Opinion
No. 15,614.
Decided June 16, 1947.
Suit in injunction by a municipal corporation to enjoin the moving of a building outside the corporate limits without complying with certain provisions of a municipal ordinance. Judgment of dismissal.
Affirmed.
1. MUNICIPAL CORPORATIONS — Purpose of Ordinances. In proper cases, of which the instant case is one, the purpose of the passage of a municipal ordinance may be inquired into.
2. Powers. Municipal corporations may forbid such activities as prize fights and the traffic in intoxicants and exercise the police power to that end by exacting such high licenses as to forestall them.
3. Powers. Municipal corporations have no power to promulgate and enforce ordinances forbidding the moving of buildings outside the corporate limits without obtaining a permit therefor and making a cash payment of $500.
4. Ordinances. Municipal ordinances must be just and reasonable, devoid of discrimination and oppression, and cannot be resorted to for illegal purposes.
5. Powers. Incorporated towns derive their sole powers from constitutional authority, and these must be defined by general laws.
6. Ordinances. An ordinance which has nothing to do with regulation but is one of pure prohibition, is unjust, unreasonable, discriminative, oppressive and resorted to for an illegal purpose, is unconstitutional and void.
Error to the District Court of Yuma County Hon. H. E. Munson, Judge.
Mr. SAMUEL CHUTKOW, Mr. NOAH A. ATLER, Mr. JOSEPH BERENBAUM, for plaintiff in error.
Mr. J. L. RICE, Mr. LEON L. HINES, for defendants in error.
THESE parties are hereinafter referred to as Eckley, Meyers and Bates, respectively.
Meyers owned two lots and the five-room house located thereon in the town of Eckley (a municipal corporation) having a population of approximately 250. Bates was engaged in the business of moving houses. September 1, 1942, Eckley passed ordinance No. 19 consisting of three sections. Section 1 made it unlawful for anyone to move a building over any street or alley of the town without a permit granted by the board of trustees. Section 2 required a written application for such a permit and the giving of a bond to pay any damages arising and taxes for the current year. Section 3 provided that if the building was to be moved out of the corporate limits, the owner was further required to make a cash payment of $500.
Eckley brought injunction October 18, 1943, alleging that Meyers and Bates were threatening to move the Meyers house outside the town without complying with the ordinance to the "irreparable loss and injury" of the town. For a second cause of action Eckley alleged its assessed valuation to be approximately $112,000; that it had outstanding $17,000 in water bonds; that the school district of which it was a part had outstanding an unknown amount of bonds; that other persons contemplated moving their property outside the town; that Bates proposed to do the work; and that property so moved would not bear its share of taxes; hence the security for the bonds would be depreciated. Meyers answered that he had offered the town clerk bond and taxes as required by the ordinance, but that offer had been declined and the clerk refused to issue a permit until he first paid to Eckley $500 in cash, which demand he had refused. He further alleged his readiness to pay into court any deficiency and asserted the unconstitutionality of the ordinance. A temporary writ was issued and later dissolved by stipulation on deposit in court, by defendant, of an agreed sum to abide final judgment.
April 11, 1944, the cause was tried to the court which made specific findings of fact and law and entered judgment dismissing the action with costs. To review that judgment Eckley prosecutes this writ, contending that the admission of evidence as to the purpose of the passage of the ordinance and the ruling against the constitutionality were both erroneous.
In proper cases, of which this is clearly one, the purpose of the passage of an ordinance may be inquired into. Dillon on Municipal Corporations (5th ed.) vol. 2, §§ 580, 581. Eckley admitted that one purpose was to prevent the removal of buildings outside her corporate limits. Certain it is that such was the sole purpose of its attempted application to Meyers and Bates.
[2, 3] Municipal corporations may forbid such activities as prize fights and the traffic in intoxicants and exercise the police power to that end by exacting such high licenses as to forestall them. Antlers Athletic Ass'n v. Hartung et al., 85 Colo. 125, 274 Pac. 831. No such power, however, exists as to such enterprises as that here involved. Dillon on Municipal Corporations (5th ed.) vol. 2, § 715.
[4, 5] Ordinances must be just and reasonable, devoid of discrimination and oppression, and cannot be resorted to for illegal purposes. Dillon on Municipal Corporations (5th ed.) vol. 2, §§ 591, 593. This ordinance requires one who moves a building into Eckley, or from place to place in the town, merely to pay current taxes and post a reasonable bond to pay resulting damages, if any, which the evidence discloses rarely exceeds a few dollars. In contrast therewith section 3 requires that he who moves a building out of the town shall be mulcted in the absurd sum of $500. Incorporated towns derive their sole powers from constitutional authority and these must be defined by general laws. Colo. Const. art. XIV, § 13. Accordingly subdivision 7, section 10, chapter 163, volume 4, '35 C. S. A., authorizes them to regulate the use of their streets.
Section 3 of the ordinance here before us has nothing to do with regulation. It is pure prohibition. Such an ordinance is, as to said section here involved, on its face, everything that is forbidden, i. e., unjust, unreasonable, discriminative, oppressive, and resorted to for an illegal purpose, hence it is unconstitutional and void. Such being the case no other judgment than that pronounced was possible and other alleged errors require no notice.
The judgment is affirmed.