Mr. Justice Gabbert
delivered the opinion of the court:
From> the foregoing synopsis of the answer, in connection with admissions therein of allegations in the petition, and the ordinances set out haec verba, it appears that petitioner is the owner of lots upon which he desires to erect a store building in a district which the ordinances of the munifcipality inhibit, unless he first secures and files with the building inspector the signatures of a majority of the owners of property in the same block, on the same side of the street, and of the owners in the block on the opposite side of the street facing the same, approving of the erection of such building, and that when such approval is secured, a permit will be withheld unless he agrees to build on a line the average distance back from the front line of lots that buildings on the same side of the street in the block in which his lots are situate are constructed ; that the building which he proposes to erect complies in all respects, according to the plans and specifications, with the ordinances, in so far as the character of the building and the materials to be used therein are concerned, and that the sole defense interposed by respondent, and his only reason for [326]*326refusing a permit, is based upon the failure or refusal of petitioner to comply with the provisions of the ordinances, as above noted. In brief, the ordinances inhibit petitioner from constructing a store building upon his lots until he complies with the provisions of such ordinances upon which respondent bases his right to refuse the permit requested, and even then, petitioner must agree not to- construct his proposed building nearer the front line of his lots on Williams street than the average distance back other buildings on that street are constructed, in the same block, before the permit will be granted. The important question, then, to determine, is the validity of these ordinances, in so far as they provide conditions with which petitioner did not comply, and for which reason the respondent, according to his answer, refused the permit requested.
On behalf of respondent it. is contended that these provisions are a valid exercise of the police power of the city, while on behalf of petitioner it is asserted that they are not, on the ground that they are so; unreasonable as to be invalid, and, if enforced, deprive him of his property without compentation. It is a fundamental law, that a municipality under our system of government may, by ordinance, require the owner of a lot to so use it that the public health and safety will be best conserved, and to this end its police power may be exercised; but it is also fundamental, that such owner has the right to erect such buildings, covering such portions thereof as he chooses, and put his property, as thus improved, to any legitimate use which suits his pleasure, provided that in so doing he does not imperil or threaten harm to others. — Curran Bill Posting Co. v. City of Denver, 47 Colo. 221 (225); City v. Whitlock, 149 N. C. 542; Bryan v. City of Chester, 212 Pa. St. 259; Commonwealth v. Boston Advertising Co., 188 Mass. 348; Bill Posting Co. v. Atlantic City, 71 N. Y. Laws 72.
So. that legislative restrictions upon the use of property can only be imposed upon the assumption that they are neces- . sary for the.health,-comfort or general-welfare of- the public: [327]*327and any law abridging rights to a use of property which does not infringe the rights of others, or which limits the Use of property beyond what is necessary to provide for the welfare and general security of the public, cannot be included in the police power of a municipal government.' — In Re Morgan, 26 Colo. 415 (423) ; Curran Co. v. Denver, supra (425).
Williams street is an ordinary public thoroughfare. It is not a park or park-way, and the authority of the municipality to make the provisions in question, so far as advised from briefs'of counsel, is found in section 17 of the charter, which provides:
“* * * The council shall have power to enact and provide for the enforcement of all ordinances necessary to protect life, health and property; to declare, prevent and summarily abate and remove nuisances; tO' preserve and enforce the good government, general welfare, order and security of the city and county and the inhabitants thereof; * *
It will be observed that there is no express authority conferred upon the council to pass ordinances embracing the conditions and restrictions imposed as to lots fronting on an ordinary street upon which respondent relies; and hence, it is only by virtue of the incidental powers with which the municipality is vested to pass police regulations that it assumes to act in passing the ordinance in question; consequently, they are invalid, if it appears that they are unreasonable, arbitrary or oppressive. — Phillips v. City of Denver, 19 Colo. 179; Curran B. P. Co. v. City of Denver, supra (229) ; City and County of Denver v. Rogers, 46 Colo. 479.
Police regulations, in order to be valid, must tend to accomplish a legitimate public purpose; that is, such regulations must have a substantial relation to the public objects which government may legally accomplish; and while it is for the legislative department of a municipality to determine the occasion for the exercise of its police power, it is clearly within the jurisdiction of the courts to determine the reasonableness of that exercise, when, as in the case at bar, it assumes that [328]*328power by virtue of its incidental or a general grant of authority. — C. B. & Q. Ry. Co. v. Drainage Commissioners, 200 U. S. 561 (593); In Re Morgan, supra (424); Curran B. P. Co. v. City of Denver, supra (226).
