enure to the holder of the fee, and do not pass by the deed which transfers the title. This principle, which has been recognized in the previous adjudications of the state, in no manner affects the right to recover any damages which may be sustained from those acts of the company which may further diminish the value of the property. The allegation of ownership with reference to the time of construction is essential, because it bears largely on the measure of recovery. It is a traversable fact on which the company has the right to take issue and be heard. It is equally true, that for the construction of a road along the streets of a city, when it is built under statutes which authorize its construction, and under ordinances which permit the use and occupation of the streets of the city, the abutting lot owner can only recover for the special damages which he sustains beyond what he suffers in common with the other denizens of the city. It is a necessary corollary, that if these special damages only are recoverable in this sort of an action, they must be averred, and averred in a traversable fashion, so that evidence may be taken upon the issue, and it submitted to the jury. The complaint was defective in these particulars, and since they are of the substance, the ruling of the court may be complained of on this appeal. City of Denver v. Bayer, 7 Colo. 113; Denver S. F. R. Co., et al., v. Domke, et al., 11 Colo. 247; Jackson v. Ackroyd, 15 Colo. 583; Town of Longmont v. Parker, 14 Colo. 387; Walley v. Platte & Denver Ditch Co., 15 Colo. 579; 1. B. & W. R. Co. v. McLaughlin, 77 Ill. 275. For the error committed in overruling the demurrer, the cause must be reversed and remanded to the court below for further proceedings in conformity with this opinion. Reversed. ED. CUNNINGHAM, APPELLANT, V. THE PEOPLE, ETC., APPELLEE. SELLING LIQUOR ON SUNDAY.-Where the board of trustees of an incorporated town assumed control of the sale of liquors within its limits in pursuance of the statute, and passed an ordinance authorizing the issuing of licenses for the purpose, a saloon-keeper who has been granted such license is not liable to indictment under section 839, of the Gen'l Stat., for "keeping open a tippling-house on the Sabbath day," in the absence of an ordinance to that effect. Appeal from District Court of Gunnison County. Messrs. GULLETT & CRUMP, for appellant. JOSEPH H. MAUPIN, attorney general, for appellees. RICHMOND, P. J. This case is submitted upon an agreed state of facts. Appellant, Ed. Cunningham, was indicted by the grand jury for keeping open a saloon where intoxicating liquors were sold on the Sabbath, in the town of Crested Butte, Gunnison county. It is admitted that he held a license from the trustees of said town to sell and deal in intoxicating liquors and that the board of trustees had, prior to the said alleged defense, assumed control of the sale of intoxicating liquors within the limits of said town and had granted said appellant such license, and that the trustees had passed an ordinance in due form relating to the licensing of such business and the regulation of the same which was in full force on the day of such alleged offense; and that there was no ordinance in existence prohibiting or controlling the sale of liquors on Sunday. Upon the agreed state of facts the court found the appellant guilty, and assessed a fine. From this judgment the defendant appeals. It is insisted that subdivision 18 of section 3312, Gen. Laws 1883, grants to towns and cities the exclusive right 1 155 17c 314 to license and regulate the sale of intoxicating liquors within such towns and cities, and that no indictment for a violation of section 839, to wit: "Keeping open a tippling-house on the Sabbath day," can be maintained. Subdivision 18 of said section 3312 provides that towns and cities shall have the exclusive right to license, regulate, or prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquor within the limits of the city or town, or within one mile beyond the outer boundaries thereof, except where the boundaries of the two cities or towns adjoin, the license not to extend beyond the municipal year in which it shall be granted and to determine the amount to be paid for such license * * * We deem it unnecessary to discuss at length the proposition presented by this agreed state of facts. It has repeatedly received the consideration of the supreme court of this state and we are somewhat surprised, in the light of those decisions, that it was found necessary for the appellant to prosecute this appeal. In the case of Rogers v. The People, 9 Colo. 450, it is expressly declared that it is competent for the legislature to confer upon the city authorities exclusive control, and such exclusive control having been given, a party cannot be indicted under the general law of the state, such power having been accepted by the enactment of an ordinance covering the offense. In Huffsmith v. The People, 8 Colo. 175, it is declared that "The grant of exclusive power and authority to one jurisdiction to restrain, regulate or prohibit a business as to every day in the week, is irreconcilable with the existence of a concurrent power to prohibit the exercise of the same vocation upon a single day in the week." In Hetzer v. The People, 4 Colo. 45, it is announced that "Where the legislature vests either in the city or county authorities the exclusive right to license vendors of spirituous liquors, a license to a vendor from the authority exclusively authorized to grant it is all that can be required.” The foregoing cases are confirmed by the supreme court in the case of Heinssen v. The State, 14 Colo. 228. Such being the conclusion of the supreme court of this state, no alternative is left us but to say that the judgment must be reversed and the cause remanded for proceedings in conformity with this opinion. Reversed. JACOB MAY, PLAINTIFF IN ERROR, V. THE PEOPLE OF CITY ORDINANCES-WHEN INVALID.-The attempt of a city council, by ordinance, to prevent the prosecution of lawful business avocations, not declared by any ordinance to be nuisances, within the city limits without a permit or license from the city council, is not authorized by the statute which confers on municipalities power to declare what shall be a nuisance, and to abate the same. Such an ordinance is repugnant to fundamental rights in that it is susceptible of being used to unjustly discriminate between individuals equally worthy and respectable, by permitting certain individuals to pursue the avocations mentioned, while denying the privilege to other persons of the same class, or by making acts done by one person penal and imposing no penalty for the same act when done under like circumstances by another. Error to County Court of Las Animas County. Mr. CALDWELL YEAMAN, for plaintiff in error. Mr. JESSE G. NORTHCUTT, for defendant in error. RICHMOND, P. J. This was a prosecution originally instituted before a police magistrate in the city of Trinidad to recover from Jacob May, plaintiff in error, a penalty for the violation of a regulation or ordinance. The case was tried and a penalty of $20 fine imposed. Thereafter an appeal was taken to the county court of Las Animas county where it was tried upon an agreed state of facts as follows: "That the defendant did, at the time and in the manner and form as alleged in the complaint filed herein, keep and store green and dry hides and pelts in large quantities within the corporate limits of the city of Trinidad, without permission from the city council of said city so to do. "That the storing of green hides and pelts is the character of business which may or may not be a nuisance, according to the surrounding circumstances. "That section 11 of an ordinance concerning nuisances reads as follows: "Section 11. Any person who shall kill or dress any cattle, calves, sheep or swine, or shall steam or render any lard or tallow, or store any green or dry hides or pelts within the city, without permission from the city council, shall upon conviction, be fined in a sum not less than ten nor more than fifty dollars for each offense; and such permit shall not be construed into a license to emit, cause or be the author of any nuisance in any case whatever. "That the storing of green and dry hides is a business which in its character is easily susceptible of becoming offensive and nauseous." Upon this agreed state of facts, the county court adjudged the plaintiff in error guilty, assessed a fine of ten dollars and costs and committed him to the county jail until paid. To reverse this judgment this writ of error is prosecuted. There being no dispute as to the facts, the only question presented by the record is, whether this regulation or ordinance is valid. It is true, plaintiff in error insists in his argument that the proceedings before the police magistrate were irregular, but the record fails to disclose the fact that he insisted upon this in the county court. Therefore it will not be considered. The contention of plaintiff in error is that the ordinance. referred to is in violation of the federal constitution, and of section 2 of the state constitution, and that it is invalid be |