Cañon City record., 1906-11-29
JUDGE SHEAFOR HANDS
DOWN IMPORTANT OPINION

| by Judge Bailey of the District Court
to hear the petition of Messrs. Waldo
& Dawson, attorneys for the Canon
City Elks Club, for a writ of injunc-
| ton to prevent the city authorities
from interfering with the sale of Ii
quors by the club to its members un-
der the provisions of the ordinance
defining a nuisance. was filed with
the district clerk last Saturday
| The opinion is a lengthy document,
occupying twelve typewritten pages
of foolscap paper. and is an exhaus-
tive review of the case with which it
deals. After a concise statement of
the matter as presented to him in
court, Judge Sheafor says in part:
1.-THE question arising upon the fore
going facts is whether the defendant
city possessed the power to pass the
ordinance, which, in effect, declared
the said club rooms to be a nuisance.
It is an undisputed proposition OF
law and fundamental that municipal
corporation possesses and can exer-
else only such powers as are granted
to it, or which are necessary, or fairly
implied in or incident to the powers
expressly granted. or those essential
to the declared objects and purposes
of the corporation. If there is any
reasonable doubt concerning the exis-
tence of power it is resolved by the |
courts against the corporation, and
the power is denied.
"A municipal corporation cannot, !
nor can its officers, do any act not |
ed it. Notwithstanding the broad sta
tute which gives to municipalities the |
power "to declare what shall be a
nuisance and to abate the same. and to |
impose fines upon parties who may |
create, suffer, or conti1ue nuisances |
to exist" it may well &s doubted If
under such general grant of power a |
city can declare, without limitation |
or restriction, any given place TO be |
nuisance, but 1t probably is not essen
tial to decide this question. l think
the decision in this case will rest up
on two other propositions, namely
1st. Was the club so conducted, and
was the manner in which 1t kept and
disposed of intoxicating liquors, as
shown by the evidence, such as to
constitute 1t a nuisance. and was it
dsposing OF said liquors in violation
of law?
On ha of Mt nv virfna \
of said ordinance, do what 1t threat
ened to do, that is close the club
rooms and prevent any person and all
persons from entering the same, ex-
cept for the lawful removal of such
liquors. and until the owner of such
rooms had given bond, as provided
such ordinance, without some regular
judicial proceeding In some court OF
competent Jurisdiction, declaring such
club rooms to be a nuisancs?'
Judge Sheafor stated that he had
the utmost respect for the will of the
people as expressed by their votes at
the polls in the city election here last
spring, but he adds. courts cannot
l.
powers granted to them by the con-
stitution."
"It has been suggested In a written
argument" the opinion states, that
the club in question has ruined more
young men than any saloon that ever
ran in the city in the same length OF
time"
at is sufficient answer to this argu-
ment," declares Judge Sheafor. ito say
that there is no evidence to show that
anybody was ruined by said club.
There is, however, strong evidence to
the effect that the club was properly
and orderly conducted; that there was
no disturbance, no quarreling, no riot
GUS conduct OF any kind, and no evi-
dence to show that anybody was ever
drunk within said club rooms or any
body connected with It,
"The sale OF intoxicating liquors
does not come under the ban Of the
law In this state. The sale of intoxi-
eating liquors is not prohibited by the
statutes. On the contrary, It ID legali-
zed, except under certain limitations
and restrictions. intoxicating liquor
is property and is protected BY law.
and its sale and disposition can only
be declared q nuisance whom 1t has
been made SO by statutory enactment.
|or by the common law. It Il not Per
Sc, or In fact . nuisance"
Judge sheafor laid down the well
known principle that . mans property