Canon City v. Manning

• Citation: 43 Colo. 144,95 P. 537
• Parties: CANON CITY et al. v. MANNING et al.
• Decision Date: 06 April 1908
• Court: Supreme Court of Colorado

95 P. 537

43 Colo. 144

CANON CITY et al. v. MANNING et al.

Supreme Court of Colorado

April 6, 1908

Error to District Court, Fremont County; J. W. Sheafor, Judge.

Action by Frank Manning and others against the city of Canon City and others. There was a judgment for plaintiffs, and defendants bring error. Affirmed.

The Benevolent & Protective Order of Elks of the United States of America is a fraternal, social, and benevolent society having many subordinate lodges, one of which is located at Canon City. This lodge is a voluntary society, not incorporated and consists of upwards of 325 members, and is supported by the fees and dues paid in by its membership. The rules of the order prescribe the qualifications for membership. Pursuant to the constitution and by-laws of the order, it maintains clubrooms at Canon City for the social enjoyment of its members, where liquors are dispensed to them, each paying for that consumed by himself or his guests in a sum fixed by the board of control. The membership of the club is limited to members of the organization in good standing. None but members of the order or their guests are admitted to the club, and no person not a member of the order who is a resident of Canon City or the immediate vicinity can be admitted. Guests, except members of the order, are not permitted to spend any money in the club. The club has quite an elaborate set of rules for the government of its members and the management of its affairs, and is part and under the control of the Canon City lodge of the order. It is not incorporated, and its affairs are managed by a board of control appointed in accordance with the rules of the order and the rules and regulations of the club. The club is conducted in an orderly manner, and no conduct calculated to disturb the peace is permitted. Billiard and card tables are maintained for the use of the members and guests. The rooms are supplied with magazines and other reading matter. Canon City has ordinances prohibiting the sale or giving away of intoxicating liquors within its corporate limits by any person, except regularly licensed druggists, duly licensed to sell liquors for medicinal, mechanical, and chemical purposes. One of these ordinances declares that every place within the limits of Canon City where intoxicating liquors are sold or dispensed, except by druggists duly licensed, is a nuisance. Penalties in the way of fines are provided for the violation of these ordinances. One of the provisions of the ordinance declaring places where liquors are sold or dispensed nuisances is: 'The city marshal and all police officers of said city shall abate said nuisance by securely closing such place and preventing any person and all persons from entering the same except for the lawful removal of such liquor, until all liquor or any or every kind hereinbefore mentioned shall have been removed therefrom, and until the owner of said place shall have given bond to the said city in a form and with sureties to be approved by the city council of said city of Canon City, in the penal sum of twenty-five hundred dollars, conditioned that such place shall not again be suffered or permitted to be used for any purpose hereinbefore specified as constituting it a nuisance.' Under this provision, the city, through its mayor and marshal, gave notice to the club to stop the sale and dispensing of liquors to its members within the rooms occupied by it, and that, unless such sales were stopped within a time specified, the provisions of the ordinances of the city with respect to the sale and dispensing of intoxicating liquors would be rigidly enforced against the club. Up to the time of giving such notice, no prosecution under any of the ordinances in question had ever been commenced or prosecuted against the club or its members. Defendants in error, constituting the board of control of the club, thereupon commenced an action against the city of Canon City and its mayor and marshal to restrain them, except by some regular form of judicial proceeding in a court of competent jurisdiction, from closing the clubrooms or preventing any member or members from entering them, or interfering with the full and entire enjoyment of such rooms by the members. The complaint filed stated substantially the facts above set forth. To this complaint a demurrer was filed by the defendants, which challenged the complaint upon the grounds, among others, that the plaintiffs had no capacity to sue, and that the complaint did not state facts sufficient to constitute a cause of action, or as a basis for relief of any kind. This demurrer was overruled. The defendants thereupon answered, and a trial was had before the court. The facts established under the court. The pleadings were substantially as above recited. Judgment was rendered for the plaintiffs enjoining the defendants, except by some regular form of judicial proceeding in a court of competent jurisdiction from closing the clubrooms or preventing any member or members of the club or their guests from entering such rooms and to refrain and desist from interfering with the full and entire enjoyment of such rooms by the members of the club or their guests. The defendants bring the case here for review on error.

Taylor & Sayre and H. L. Ritter, for plaintiffs in error.

Chas. E. Waldo, Clyde C. Dawson, Jas. A. Stump, A. L. Jeffrey, and E. H. Stinemeyer, for defendants in error.

Bonynge & Ritter, T. A. McHarg, Albert A. Reed, Frank C. West, Geo. H. Van Horn, and Geo. A. Carlson, amici curiae.

GABBERT, J. (after stating the facts as above).

The first error assigned on behalf of defendants is that the court erred in overruling their demurrer to the complaint, which challenged the capacity of plaintiffs to bring the action. Presumably, if there was any merit in this contention, it appeared upon the face of the complaint. By answering to the merits, the defendants waived that question. It has been repeatedly decided that where a demurrant wishes to take advantage of any supposed error in overruling a demurrer to a complaint upon grounds which under our Civil Code constitute grounds for demurrer which appear upon the face of the complaint, he must, except for want of facts or jurisdiction, let final judgment be entered, for by afterwards answering to the merits he cannot, except for the two defects mentioned, raise such questions in connection with his answer. Sams Automatic Car Coupler Co. v. League, 25 Colo. 129, 54 P. 642; Diamond Rubber Co. v. Harryman, 40 Colo. ----, 92 P. 922.

It is next urged that the complaint shows that the plaintiffs have attempted to invoke the aid of a court of equity to prevent the enforcement of a penal ordinance, and that for this reason, and also because the testimony establishes this fact the judgment is erroneous. The...