Wolfe v. Abbott , 54 Colo. 531 ( 1913 )

Mr. Justice Garrigues

delivered the opinion of the court':

1. The complaint alleges that June 26, 1908, defendants unlawfully, wilfully, maliciously and forcibly entered plaintiff’s residence, about half a mile from the town of Akron, Colorado, when he was away, and his wife and child were at home, and took therefrom and destroyed eight barrels of beer and one barrel of whiskey, and greatly frightened and made ill and sick his wife and child, to his damage, etc.

Defendants pleaded in justification that plaintiff Wolfe was tried and convicted before the police magistrate for maintaining a nuisance, by storing and keeping for sale at his residence, within one mile beyond the outer boundaries of the town, intoxicating liquors, in violation of a town ordinance, which nuisance, upon his conviction, the police magistrate ordered abated; that pursuant to the order, defendant Abbott as marshal, and the other defendants, excepting Mitchell, as acting marshals of the town, abated the nuisance by seizing, removing and destroying the liquor. The district court after hearing the evidence dismissed plaintiff’s suit and he brings the case here on error.

2. On the afternoon of June 26, 1908, plaintiff Wolfe was tried and convicted in the police magistrate’s court of the town of Akron. Immediately thereafter defendants, except Mitchell, went to his residence about half a mile beyond the town limits, when he was absent, entered the house, and against the protests of his wife, seized and took from the house and destroyed four or five barrels of beer an4 a part of a barrel of whiskey. This suit by Wolfe is to recover damages for the alleged trespass.

3. One person has no right to enter and search another’s home, and seize, carry away and destroy his property without proceeding according to the law of the land.— Canon City v. Manning, 43 Colo. 144-151.

Defendants attempted to justify their conduct under an ordinance, which they say plaintiff was duly convicted of violating. The district court could take no judicial notice of the town ordinances. Defendants were obliged to introduce the ordinance upon which they relied, in evidence. It was admitted over plaintiff’s objection, and is as follows:

“Ordinance No. 74.”

“An ordinance concerning the sale of intoxicating liquors.”

“Sec. 11. It shall be unlawful for any person to sell, barter, exchange, offer, keep or store for the purpose of selling, or to give away, offer to give away, or to keep or store for the purpose of giving away, in any building within the corporate limits of the town of Akron or within one mile of the outer boundaries of said town, any intoxicating, malt, vinous, mixed or fermented liquors; and the sale, storing, bartering, exchanging, offering or keeping for sale or keeping or storing for the purpose of giving away any such liquors within any building as aforesaid, is hereby declared to be a nuisance, and may be abated as any other nuisance. •* * * Any person violating the provisions of this section shall be deemed guilty of an offense, and upon conviction thereof shall be fined in a sum not less than $100 nor more than $200 for each offense.”

“Sec. 14. Whereas in the opinion of the board of trustees, an emergency exists requiring that this ordinance take effect and go in (force) from and after its passage.”

To prove plaintiff was convicted of violating this ordinance, defendants introduced the journal or written docket entries of the trial, kept by the police magistrate, as follows:

“State of Colorado,

ss.

County of Washington, Town of Akron.

The Town of Akron,

Plaintiff,

v.

Willis Wolfe,

Defendant.

In the police court within and for the town aforesaid, before T. D. Mitchell, police magistrate.

June 23, 1908. Complaint made and filed by John F. Dole, charging the violation of ordinance 74. Selling liquor and keeping liquor for sale, in Akron, Colorado, and within one mile thereof, and warrant issued for the arrest.

June 25. Case set for June 26, at 9 o’clock A. M.

June 26. Court convened and case continued till 1 o’clock P. M. * * * Trial had and defendant found guilty of maintaining a nuisance in the City Drug Store in Akron, Colorado, and fine assessed at $200 and costs of suit, and nuisance ordered abated. Defendant found guilty of maintaining a nuisance within one mile of city limits, and in. the Yeamans house or ranch. Fine assessed at $200 and costs of suit and nuisance ordered abated as per order to' the town marshal, and defendant committed to the town jail until fine and costs are paid.”

4. We do not know whether the complaint upon which plaintiff was tried and convicted, and the alleged order abating the nuisance, given by the magistrate upon which it is claimed defendants acted, were in fact introduced in evidence or not. They are not in the record, or bill of exceptions, which recites that it contains all the evidence. The police magistrate’s court was a court of inferior jurisdiction, and its record had to recite the facts necessary to confer jurisdiction. There being no copy of the complaint here, we can only determine the nature of the charge by the docket entries. This record kept by the magistrate, discloses no lawful authority or justification for the conduct of the defendants in entering plaintiff’s residence against his will, seizing, removing and destroying his property. The magistrate’s docket shows that Wolfe was charged with, and tried for selling and keeping for sale in the town, and within one mile beyond the outer boundaries thereof, intoxicating liquor -in violation of ordinance 74; that he was convicted of maintaining a nuisance at two different places, at his city drug- store in town, and at his residence beyond the town limits; that he was fined $200 for each offense, and each nuisance ordered abated. He was not charged with or tried for maintaining a nuisance, hence there could be no judgment finding him guilty of that offense. He was charged with selling and keeping liquor for sale in violation of the ordinance. There was no complaint or trial for keeping a nuisance, and the order of abatement, if one was given, was illegitimate. One cannot be convicted, fined under a town ordinance for maintaining a nuisance, imprisoned tó collect the fine, and his property seized and destroyed to abate the nuisance, without due process of law. — Houston v. Walton, 23 Colo. App. 282.

