cited section is valid and clearly within the police power of

the municipality. We cannot subscribe to that view.

"The construction of statutes by which it is determined whether they contravene constitutional provisions or not, frequently requires nice discrimination between matters which concern private rights and such as affect the public weal; between matters in which the private interest is immediate and the public interest remote, and such as interest the public directly and individuals incidently. The taking of property, or the legislative interference with private rights, as a police regulation, must have for its immediate object the promotion of the public good, in the broadest sense."

Upon a review of the authorities and upon principles consistent with "the genius of our free institutions and the constitutional guarantees of rights," it may be fairly deduced that the tests of all police regulations affecting proprietary rights are: Whether they are enacted in the real interest of the public, and whether the public interests are sought to be subserved by appropriating to public use private property otherwise than in the exercise of the right of eminent domain. In judging whether or not a statute falls within the first class, we have a wide field of inquiry. We may determine whether the provisions of the act are such as to be essential to the public good, or only impose harassing burdens upon individuals; whether the statute, on pretense of serving the public, diminishes the property of one man to augment that of another; and whether the subject of regulation includes things in which the public have no interest, or rights in no way antagonistic to the general good.

There is no safer method of arriving at the object of the statute than to ascertain the purpose it may be used to subserve. When we come to consider the extent to which these ordinances may be made to operate, we are led to believe that it would be dangerous to say that the city council could assume the power to abridge previously acquired rights of the ditch company. Ordinance No. 10 is defined as an ordinance to change the construction of the ditches operated and controlled by The Platte and Denver Ditch and Milling Company, and the section recites that in the opinion of the city council the public welfare and safety require there should be a change in the present construction of the ditches operated and controlled by The Platte and Denver Ditch and Milling Company within the limits of the city * * * and it is hereby ordered to so confine and construct the channels of their said ditches by boxing, fluming or otherwise, as to prevent the further washing and cutting away of the property along the lines of said ditches, and to reduce their said channels to the maximum width of eight feet for each of their said ditches, and a maximun width of not to exceed sixteen feet where the waters of both of said ditches flow in one channel.

The mere recitation in the ordinance that the "public welfare and safety" require this to be done is not binding upon the court. We are warranted in going beyond this recitation and inquiring what the evident purport is. Certainly the title of the ordinance is inconsistent with the recitation; the purpose for which the ordinance was passed is equally inconsistent with the recital. It evidently contemplated a change in the construction, reducing the width of the ditch or ditches operated by the complainant company, and also that such changes and reconstruction of the ditch should be made for the purpose of preventing the further washing and cutting away of the property along the lines of the same.

This means, then, in substance that the city by this ordinance is seeking to protect the property rights of individuals along the lines of the ditch or ditches acquired subsequent to the construction of the ditch and subjected to the rights of the company. It is nowhere indicated by the provisions of the ordinance in what way the public welfare and safety can thus be benefited or protected, and we are unable to conceive how public interests can be promoted by reducing the width or depth of the ditches, or changing the construction of the ditches, or protecting the banks of the ditches, as specified in the ordinance.

In Mugler v. Kansas, 123 U. S. 661, this language is used: "The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty-indeed, are under a solemn duty-to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution."

This doctrine applicable to a legislative act is equally applicable to an ordinance like the one under consideration. It will be observed that this section of the ordinance was passed by the city council for the purpose of bringing the complainant company within the provisions of section 4 of ordinance No. 38, which provides a penalty for the violation of an order or notice issued by the mayor upon any person or corporation failing to comply with such order or notice, and was so passed in pursuance to the authority conferred upon the city council by section 4.

Section 10 was passed two years subsequent to section 4. Section 4 provides for the making, constructing, and using of ditches, flumes, bridges and crossings, and for the location, construction and building of them under the supervision of some city officer, conferring upon the city council power from time to time to change the location and construction of the same, as in their opinion public welfare and safety may require. In addition to this, for the mayor to duly notify the person or corporation.

The mayor did so notify the complainant company and threatened prosecution if the company neglected to comply with the provisions of section 10 of the ordinance, to wit: confine their ditch by some means or other so as to prevent the further washing and cutting away of property along the line of the same, and to reduce their ditches in width. A

failure to comply with this provision would, under the ordinance, subject the complainant company to daily prosecutions and fines of not less than fifty dollars nor more than one hundred dollars.

By the demurrer to the complaint it is admitted that the ditch in question was originally constructed through lands embraced within the public domain, and belonging to the United States prior to said lands being embraced within the city limits. City of Denver v. Mullen et al., 7 Colo. 346; Platte & Denver Ditch Co. v. Anderson, 8 Colo. 132; Walley v. Platte & Denver Ditch Co. et al., 15 Colo. 379.

The foregoing reasons, coupled with the doctrine embraced in the above cited cases, lead us to the conclusion that the ordinances in question, so far as they affect the complainant company, are invalid and void.

This brings us to the consideration of the second question: Can the court enjoin the defendants from prosecuting the complainant company for violation of the ordinances ?

It may be admitted that equity would not enjoin the action of municipal corporations while proceeding within the limits of their well defined powers as fixed by law; yet it is claimed that it has undoubted jurisdiction to restrain them from acting in excess of their authority, and from the commission of acts which are ultra vires. High on Injunctions, § 241.

It is a well recognized principle that courts of equity will grant an injunction to protect a party against a multiplicity of suits.

Under the ordinance in question, as before stated, the representatives of the complainant company would be subject daily to arrest for a failure to comply with the order of the mayor. And should they successfully present their defense in such a proceeding, it does not follow that they would not be continuously harassed by repeated arrests for the violation of ordinances which we have herein declared invalid. And pending the final determination of the validity of this ordinance or the completeness of the defense, innumerable actions might be commenced against them, thus subjecting them to great expense, inconvenience and embarrassment. In the case of Smith v. Bangs et al., 15 Ill. 339, Treat, С. J., lays down the following doctrine :

"A court of equity will interfere by injunction where public officers under claim of right are proceeding illegally to impair the rights or injure the property of individuals or corporations, or where it is necessary to prevent multiplicity of suits. Where a municipal corporation is seeking to enforce an ordinance which is void, a court of equity has jurisdiction at the suit of any person who is injuriously affected thereby to stay its execution by injunction. Mayor of Baltimore v. Radecke, 49 Md. 218.

We do not look upon this proceeding on the part of the city to impose a penalty for the violation of the ordinance as coming within the scope of the authorities holding that equity will not interfere by injunction to prevent criminal prosecution for violation of illegal ordinances or statutes ; but rather incline to the belief that the imposition of a penalty is for the purpose of compelling the complainant to comply with the ordinance by reducing the width of its ditches and to protect the banks of such ditches. It is true that the ordinance imposed a fine for disobedience of the order after ten days' notice, but nevertheless this must be considered in conjunction with section 10, which seeks to impose duties upon the complainant company wholly unwarranted, and which clearly infringes upon the vested rights of the company.

In the case of Cape May & Schellenger's R. R. Co. v. City of Cape May, 35 N. J. Equity, 409, this language is used: "Whatever doubts may have before existed, respecting the power of the courts to control the acts of the municipal corporations, they seem now to be at rest, and the line defining in what cases they may intervene, and in what they should not, seems to be marked distinctly and with precision. The rule upon this subject is stated with perspicuity by Judge Dillon, as follows:- "There can, ordinarily, be no

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