17 Colo. 376 | Colo. | 1892
delivered the opinion of the court.
Appellant was and is the owner of a canal conveying
The pleadings and evidence present two questions for adjudication : First, did the failure of appellant to obey the statute of 1887 by covering its canal and thus rendering the accident impossible, constitute such negligence per se as creates an actionable liability for private injuries that would not have been suffered but for the failure ; and second, does the evidence show contributory negligence on the part of deceased or on the part of appellees ? These questions will be considered in inverse order.
No one saw the accident nor is there any circumstantial evidence indicating precisely where or how it occurred, save that deceased was drowned in appellant’s canal. Hence there is no proof concerning the acts of deceased or circumstances immediately attending his death. The law does not presume contributory negligence; unless appearing in the proofs offered by plaintiff, it is a defense to be established as are other defenses. Wharton on Negligence, see. 423; City v. Dunsmore, 7 Colo. 329 ; D. R. G. Ry. Co. v. Ryan, ante, p. 98; R. R. Co. v. Gladmon, 15 Wall. 401. The defense of contributory negligence on the part of appellees is based upon the fact that they permitted deceased to be at large unattended. He was afflicted with epilepsy, but the convulsions were infrequent, occurring not oftener than from five to seven times a year. A number of the witnesses saw him at different times while having these convulsions and his schoolmates sometimes called him “ Crazy George,” but a
We turn therefore to the remaining question, which is the one mainly relied on by counsel for appellant. It is admitted that Denver is a city of the first class, and there is no dispute but that appellant’s canal is covered' by the terms of the act of 1887. The second defense, to which the general demurrer was sustained, embodies an emphatic denial of any duty on the part of appellant to comply with the plain- requirements of the statute. The constitutionality of this statute is thus squarely challenged.
It-must-be conceded at the outset that the canal belonging to appellant was lawfully constructed and that its proper, maintenance and use within the corporate limits of the city were duly authorized. City v. Mullen, 7 Colo. 345; P. D. D. Co. v. Anderson, 8 Colo. 131; Walley v. P. D. D. Co., 15 Colo. 579.
But-counsel further confidently asserts that the question, now raised is, by virtue of the Mullen and Anderson cases, supra, res adjudieata. The correctness of this assertion cannot be admitted. The Anderson case holds that a private action against appellant could not be maintained without
It is clear that the question now before us rests upon a different principle from that, involved in the Mullen case, supra, on which particular reliance is placed. Municipal highways are maintained for the convenience and benefit of the public. They are under the control of the municipal authorities upon whom is imposed the duty of keeping them in good condition for use. Bridges constitute a feature of those improvements which, like grading, are essential to the usefulness of the highway and the accommodation of the public. But the statute under consideration does not profess to deal in any manner with the public convenience. Apparently its sole purpose is to secure the protection of life and property. A broad distinction is recognized between statutes indirectly imposing burdens upon individuals or corporations for the accommodation and convenience of the public, or for private aggrandizement, and statutes imposing such burdens for the purpose of promoting the public peace, health and safety. Provisions may often be adopted regulating the exercise of corporate powers so as to avert dangers menacing life and property when such provisions would be held invalid if .designed simply to subserve the public convenience or to promote purely private interests. State v. Noyes, 47 Me. 187; Sedgwick on Con. of Stat. & Const. Law (2d. ed.), p. 608, note.
The specific ground- of attack upon the constitutionality of the statute under consideration is that since the duty
The doctrine that the charter of a private corporation is a contract within the meaning of the federal constitution has never been successfully assailed since the decision in Dartmouth College v. Woodward, 4 Wheaton, 518. And that obligation of this contract cannot be impaired by subsequent legislation follows as a matter of course. Com’rs v. Colo. Seminary, 12 Colo. 497. But a long and unbroken line of decisions, including many by the Supreme Court of the United States, hold that regulations adopted under the police power for the purpose of protecting the public health or safety do not necessarily impair the obligation of the corporate contracts above mentioned. This power is an essential attribute of sovereignty. So jealously is it guarded that a state cannot even bj the most solemn legislation barter away or curtail the right to exercise it. Tiedeman Lim. of Police Powers, sec. 189, and cases cited.
