City of Canon City v. Manning

Mr. Justice Gabbert delivered the opinion of the court: The first error assigned on behalf of defendants is that the court erred in overruling their demurrer to the complaint, which challenged the capacity of plaintiffs to bring the action. Presumably, if there was any merit in this contention, it appeared upon the face of the complaint. By answering' to the merits, the defendants waived that question. It has been repeatedly decided that where a demurrant wishes to take advantage of any supposed error in — 149 — overruling’ a demurrer to a complaint upon grounds which, under our civil code, constitute grounds for demurrer, which appear upon the face of the complaint, he must, except for want of facts or jurisdiction, let final judgment he entered, for by afterwards answering to the merits, he cannot,'except, for the two defects mentioned, raise such questions in connection with his answer. — Sams Automatic Car Coupler Co. v. League, 25 Colo. 129; Diamond Rubber Co. v. Harryman, 41 Colo. 415. It is next urged that the complaint shows that the plaintiffs have attempted to invoke the aid of a court of equity to prevent the enforcement of a penal ordinance, and that for this reason, and also' because the testimony establishes this fact, the judgment is erroneous. The judicial enforcement of a penal ordinance cannot be inhibited by a court of equity.— Denver v. Beede, 25 Colo. 172; Adams v. Cronin, 29 Colo. 488; Olympic Athletic Club v. Speer, 29 Colo. 158. There may be exceptions to this rule, as suggested in the above cases, but this case does not fall within the exception, so far as the judicial enforcement of the ordinance in question is involved. Neither is that question the vital one in this case. The plaintiffs did not seek a judgment inhibiting the defendants from judicially enforcing such ordinance, nor did the judgment rendered inhibit the defendants from so doing. On the contrary, the questions presented by the complaint and on the facts established at the trial are: (1) may the city authorities summarily close the club rooms and exclude the members of the club' therefrom; and (2) if not, may they be enjoined from so doing? The defendants claim that they have the right, by virtue of the ordinances of the city, to close the club rooms and exclude its members therefrom, and — 150 — do not deny the averments of the complaint, to the effect that it was their intention and purpose to take these steps. In support of their authority and right to do so, it is claimed that the club rooms managed by the plaintiffs are maintained in violation of the ordinances-of the city inhibiting any place to be kept within its limits wherein intoxicating liquors are sold ’ or dispensed to members of the club occupying such place. That question is not the material or crucial one involved, and we shall express no opinion upon it. We are not concerned with the guilt or innocence of plaintiffs, neither can that question, under our rulings of the Beede and other cases, be determined in this proceeding. The first important question to determine, in order to solve what we have indicated are the only ones in the case, is, whether the defendants may determine for themselves that the club is violating the ordinances of the city, and • proceed summarily to enforce its ex parte orders against it. This question must be answered in the negative. The fact that members of the organization represented by plaintiffs meet in their club rooms is not a violation of the ordinances. Neither is the mere storage of’ liquors in such rooms contrary to any provision of such ordinances.’ The violation of such ordinances, if any there be, consists in dispensing such liquors to the members of the club. Whether or not that is a violation cannot be determined by the city officials, but only by a court of competent jurisdiction, wherein plaintiffs are afforded an opportunity, to be heard, so that the question of whether they are violating the ordinances of the city can be judicially determined. By the terms of the ordinances which the defendants say they proposed to enforce, no such opportunity is afforded the plaintiffs. Defendants propose ex parte to determine that the ordinances of the city have been violated, and pursuant to that con — 151 — elusion contend they have the right to close the club rooms and exclude the members therefrom. Such a proceeding as that cannot be upheld. Persons, even though they be officials of a municipality, may not take the law into their own hands, however justifiable they may think such a course may be to prevent infringement of the law. Such a course must inevitably result in bringing about conditions destructive to the peace of a civilized community. If it can be done in one case, it may in another, and thus there would be no limit to the unlawful means which might be resorted to for the purpose of punishing alleged infringements of the law, although those engaged in doing so would also be violating it. A man’s property cannot be seized, nor can he be punished, except for a violation of the law, and whether he has been guilty of such violation as justifies the seizure of his property, or the infliction of punishment, can • only be determined by a court of competent jurisdiction, where he is afforded an opportunity to be heard before judgment is pronounced against him. — Darst v. The People, 51 Ill. 286; Earp v. Lee, 71 Ill. 193; Baldwin v. Smith. 