The building which petitioner proposes to erect complies in all respects with the ordinances relating- to the materials which shall be used in its construction. The lots upon which it is proposed to erect it front upon an ordinary street or public highway. A store building is in no sense a menace to the health, comfort, safety or general welfare of the public, and this is true, whether it stands upon the rear portion of the lots upon which it is erected, or is constructed to the line of the street; but even if it could be said that its. construction imperiled or threatened harm to others, such objections would in no sense be removed by the consent to its construction by the majority of the owners of property in the same block on the same side of the street, and of the owners in the block on the opposite side of the street facing it; neither is it any more or less objectionable on the score mentioned, whether it be limited to the rear portion of the lots or covers them from alley to street line. It is thus apparent that the sole purpose of1 the regulations involved is to prevent the construction of a store building in the locality where petitioner’s lots are located unless property owners, as indicated, consent; and then, if such consent is secured, to limit its construction to. that portion of the lots not nearer to the front line of Williams street than the- average distance back other buildings on that street in the same block are constructed.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Gabbert
delivered the opinion of the court:
From> the foregoing synopsis of the answer, in connection with admissions therein of allegations in the petition, and the ordinances set out haec verba, it appears that petitioner is the owner of lots upon which he desires to erect a store building in a district which the ordinances of the munifcipality inhibit, unless he first secures and files with the building inspector the signatures of a majority of the owners of property in the same block, on the same side of the street, and of the owners in the block on the opposite side of the street facing the same, approving of the erection of such building, and that when such approval is secured, a permit will be withheld unless he agrees to build on a line the average distance back from the front line of lots that buildings on the same side of the street in the block in which his lots are situate are constructed ; that the building which he proposes to erect complies in all respects, according to the plans and specifications, with the ordinances, in so far as the character of the building and the materials to be used therein are concerned, and that the sole defense interposed by respondent, and his only reason for [326]*326refusing a permit, is based upon the failure or refusal of petitioner to comply with the provisions of the ordinances, as above noted. In brief, the ordinances inhibit petitioner from constructing a store building upon his lots until he complies with the provisions of such ordinances upon which respondent bases his right to refuse the permit requested, and even then, petitioner must agree not to- construct his proposed building nearer the front line of his lots on Williams street than the average distance back other buildings on that street are constructed, in the same block, before the permit will be granted. The important question, then, to determine, is the validity of these ordinances, in so far as they provide conditions with which petitioner did not comply, and for which reason the respondent, according to his answer, refused the permit requested.
On behalf of respondent it. is contended that these provisions are a valid exercise of the police power of the city, while on behalf of petitioner it is asserted that they are not, on the ground that they are so; unreasonable as to be invalid, and, if enforced, deprive him of his property without compentation. It is a fundamental law, that a municipality under our system of government may, by ordinance, require the owner of a lot to so use it that the public health and safety will be best conserved, and to this end its police power may be exercised; but it is also fundamental, that such owner has the right to erect such buildings, covering such portions thereof as he chooses, and put his property, as thus improved, to any legitimate use which suits his pleasure, provided that in so doing he does not imperil or threaten harm to others. — Curran Bill Posting Co. v. City of Denver, 47 Colo. 221 (225); City v. Whitlock, 149 N. C. 542; Bryan v. City of Chester, 212 Pa. St. 259; Commonwealth v. Boston Advertising Co., 188 Mass. 348; Bill Posting Co. v. Atlantic City, 71 N. Y. Laws 72.
So. that legislative restrictions upon the use of property can only be imposed upon the assumption that they are neces- . sary for the.health,-comfort or general-welfare of- the public: [327]*327and any law abridging rights to a use of property which does not infringe the rights of others, or which limits the Use of property beyond what is necessary to provide for the welfare and general security of the public, cannot be included in the police power of a municipal government.' — In Re Morgan, 26 Colo. 415 (423) ; Curran Co. v. Denver, supra (425).
Williams street is an ordinary public thoroughfare. It is not a park or park-way, and the authority of the municipality to make the provisions in question, so far as advised from briefs'of counsel, is found in section 17 of the charter, which provides:
“* * * The council shall have power to enact and provide for the enforcement of all ordinances necessary to protect life, health and property; to declare, prevent and summarily abate and remove nuisances; tO' preserve and enforce the good government, general welfare, order and security of the city and county and the inhabitants thereof; * *
It will be observed that there is no express authority conferred upon the council to pass ordinances embracing the conditions and restrictions imposed as to lots fronting on an ordinary street upon which respondent relies; and hence, it is only by virtue of the incidental powers with which the municipality is vested to pass police regulations that it assumes to act in passing the ordinance in question; consequently, they are invalid, if it appears that they are unreasonable, arbitrary or oppressive. — Phillips v. City of Denver, 19 Colo. 179; Curran B. P. Co. v. City of Denver, supra (229) ; City and County of Denver v. Rogers, 46 Colo. 479.
