May v. People

• Decision Date: 26 October 1891
• Citation: 27 P. 1010,1 Colo.App. 157
• Parties: MAY v. PEOPLE.
• Court: Colorado Court of Appeals

27 P. 1010

1 Colo.App. 157

MAY v. PEOPLE.

Court of Appeals of Colorado

October 26, 1891

Error to Las Animas county court; W.G. HINES, Judge.

Prosecution of Jacob May for violation of a municipal ordinance. Defendant brings error. Reversed.

Caldwell Yeaman, for plaintiff in error.

Jesse G. Northcutt, for the People.

RICHMOND P.J.

This was a prosecution originally instituted before a police magistrate in the city of Trinidad to recover from Jacob May plaintiff in error, a penalty for the violation of a regulation or ordinance. The case was tried, and a penalty of $20 fine imposed. Thereafter an appeal was taken to the county court of Las Animas county, where it was tried upon an agreed state of facts, as follows "That the defendant did, at the time and in the manner and form as alleged in the complaint filed herein, keep and store green and dry hides and pelts in large quantities within the corporate limits of the city of Trinidad, without permission from the city council of said city so to do. That the storing of green hides and pelts is the character of business which may or may not be a nuisance, according to the surrounding circumstances. That section 11 of an ordinance concerning nuisances reads as follows: 'Sec. 11. Any person who shall kill or dress any cattle, calves, sheep, or swine, or shall steam or render any lard or tallow, or store any green or dry hides or pelts, within the city, without permission from the city council, shall, upon conviction, be fined in a sum not less than ten nor more than fifty dollars for each offense; and such permit shall not be construed into a license to emit, cause, or be the author of any nuisance in any case whatever.' That the storing of green and dry hides is a business which in its character is easily susceptible of becoming offensive and nauseous." Upon this agreed state of facts, the county court adjudged the plaintiff in error guilty, assessed a fine of $10 and costs and committed him to the county jail until paid. To reverse this judgment this writ of error is prosecuted.

There being no dispute as to the facts, the only question presented by the record is whether this regulation or ordinance is valid. It is true, plaintiff in error insists in his argument that the proceedings before the police magistrate were irregular; but the record fails to disclose the fact that he insisted upon this in the county court. Therefore it will not be considered. The contention of plaintiff in error is that the ordinance referred to is in violation of the federal constitution, and of article 2 of the state constitution, and that it is invalid because it is unreasonable, partial, oppressive, and unfair, and tends to confer upon the city council power to create a monopoly. An analysis of this ordinance becomes necessary to the determination of the question presented. Under the General Statutes of this state, (section 3312, p. 970,) the following authority is conferred upon municipalities, (subdivision 45:) "To declare what shall be a nuisance, and to abate the same, and to impose fines upon parties who may create continue, or suffer nuisances to exist;" (subdivision 53:) "to prohibit any offensive or unwholesome business to be established within, or within one mile of, the limits of the corporation." This ordinance does not purport to declare the storing of hides and pelts within the city limits a nuisance, but does assume that the city council may prohibit by declining to grant permission, or may grant permission, as their inclination may prompt. They may go so far as to say that one individual may exercise the privilege, and that another equally respectable shall not. True, it is admitted in the stipulation that such business may become a nuisance; so also may many other vocations and trades, but yet they are not a nuisance per se. A livery stable, a slaughter-house, a butcher-shop, a boarding-house, an hotel, chemical-works, refinery and smelter, a sugar refinery, a railroad, enterprises requiring large smoke-stacks, a private barn where a number of horses are kept and cared for, a theater for the resort of all classes, a blacksmith-shop, a foundry,--all such may become a nuisance, and are as easily susceptible of becoming a nuisance as it is admitted that of storing hides and pelts could be. Taking this view, then, of the ordinance, I can reach no other conclusion than that it does not come within the authority conferred by the General Laws upon a municipality, and that it is discriminating. It is true that it may be said the city council might not discriminate in favor of one against another; but that they have reserved to themselves the power so to do cannot be denied, and also that they have reserved the right to determine when, where, and by whom such an enterprise may be conducted cannot be disputed. That it...