82 Ill. 162. The law provides a method whereby the unlawful selling of liquor may be judicially determined and judicially punished. In the present case the ordinances of Canon City make such provision. Having concluded that the ordinances cannot be enforced in the manner threatened by defendants, the next question is, whether they may be enjoined from carrying their threat into execution. This question must be answered in the affirmative. The reason upon which the Beede and other cases decided by this court, wherein it is held that the judicial enforcement of a penal ordinance could not be enjoined, rests, is that equity can only be invoked when there is no plain, adequate and complete remedy in the — 152 — law courts of which the party invoking its aid can avail himself. That condition is not present in the case at bar; on the contrary, it is entirely absent, for the obvious reason that no opportunity is afforded by the provisions of the ordinance under consideration whereby the plaintiffs may be heard on the question of whether or not the dispensing of liquors in their club rooms in the manner set out in their complaint and as established by the facts, is a violation of the ordinances of the city inhibiting the sale of liquors within its limits. They must either submit to the ex parte determination of the city officials that they are violating the ordinances of the city and permit their club rooms to be closed, and the members excluded therefrom, and then bring an action to be reinstated in the possession of their rooms, or they must resort to force when the city authorities undertake to enforce the provisions of the ordinances against them. ■ Certainly, the first course does not • afford an adequate remedy at law, because that expression does not mean that such a remedy is afforded by quietly submitting to an alleged wrong, and then bringing an action against the alleged wrong-doer to redress it. Neither is the second expedient one to which the law will compel a party to resort by refusing him protection in the first instance, because that course invites violence and a breach of the peace. Perhaps he might justify such action if called to account therefor, but that is not an adequate remedy at law to afford protection against the illegal invasion of his rights. The general rule is, that if, in order to protect the rights of a party, an action at law does not afford a plain, speedy and adequate remedy whereby the whole mischief of which he complains may be reached, and his rights, both pres'ent and future, be secured in a perfect manner by the judgment of a — 153 — court at law, lie may invoke the interposition of equity for his protection. — 1 Story’s Equity Jurisprudence, § 33. Applying this rule, it is clear that this case does not fall within the rule laid down in the Beede and other cáses cited by counsel representing the city authorities. The amendment to § 143 of the civil code, which provides that no writ of injunction shall issue to restrain the enforcement of a penal ordinance does not apply, because that can only be construed to mean that no’ writ of injunction shall issue to restrain the judicial enforcement of such ordinance. There are, doubtless, instances where city authorities would be justified in employing summary methods because of the emergency of the situation to prevent infringement of the law, or to prevent parties from taking steps which would inevitably lead to a violation of the law, or to protect the health of the public, or where, for the protection of the public, police surveillance must be exercised and prompt action taken; but no such emergencies are presented in the present case. Whether or not the plaintiffs and those whom they represent are violating, the ordinances of the city can be determined judicially, and if they are so found guilty, the judgments to that •effect can be enforced by judicial process, without jeopardizing the safety of the public in the slightest degree, and any attempt on the part of the city authorities to do otherwise cannot be permitted. In reaching this conclusion we must not be understood as indicating that a judgment of a court to the effect that the club rooms could be closed and the members excluded, would be upheld, or that the dispensing of liquors in these club rooms to members of the organization represented by plaintiffs in the circumstances established in this case is not a violation of the ordinances of the city inhibiting the sale of liquors within — 154 — its limits. It will be time enough to determine either, or both, of these questions when presented by an appropriate proceeding. "What we do determine is, that in the circumstances of this case, the city authorities cannot enforce the provisions of the ordinances involved extra judicially, and that they may be enjoined from attempting to do so. The judgment of the district court is affirmed. Affirmed. Mr. Justice Campbell and Mr. Justice Helm concur.