Police regulations, in order to be valid, must tend to accomplish a legitimate public purpose; that is, such regulations must have a substantial relation to the public objects which government may legally accomplish; and while it is for the legislative department of a municipality to determine the occasion for the exercise of its police power, it is clearly within the jurisdiction of the courts to determine the reasonableness of that exercise, when, as in the case at bar, it assumes that [328]*328power by virtue of its incidental or a general grant of authority. — C. B. & Q. Ry. Co. v. Drainage Commissioners, 200 U. S. 561 (593); In Re Morgan, supra (424); Curran B. P. Co. v. City of Denver, supra (226).
The building which petitioner proposes to erect complies in all respects with the ordinances relating- to the materials which shall be used in its construction. The lots upon which it is proposed to erect it front upon an ordinary street or public highway. A store building is in no sense a menace to the health, comfort, safety or general welfare of the public, and this is true, whether it stands upon the rear portion of the lots upon which it is erected, or is constructed to the line of the street; but even if it could be said that its. construction imperiled or threatened harm to others, such objections would in no sense be removed by the consent to its construction by the majority of the owners of property in the same block on the same side of the street, and of the owners in the block on the opposite side of the street facing it; neither is it any more or less objectionable on the score mentioned, whether it be limited to the rear portion of the lots or covers them from alley to street line. It is thus apparent that the sole purpose of1 the regulations involved is to prevent the construction of a store building in the locality where petitioner’s lots are located unless property owners, as indicated, consent; and then, if such consent is secured, to limit its construction to. that portion of the lots not nearer to the front line of Williams street than the- average distance back other buildings on that street in the same block are constructed. These regulations do not, in the slightest degree, have any relation whatever to the health, safety or general welfare of the public, nor do they tend, in any sense, to accomplish anything for the benefit of the public in this respect, but merely attempt to limit the petitioner in a use of his property, which does not infringe upon the rights of others. This deprives him of the fundamental right to erect a store building upon his lots covering such portions thereof as he chooses, although, by so doing, he does not im[329]*329peril or threaten injury to others of which they can lawfully complain. A store building in a residence section of1 the city is not desirable, from an aesthetic point of view; but restrictions for this purpose alone cannot be upheld, as it is only those having for their object the safety and welfare of the public which justifies restricting a use of property by the owner. — Curran Co. v. City of Denver, supra (226) ; State v. Whitlock, supra (543) ; Varney et al. v. Williams, 100 Pac. (Cal.) 867; City of Passaic v. Patterson Bill Posting, A. & S. P. Co., 62 Atl. (N. J.) 267; Commonwealth v. Boston Adv. Co., supra.
We must, therefore, hold that the restrictions under consideration are invalid, because they have no relation to any object which'the municipality, in the exercise of its police power, may legally accomplish, and are unreasonable, arbitrary, and oppressive.
Aside from this, the ordinances in the particulars involved violate sections 3, 15 and 25 of our bill of rights, which provide:
“Section 3. That all persons have certain natural essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties ; that of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.”
“Section 15. That private property shall not be taken or damaged for public or private use without just compensation * * * ”
“Section 25. That no person shall be deprived of life, liberty or property without due process of law.”
This latter section is similar to the fourteenth amendment to the federal constitution, which declares:
“* * * Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
[330]*330One of the essential elements of property is the right to its unrestricted use and enjoyment; and as we have seen, that use cannot be interfered with beyond what is necessary to provide for the welfare and general security of the public. Enforcing the provisions of the ordinances in question does not deprive the petitioner of title to1 his lots. He would not be , ousted of possession.. He would still have the power to dispose of them; but, although there would be no actual or physical invasion of his possession, he would be deprived of the right to put them to a legitimate use, which does not injure the public, and this, without compensation or any provision therefor. This would clearly deprive him of his property without compensation, and without due process of law, which our federal and state constitutions not only inhibit, but which would be repugnant to justice, independent of constitutional provisions on the subject. — City of St. Louis v. Hill, 116 Mo. 527; Bill Posting Co. v. Atlantic City, supra; Commonwealth v. Boston Adv. Co., supra; City and County of Denver v. Rogers, supra.
For these reasons, the provisions of the ordinances involved are, also, invalid.
On behalf of the respondent it is urged that mandamus is not the proper proceeding on the part of the petitioner. It appears from the opinion of the trial judge that this question was not urged or passed upon in the court below, and for this, reason, we do not deem it necessary to discuss that question on review.
The judgment of the district court is affirmed.
Judgment affirmed.
Decision en banc.