Wettengel v. City of Denver

• Decision Date: 08 February 1895
• Citation: 20 Colo. 552,39 P. 343
• Court: Colorado Supreme Court
• Parties: WETTENGEL v. CITY OF DENVER.

39 P. 343

20 Colo. 552

WETTENGEL v. CITY OF DENVER.

Supreme Court of Colorado

February 8, 1895

Error to county court, Arapahoe county.

John Wettengel, convicted in a police court of the violation of a city ordinance, upon appeal to the county court was again convicted, and from the judgment therein brings error. Reversed.

The plaintiff in error was found guilty in the police court of the city of Denver of the violation of an ordinance of said city which prohibited the distributing of handbills and circulars upon the streets. He appealed to the county court of Arapahoe county, and upon trial there, before the court and a jury, was also found guilty, and sentenced to pay a fine of three dollars, and costs of the prosecution. From that judgment he brings the case to this court upon writ of error.

Section 2 of the ordinance upon which this prosecution was based is as follows: 'No person shall hand to or offer to any traveler or other person traveling along or upon any street alley, lane, public place or enclosed public grounds in the city of Denver, any handbill, paper, advertisement, circular or other thing of such nature or character that the traveler person or persons taking the same will naturally or probably throw or deposit the same immediately after so taking the same upon or litter or obstruct any street, alley, lane public place or enclosed public grounds in said city, or where the same may be or may become calculated to frighten or injure or endanger horses or other animals, provided that this ordinance shall not be construed to interfere with or restrain the selling or distributing of newspapers or periodicals, but such sales may be carried on as now permitted and regulated by law.' Section 3 of the ordinance provides the penalty for the violation of the same which is a fine of not less than $3 nor more than $100 for each offense. The provisions of the city charter which, it is claimed, give to the council power to pass this ordinance, are section 20, subd. 40, of the city charter, on page 85, Sess. Laws 1885, which, in substance, gives the council power to prevent 'any practice having a tendency to annoy persons passing on the streets or sidewalks, or to frighten teams or horses,' and what is commonly known as the 'General Welfare Clause,' which gives the city council power 'to make all ordinances which it may deem necessary or requisite for the good order, health, good government, and general welfare of the city.'

J. Warner Mills, for plaintiff in error.

F. A. Williams and A. B. Seaman, for defendant in error.

CAMPBELL J. (after stating the facts).

There are a number of errors assigned, the principal one of which is the invalidity of the ordinance. There are, however, two other questions which will be considered, the determination of which will work a reversal of this judgment; but, inasmuch as there are a number of cases pending in the court below which depend upon the decision in this, we have concluded to determine the main point involved, and pass upon the constitutionality of the ordinance.

The evidence tends to show that on the night of August 6, 1890, on Larimer street, in the city of Denver, between Eighteenth and Nineteenth streets, the defendant, with others, distributed to travelers on the street, whom he could induce to take the same, 600 or 700 circulars or handbills, about 7 by 10 inches in size, which gave the names of the 6 o'clock and Sunday closing houses in Denver dealing in ready-made clothing and boots and shoes, and urged the public to patronize them. At the same time the receivers of these circulars were requested not to drop them on the streets, and some of those to whom such requests were made complied therewith, but others dropped them on the street. The circulators endeavored to pick up such as were thrown away, but, notwithstanding this, some of these circulars were deposited on the street, and found there and on the sidewalks the following morning.

The validity of this ordinance is assailed on the ground that it is unreasonable. It is contended that it is an 'attempt to regulate and restrain the conduct of the citizen in matters of mere indifference, without any good end in view'; that it aims to prohibit the carrying on of a business which in general, and in itself, is lawful. The legislature not having conferred upon the city the express authority to pass an ordinance prohibiting the distributing of circulars on the streets, the power, if it exist at all, must be derived from the general welfare clause, and the power given to prevent 'practices having a tendency to frighten teams or horses.' The reasonableness of this ordinance, therefore, is a matter for judicial determination. No useful purpose would be subserved by following counsel for plaintiff in error in his discussion of the competitive wage system, of the conflicting views of speculative philosophers on sociology, or of the rights of employers...