Bernheimer v. City of Leadville

• Decision Date: 20 June 1890
• Citation: 14 Colo. 518,24 P. 332
• Parties: BERNHEIMER v. CITY OF LEADVILLE.
• Court: Colorado Supreme Court

24 P. 332

14 Colo. 518

BERNHEIMER v. CITY OF LEADVILLE.

Supreme Court of Colorado

June 20, 1890

Commissioners' decision. Error to county court, Lake county.

S.D. Walling and J. R. Mosby for plaintiff in error.

J D. Fleming and Chas. H. Wenzell, for defendant in error.

PATTISON C.

It appears from the record in this case that on September 2 1885, plaintiff in error was arrested for the violation of § 10, c. 11, of an ordinance of the city of Lead ville. The offense charged was that plaintiff in error 'did engage in, pursue, and carry on the business and occupation of an insurance broker, without first having obtained a license from the city of Leadville, as required by the ordinances,' etc. He was duly tried by the police magistrate, adjudged to be guilty, and fined $13 and costs. Subsequently, upon appeal to the county court of Lake county a new trial was had, and he was again convicted, and a fine of five dollars and costs was imposed. A review of this judgment is sought in this court.

The proceeding was had under section 10 of an ordinance entitled 'An ordinance for compiling the general ordinances of the city of Leadville, adopted January 2, 1885. By this section the amount of the license fees is fixed, which are required to be paid to the clerk of that city, for the privilege of exercising certain trades and avocations. The part of the section presented for consideration reads as follows: 'The several amounts to be paid to the said clerk for licenses imposed by the said council upon the applicant shall, in addition to the fee for issuing the same, of 50 cents, to be paid to the city clerk, be as follows, [among others:] Insurance brokers, $50 per annum.' To enforce the ordinance, it was provided that, upon conviction for a violation of its provisions, a fine of not less than $5, nor more than $200, should be imposed, etc. Was plaintiff in error subject to this provision?

The city of Leadville was organized under the statute relating to towns and cities which was in force in 1877. The office performed by the provisions of that and similar statutes is clearly and well defined. These statutes confer upon communities within this state authority to exercise the powers of municipal corporations upon compliance with their provisions. When the necessary steps have been taken to secure the privileges and franchises offered by the law, and proper proof has been made of compliance therewith then such community becomes a municipal corporation, and is authorized to exercise all the powers, rights, franchises, and privileges particularly mentioned in the act under which the organization was perfected. It is a well-settled elementary principle that the charter of a municipal corporation, or, if organized under a general law, that such general law, is the instrumentality by means of which the legislature of the state delegates to the municipal body the right to exercise such franchises, and such legislative power and authority, as may be essential to the safety, well-being, and prosperity of the community. It is equally well settled that the charter or the law by which the municipal body is created is to be strictly construed, and that no powers are to be exercised except those which are expressly conferred, or which exist by necessary implication. This principle of the law is expressed with extraordinary clearness in 1 Dill. Mun. Corp. § 89: 'It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in, or incident to, the powers expressly granted; third, those essential to the declared objects and purposes of the corporation,--not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied. Of every municipal corporation the charter or statute by which it is created is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability, not authorized thereby. All acts beyond the scope of the powers granted are void.' Of the power to license, it is needless to say that it exists perforce of the statute alone. $To determine whether plaintiff in error could be required to pay a license fee, a review, not only of the statute of 1877, but other legislation had in relation to the authority of cities and towns to license, regulate, and control business of the nature of that cariried on by him, may be instructive. Subdivision 21, § 1, art. 3, c. 84, of the territorial laws relating to towns and cities, expressly confers upon the board of trustees of such...