City of Denver v. Bach

• Decision Date: 09 November 1899
• Citation: 58 P. 1089,26 Colo. 530
• Parties: CITY OF DENVER v. BACH.
• Court: Colorado Supreme Court

58 P. 1089

26 Colo. 530

CITY OF DENVER v. BACH.

Supreme Court of Colorado

November 9, 1899

Appeal from Arapahoe county court.

Proceeding by the city of Denver against Leo Bach for violation of a city ordinance. There was a judgment discharging defendant and the city appeals. Affirmed.

Appellee was tried in the court below for the violation of an ordinance of the city of Denver, which, in terms, prohibited any person, firm, or corporation to keep open or conduct within the limits of the city, any clothing or other certain enumerated stores, or pawnbroker's shop, or to expose or offer for sale, or give away, within the city, any clothing or other articles of merchandise mentioned, or pawnbrokers' articles, on Sunday. The evidence established that appellee kept a clothing store in the city and had sold merchandise of that character in his place of business on Sunday. The trial court discharged him, from which judgment the case is brought here for review by the city, on appeal.

George O. Norris, E. J. Short, N. B. Backtell, and J. M. Ellis, for appellant.

Ralph W. Smith and H. B. Johnson, for appellee.

GABBERT, J. (after stating the facts).

Counsel for appellant contend that the city, by virtue of its charter, has the exclusive authority to regulate all lawful occupations, places of business, and trade, within its limits, and is thereby empowered to enact all ordinances which may be deemed necessary and proper for the good order health, good government, and general welfare of the city, and in the exercise of its police powers, for the purposes above enumerated, has enacted the ordinance in question. The validity of the ordinance is challenged by appellee upon the ground that it is special or class legislation, to which counsel for appellant answer that it is not, because by its provisions all persons engaged in the businesses or occupations mentioned in the ordinance are subject to the same restrictions. The facts established constitute a violation of the terms of the ordinance on the part of appellee, and the only question for determination is its validity. We shall consider but one question on this subject namely: Is it, so far as the business of selling clothing is concerned, class legislation? The reason advanced by counsel for appellant why it is not, is not the sole test. 'Sunday ordinances,' as they are termed, have been upheld upon the theory that it is necessary for the good order good government, and general welfare of the inhabitants of a city that their usual and ordinary avocations (except those of necessity or charity) should be suspended upon that day; but, with few exceptions, they have not been upheld, unless uniform in their operation, or, if not, were held valid because directed to avocations over which the city had a special control, or embraced those which were liable to interfere with public security or promote disorder. The business of selling clothing is not unlawful; it does not in any manner interfere with morality, or tend to creat disorder; nor has the city any special control over it, different from that which it may exercise over other avocations of the same general character. If the ordinance can be upheld, it must be upon the ground that prohibiting keeping open stores for the sale of that character of merchandise upon that day is necessary for the welfare of the public, or other of the ends to be achieved for the promotion of which...