People ex rel. Foley v. Begole (State Report Title: People ex rel. Foley v. Stapleton)

• Decision Date: 09 March 1936
• Docket Number: 13563.
• Citation: 98 Colo. 354,56 P.2d 931
• Parties: PEOPLE ex rel. FOLEY v. BEGOLE et al. [*]
• Court: Colorado Supreme Court

56 P.2d 931

98 Colo. 354

PEOPLE ex rel. FOLEY v. BEGOLE et al.^[*]

No. 13563.

Supreme Court of Colorado, En Banc.

March 9, 1936

Error to District Court, City and County of Denver; Otto Bock Judge.

Mandamus proceeding by the People of the State of Colorado, on the relation of D. D. Foley(Lulu M. Foley substituted), against George D. Begole(Benjamin F. Stapleton substituted), as Mayor, and other officers, of the City and County of Denver Colorado.Judgment was entered, and the relators bring error.

Affirmed.

Myles P. Tallmadge, of Denver, for plaintiffs in error.

James D. Parriott, Robert Kirschwing, Hughes &amp Dorsey, and W. A. Alexander, all of Denver, for defendants in error.

BURKE Justice.

Plaintiffs in error are hereinafter referred to as Foley, defendants in error as the city, and the Denver Tramway Corporation as the tramway.

The city, by ordinance, granted the tramway a 'revocable permit' to operate passenger busses on Marion street.Foley brought mandamus to compel the concellation thereof.The city demurred for want of facts, defect of parties, and want of jurisdiction.The ruling of the court was: 'The demurrer of respondents to the alternative writ of mandamus is sustained.'Foley elected to stand, and to review the judgment thereupon entered against him he prosecutes this writ.Reference to what appears in the record as the 'ruling of the court,' but which, aside from the language above quoted, is a written 'opinion' stating the trial judge's conclusions of law and the authorities on which these are based, discloses that the demurrer was sustained for want of facts.However, since we are concerned only with the correctness of the judgment, not the reasons of the court, if any ground of demurrer was good the judgment must be affirmed.

It appears that by OrdinanceNo. 2, Series of 1930, the city authorized the operation of busses north and south on Downing street, and that by OrdinanceNo. 8, Series of 1934, it authorized these busses to operate, south bound, on Marion street for the purpose of making Downing a one way street.These streets are adjoining, Downing being the westerly of the two, and next west of it is Corona.The street next east of Marion is Lafayette.It appears that between 1930 and 1934 shifting conditions and increased traffic necessitated the change, evidenced by OrdinanceNo. 8.

The last paragraph of section 4 of article 20 of the State Constitution(applicable to the city) reads, in part: 'No franchise relating to any street, alley or public place of the said city and county shall be granted except upon the vote of the qualified taxpaying electors.'Section 281(formerly 269) of the City Charter reads: 'The council may grant a license or permit at any time, in or to any street, alley or public place, provided such license or permit shall be revokable at any time, and such right to revoke shall be expressly reserved in every license or permit which may be granted hereunder.'These enactments have stood thus for something over thirty years.

In adopting said OrdinanceNo. 8 the city claimed to act under the provisions of said section 281 of its charter.Foley s contention was and is that such action was prohibited by said section 4 of article 20 of the Constitution because the privilege granted by said Ordinance 8 was a franchise.The trial court held the privilege a revokable permit, not a franchise, and hence sustained the demurrer for want of facts.

We think the writ bad for want of facts.Any one may use the streets and highways for ordinary purposes.This right extends even to conducting such business thereon as does not permanently occupy and obstruct the highway to the exclusion of others.This of course is subject to the right of the people, by appropriate legislation, to regulate or prohibit such operation in the public interest.This may be done by license or permit.If the business permanently occupies and obstructs the highway, as by the erection of a building or the laying of car tracks, the right to do so can only be granted by franchise.Such seems to be the general rule gathered from constitutional and legislative enactments and the decisions of the courts.Denver & S....