Pratt v. City and County of Denver

• Decision Date: 03 July 1922
• Docket Number: 10148.
• Citation: 209 P. 508,72 Colo. 51
• Parties: PRATT v. CITY AND COUNTY OF DENVER et al.
• Court: Colorado Supreme Court

209 P. 508

72 Colo. 51

PRATT v. CITY AND COUNTY OF DENVER et al.

No. 10148.

Supreme Court of Colorado, En Banc.

July 3, 1922

Rehearing Denied Oct. 2, 1922.

Error to District Court, City and County of Denver; Julian H Moore, Judge.

Suit by Clifton J. Pratt against the City and County of Denver and D C. Bailey, Mayor of the City. From judgment for defendants plaintiff brings error.

Reversed and remanded.

John R Smith and F. E. Gregg, both of Denver, for plaintiff in error.

James A. Marsh and Jacob J. Lieberman, both of Denver, for defendants in error.

ALLEN J.

This is a suit for an injunction to restrain the city and county of Denver, its officers and employés, from preventing or interfering with plaintiff's construction of a garage building. Judgment for defendants, and plaintiff brings the cause here for review.

On May 18, 1921, the plaintiff obtained from the building inspector a permit to build the proposed building. The construction was not authorized by the city council, but this fact is material only in the event it is held that the proposed building is a public garage within the meaning of the ordinance hereinafter mentioned. If it is, as the city claims, such a public garage, the judgment below must be affirmed, since, while it was based on other grounds nevertheless reached the correct result.

Ordinance No. 121 of the series of 1919, provides, so far as material in this connection, as follows:

'It shall be unlawful to erect * * * any building * * * for use as a public garage, * * * within the city and county of Denver; * * * and no permit shall issue for the erection * * * of any building * * * for the use as a public garage, * * * until and unless such building * * * shall have been previously authorized by resolution of the council of the city and county of Denver.'

The proposed building is one 40 by 100 feet in width and length respectively, and about 10 feet high. It is to be subdivided into 24 separate rooms or compartments. It is intended by the owner or his lessees to let each room to individuals for the purpose of storing an automobile therein, the tenant of each room to keep his machine under his own control and be provided with an independent lock and key to the compartment. Is the building, then, a public garage? The popular acceptation of the term 'public garage' cannot be resorted to, for the reason that the definition given by the ordinance itself is, as it must be, controlling in this case. In this respect, the ordinance reads as follows:

'For the purpose of this ordinance a public garage is defined as any building or place used in whole or in part for carrying on the business of repairing or storing for hire of automobiles, * * * or other motor vehicles.'

It is seen from this definition that the mere use of a building for storing automobiles does not make the building a public garage. To be a public garage it must be 'used * * * for carrying on the business of * * * storing for hire of automobiles.' If an owner allows the tenant of his building to store an automobile therein, the former is not 'carrying on the business of storing for hire of automobiles,' but is merely renting his building to be used as a private garage.

'A garage has been likened to a livery stable, for which it has become a substitute to a great extent, and the rules of law governing livery stable keepers apply to garage keepers.' 2 R.C.L. 1210.

In Congregation Beth Israel v. O'Connell, 187 Mass. 236, 72 N.E. 1011, the plaintiff, a religious corporation, sought to restrain the defendants from erecting a stable within 200 feet of its church building. It was claimed that the stable came within the definition of a statute (Rev. Laws, c. 102, § 70) which read, in part, as follows:

'No person shall * * * occupy or use a building for a livery stable or a stable for taking or keeping horses and carriages for hire or to let.'

The court held that the statute does not apply to a stable which is let...