5. Section 6673, Rev. Stats. 1908, provides:

“All ordinances shall, as soon as may be after their passage, be recorded in a'book kept for that purpose, * * * and all by-laws of a general or permanent nature, and those imposing any fine, penalty or forfeiture, shall be published in some newspaper published within the limits of the corporation, * * * and it shall be deemed a sufficient defense to any suit or prosecution for such fine, penalty or forfeiture, to show that no such publication was made; * * * such bylaws and ordinances shall not take effect and be in force until the expiration of five days after they have been so published.”

One of the issues in the district court was, that the ordinance had not been published, and it was admitted on the trial that the italicized portion, “And may be abated as any other nuisance,” was not published. This ordinance was in force as published. The unpublished portion never took effect, hence, the omitted part could constitute no justification. — Union Pacific Co. v. Montgomery, 49 Nebr. 429; Union Pacific Co. v. McNally, 54 Nebr. 112; O’Hara v. Town of Park River, 1 N. D. 279; Kneib v. People, 50 How. Prac. 140; Hermam, v. City of Oconto, 100 Wis. 391; Carpenter v. Yeaton Borough, 208 Pa. 396; Nat. Bank v. Town, 48 Fed. 278.

6. Section 6525, paragraph 45, R. S., 1908, relating to the powers of towns, provides, they shall have power “To declare what shall be a nuisance, and to abate the same, and to impose fines on parties who may create, continue or suffer a nuisance to exist.”

It is claimed this statute gave power to the town to declare what should constitute a nuisance, and to abate it without any ordinance; therefore the clause omitted from the printed ordinance was immaterial because the town had that power anyway, under the statute, without the ordinance. This statute is not self-executing. It grants the power; but it must be exercised through an ordinance.

7. Assuming, under paragraph 45, the town had power to declare it a nuisance for one to sell or keep for sale intoxicating liquor inside the corporate limits, and, by ordinance regulating the procedure, to' abate the nuisance, this does not confer power to declare what shall constitute a nuisance within a mile beyond the outer boundaries, and abate it. Towns possess such powers as are granted them. We are not unmindful of the fact that paragraph 18 of the section confers powers upon towns by ordinance to prohibit the selling or giving away of intoxicating liquor within one mile beyond the outer boundaries; but the manner of enforcing the prohibition is through an ordinance imposing a fine.

Paragraph 53 provides they shall have power to prohibit within or within one mile beyond the outer boundaries of the town, any offensive or unwholesome business or establishment, and to prohibit the carrying on of any business or establishment in an offensive or unwholesome manner within one mile beyond the outer boundaries of the town. This statute does not apply to liquor, and if it did, there is no power given to declare the enumerated matters a nuisance with power to abate the same. The town must prohibit the things mentioned, and enforce the prohibition by fine and imprisonment. •The power by ordinance to prohibit and abate a nuisance within a mile beyond the outer boundaries of towns is not conferred by this paragraph. Besides, it must be evident to any •comprehensive mind, that paragraph 53 was intended to apply to those things which are offensive to the senses, or unwholesome in the sense in which the terms are ordinarily used. They refer to such things as dead carcasses, offensive and unwholesome slaughter houses, privy vaults, pig sties, feeding pens and the like.

8. The mere sale of or keeping for sale, intoxicating liquors, is not a nuisance per se; but the town council had power to declare it a nuisance by ordinance. — Houston v. Walton, 23 Colo. App. 282.

This power did not authorize the police magistrate, when Wolfe was tried and convicted before him on a charge of selling liquor contrary to the ordinance, to summarily declare him guilty of maintaining a nuisance and order the marshal to abate it. The procedure should be regulated by an ordinance, and the manner of abatement not left to the discretion of the officer executing the order. The ordinance provides that this nuisance shall be abated as any other nuisance, which means in a lawful manner. The ordinance after declaring what should be a nuisance, should have provided the manner of abating it, and the defendant should have been tried for maintaining a nuisance, and if convicted, the order of abatement should have been in conformity with the provisions of tb.: ordinance. Reversed and Remanded.

Chief Justice Musser concurs specially. Mr. Justice Scott concurs.