City of La Junta v. Heath

• Decision Date: 07 January 1907
• Citation: 38 Colo. 372,88 P. 459
• Parties: CITY OF LA JUNTA v. HEATH.
• Court: Colorado Supreme Court

88 P. 459

38 Colo. 372

CITY OF LA JUNTA v. HEATH.

Supreme Court of Colorado, En Banc.

January 7, 1907

Appeal from Otero County Court; A. B. Wallis, Judge.

C. H Heath was prosecuted by the city of La Junta for violating an ordinance. From a judgment in his favor, the city appeals. Affirmed.

Thos R. Hoffmire, for appellant.

O. G Hess, for appellee.

STEELE J.

Heath was arrested by the city authorities and charged with violating a city ordinance which forbids the selling of water without a license so to do. The police magistrate discharged him; so did the county judge. The city appealed from the decision of the county court to the court of appeals.

The city owns a waterworks system taking water from the Arkanss river. It also owns wells within its corporate limits. The ordinance under which Heath was prosecuted is ordinance No 115, and is entitled: 'An ordinance concerning the use of artesian water from artesian wells, the property of the incorporated town of La Junta, and regulating and controlling the use, sale and delivery of all artesian water within the corporate limits.' Section 5 of the ordinance is as follows: 'Sec. 5. Any person or persons, company, association or corporation obtaining artesian water from any well or wells, or their overflow, or through any hydrant or pipe connected with such well or wells, not the property, or under the control of the incorporated town of La Junta, for the purpose of peddling, selling or giving away, within the corporate limits of said town, shall first apply to the board of trustees for a permit, and if said board, in its discretion, grants said permit, shall pay to the town treasurer the sum of fifty dollars, for a license of one year, and execute to the town such bond as is required under the provisions of section 2 of this ordinance. Any violation of this section shall subject the offender to a fine of not less than five nor more than twenty-five dollars for each day of its violation, or confinement in the town jail from one to ten days, or both fine and imprisonment, in the discretion of the police magistrate.' Since the passage of the ordinance the former town of La Junta has become a city of the second class. This ordinance, it is claimed, is void: 'First, because the statute under which the city is organized gives it no power to tax persons for delivering water; that is, wholesome and pure water for household uses, and no power to prohibit such a calling. Second, because the ordinance gives the city council an arbitrary discretion to grant or refuse permits for the same, without any restriction whatsoever. Third, because the prohibition of the delivery of pure and wholesome water for household purposes is against the general laws and public policy of the state, and the ordinance is void.'

On behalf of the city it is contended that the ordinance is a valid exercise of power granted in order to protect its waterworks system, and that, independently of the protection afforded by the ordinance to its waterworks system, the city has the undoubted power to regulate the sale and distribution of artesian water. Counsel does not contend that the ordinance was enacted as a sanitary measure, for the protection of the health of the inhabitants of the city, but bases his contention that the ordinance is valid upon the ground that its primary object is to protect the income of the city derived from its waterworks, and that it is within the power of a city to protect itself from petty and irresponsible competition in the business of supplying its inhabitants with water, and in the discussion of the case we shall assume that the city has enacted the necessary ordinances to prevent the sale of unwholesome or impure water.

We find no provision in the statute granting express power to the city to regulate the sale and distribution of water for the purpose of preventing competition with the city, thus enabling it to protect the revenue of its waterworks system nor is such power necessarily or fairly implied from the power to erect waterworks. The statute (page 2278 Mills) grants power to the city to license, tax, regulate, suppress, and prohibit peddlers. The defendant was engaged in the business of...