10 Colo. 403 | Colo. | 1887
The first and fifth assignments of error attack the jurisdiction and practice of the superior court. The first alleges that the court did not have jurisdiction of the subject-matter of the action; the fifth is to the effect that no term of said court existed at the time of the trial below, in October, 1884, the September term having lapsed for failure of the judge to appear on the first day of the term; that the practice provided by law for the district courts, in such cases, not being applicable to said superior courts, the clerk thereof was without any authority to adjourn the court from time to time, as he did, until the appearance of the judge. In-the discussion of these assignments, appellant’s counsel take the position that the superior court was never constitutionally clothed with any jurisdictional practice whatever. In support of this proposition it is argued that the act creating superior courts, and prescribing their powers, proceedings and practice, is in direct conflict with the provisions of section 24, article 5, of the state constitution, and therefore null and void. The legislative act in question is entitled “An act to provide for the creation and organization of superior courts in cities and incorporated towns; to prescribe the jurisdiction, powers, proceedings and practice of such courts, and to define the duties and qualification of the judges and other officers connected therewith.” This act is composed of twenty sections, the jurisdiction and practice of said superior courts being defined in sec
But our attention is' directed to another provision of said section 21, viz.: “No law shall be * * * extended or conferred by reference to its title only, but so much thereof as is * * * extended or conferred shall be re-enacted and published at length.” This is a provision not usually found in constitutions. Considered and construed in connection with the rest of the section in which it appears, and with reference to other portions of the constitution relating to the same subject-matter, it is a wholesome provision. It is well understood by the profession that certain constitutional provisions, and especially those of sections 21 and 25 of the legislative article, and section 28 of the judiciary ai-ticle, were designed to remedy and prevent well-known abuses of legislation existing at the time of the framing of this instrument. These were the evils of special legislation, and the vicious practice of amending statutes by referring to the title,
That the construction contended for involves not only an absurdity, but the most serious evils, a little reflection will show. The manner and forms of proceeding for executing laws on general subjects of legislation are all provided in the General Statutes of the state. Ordinary subjects of legislation are dealt with at every session of the general assembly, and reference to the General Statutes is often necessary for the means by which they are to be carried into effect. To re-enact and publish at length these various forms and proceedings on the passage of such acts would serve no useful purpose whatever. Take, for example, an act imposing a tax upon a new subject of taxation; to require the legislature to ingraft on such an act the numerous details of proceeding and forms provided by the revenue laws for the valuation of property, the levy of assessments and collection of taxes, would be as useless as it would be senseless, expensive and oppressive. Considering the many subjects of legislation, concerning which the machinery for executing the law of the legislature is already provided, the consequences of enforcing the constitutional provisions under the construction here.contended for would be far-reaching and serious. The bulky proportions which the laws would soon attain would be of itself an intolerable evil. In this connection the remarks of Judge Cooley on the subject of amendments by implication are in point. Sec
y^Ns will now give an example illustrating all the evils designed to be cured, an example of the manner in which statutes were sometimes revived, amended and extended, by reference to the title only, without publishing the acts in the form so left, showing the changes therein made. We refer to the act of March 11, 1864 (Laws 1864, p. 139), which prescribes rules and regulations for executing the trust arising under the act of congress of May 23, A. D. 1844, and any amendments that were made thereto, “for the relief of citizens of towns upon lands of the United States, under certain circumstances.” This was an act consisting of twenty-two sections, and was applicable to the whole territory. On February 10, 1865, another act was passed purporting to be amendatory of the former act. The first section is as follows: “That section 2 of said act be amonded by inserting the words, ‘his or their
The constitution of New York contains a provision which is the same in substance and effect. It is: “No^ act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or any part thereof, shall be applicable, except by inserting it in such act.” Sec. 17, art. 3. In construing this section the court of appeals said: “It is not necessary, in order to avoid conflict of this article of the constitution, to re-enact general laws whenever it is necessary to resort to them to carry into effect a special statute. Such cases are not within the letter or spirit of the constitution or the mischief intended to be remedied. By such a reference a general statute is not incorporated into or made a part of the special statute. The right is given, the duty declared, or burden imposed by the special statute, but the enforcement of the right or duty, and the final imposition of the burden are directed to be in the form and by the procedure of the other and general laws of the state. Eeference is made to such laws, not to affect and qualify the substance of the legislation, and vary the terms of the act, but merely for the formal execution of the law.” People v. Banks, 67 N. Y. 568.
