Phillips v. City of Denver , 19 Colo. 179 ( 1893 )

Mr. Justice Elliott

delivered the opinion of the court.

The assignments of error challenge the validity of the ordinance under which defendant was convicted.

Among other things, the ordinance provides that no livery stable, or stable for the boarding of horses, shall be erected, established or carried on in any block in this city (unless the same shall be in operation at the date of the passage of the ordinance) without a permit from the city council; and'that no permit shall be issued for any livery stable in any block in which a school building is situated, or in any block opposite to a block in which a school building is situated.

It is conceded that defendant occupied, conducted, and was engaged in running a livery stable for the boarding of horses within the limits prohibited by the ordinance at the time of, and prior to, the commencement of this action ; and that the stable was erected and put in operation after the adoption of the ordinance, February 18, 1888.

1. In the case of The City of Durango v. Reinsberg, 16 Colo. 327, this court declared the law as follows in respect to the powers of municipal corporations:

“ A municipal corporation can exercise only such powers as are granted to it by its charter or by the general law of the state, either in express words or by necessary or reasonable implication, or such as are incidental to the powers expressly granted, or such as are essential to the objects and purposes of the corporation. A municipal corporation, under á general grant of authority, cannot adopt ordinances which infringe the spirit or are repugnant to the policy of the state as declared in its legislation.”

2. In determining whether a municipal ordinance is valid, the following distinction is to be observed: An ordinance expressly authorized by specific and definite legislative authority will be upheld unless it conflicts with the constitution of the state or nation, while an ordinance which the municipality assumes to pass by virtue of its incidental powers, or under a general grant of authority, will be declared invalid, unless it be reasonable, fair, and impartial, and not arbitrary or oppressive. 1 Dillon Mun. Corp. (4th ed.) §§ 319-322; also, § 327 et seq.; Tugman v. City of Chicago, 78 Ills. 405; May v. The People, 1 Colo. App. 157.

The following provisions of the charter of the city of Denver were in force at the time of the adoption of the ordinance in question, and they are now relied on to sustain its validity:

“ Sec. 20. The city council shall have power by ordinance:

“ jEleventh. Exclusively to license, regulate, and tax any or all lawful occupations, business places, amusements, places of amusement, and may fix the rate of charges for the carriage of persons and property within the city, by licensed hack-men, omnibus-men, carriage-men, dray-men, and express-men.

“Fifty-eighth. To regulate or prevent the carrying on of any business which may be dangerous or detrimental to public health, or the manufacture or vending of articles obnoxious to the health of the inhabitants; and to declare, prevent or abate nuisances on public or private property and the cause thereof.” See Session Laws, 1885, pp. 81, 82 and 87.

• The following provision of the charter was passed after the adoption of the ordinance in question: ■

“ The city council shall have the power to make all ordinances which shall be necessary and proper for carrying into execution the powers specified in this act, and to make all ordinances which it may deem necessary or requisite for the good order, health, good government and general welfare of the city. See Session Laws 1889, p. 129, amendment to sec. 21 of the charter of 1885.

By virtue of the foregoing provisions it is contended that the city council were authorized to control absolutely the location and carrying on of livery stables within the limits of the city; that by virtue of the power to regulate and prevent, they might prescribe the limits for such stables, at their discretion, and prohibit their being conducted elsewhere; and that they might declare and abate livery stables as nuisances, if carried on within such interdicted limits, or visit upon the proprietors such penalties as would compel them to yield obedience to any ordinance the council might deem proper to enact upon such subject.

