City of Durango v. Reinsberg

Mr. Justice Elliott

delivered the opinion of the court.

It has been expressly held by this court that a prosecution under a municipal ordinance for an offense not punishable by general statute is not a criminal proceeding, but a civil action; and that a judgment in such an action agavnst the rivitnicypaZity may be reviewed by this court upon writ of error. City of Greeley v. Hamman, 12 Colo. 94 .

Neither the complaint nor any part of the record in this case discloses the kind of business which the defendant was accused of carrying on upon the Sabbath day. The complaint charges in substance that he kept his place of, business open and displayed and sold his goods on a certain Sabbath day in the city of Durango, contrary to the provisions of a certain ordinance, stating the section, number and title of said ordinance, together with the date of its passage.

The brief and argument of counsel for plaintiff in error are devoted to the question of the validity of the ordinance. But our decision must be controlled by a statutory provision not noticed by counsel in this court, and, so far as we can discover from the record, not presented to the consideration of the county court. The statute relates to the matter of pleading in cases of this kind. Under ordinary rules of pleading, the complaint might have been quashed for insufficiency as not stating a cause of action, that is, for not *329 specifying a kind of business against the carrying on of which upon Sunday the sanction of the ordinance might properly be invoked. But section 114 of the towns and cities act, chapter 109, General Statutes 1883, provides as follows:

“ In all suits brought for the recovery of any fines or penalties for violation of any ordinance, it shall be sufficient to state in the complaint or affidavit the number of the section and title of the ordinance violated, together with the date of its passage, without stating said section or ordinance in full or the substance thereof.”

It must be remembered that this is a civil proceeding originally instituted in a court not of record. Hence, the statute is not obnoxious to the constitutional requirement that the accused in criminal prosecutions shall have the right to demand the nature apd cause of the accusation. Const., art. 2, sec. 16. Hence, giving effect to the statutory provision, the complaint must be held sufficient on its face both in form and substance. The defendant, therefore, should not have been discharged upon motion. The kind of business which he was accused of carrying on upon Sunday should have been ascertained by evidence or otherwise as a matter of fact; if found guilty of violating the ordinance by the commission of some act which the city council had the power thus to prohibit, he should have been fined as the ordinance requires; otherwise, he should have been discharged.

The complaint having been quashed on the ground that the city council had no authority to pass the ordinance “ so far as relates to the charge against the defendant,” we áre asked to review this conclusion of the lower court. This cannot well be done, since the specific charge against the defendant does not appear in the record.. An ordinance, like a statute, may be valid in part and void in part. Cooley, Const. Lim., secs. 177, 178. For example, it must be conceded that such business as may by municipal authority be prohibited altogether may by such authority be prohibited *330 on Sunday, on the ground that the greater includes the less (Gen. Stats., ch. 109, sec. 14), even though there may be other kinds of business with which town and city governments are not intrusted with any supervision or control.

A municipal corporation can exercise only such powers as are granted to it by its charter or by the general law of the state, either in express words or by necessary or reasonable i/rnplication, or such as a/re incidental to the powers• expressly grcunted, or such as cure essential to the objects and purposes of the corporation. Besides, there are certain well-recognized principles by which the powers of municipal corporations to pass ordinances in the nature of legislative enactments are limited or qualified. For example, municipal ordinances must not be “ repugnant to the constitution and? general laws of the state,” nor can a municipal corporation, “ under a general grant of authority, adopt by-laws (ordinances) which infringe the spirit or are repugnant to the policy of the state as declared in its legislation.” 1 Dillon on Mun. Corp. (3d ed.) secs. 89, 316, 329. The ordinance in question may be tested by these and other legal principles for the purpose of determining its validity as to “ the charge against the defendant ” when the specific act of which defendant is accused shall become judicially known. But it is not incumbent upon this court to anticipate, discuss or settle supposed legal controversies upon writs of error. "We cannot undertake to determine the validity of the ordinance in question, “ so far as relates to the charge against the defendant,” until we are properly informed of the specific nature of such charge.

The complaint having been prepared in statutory form, it was error to quash it upon motion before the particular act of which defendant was accused was ascertained. The judgment of the county court is reversed and the cause remanded for further proceedings.

Reversed.