City of Central v. Sears

• Decision Date: 01 February 1875
• Parties: CITY OF CENTRAL v. SEARS.
• Court: Colorado Supreme Court

2 Colo. 588

CITY OF CENTRAL v. SEARS.

Supreme Court of Colorado

February, 1875

Appeal from District Court, Gilpin County.

THE charter referred to in the opinion may be found in the laws of the third session (1864), at page 244, et seq. The resolution of May 3, 1866, to which the opinion refers, is as follows, viz.: 'On motion of Alderman Bedell, the report of the finance committee in regard to police regulations was adopted. On motion, above report was amended so as to affect only the city marshal, who was allowed fifty dollars per month, said salary to commence May 1, 1866.' Mr. CLINTON REED, for appellants.

Mr. L C. ROCKWELL, for appellee.

HALLETT C. J.

This action was brought to recover for services rendered by appellee as marshal of the city of Central. At the time appellee was appointed to that office two sets of aldermen were claiming to represent the city, and a question is presented as to the validity of the appointment, which it will not be necessary to determine at this time. The claim for salary is based upon a resolution of council adopted May 3, 1866, by which $50 per month was allowed to the marshal to commence on the first of May in that year. The resolution does not appear to have been approved by the mayor, or published in the manner required by the charter, and therefore it cannot have effect as an ordinance of the city. Whether it should be regarded as fixing the salary of the marshal throughout the year 1867-8, for which appellee claims the right to recover, is the question to be determined. That some of the powers conferred by the charter may be exercised by resolution of council, or in any other manner which may indicate the will of that body, is not and cannot be denied and it is equally plain that other powers are of a legislative character, and can only be carried into effect by ordinance. In the 38th section, power to enact ordinances for purpose of carrying into effect provisions of the charter is expressly conferred, and generally the authority conferred upon the council is to be performed in that way. Express authority is given in the 35th section to fix the compensation of city officers, and it is desirable that this should be done by ordinance so that both the officers and the public may know what is to be paid. Smith v. Com., etc., 41 Penn. St. 335.

The resolution adopted in the year 1866 may, perhaps, be regarded as fixing the compensation of the marshal then in office, but cannot have the effect to fix the salary of that officer for all time. For that purpose an...