We think it clear that the act organizing and prescrib
The remaining errors assigned question the authority of the court to render judgment against appellant upon the law and the evidence. The main ground of defense is the license granted the appellant by the city ordinance of January 28, 1881, which, it is contended, afforded it, under the charter of February 13, 1874, the same rights and immunities in the streets as the proprietors of other modes of conveyance. In so far as the- legal points raised and discussed involve a construction of the state constitution they are settled in the case of City of Denver v. Bayer, 7 Colo. 113. And so far as the attempt is here made to obtain a reconsideration of the construction there given to the constitution it must fail. That question was thoroughly investigated by the court, and the decision*made after a careful consideration of all the authorities bearing thereon. We are satisfied with the construction adopted and adhere thereto.
The argument here is largely based on the proposition that the constitution does not control the questions arising in this case, for the reasons that it went into effect subsequent to the passage of the law under which the street in question w'as dedicated to public uses, subsequent to the act of dedication, and subsequent to the date of the city charter by virtue of which the ordinance was passed licensing the appellant’s occupation of the street in question. The first questions which we will proceed to consider are what was the nature and extent of the title acquired by the city of Denver in and to the streets of additions thereto, which, prior to the constitution, were surveyed, laid out, platted and made part of the city under the provisions of the general statutes then in force,
A dedication for street purposes constitutes a contract between the proprietor of the land on the one hand, and the representative of the public on the other. Cooley, Const. Dim. (5th ed.) 331-335. In the present instance an absolute fee in the streets not having passed to the city, it becomes important to construe the contract of dedication in order to ascertain the respective rights and privileges of the parties thereto. The weight of authority is to the effect that when the fee of a street is in the municipality in trust for the public for street purposes, the paramount control thereof is in the legislature as the representative of the public, and the municipality may apply them to such uses as are authorized by statute. In the absence of legislation on the subject, the municipal government may appropriate the streets to the ordinary purposes of business and travel. The usual modes of travel and the usual means of conveyance may be employed by which the inhabitants are accustomed to pass or be conveyed through the streets of a city. Appropriation of the streets to such uses is authorized by the common law. The abutting lot owner is presumed to purchase with knowledge of this servitude, and for injuries to his property necessarily incidental to those uses he cannot complain. When the legislature vests in the municipal authorities a general control of the streets, judicial opinion is divided concerning the extent of such power. The better view would seem to limit the authority to the ordinary uses of the streets. This includes such modes and means of passage upon and over the streets as are usual in cities, and such additional uses as the health and convenience of the city, in view of the ex
The following general deductions may be made as to the status of cases similar to the one before us, considered, as counsel suggests it ought to be, under the territorial organization and statutes alone: First. That the city council might properly authorize the streets of an addition to the city to be used for all ordinary and necessary purposes to which city streets are usually subjected, and to such further local uses and means of conveyance as the legislature may have authorized for the streets and thoroughfares of the entire city. Second. That the proprietor of the addition and his grantees must be held to have anticipated all these uses; and that incidental injuries arising from a careful exercise of those rights are damnum absque injuria. But as to extraordinary uses, those not authorized by legislative sanction for general application throughput the city, including its additions,
But it is asserted, and the assertion frequently repeated throughout the extended brief of counsel for appellant, that the legislature conferred on the city, by its charter of April 7, 1874, in force at the time of the dedication, full power to appropriate these streets to all modes of travel, including railroad cars propelled by ordinary steam-engines. Upon this assertion is based the proposition that abutting lot owners must be held to have purchased their lots with notice that the streets might be appropriated to such uses.
We do not think these views are sustained by the provisions of the city charter. That instrument empowered the city council, “ by ordinances not repugnant to the constitution of the United States or the organic law of this territory, to open, alter, abolish, widen, extend, establish, grade, pave, or otherwise improve and keep in repair, streets, avenues, lanes, alleys, sidewalks, drains and sewers.” Art. 6, sec. 8, cl. 6. It authorized the city “to regulate and ran horse-railway cars, or cars propelled by dummy engines, laying down tracks for the same, transporting passengers thereon, and the form of rail to be used: provided, that no ordinance shall be passed conflicting with any rights vested in the Denver City Railway by their charter.” Sec. 3, cl: 45. Clause 47 of the same section is as follows: “ To regulate and prohibit the use of locomotive engines, require railroad cars to be propelled by other power than that of steam, to direct and control the location of railroad tracks, to require railroad companies to construct, at their own expense, such bridges, tunnels or other conveniences at public railroad crossings as the city council may deem necessary, and to regulate the speed of all railroad trains.”
