Cutshaw v. City of Denver

• Decision Date: 11 January 1904
• Citation: Cutshaw v. City of Denver, 19 Colo. App. 341, 75 P. 22 (Colo. App. 1904)
• Parties: CUTSHAW v. CITY OF DENVER.
• Writing for the Court: THOMSON, P.J. (after stating the facts).
• Court: Colorado Court of Appeals

75 P. 22

19 Colo.App. 341

CUTSHAW v. CITY OF DENVER.

Court of Appeals of Colorado

January 11, 1904

Appeal from District Court, Arapahoe County.

Action by Leonard Cutshaw against the city of Denver for balance due on salary as inspector of buildings. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

On the 23d day of November, 1889, the following ordinance was adopted by the city council of the city of Denver:

"Be it enacted by the city council of the City of Denver.

"Article 1.

"Section 1. There shall be in the city of Denver a department to be called the 'Department for the Inspection of Buildings' which shall be supplied with suitable office rooms, and the necessary supplies and printing, for the proper transaction of business, in the same manner as now provided for other executive departments of the city.

"Sec. 2. The chief officer of said department shall be called the inspector of buildings, and shall be appointed by the mayor and confirmed by a majority of the members of the board of supervisors. He shall hold his office for the term of two years, and until his successors shall be appointed and qualified, by, and with the consent of a majority of the board of supervisors, but may be removed by the mayor for malfeasance, incapacity or neglect of duty. He shall receive a salary of $2,400 per annum, payable in equal monthly installments, out of the city treasury, and shall receive no other fees or emoluments by virtue of said office."

On the 15th day of April, 1893, M.D. Van Horn, then mayor of the city, appointed the appellant to the office of building inspector, and issued and delivered to him the following certificate of appointment:

"To All to Whom These Presents Shall Come, Greeting: That, having confidence in the ability, sobriety and integrity of Leonard Cutshaw, I, Marion D. Van Horn, Mayor of Denver, do by these presents constitute and appoint him, the said Leonard Cutshaw of the City of Denver to the office of Building Inspector, to have and to hold said office at the pleasure of the appointing power, with the pay as provided by ordinance, for duty in city.

"In Witness Whereof, I, Marion D. Van Horn, mayor of the City of Denver, have hereunto set my hand.

"Done at the City of Denver this 15th day of April, A.D.1893.

"M.D. Van Horn,

"Mayor."

This appointment was never submitted to the board of supervisors for confirmation. On the 3d day of April, 1893, 12 days before the date of appointment of the appellant, an act of the General Assembly took effect, entitled "An act to revise and amend the charter of the city of Denver." Sess.Laws 1893, pp. 131-235. Section 1 of article 9 of that act provides that all ordinances of the city in force at the time of the taking effect of the act, and not inconsistent with it, shall remain in full force and effect as the ordinances of the city of Denver, until altered or repealed. Section 1 of article 3 provides as follows:

"The executive power of the city shall be vested in a mayor, a city clerk, a city treasurer, a city auditor, a city attorney, a city engineer, a street commissioner and a water commissioner, who shall be elected by the qualified electors of the city; in a board of public works, consisting of a president and two other members who shall be appointed by the Governor of the state of Colorado; in a fire and police board, consisting of three members who shall be appointed by the Governor of the state of Colorado; also in a health commissioner, a commissioner of inspection, a park commission, a superintendent of supplies and such other boards and officers as may be provided for by ordinance, not inconsistent with the provisions of this act, to be appointed by the mayor in writing filed with the city clerk, with power of suspension or removal by the mayor at any time, but not for political reasons."

The following are sections 2, 3, 44, and 79 of article 3.

"Sec. 2. There shall be the following executive departments: (1) A department of finance. (2) A department of law. (3) A department of public works. (4) A department of public health and safety. (5) A department of parks. (6) A department of supplies.

"Sec. 3. The department of finance shall include a bureau of audit and account, of which the city auditor shall be the head, and a bureau of the treasury, of which the city treasurer shall be the head. The city attorney shall be the head of the department of law; the board of public works of the department of public works; the mayor of the department of public health and safety; the park commission of the department of parks; and the superintendent of supplies of the department of supplies. All subordinate officers and employés except of said boards and commission, shall be appointed in writing by the heads of their respective departments, the appointments to be filed with the city clerk; and all subordinate officers and employés of each board or commission shall be appointed by resolution of such board or commission."

"Sec. 44. The department of public health and safety shall include the following officers, who shall respectively be the heads and have active charge of the affairs of the following bureaus, to wit: A fire commissioner, of the bureau of fire. A police commissioner, of the bureau of police. An excise commissioner, of the bureau of excise. A health commissioner, of the bureau of health. A commissioner of inspection, of the bureau of inspection. The fire commissioner, police commissioner and excise commissioner shall constitute the fire and police board of the city of Denver, and all the operations of the bureaus of fire, police and excise, shall be subject to the general control of said board."

"Sec. 79. The commissioner of inspection may employ such assistants as may be authorized by the mayor, and it shall be his duty to enforce the laws and ordinances of the city applicable to the work of said bureau."

Relative to the commissioner of inspection, section 47 of the same article provides as follows: "The commissioner of inspection shall have general charge of the inspection of buildings, and parts of buildings, drains, drain laying, elevators, boilers, gas and electric fittings, gas and electric lights, and all other apparatus and machinery requiring inspection and regulation, as the same may be authorized by ordinance; the inspection and control of electric wires, electric wiring, and all other electrical apparatus and machinery; the location, maintenance, marking, insulation and removal of wires, and the use of all electric wiring, electric wires and conductors for light, heat, power, telegraph, telephone or other commercial purposes, whether public or private; the inspection of weights and measures; the sources of dense smoke; the erection and care of workhouses, charities and corrections; the care of markets and public baths." By the terms of subdivision 4 of section 20 of article 2, power is conferred upon the city council "to provide for the inspection and regulation, among other things, of buildings and parts of buildings"; and section 23 of the same article authorizes it to provide for the employment of such clerks and other persons in any of the departments of the city government as the exigencies of the public service may require.

The services of the appellant commenced at the time of his appointment, and he acted as inspector of buildings for five years. He received during that time only $150 per month protesting frequently that by virtue of the ordinance he was entitled to $200. Each of the annual appropriation bills passed during the five years set apart $1,800 for the salary of "the assistant commissioner of inspection in charge of buildings." The total amount received by the appellant for his five years of service was $9,000. At $200 per month, the amount would have been $12,000; and he brought this suit to recover from the city $3,000, the difference between the two sums. His complaint set forth the ordinance of November 23, 1889; averred his appointment on the 15th day of April, 1893, in pursuance of its provisions; the performance by him of his duties as inspector of buildings for five years; his right to a salary of $200 per month, amounting for his term of service to $12,000; and the payment to him of only $150 per month, or $9,000 in all. The complaint was demurred to on the ground of insufficiency, and, the demurrer being overruled, an answer was made to the effect that at the time of the plaintiff's appointment the ordinance was no longer in force, having been repealed by the amended charter of April 3, 1893, and that the duties he discharged were those of assistant to the commissioner of inspection, the only compensation for the performance of which was that named in...