Irving v. City of Highlands

• Decision Date: 09 May 1898
• Parties: IRVING v. CITY OF HIGHLANDS.
• Court: Colorado Court of Appeals

53 P. 234

11 Colo.App. 363

IRVING v. CITY OF HIGHLANDS.

Court of Appeals of Colorado

May 9, 1898

Appeal from district court, Arapahoe county.

Action by Chris Irving against the city of Highlands. The plaintiff was nonsuited, and he appealed. Affirmed.

Chas. M. Bice, for appellant.

F.A Williams and G.Q. Richmond, for appellee.

BISSELL J.

Irving was a plumber and drain layer, by trade, and did business in the city of Highlands. He followed it for a year or so under the authority of the city, and on their license, and made application for another issue in January, 1894. His applications covered both branches of his business, and required separate licenses, for which there were separate fees; being $10 for the plumber's license, and $30 for the drain layer's. When he made the application in January, 1894, it was given to the city engineer; and he tendered two bonds, executed by Ochiltree and Merrill, to insure his observance of the ordinances of the city, and a correct performance of his work. The applications were indorsed, "Approved by the engineer;" and the bonds, with the application, were turned over to the city council for approval. The bonds were referred to the city attorney, who did not regard them as properly executed; and they were returned to Irving, or he was advised that they were insufficient in form. He seems to have made out another set, and tendered them; but when they came before the city council they were disapproved, and a license was never issued. Irving continued to do work under monthly permits issued by the proper department until May when his bonds were finally rejected, and no further authority was given him to carry on his business. He or an employeé was prosecuted once or twice for violation of the ordinances, in attempting to do work without a license; and Irving brought this suit against the city to recover damages for an arbitrary and malicious refusal to issue him a permit to carry on his trade. By his complaint he attempted to state a cause of action in tort for an arbitrary and malicious refusal to grant him a license, and set up his damages as amounting to some $7,000. To sustain his case, he offered proof of the amount of business which he had done in the city when he was acting under a license, and of his profit, and gave evidence tending to show its diminution and practical destruction in that locality because of this failure. In order to sustain his case, it was necessary for him to show a compliance with the ordinances regulating these matters, and this he attempted to do. As we look at the record, he did not sustain his contention that the city had arbitrarily or maliciously refused to issue a license. While the ordinances were doubtless before the court at the trial, only a few sections are incorporated into the record, and we have only parts before us from which to determine what the duties of the city and the rights of the plumber are. These incorporated sections do not show what officer was charged with the duty to issue a license, nor whether the right and authority were given to any particular officer for this purpose; nor do they show the restrictions or limitations placed on the applicant or the officer. It is consequently quite impossible for us to determine whether, in any other particulars than those which will be afterwards referred to the city took action on the application, or that any officer declined to issue the permit. The case is defective in that respect, and on this appeal there is not enough in the record to establish what is necessary to enable the plaintiff to recover.

There is a further difficulty disclosed by one section of the ordinance respecting licenses. This section prescribes that any mechanic or firm may, on application to the city engineer, and the payment of a license fee to the treasurer, receive a license. There is a proviso that no application shall be considered unless it is accompanied...