Harold Patrick Martin v. George J. King, Marshal of the Town of Buena VistaHarold Patrick Martin v. George J. King, Marshal of the Town of Buena Vista
- Reporters:
- ,
- Before:
- Hickey
Aрpellant Martin, a United States citizen residing in Buena Yista, Colorado, filed a complaint under the Civil Rights Acts commencing an action against ap-pellee King, the duly appointed, qualified and аcting town marshal of the town of Buena Vista, a municipal corporation of the State of Colorado. In the complaint Martin seeks actual damages in the amount of $2,000 and punitive damаges in the amount of $24,000 for denial of rights given by the fourteenth amendment to the United States Constitution.
Jurisdiction is invoked by virtue of the substantive sections of the act,
1
together with the fourteenth amendment to the Unitеd States Constitution. The pleadings do not mention
The trial court dismissed the complaint and the action by its judgment on King’s motion. This appeal followed.
The complaint alleges that on or about October 15, 1968, prior to the time of the acts and omissions complained of, King served a summons and complaint on Martin charging him with maintaining a nuisance in violation of an ordinance prohibiting the “keeping, raising, housing, stabling or corralling of cattle * * ” within certain zoned areas of the town without a permit.
Martin appeared at the appointed time, pleaded not guilty to the violation, аnd demanded a jury trial. The matter was set for trial on November 18, 1968.
On October 30, 1968, King, pursuant to the provisions of the ordinance here attacked, served notice on Martin that if he did not remove the stеers from the premises within 24 hours they would be impounded. They were not removed whereupon King entered Martin’s prem *460 ises, took possession of the steers and impounded them.
In order that no possible claim for relief may be overlooked, we adoрt the description in Martin’s brief together with the supplementary allegations supplied by his more definite statement:
“On or about the 26th day of November, 1968, the Plaintiff [Martin] served Defendant [King] with a Summons and [Civil] Complaint which, when considered along with the supplementary allegations supplied to Defendant, at his request, set forth the following material allegations:
“A. Jurisdiction was invoked under Sections 1983 and 1985 of Title 42, United States Code, and the 14th Amendment to the United States Constitution (Complaint, Page 1).
“B. The Plaintiff was lawfully maintaining the animals in question with the required permit, and the Defendant’s actions deprived the Plaintiff of his property without due process while the Defendant was acting under the color of municipal ordinance. Defendant knew of the wrongfulness of his acts since all men are presumed to know the law, аnd similar ordinances regarding maintenance of livestock had previously been found invalid and unconstitutional in other Colorado cases. Furthermore, even if the ordinance were valid, the Plаintiff had been granted a valid permit by proper authority, and the Defendant proceeded in disregard thereof by performing the acts specified, without opportunity being presented to the Plaintiff for a hearing (Complaint, Pages 2-4; more definite statement, Pages 1-2).
“C. SECOND CLAIM FOR RELIEF —Defendant’s intentionally and unfairly singling out the Plaintiff for prosecution and harassment, while others were allowed similarly to maintain animals with impunity, amounted to such unequal and capricious action as to constitute a denial of equal protection (Complaint, Page 4).
“D. THIRD CLAIM FOR RELIEF— Defendant’s conspiracy to deprive the Plаintiff of his rights, coupled with the acts already complained of, and done in furtherance of said conspiracy, amounted to an actionable violation of Section 1985 of Title 42, United States Code (Complaint, Page 5).
“E. Defendant’s actions were done in willful and known violation of the Plaintiff’s rights, for which punitive damages were sought (Complaint, Pages 1-5; more definite statement, Pages 1-3).”
The trial court in its memorandum opinion,
“The plaintiff was not deprived of his property (the steers); the defendant merely removed them from the town in accordance with the ordinance which it was his duty to enforce. Additionally, Section 1983 does not сonfer jurisdiction where a person seeks only to protect property rights. * * *
“The failure of the defendant to enforce the ordinance against others as alleged in the second claim, does not deprive the plaintiff of equal protection of the law and the second claim does not state a claim upon which relief can be granted. * * *
“The third statement of claim alleges a conspiracy but is based on the same acts and omissions as charged in the first two statements of claim and having no other basis, the third statement of claim fails * *
The issues argued are:
(1) The town had no authority tо regulate the maintenance of cattle by the ordinance in question.
(2) Assuming the ordinance was valid, the town or its agents were without authority to remove the animals prior to an adjudication сoncerning their condition.
(3) The court .erred in dismissing plaintiff’s first claim on the grounds hereinabove set out.
(4) The court erred in its grounds dismissing the second claim.
*461 (5) The court erred in its grounds for dismissing the third claim.
The ordinancе attacked in the first issue is titled: “An ordinance defining certain nuisances within the town of Buena Vista, Colorado, and providing for the abatement, removal or suppression of the same and further prоviding penalties for the violation thereof * * * ” The same rules of construction are used in construing legislative enactments whether statutes or ordinances.
Cf.
Dominquez v. City & County of Denver,
“Under the constitutional provision, a title is an indispensable part of every statute, and the expression of the subject of the act must be found, if at all, in the words of the title.” I Sutherland Statutory Constr. § 1709, p. 299 (3rd ed. 1943).
As the title indicates, the ordinance defines nuisances and provides for the abatement, removal or suppression of the same. “The maintenance * * * of cattle * * * is declared a nuisance.” 7 Colo.R.S. § 139-32-1 (58) (1963) authorizes municipalities under the police power section “[t]o declare what shall be a nuisance and to abate the same * * Accordingly, legislative authority exists for enacting the ordinance under the police power delegated by the state legislative body to the municipality.
Martin cites two cases to sustain his argument that the ordinance is invalid, Phillips v. City of Denver,
The recognition of the obsolete situation portrayed by
Phillips, supra,
is contained in Judge Doyle’s dissent in City and County of Denver v. Denver Buick, Inc.,
In the light of the foregoing, we conclude the ordinance is a valid nuisance abatement ordinance which lawfully declares maintenance of cattle within the town limits a nuisance and provides for abatement thereof unlеss a permit allowing such maintenance has been granted.
The complaint does not allege that Martin had a permit, but the more definite statement could be construed to claim that a рermit had been granted. The date of the permit is not averred nor is a copy presented in the record. The complaint does allege the cattle were impounded for two days and then returned to Martin. We could conclude that impounding preceded the issuance of a permit. Recognizing the rule that upon review after dismissal for failure to state a claim for reliеf, the complaint must be read in the light most favorable to the plaintiff, Ronsick v. Phariss,
*462
“It has also been reсognized that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the pоlice power of the state is not violative of rights secured by the Fourteenth Amendment * * Mosher v. Beirne,
Stringer v. Dilger,
The second claim, i. e. that the enforcement of the ordinance was not uniform because other townspeople similarly situated were not prosecuted and therefore Martin’s right to equal protection was abused, is also without merit. The claim patently falls outside equal protection because Martin would contend that he had a right to be protected from the evils which he says do not exist. Prosecution of other townspeople would be for offending against Martin and others by maintaining cattle in the town withоut a permit. This does not constitute a civil rights violation even if it is malicious. Birnbaum v. Trussell,
The third claim relies upon the acts and omissions determined above not to be within the ambit of the Civil Rights Acts. Therefore, it cannot stand.
The trial court’s judgment dismissing the complaint and the action is affirmed.
Affirmed.
Notes
.