concurring:
I concur that a horse is not a “vehicle” and that section 41-6-15 because of its vagueness violates the due process guaranty. I also believe that the statute is unconstitutional on the closely related ground that it attempts to delegate legislative power to the judiciary. In People v. Latsis, 195 Colo. 411, 414, 578 P.2d 1055, 1058 (1978), and again in People v. Smith, Colo., 638 P.2d 1 (1981), it was stated:
Due process of law requires that the legislature provide sufficiently precise standards to guide a judge and jury in deciding whether a crime has been committed. Failure to do so may well constitute an unlawful delegation of legislative power.
The power to define crimes is legislative in character; it may not be delegated to the courts. 16 C.J.S. Constitutional Law § 159, and cases cited therein. A statute which delegates legislative power to the judiciary violates a constitutional mandate *1324for separation of powers. State v. Smith, 183 Conn. 17, 438 A.2d 1165 (1981).
In section 41-6-15, the legislature has declared that every person riding an animal upon a roadway is subject to all of the provisions of that chapter (the traffic code), “except those provisions which by their nature can have no application.” Chapter 6 of title 41 deals with a myriad of traffic rules and regulations. They include obeying traffic signs and signals; reporting accidents; prohibiting driving while intoxicated and reckless driving; speed restrictions; regulations applicable to driving on the right side of the highway, overtaking, passing, and other rules of the road; turns and signals on starting, stopping, or turning; standing and parking; required equipment; and various miscellaneous rules. The State argues that by the application of common sense, courts can determine which provisions apply to persons riding animals and which do not. For example, it suggests that the provisions relating to driver’s licenses would not be applicable, such as revocation of driver’s license upon a conviction for negligent homicide under section 41-6-43.10(c) and revocation of driver’s license for refusal to submit to a chemical test under section 41-6-44.10. That very argument seems to be contradicted by the State’s additional argument that driving a horse requires special skill and more careful awareness than does operating a motor vehicle because horses, unlike motor vehicles, may react unpredictably.
This example demonstrates that an arguable position might be taken for and against the application of many provisions of the traffic code to persons riding animals upon the highway. Application in each instance may not always yield to our notions of common sense. The entire subject of applicability is one which needs to be considered and determined with the objective of each traffic rule in mind. This task is peculiarly one for the legislature which can solicit testimony from persons experienced in highway safety. The sorting out is not for the judges and juries to do. The judiciary should eschew the invitation to determine on a case-by-case basis which traffic rules apply to equestrians and which do not.
For example, if while on a highway a rider breaks his arm as a result of being thrown off an unruly horse, does section 41-6-34 require the rider to notify the police? Would the rider need to fill out an accident report form as required by section 41-6-35? Could a law enforcement officer issue a citation to a rider whose horse makes an unusual noise as proscribed by section 41-6-147? Must horses be equipped with headlamps and taillights as arguably required by section 41-6-130.5(a)?
Over one hundred years ago in United States v. Reese, et al., 92 U.S. 214, 221, 23 L.Ed. 563 (1875), Chief Justice Waite in commenting on a criminal statute couched in vague terms said:
It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government.
That is exactly what the legislature has attempted to do in the instant case. By a single sweep, all provisions of the traffic code are made applicable to equestrians, but the courts are invited to make exception without any definite and ascertainable standard by which to guide them.
I acknowledge that the legislature can enact a law to delegate a power to determine a fact or a state of things upon which application of the law depends. Tribbett v. Village of Marcellus, 294 Mich. 607, 293 N.W. 872 (1940); Marshall Field & Co. v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294 (1892). Where it is difficult or impracticable to lay down a definite, comprehensive rule for the application of a statute, the legislature may vest discretionary power in the courts or public officials to determine whether the law applies in a particular instance. Examples are whether it would be “equitable” to disconnect certain *1325territory from a city, Tribbett v. Village of Marcellus, supra; whether an act of a person was “bona fide,” People v. Latsis, supra; and whether a payment for services was “reasonable,” United States v. Ragen, 314 U.S. 513, 62 S.Ct. 374, 86 L.Ed. 383 (1942). However, in the instant case, we are not called upon to merely determine whether under a certain state of facts there has been a crime committed. Instead, we are given a much broader assignment, viz., whether under any state of facts the nature of our DUI statute lends itself to application to equestrians. That determination and judgment is a legislative call.