In our opinion, the charter provisions, above quoted, will not bear the construction contended for. The power conferred is not sufficiently specific or definite to warrant such unrestrained municipal legislation affecting private property. The grant of power to regulate lawful occupations and business places is certainly not an express grant of power to locate or prescribe the limits of carrying on lawful occupations upon private premises. The grant of power to regulate and prevent the carrying on of business dangerous or detrimental to public health, and to declare, prevent, or abate nuisances, is not to be construed as vesting the city council with authority to prohibit, at their discretion, the existence of well constructed, well regulated and well conducted livery stables; neither does the “ general welfare ” clause, adopted after the passage of the ordinance in question, confer full and specific power upon the city council for that purpose. The ordinance in question must, therefore, be subjected to the test of reasonableness; and the particular provision under consideration cannot stand, in any event, unless its adoption was a reasonable exercise of the incidental or general grants of power contained in the charter. Whether the city government can be vested with such authority as is contended for, need not now be considered. Everett v. City of Council Bluffs, 46 Iowa, 66.

3. A livery stable in a town or city is not, per se, a nuisance, though it may become a nuisance, if not constructed, kept and used in a proper manner. Flint v. Russell, 5 Dillon C. C. Rep. 161; Kirkwan v. Handy, 30 Tenn. 406.

The ordinance in question is not directed against livery stables improperly kept or used, but against all livery stables within the prescribed limits. There is nothing to indicate that there was anything improper in the construction, keeping, or use of defendant’s stable. The sole contention on the part of the city, therefore, is confined to the single fact, that defendant had located and conducted his stable within the limits prohibited by the ordinance- — that is, in a block opposite to a block in which a school building was situated. The ordinance, however, does not undertake to declare that a livery stable conducted within the interdicted limits shall be deemed a nuisance, per se ; nor do we intimate that such an ordinance would have been valid if passed. City of Denver v. Mullen, 7 Colo. 345; State v. Mott, 61 Md. 297.

4. It is true, there was testimony showing that defendant occupied and carried on a livery stable within 500 feet of a school building, and, also, that said livery stable was in a block opposite to a block in which a school building was situated. But the ordinance does not provide that livery stables shall not be located or conducted within 500 feet of any school building, nor is any other distance prescribed. The 500 feet limit applies only to candle factories, rendering establishments and soap factories. In respect to livery stables, the language is, “that no permit shall be issued * * * for any livery stable in any block in which a school building is situated, or in any block which is opposite to a block in which a school building is situated.”

The record in this cause does not show the size or dimensions of blocks in the city of Denver, nor does it show that the blocks are of uniform dimensions. There is, therefore, no definite distance from school buildings within which the construction and carrying on of livery stables are prohibited by the ordinance.

Por illustration: Suppose the city is laid out into blocks of uniform dimensions intersected by streets and alleys at right angles. In such case, if a school building were located on an interior block, livery stables would, by the ordinance, be excluded from five blocks ; and if the blocks were 400 feet in length by 266 feet in width, and the streets 80 feet wide, a school building might be so situated as to exclude the location of a livery stable nearly a thousand feet distant from it,— that is, the diagonal length of two blocks and the width of the intervening street. On the other hand, a stable might be located only a little more than 100 feet from a school building — that is, on the corner diagonally across from it, and yet not be in the same block, nor in any block directly opposite thereto; more than this, the stable located at the greater distance would face from, and be out of sight of, the school building, while the nearer stable would be in full view of it; and yet the location of the farther stable would be contrary to the ordinance, while the nearer stable would not be. If it be considered that the ordinance applies to blocks diagonally opposite to a school building its operation is, in some respects, still more objectionable; for, in such case, livery stables would be excluded from nine blocks for every school building situated in the interior of the city.

Even the foregoing illustration does not fully show the unreasonableness of the ordinance in question. There is nothing in the record to show that the blocks of the city are of uniform size; some may be larger than above supposed, and some may be twice or three times as large — as in case where the usual intersecting street or streets have not been cut through. An ordinance so uncertain, so indefinite, so unsuitable and unsatisfactory to accomplish the desired object, cannot be regarded as reasonable ; and so cannot be upheld under the authority supposed to be granted by the city charter.

Ordinances of the kind in question, though not strictly criminal, are highly penal, and cannot, unless free from legal and constitutitional objection, be permitted to prejudice the rights and privileges of the citizen in respect to the use and enjoyment of his private property.

The judgment of the county court is reversed and the cause remanded.

Reversed.