Harvey v. City and County of Denver

• Decision Date: 30 December 1932
• Docket Number: 13220.
• Citation: 18 P.2d 321,92 Colo. 114
• Parties: HARVEY v. CITY AND COUNTY OF DENVER et al.
• Court: Colorado Supreme Court

18 P.2d 321

92 Colo. 114

HARVEY v. CITY AND COUNTY OF DENVER et al.

No. 13220.

Supreme Court of Colorado, En Banc.

December 30, 1932

Error to District Court, City and County of Denver; E. V. Holland Judge.

Suit by Con A. Harvey, as president of Local Union No. 55, United Brotherhood of Carpenters and Joiners of America, against the City and County of Denver and others. To review a judgment for defendants, plaintiff brings error, and asks that it be made a supersedeas.

Affirmed.

Floyd F. Miles, of Denver, for plaintiff in error.

Lewis &amp Grant, Van Cise & Robinson, James D. Parriott, Frederick P Cranston, and Karl C. Brauns, all of Denver, for defendants in error.

BURKE J.

Plaintiff in error is hereinafter referred to as plaintiff, and defendants in error as defendants, or by name.

Denver through Fogg as commissioner of supplies, bought of the Kistler Company and the American Company furniture for a new courthouse, and those companies and Fogg (and others whose signatures are immaterial to our discussion) signed a contract itemizing and describing the furniture, and fixing prices and time of delivery and payment. Plaintiff, as a taxpayer and for himself and others similarly situated, sought to enjoin further action thereunder as illegal, and particularly as contrary to certain sections of the city charter. Defendants had judgment, to review which plaintiff prosecutes this writ and asks that it be made a supersedeas. Defendants moved to advance the cause as one involving a matter publici juris, and the parties join in a request for final disposition on this application.

Plaintiff is not entitled to supersedeas since the judgment was for costs only. No question of publici juris is involved; hence there is no right to advancement. However, the examination which enabled us to reach the foregoing conclusions enables us also to dispose of the litigation in a short opinion, for which reason, and the further one that important business may not be unduly obstructed by pending litigation, we now proceed to final disposition of the cause. We do this with less reluctance since it is apparent from the record that plaintiff's rights, if he has any, which he herein seeks to vindicate, and purely technical, and that as a taxpayer he stands to gain, not lose, by the transaction complained of.

The entire argument goes to the question of whether the contract involved was let to bids and the writing signed as required by law and charter provisions. It probably was, but we first assume the contrary. If the purchases were of furniture and not fixtures, or, as alleged in the complaint, 'additions to, or a part of said court house, * * * and is intended to and will become a part of said building,' Fogg was authorized to buy in the open market. The trial court, correctly we think, held that these items were furniture. The schedule consists almost entirely of such articles as chairs, benches, desks, tables, hatracks, wastebaskets, and cuspidors. It includes also such as public rails, foot rests, and jury-box platforms, temporarily fastened to the floors, but, as usual in such cases, removable with slight inconvenience, and intended to be so. All this is courthouse furniture.

Section 169 of the city charter authorizes the commissioner of supplies to make such purchases in the open market 'subject to such regulations and restrictions as shall be prescribed by the mayor.' Plaintiff's counsel says in his brief: 'It may be conceded that under the above charter provision (said Sec. 169) the commissioner of supplies may under certain conditions purchase in the open market. He is, however, hedged about by such 'regulations and...