by oath removes from him the protection of the Fourth Amendment about which the United States Supreme Court was concerned in Morgan, supra.
It is said, however, that the people of this state authorized the procedure in question by the constitutional amendment which gave the Legislature the power to adopt “simplified procedures” in the county court. I do not subscribe to the belief that the people intended to *557give the Legislature the power to abrogate the Bill of Rights in the name of “simplified procedure.”
In Weeks v. United States, 216 F. 292 (2d Cir.), a lower federal court case which is relied on heavily by the majority opinion, and with which I do not agree, the Court says that it finds no violation of the Fourth Amendment where no warrant of arrest issues and where the defendant appears voluntarily to plead to the information. In my view, the appearance under the summons and complaint procedure is far from voluntary.
Under the imprimatur of the state acting through its police officers, the accused is directed to appear or suffer the consequences. It is, in fact, a misdemeanor to fail to appear in response to such a summons. C.R.S. 1963, 13-5-145. I hardly deem an appearance in response to such a summons to be a voluntary one. All the constraints imposed by a warrant of arrest except the physical jailing of the accused are present in the summons which is served.
Lest it be said that requiring verification upon the complaint filed in the county court after summons is served would make law inforcement impossible, let me point out that all that is required is that the officer swear to the charge on his oath at the time he files the complaint in court. Is it so outrageous to insist that a police officer, as well as any other citizen, shall be made aware of the serious implications of charging a citizen with a crime that we must now disregard what has been repeatedly stated both by this Court and by the United States Supreme Court? For me, the slight inconvenience involved does not present such an overwhelming and compelling reason as to require us to overrule the precedents laid down in unanimous decisions by my distinguished predecessors on this Court.
I would make the rule absolute.
I am authorized to say that Mr. Justice Day concurs with me in this dissent.