Deitz v. City of Central

• Decision Date: 01 February 1871
• Citation: 1 Colo. 323
• Parties: DEITZ v. CITY OF CENTRAL.
• Court: Colorado Supreme Court

1 Colo. 323

DEITZ v. CITY OF CENTRAL.

Supreme Court of Colorado

February, 1871

Appeal from District Court, Gilpin County.

ACTION of debt upon an ordinance of the city of Central, which provides that if any person shall sell or give away any intoxicating or fermented liquors without license, in quantities less than one quart, without first obtaining a license there for, he shall for each offense forfeit and pay to the city a sum of not less than $25, nor more than $50.

This ordinance is based upon section 20 of the charter of the city (3 Sess. 245), which is as follows: 'To license restrain, regulate, prohibit, and suppress tippling houses gambling houses, bawdy houses, and other disorderly houses and the selling and giving away of any intoxicating or malt liquors by any person within the city, except by persons duly licensed.'

A general law of the territory authorized the county commissioners in each county to license the sale of intoxicating liquors, and imposed a penalty of $20 for the violation of its provisions.

Mr. I. N. WILCOXEN and Mr. S. B. HAHN, for appellant.

Mr. L. C. ROCKWELL, for appellee.

WELLS J.

The errors assigned in this case question, first, the existence of the corporation which was plaintiff below; second, the reasonableness and validity of the ordinance under which the conviction was had; third, the existence and powers of the functionary before whom the process was instituted; fourth, the regularity of the proceedings.

We have examined the multitude of questions urged in this case, with the careful consideration to which the elaborate diligence of counsel entitles them.

As to the first question: It is solemnly argued that the legislature of this territory have no authority to create municipal corporations, for that congress, not having such power, could not confer it upon the legislature of the territory, which is its mere creature.

But upon what ground of reason can it be said that congress has not such authority?

Whether it be referred to an express constitutional grant or to necessity arising out of its sovereignty and proprietorship, we think it can scarcely, at this day, be doubted that the authority of congress to govern the territories is absolute and supreme.

It may be that the inhibition against laws prohibiting the free exercise of religion, or abridging the freedom of the press, against the taking of private property without compensation, and the other express restraints imposed by the constitution, extend as has been contended, proprio vigore, to the territories, but beyond these, the power of congress to govern in the territories by such means and agencies as in its wisdom it may select, is indisputable.

They might themselves enact laws operating directly in the territory, or appoint a governor and judges invested with legislative powers, both of which were done in the norty-west territory.

Or they might enact, that all authority, whatever, should be invested in such person or persons as the president might appoint; this was done in the case of Florida.

Or they might provide for a legislature to be appointed by the president, as was done, in the first instance, for the Territory of Louisiana.

Or they might, we conceive, organize each community in any or all of the territories into a municipality, with power of local self-government.

The whole of this authority, so far as concerns the local affairs of the citizens, and within the restrictions contained in the organic act, congress has conferred upon the legislative assembly of this territory, subject at all times to a revocation of the grant in its own pleasure, and subject, in its exercise, to a conformity with the constitution and the acts of congress, including the organic act.

Within these restrictions and limitations, and subject to the power of revocation in congress, the legislature of this territory may do whatever congress might do, if assuming to govern by its own enactments.

It is said, that, admitting the power of congress, the legislative authority of the territory rests upon other grounds; and being a mere delegated authority cannot, itself, be the subject of a delegation.

But the authority of every State legislature is also a derivative and delegated authority, and the maxim here relied upon has always, in a proper case, been held to avoid their enactments when in conflict with its principle; nevertheless it may safely be assumed, that in no State of the Union was there ever an express constitutional provision authorizing the erection of municipal corporations, nor probably is there any State in which the legislative authority has not, from the earliest periods, assumed and exercised the power now brought in question. In no case to which we have been referred have the courts denied its existence; and, on the contrary, in numerous cases and by the most respectable courts, it has been expressly affirmed.

And, if we shall now declare, that in this territory the power does not exist, it will be to destroy and prohibit within our borders all these local municipalities and miniature republies, which are the very womb and nursery of our free institutions.

The reasonableness of the ordinance under which appellant was prosecuted is denied, upon the ground that it imposes a penalty greater than that provided by the law of the territory.

But when we consider, that, by the express words of the statute, this corporation is authorized not only to license, but to suppress and prohibit the sale of intoxicating liquors, which the legislature has not attempted to do, how can it reasonably be said, that the general law is, in any respect, the measure of the powers of the corporation? In no one of the cases relied upon by counsel has this been decided.

In Austin v. Murray, 16 Pick, 121, the by-law was held void because not warranted by the charter, while the amount of the penalty did not come in question.

In Mayor of New York v. Nichols, 4 Hill, 209, the ordinance in question prohibited any sale of hay without having the same inspected and weighed; the court held it to be void as against the provisions of the general statute, which expressly provided that hay pressed and put up in a particular manner might be sold 'by any standard weight which shall be agreed upon between the buyer and seller.'

In The City of Boston v. Shaw, 1 Metc. 130, the only question was, whether the method prescribed by the ordinance for the apportionment of the expenses of sewerage among property owners was or was not a reasonable one.

In Dunham v. Robertson, 5 Cow. 462, the charter authorized the village to make such prudential by-laws as they may from time to time deem meet * * * relative to taverns, gin shops and hucksters' shops in said village * * * provided, always, that such by-laws be not contrary to, or inconsistent with, the law of this State. The by-law provided that hucksters should be licensed, and that every person keeping a huckster's shop without license should pay a penalty named. The court held the ordinance void, as in restraint of a trade upon which no restriction was apparently necessary.

By-laws, the court say, must accord with the laws of the State and the general principles of law; and by this we understand that the by-law must not countervail any express provision of the statute or the recognized principles of common law; not that necessarily the corporation may not go further in legislating for their own members than the legislation of the State upon like subjects.

If we admit the rule contended for, we practically nullify a very large part of the provisions of this charter. Here is an express authority given to suppress tippling houses and to do many other things that no law of the territory has yet assumed to do, and if the penalty recovered in this case was unauthorized, then, for the same reason, every attempt of the corporation to exercise the numerous special powers contained in the charter relating to subjects, upon which the legislature has not prescribed a rule, must be forever ineffectual.

The cases of City of Pekin v. Smelzel, 21 Ill. 465; City of Burlington v. Keller, 17 Iowa, 369; S. C., 18 id., are directly in point, and, we think, directly against the position assumed by counsel for the appellant.

As to whether there is such an officer as the one before whom this prosecution was instituted, it will be observed that the officer subscribes himself in the process police magistrate. It is said that by the organic act of the territory no such officer is recognized, but that all judicial power is vested in the supreme court, district courts, probate courts and justices of the...