Bill v. City of Denver

• Decision Date: 03 December 1886
• Citation: 29 F. 344
• Parties: BILL v. CITY OF DENVER.
• Court: U.S. District Court — District of Colorado

29 F. 344

BILL v. CITY OF DENVER.

United States Circuit Court, D. Colorado.

December 3, 1886

Sam P Rose, for plaintiff,

J. H Brown, for defendant.

BREWER J.

This is an action for services. The plaintiff was employed by the city of Denver to act as inspector of sewers, at a stipulated salary. He performed the services, and now brings this action to recover therefor. As I said when this question was before me on demurrer, I have no doubt that the city had the power under the general provisions of its ordinances, to make a direct contract with this plaintiff for his services, by which contract the city would primarily have been bound.

The contract which in fact was made was for services to be paid out of the assessments for the Twentieth-street sewer; and it is insisted that the city has incurred no general liability by making that contract. The ordinances provide for district sewers, and that the city council shall cause sewers to be constructed in any district whenever a majority of the property holders thereof shall petition therefor, or whenever the board of health recommended the same as necessary for sanitary reasons. It passed an ordinance creating the Twentieth-street sewer district, reciting that it was in accordance with the petition of a majority of the property owners therein. Then, in the second section, the council directed that the sewer be constructed, further provided an appropriation, etc. It went on in pursuance of that ordinance, and did a good deal of work. It seems to have been ascertained thereafter that a majority of the property owners or holders did not petition, and the city abandoned further work. The plaintiff received sewer warrants as the work progressed, which were not paid, there having been no assessment or levy therefor. He brings these warrants into court, and tenders them to the city.

It is insisted, on the part of the city that its sole liability was the making of an assessment and levy upon this sewer district; and that, if it has failed to discharge that duty the plaintiff's sole remedy is by mandamus proceedings to compel it to proceed therewith. And familiar cases are cited, in which a party takes a warrant drawn on a particular fund, or makes a contract for services payable out of a particular fund, and his remedy is uniformly limited to that fund; as, for instance, if he takes a warrant from the county payable out of the poor fund, he cannot...