City Council of City and County of Denver v. United Negroes Protective Ass'n

• Decision Date: 06 October 1924
• Docket Number: 11049.
• Citation: 230 P. 598,76 Colo. 86
• Court: Colorado Supreme Court
• Parties: CITY COUNCIL OF CITY AND COUNTY OF DENVER et al. v. UNITED NEGROES PROTECTIVE ASS'N.

230 P. 598

76 Colo. 86

CITY COUNCIL OF CITY AND COUNTY OF DENVER et al. v. UNITED NEGROES PROTECTIVE ASS'N.

No. 11049.

Supreme Court of Colorado, En Banc.

October 6, 1924

Error to District Court, City and County of Denver; Charles C Butler, Judge.

Mandamus by the United Negroes Protective Association against the City Council of the City and County of Denver and others, to compel issuance of a building permit. From a judgment making the writ permanent, defendants bring error.

Supersedeas denied; judgment affirmed.

Rice W Means and Bentley M. McMullin, both of Denver, for plaintiffs in error.

Charles Ginsberg, of Denver, for defendant in error.

CAMPBELL J.

The United Negroes Protective Association organized under division 12, chapter 38, C. L. 1921, is a corporation, not for profit, but to establish and maintain in the city and county of Denver an old folks' home for aged people in good health and an orphanage for children of the negro race. By authority of the Governor of the State and his secretary of the department of charities and corrections acting under the advice of the Attorney General, a state license was granted to the association to erect and maintain this institution. A contract was entered into for the purchase of city lots in block 43, Case & Ebert's addition to the city of Denver, on Thirtieth street between Arapahoe and Lawrence, on which to erect the necessary buildings. Sections 698-701, Municipal Code 1917 of the City and County of Denver, provide that no such institution shall be located, erected, or operated 'without the consent of the council, expressed by resolution or ordinance, first had and obtained,' and a permit therefor may not be granted if the construction and maintenance thereof will be injurious or detrimental to the public health or constitute a nuisance. Accordingly, after it had received the state license, the association applied to the city council for a permit to operate and maintain its home and orphanage. A petition or protest against the application was filed with the city council by a large number of the residents of the neighborhood, on the ground that such an institution would be detrimental to the public health and safety of the people living in that vicinity. One of the petitions was filed in anticipation of the application; another was lodged with the city council after the application for the permit was filed. At the next regular meeting of the city council thereafter the application was referred to its committee on health, to which had been previously referred the protests. The committee at once reported unfavorably, and on the same night the council denied the application without a hearing. Upon a subsequent rehearing before the committee, which was granted at the association's request, evidence was submitted both by the applicants and protestants, and the committee's report to the city council was again unfavorable, and the council again approved the report and denied the permit. Thereafter the association sued out and obtained in the district court an alternative writ of mandamus commanding the city council and its individual members to issue, or show cause why they should not issue, the permit. A return or answer purporting to show cause was filed, setting forth in substance that the public health would be endangered by the operation and maintenance of an institution of that character in the locality. Both parties produced evidence, and the district...