Private corporations occupy in respect to the police power precisely the same attitude as private individuals engaged in similar branches of business. The fact that by their articles of incorporation or charters they obtain certain rights and privileges and are empowered to transact certain kinds of business in certain specified places does not exempt them from police regulation in the interest of society.; and this is true even where such regulation operates to injure the business authorized and to diminish the value of the property employed therein. In addition to other cases heretofore and hereafter'cited, see Fertilizing Co. v. Hyde Park, 70 Ills. 634; same case, 97 U. S. 659; The Corporation v. The Mayor, 5 Cowan, 538; The People v. Hawley, 3 Mich. 330. Every regulation of this kind “ operates as a restriction of the enjoyment of the corporate franchise.” Tiedeman, sec. 189, supra. “ The acknowledged police power of the state extends often to the destruction of property.” Mr. Justice McLean in Thurlow v. Commonwealth. 5 How. 504. Con
That the police power of the state may be made an instrument of injustice and oppression cannot be questioned. And when it is plainly invoked by the legislature merely as an excuse for the infliction of needless injury upon private corporations, the judiciary should promptly interfere to prevent the wrong. Mr. Justice Harlan referring to this subject says: “ The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty— indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the legislaure has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution.” Mugler v. Kansas, 123 U. S. 623.
But if a statute is evidently designed to promote the public health, the public morals, or the public safety, and especially if it tends to produce the effect designed, it is valid so far as this specific objection is concerned unless there be a palpable invasion of constitutional rights. Appellant’s canal is from eight to fifteen feet wide and from two to four feet deep; it extends a distance of several miles through a thickly populated portion of the city of Denver; the incline is such that the large volume of water therein necessarily
The statute does not forbid or attempt to interfere with the use of the canal in carrying on appellant’s business. It does not undertake to deprive appellant of its property or the enjoyment thereof. Appellant can without injury to the usefulness of the canal so maintain it as not to endanger the safety of life and property; and, as already in effect suggested, it has no constitutional right to perpetuate this danger. The fact that the perils against which the statute is aimed arise from the unexpected growth of the city since the incorporation of appellant and the construction of its canal does not affect the foregoing conclusions. Corporation v. The Mayor, supra ; Fertilizing Co. v. Hyde Park, supra.
The heavy expense imposed upon appellant by the statute is unfortunate. But police regulations almost always impose burdens of greater or less magnitude, and therefore result in hardship. W e cannot say that the statute was intended, as asserted by counsel, to bankrupt appellant and ruin its business. The act is general and applies to all canals of the dimensions specified, in cities of the first class, whether owned by corporations, partnerships or individuals. There is nothing upon its face to indicate that the members of the legislature thought at the time of its enactment of this or of any other particular canal. Courts will not presume dishonest or improper motives on the part of legislative bodies.
Considering the expense and magnitude of the work devolved upon appellant, sixty days seem to be a very short period for its completion. But we cannot as a matter of judicial cognizance declare that this time was absolutely in
Finally, it is contended on behalf of appellant that by virtue of sec. 3, art. 15 of the constitution the legislature could not impose upon appellant the duty of covering its canal without providing for reimbursement of the expense incurred. Said- section 3 reads : “ The general assembly shall have power to alter, revoke or annul any charter or incorporation now existing and revocable at the adoption of this constitution, or any that may hereafter be created, whenever in their opinion it may be injurious .to the citizens of the state, in such manner, however, that no injustice shall he done to the incorporators.” This provision does not relate to the exercise of the police power in regulating the transaction of corporate business. It recognizes a legislative right to alter, revoke or annul any part or all of the corporate charter; under it, the legislature may take away any portion of the powers, .privileges and immunities expressly or by necessary implication granted to private corporations, provided protection against injustice be given. But the statute under consideration was not intended to alter, revoke or annul the charter of appellant or of any other corporation. Neither was it intended to take away any existing right, power or privilege conferred by such charter. It was, as already indicated, simply designed to so regulate the control and management of canals like that of appellant as to insure the protection of life and property.
The statute is not unconstitutional, and had appellant obeyed its command the accident would not have happened. The failure of appellant to perform its statutory duty in the premises was negligence per se, and no contributory negligence being shown, appellees were entitled to recover. Kein v. U. R. & T. Co., 90 Mo. 314; St. L. V. & T. H. R. R. v. Dunn,
Affirmed.