CanÌƒon City record. [volume] (CanÌƒon City, Colo.) 1883-192?, 1906-09-06
MAYOR COULTER MAKES REPLY
TOANTI-CLUB POPULAR PETITION
Following 1t Dictates
Appeals to Reason Justification OF

utterly fails to do SO. Counsel does,
however, discuss in general way the
liquor laws of the State quite thor
oughly, from which he reaches some
general conclusions, which I will con-
slider in the order in which they are
stated.
He holds first, that "the city has the
power, and appears to have had suffi-
cient action taken by ordinances and
otherwise through the City Council.
10 maintain actions before the police
magistrate of the city against any and
all sellers of the liquors, and against
the givers away of any liquors, pro-
hibited by the city, and to punish the
same
With reference to this first con-
clusion, / desire to express my entire
accord and L stand ready to cooperate
with the City Council and all other
city officials in any legal proceedings
for the punishment of any and all
violators of the liquor ordinances of
the city.
His second conclusion is to the effect
that ''the city had the power to declare
the Walton Club nuisance and that
it had the power summarily to abate
it"
On this point take the position that
If the city was authorized under the
law to declare this institution a nuis-
ance and to summarily abate it, as
stated by counsel, such authority is
expressly conferred upon the City
Council The language of the statute
with reference thereto is as follows:
Sec. 4403, P. 225S, 2 Mills An. Stat
utes. "The city council and board of
trustees in towns shall have the fol-
lowing powers: Sub. 45. To declare
what shall be a nuisance and TO abate
the same. and to impose fines upon
parties who may create, continue or
suffer nuisances to exist"
AS before intimated the Council
seems to have been so advised and ac-
cordingly passed the resolution de-
claring the nuisance and directing the
Marshal to abate ii. Acting under
this order the Marshal has as before
stated, in perfect good faith, 1 believe,
made two Intellectual efforts to exc
cute this order. Subsequent to these
attempts the Council made a third
order to the same purpose, giving the
Marshal specific directions as to the
course to be pursued by him. This
order has not been executed l as
sumo that If the Council was auth
orized to make the order it should be
and is vested with the power to en-
force its execution. As to that, how
ever, am not advised; but l do know
that the statute does not confer any
special authority upon the Mayor in
respect thereto. and the Council has
never demanded any action on my
part in regard to it.
Under these facts and circumstances
submit that, assuming the City Coun-
Gil had the power to declare the nuis-
ance in question, and to abate it sum-
marily, the Mayor of the city cannot
with any show of reason, be held re-
sponsible for failure to carry the order
into effect. The responsibility for
failure, If there be any, must rest with
that department of the city govern
ment which is vested with the power
to act in the premises.
But in this connection l desire TO
have it clearly understood that make
no charge of violation of duty against
either the Marshal or City Council.
For. while l hold that if the Council
believes that it possesses the legal
right to abate the Walton Club in the
manner it has undertaken it is bound
to exercise all its legal powers to that
end. it is my firm belief that the action
of the Council is clearly unwarranted
in law and therefore, / could not con-
sistently sanction or approve this
course, even If it was necessary for
me to do so in order to make it effec-
tive.
| am aware that Judge Dale holds
to the contrary, but / note that he
does not cite a single decision by the
Colorado courts to sustain his posi-
ton He does cite some cases from
other states, but he does not quote
from them nor does he show that they
apply to this particular situation.
find however. that our own Supreme
Court has rendered a decision which
in my Judgment clearly sustains my
position The case of the City of
Denver VS. Mullen, decided by the Su-
preme Court and reported in 7th Col
orado. S45, was one arising under a
provision in the city charter confer
ring authority on the City Council
ito make regulations to secure the
general health of the Inhabitants, to
declare what shall be a nuisance and
prevent and abate the same" and in
this the court holds that this pro-
vision in the city charter does not
authorize the Council, by mere reso-
luton or motion, arbitrarily to declare
any particular thing nuisance which
has not heretofore been pronounced
to be such by law or so adiudged by
judicial determination"
And with reference to summary
abatement of such nuisance, the court
holds as follows: only such nuis-
ances may be abated summarily which
affect the health or interfere with the
safety of property or person. or are
tangible distractions to streets and
highways. under circumstances pre-
senting an emergency. such as are
clearly cases of nuisance per Sc. In
other cases. judicial determination 10
necessary before the thing cau ~
abated as a nuisance. either by the
public or a private person"
II appears to me that this decision
of our Supreme Cunrt In CLEARLY In