Heron v. City of Denver, 5673.
| Decision Date | 05 February 1958 |
| Docket Number | No. 5673.,5673. |
| Citation | 251 F.2d 119 |
| Parties | Kenneth A. HERON, Appellant, v. The CITY OF DENVER, a municipal corporation; Will F. Nicholson, individually and as Mayor of the City of Denver; Paul B. Hodges, City Clerk of the City of Denver; Francis W. Draney, individually and as Chief Building Inspector of The City of Denver; Arthur S. Brodhead, Manager of Revenue of the City of Denver; Harry F. Tarvin, individually and as Publication Officer of the City of Denver; Thomas Currigan, Auditor of the City of Denver; and Duke W. Dunbar, as Attorney General of the State of Colorado, Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
George K. Thomas, Denver, Colo., for appellant.
Brian H. Goral, Asst. City Atty. for City and County of Denver, Denver, Colo. (John C. Banks, City Atty., on the brief), for appellees.
Before BRATTON, Chief Judge, and PICKETT and LEWIS, Circuit Judges.
This is an appeal from a summary judgment entered in favor of the defendants by the United States District Court of Colorado upon the ground that the issues involved had been previously adjudicated in the Courts of the State of Colorado.
The plaintiff Heron, who was not a licensed architect, instituted this action alleging that he was a registered professional engineer, licensed to practice engineering in Colorado; that Section 301, Ordinance No. 32, Series of 1952, City and County of Denver, Colorado,1 which provided that only architects licensed by the State of Colorado could prepare and submit plans and specifications for public and semi-public structures and buildings, unlawfully limited his practice as a licensed engineer, and therefore was unconstitutional and void. He asked the court to grant an injunction enjoining the defendants from distributing a pamphlet which contained the ordinance, and to declare the ordinance unconstitutional. One of the defenses pleaded in the defendants' answer was that the subject matter of the action had been previously litigated in the Colorado State Courts and, therefore, the doctrine of res judicata was applicable.
In 1953 the plaintiff brought an action in the District Court for the City and County of Denver, Colorado against some of the same defendants,2 or their legal predecessors in office. Therein he alleged that Denver's Chief Building Inspector refused to approve a set of plans which he prepared and submitted because they were for a public or semi-public building, and must bear the seal of a licensed architect as required by the aforementioned ordinance; that the provisions of the Denver Building Code requiring the seal and signature of licensed architects "are arbitrary and constitute an unlawful interference" with his practice of professional engineering; that the action of the Inspector in refusing to issue the building permit and approve the plans was arbitrary, capricious, wrongful and unlawful; and that the refusal to give approval was causing a damaging delay, for which he had no adequate remedy. He prayed for judgment requiring the Chief Building Inspector to approve the plans. The Colorado trial court defined the issue before it as follows:
"The sole issue to be here determined is whether or not the refusal of the defendant McCormack, as Chief Building Inspector of the City and County of Denver, Colorado, to place his signature and the seal of his department (by reason of the ordinance) upon the plans and specifications submitted to him by the plaintiff as a registered professional engineer under the laws of the State of Colorado, is arbitrary, capricious, unreasonable, or unlawful."
The court concluded that the action of the City Building Inspector was not arbitrary, unreasonable and discriminatory because "The ordinance in question was passed in the exercise of the police power of the council to protect the inhabitants of the largest city in the state, where people are massed together in apartments, duplexes, rest homes, housing projects, small homes, and living quarters of every kind and description, and many buildings of a public and semi-public character are located and contemplated." The trial court also held that Heron's contention that the Colorado Engineer's Licensing Act3 gave him the right to practice architecture was "without reason". The relief prayed for was denied. The judgment was affirmed on appeal to the Supreme Court of Colorado. Heron v. City of Denver, 131 Colo. 501, 283 P.2d 647. Shortly thereafter Heron brought this action, in which substantially the same relief is sought. Heron contends that the Federal District Court erred in sustaining the motion for summary judgment on the ground of res judicata, because there was no identity of subject matter or issues between the previous litigation and the instant case which would permit the application of the doctrine. He says that the validity of the Building Code was never passed upon or questioned in the Colorado courts; that there he sought relief only under Rule 106, Colorado Rules of Civil Procedure; and that as he was permitted to remove all questions of the constitutionality of the ordinance,4 the jurisdiction of the state court was limited to a determination of whether the Building Inspector exceeded his jurisdiction, abused his discretion, or irregularly pursued his authority.5
We do not agree with Heron's contentions that the validity of the ordinance was not before the Colorado courts or that their jurisdiction was limited as he suggests. As it relates to the requirement that plans and specifications bear the seal and signature of a licensed architect, the Denver Building Code does not give the City Building Inspector discretion in issuing building permits. It specifically provides that only an architect licensed in Colorado may prepare and submit plans and specifications for certain public and semi-public buildings, and that these must bear the seal and signature of a licensed architect. If Heron's plans and specifications did not bear the seal and signature of a properly licensed architect, the Inspector was powerless to act. Consequently, the only question before the Colorado Courts was the validity of this ordinance, and Heron could obtain relief only if the ordinance were held to be invalid. His allegations were adequate for this purpose, and that was the issue upon which the case was tried and decided. Rule 106(a) (4) was not applicable.
The Colorado District Court held that the enactment of the Denver Building Code was a valid exercise of the City's police power. In affirming the District Court, the Supreme Court of Colorado said 131 Colo. 501, 283 P.2d 649:
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