These are all the provisions of the charter bearing upon
Another point made and strongly urged is that the state constitution affords no remedy to the abutting lot owners in this case. The reasons assigned are — First, that the entire title to the street in question had passed to and vested in the city prior to the time the constitution went into effect; second, that the constitution does not, even by implication, divest the municipality of any powers over its streets previously conferred by its charter. It is not material to the right of action in the present case whether the constitutional provisions be applicable or not, since the right of action exists without reference thereto; yet, since the injury was done to appellee’s property after the constitution went in effect, its provisions may be properly invoked. It may be conceded that the adoption of this instrument neither modified or curtailed the powers previously conferred on the city council over the streets; also that the legal rights and interests of the lot owners in the street remain as established by the act of dedication. The constitutional provision, “ that private property shall not be taken or damaged for public or private use without just compensation,” while not intended to disturb vested rights, nor in itself prohibitory of the exercise of powers previously granted by the legislature, is remedial in its nature and effect respecting existing property rights. Its mandate is that, where they are taken or injuriously affected subsequent to the day on which
A point is made that no replication being filed to the third defense set up in the answer of the appellant, the same was admitted by appellee, and that on this ground the judgment should be for the appellant. ' This defense sets up the facts of dedication of Witter’s first addition to the city, on May 9, 1876, and the license from the city to the appellant. In so far as the facts stated in this defense are concerned the failure to reply admits the same. It does not, however, admit the conclusions of law and the argumentative propositions therein contained. No exceptions were saved to the evidence, and it cannot be considered for any other purpose than to determine whether the court was authorized thereby, under the law, to find the issues for the plaintiff, and to render judgment in his favor. The evidence was ample for these purposes.
There being no re viewable error in the record, the judgment will be affirmed.
Elbert, J., concurs in the conclusion.
I do not think the ownership of the fee of the'street by a municipal corporation operates, in cases like this, to cut off the abutting lot owner’s right to compensation under the constitution. But, be this as it may,
We may concede that the statute under which Witter’s addition was recorded permits the granting of a right of way by the city, council for the construction of an ordinary railroad through the street in question; and we. may concede, but without intending to pass upon its correctness, counsel’s conclusion that the power thus given originally carried with it, when exercised, immunity from damages for injury to the abutting owner; still it would not follow that such immunity exists in the case at bar. The ordinance granting defendant a right of way through Willow Lane street was adopted after the constitution took effect, and the injury of which plaintiff complains was inflicted with that instrument in force. If the statute theretofore existing avoided liability for injuries like those here complained of, it was to that extent inconsistent with the constitution, and to that extent repealed by the constitution. Sec. 15, art. 2, Const.; sec. 1, Schedule to Const.
Concerning the exact force of the expression, “or damaged,” as used in section 15, article 2, of the constitution, I desire to add a few words. This expression, or its equivalent, has received two different interpretations from the courts: First, that it merely recognizes a right of action where one would have existed at common law but for condemnation statutes, or statutes enacted with a similar design. This is the view taken by the English courts, not without strong dissenting opinions, of a similar statutory phrase, and of the same constitutional pro
The principal reason for the position that the phrase in question, and phrases of similar import, only give a right of action where one would, in the absence of such statutes as those above mentioned, have existed at common law, is the consequences to which the opposite view might lead. It will be obseiwed that the constitution inhibits the damaging, without compensation, of private property .for either public or private use. By giving these phrases , a literal and wholly unqualified construction, we not only forbid the necessary and careful improvement of a street by the city, without compensation for incidental injuries to the abutting owner, but we also forbid the lot owner ■himself improving his premises in a legal and careful manner, without compensating an adjoining lot owner • for incidental injuries occasioned by such “prudent exercise of his right of dominion.” This would be to announce the rule that one must so use his own as to inflict ■ absolutely no injury or inconvenience upon another, and that, if he do not, he must expect to respond in damages to that other; it would be practically to say that, in this state, there can be no injuries to realty covered by the doctrine of damnum absque injuria.
I indorse the views of the chief justice concerning the jurisdiction of the superior court in the premises, and regularity of the proceedings before it. Upon the foregoing grounds, I also approve of the conclusion reached by hini on the o.tlier branch of the case.
Affirmed.