In re Senate Bill Providing for a Bd. of Public Works in City of Denver

• Decision Date: 01 February 1889
• Docket Number: 2,423.
• Parties: In re SENATE BILL PROVIDING FOR A BOARD OF PUBLIC WORKS IN THE CITY OF DENVER.
• Court: Colorado Supreme Court

21 P. 481

12 Colo. 188

In re SENATE BILL PROVIDING FOR A BOARD OF PUBLIC WORKS IN THE CITY OF DENVER.

No. 2,423.

Supreme Court of Colorado

February 1, 1889

The sections of the bill referred to, that are submitted, create a board of public works for the city or Denver, the members of which are to be appointed by the governor with the advice and consent of the senate. Such board is charged with numerous duties, and endowed with extensive powers, in relation to the expenditure of city funds, the payment and cancellation of certain outstanding city-warrants, and the making of certain public improvements. It also possesses a large supervisory control over contracts of the city council involving the expenditure of $5,000. In relation to this measure the senate by resolution submitted the following question for determination: 'Whereas, a bill containing certain amendments to the city charter of the city of Denver is now before the legislature, among which is one providing for the appointment of a board of public works by his excellency, the governor; and whereas, doubts exist in the minds of many persons whether or not such appointment can be made by the governor, and whether or not the legislature can pass any amendment to the charter which confers upon a board so appointed the power to expend the money of the city in making public improvements: therefore be it resolved, that the supreme court be, and they are hereby, requested to render an opinion upon the constitutionality of such amendments, a copy of which is hereto annexed.'

PER CURIAM.

Municipal corporations are creatures of legislative enactment; and, in the absence of inhibitory or limiting constitutional provision, the general assembly has plenary power to adopt such measures as shall in its judgment be most conducive to their efficiency and usefulness. This principle includes the manner of filling municipal offices. 1 Dill. Mun. Corp. §§ 58-60; State v. Seymour, 35 N. J. Law, 47; County Court v Griswold, 58 Mo. 175; Daley v. City of St. Paul, 7 Minn. 390 (Gil. 311.) There is no constitutional provision expressly withholding from the legislature power to authorize the appointment by the governor of such municipal officers as are contemplated by the act before us. On the contrary, section 12 of article 14 declares that 'the general assembly shall provide for the election or appointment of such other * * * municipal officers as public convenience may require,' (the word 'municipal,' thus used, is in our judgment, not confined to counties, townships, ships and the like;) and, in the absence of contrary legislative or constitutional direction in the premises, the power to fill all offices by appointment is expressly lodged in the governor, subject to the approval of the senate. Section 6 art. 4. We find no indirect or implied inhibition relating to the subject before us, unless it exists in section 35, art. 5, of the constitution. This section reads: 'The general assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise, or interfere with any municipal improvement, money, property, or effects, * * * or perform any municipal function whatever.' And it is obvious at a glance that, if this clause controls the legislative discretion in the premises, it is because the board of public works, as constituted by the act under consideration, is a 'special commission,' within the meaning of that phrase as it was understood by the framers of the constitution. This we do not think, for the following, among other, reasons: The board in question is made a department or branch of the city government. Its power to invest money in public improvements is for the present confined to the expenditure of $3,000,000, but its authority is not limited to this expenditure, and upon making the same its existence does not terminate. It is, like the board of health, fire, and other departments, permanent in its nature, being charged with certain continuous duties and vested with certain perpetual powers. These duties and powers are extensive, and in some respects unusual, but they relate exclusively to municipal affairs, and are essentially functions of the municipal government. The board has no separate existence, office, or authority. It is an administrative agency or instrument, employed exclusively in the control and management of the city's improvements and other interests. In no material respect, save as to the scope and extent of its duties and...