On Petition for Rehearing.
Garrigues, J.This action is based upon section 26, ordinance 13, requiring that every privy in on or belonging to any building on any lot near, adjoining to or abutting upon any street or alley through which there is a sewer, shall be connected by the owner with the sewer. The defendant was commanded by the summons to answer the city’s complaint for violating this ordinance. The offense charged was the failure to connect with the sewer a privy in, upon or belonging to some building. The city’s evidence showed an open privy or vault on the rear end of a lot, not connected with the sewer the day the summons issued. Defendant admitted he owned the lot, and the existence of the sewer, and the city rested. Defendant then offered, and attempted to show that it was a vacant lot, unoccupied and with no buildings thereon; that he had no use for the privy and did not wish to maintain it on the vacant lot, and had, since the summons was served, and before the trial, filled up the vault with dirt and nailed a board over the seat. The court ruled at the suggestion of the city attorney, that these matters were immaterial, sustained the objection to the evidence and directed the jury, over the protest of defendant, to return a verdict of guilty. This was error, and we so held.
Counsel who prepared the brief and argument here for the city, cited subdivision 7, page 599, laws of 1907, *331as authority for the passage of this ordinance. In the opinion, we said the power conferred by this statute was to compel the owners of buildings to connect them with the sewer; that it conferred no power to compel the connection of an outside open privy like this, on a vacant lot, with the sewer, against the owner’s will, that the • power was to prohibit privies within sewer districts, and to compel buildings to be connected with the sewer.
On petition for rehearing, a new attorney represents the city, and it is said our opinion is wrong, because the ordinance was passed in 1905 while the statute cited, and relied upon by the city in its former brief, was not passed until 1907. It is now urged for the first time that the power to pass the ordinance was not based upon the laws of 1907, but upon the following statutes: Section 7, page 378, laws of 1893, entitled “Public Health” which provides:
“Sec. 7. Boards of Health in counties, cities, towns and villages are hereby empowered to make such rules and regulations in relation to the care and cleaning of privies and water closets, within such counties, cities, towns or villages as it may deem desirable for the preservation of the health of any of the inhabitants thereof, or such boards may declare any such privy or water closet a nuisance and the abatement thereof be by them ordered and enforced.”
Subdivision 54, section 3312, page 971, G. S. 1883, which provides: That cities and towns shall have the following powers:
“ Fifty-fourth. To compel the owner of any grocery, cellar, soap or tallow candlery, tannery, stables, pig sty, privy or sewer, or other unwholesome or nauseous house or place, to cleanse, abate or remove the same, and. to regulate the location thereof.”
Subdivision 10, page "542, laws 1889, which provides, cities and towns shall have power: *332ers and drains npon the lot or lots, or lands adjacent to and opposite snch improvement, in proportion to the frontage of snch lot or lots, or lands,-abutting upon the street or alley wherein such sewer or drain is to be laid; Provided, That the cost of such sewer or drain at street intersections or crossings shall be wholly paid for by such city or town; And provided further, That the benefit to the public generally, if any, shall be assessed against such city or town, and the balance shall be assessed against the lot or lots or lands and the owners thereof, according to frontage as aforesaid, said benefits to be determined as may be provided by ordinance.”
*331"Tenth. To construct and- keep in repair culverts, drains, sewers and cesspools, and to regulate their use; and all cities and incorporated towns are authorized to assess either in whole or part, except as hereinafter otherwise provided, the cost of the construction of sew-
*332The statute of 1893 empowers boards of health to make rules and regulations as to the care and cleaning of privies, and to declare certain privies a nuisance and to order and enforce the abatement thereof. No power is given the city here by ordinance, to compel a privy like this, to be connected with the sewer. More than this, defendant is not charged with violating rules and regulations of the Board of Health of the City of Fort Collins in this regard. He is charged with failing to connect a building in a sewer district, with the sewer. The statute purports to make the failure to comply with rules and regulations of the board of health, a misdemeanor, punishable under the state laws. The city in this case is seeking to collect a penalty in a civil action for the violation of a specific and definite city ordinance. We are not called to pass upon a violation of the rules and regulations of the Board of Health, nor the abatement in any manner, summarily or otherwise of a nuisance. No such question is before us.
Subdivision 54, G. S. 1883, authorizing cities and towns to regulate the location of privies and to compel the owner to clean, abate or remove any nauseous or unwholesome privy, and the laws of 1889 relating to the construction and repair of sewers and cesspools, does not confer power upon cities or authorize them to compel the connection of buildings with sewers, much less the connection of an open privy like this, standing on a vacant lot. It was the passage of the act of 1907 that gave *333power to cities and towns to prohibit all privies in sewer districts, and to compel all buildings in such districts to be connected with the sewer.
Decided May 4, A. D. 1914: Rehearing denied July 8, A. D. 1914.Petition denied.
Chief Justice Musser and Mr. Justice Scott concur.