Averch v. City & County of Denver

242 P. 47, 78 Colo. 246, 1925 Colo. LEXIS 577

• Court: Supreme Court of Colorado
• Decided: October 26, 1925
• Docket: No. 11,260.
• Status: Published

Opinions

Mr. Justice Denison

delivered the opinion of the court.

Averch brought suit against the city of Denver and members of the council, the mayor and building inspector, praying an injunction to restrain them from prosecuting him for violating the building ordinance by the erection of a packing house, and, in the alternative, a mandamus or other process to compel a permit for such erection. He was defeated and brings error.

The judgment must be affirmed. His claim is that a permit was issued to him by the building inspector, pursuant to which he expended a large sum in and about the erection of a building, and, under Williams v. Smith, 76 Colo. 151, 230 Pac. 395, he claims that this permit cannot be revoked. It appears, however, that no valid permit was issued. The ordinance requires an authorization by the city council, but the building inspector issued this permit, such as it was, on his own responsibility without-authority. The claim is that the city was estopped, because it customarily permitted the building inspector to issue permits in that way, but it was not shown that Averch had any knowledge of such custom, therefore his proof of estoppel fails.

It is claimed that section 207 of the building code under which the prosecutions of the plaintiff were proceeding is unconstitutional. But it appears, and thé court based its decision thereon, that the packing plant in question is so situated as to be a nuisance such as the court would enjoin even if a permit had been issued. What equity, then, has the plaintiff even though the section 207 be un constitutional? He cannot have an injunction against prosecuting him because that is forbidden by section 160 of the code of 1921, and he cannot have mandamus or mandatory injunction to permit him to maintain a nuisance.

Judgment affirmed.

Mr. Justice Sheafor not participating.