Walsh v. City of Denver

• Decision Date: 13 June 1898
• Parties: WALSH v. CITY OF DENVER.
• Court: Colorado Court of Appeals

53 P. 458

11 Colo.App. 523

WALSH v. CITY OF DENVER.

Court of Appeals of Colorado

June 13, 1898

Error to district court, Arapahoe county.

Action by William Walsh against the city of Denver. Judgment for defendant, and plaintiff brings error. Reversed.

S.L. Carpenter, for plaintiff in error.

F.A Williams, G.Q. Richmond, Geo. C. Norris, City Atty., and Emerson J. Short, for defendant in error.

WILSON J.

This suit was instituted to recover, as for money had and received, $50 paid by plaintiff under protest as a license fee exacted by ordinance of the defendant city for carrying on the business of a meat market or butcher shop. The ordinance in question was entitled "Concerning Health." The sections which are material to the determination of this action read as follows:

"Sec 54. It shall be unlawful for any person or persons, firm or corporation, to keep open or establish, maintain or conduct within the limits of the city of Denver, any butcher shop or meat market without first having obtained a license therefor, as herein provided: Any person or persons desirous of procuring a license shall make application to the fire and police board for the same, and such application shall have endorsed thereon the approval of the health commissioner before it shall be considered by the said fire and police board; and there shall have been deposited with the city treasurer the sum of fifty dollars, which is hereby fixed as the annual fee of such license, to be evidenced by the receipt of the city treasurer, indorsed on said application. If the fire and police board refuses to order the issuance of such license to the party or parties applying for the same, the money so deposited with the city treasurer shall be returned to the applicant without any further action. Such license shall only be good at the place of business stated in the original application, and shall not be transferable from one person to another or from one location to another location. Such licenses shall be revoked by the fire and police board, on the recommendation of the health commissioner: provided, that the premises are not kept in cleanly condition, and the meats, fish, game and fowl kept offered for sale or sold are not of proper quality and kind for human consumption, and that all ordinances of the city, and rules and orders of the health commissioner, in reference to the sale and storage of meats and food are not faithfully and satisfactorily complied with."

"Sec. 158. That any person who violates, disobeys, omits, neglects or refuses to comply with or resists any of the provisions of this ordinance, *** shall, upon conviction, be fined a sum not less than three dollars, nor more than one hundred dollars, and every omission, neglect or continuance of the thing commanded or prohibited by this ordinance, for twenty-four hours, shall constitute a separate and distinct offense, and shall be fined accordingly."

Judgment was in favor of the city, and plaintiff brings it to this court on error for review. The judgment is attacked on various grounds; but, in the view which we take of the case, it is necessary for us to consider only that which assails the legality and validity of the ordinance. The power which the city had, if at all, to enact the ordinance, and to require the payment of the license fee prescribed, was derived through one or the other, or both, of the following provisions of the city charter then in force:

"Art. 2, § 20. The city council shall have power by ordinance: *** Tenth. Exclusively to provide for the licensing, regulating and taxing of all lawful occupations, business places, trades, professions, amusements, places of amusement, the carrying of passengers, goods or merchandise and the use of horses or other animals and vehicles of all kinds: provided, that such licenses shall be granted by the fire and police board only. *** Fifty-Third. To regulate and license or prohibit butchers, and to revoke their licenses for malconduct in the course of trade, and to regulate, license and restrain the sale of fresh meats, fish and vegetables."

Much space is devoted in the briefs of counsel to the discussion of the question as to which of these provisions controlled and formed the basis of the power attempted to be exercised by the enactment of the ordinance in question. Under our views of the case, this is also immaterial. From whichever provision it may be claimed that the power was derived it is manifest that the legislature...