Sidebilder
PDF
ePub

charter which abolished the department; nor could the head of the department become the head of the bureau, where various duties were assigned to the bureau which had not been assigred to the department.

3. Where a city charter assigns to a commissioner of inspection general charge of the inspection of buildings, and provides for the employment by him of his own assistants, the council is not authorized, by an article of the charter empowering it to provide for the inspection and regulation of buildings, to provide for the appointment of another officer for that purpose, but only to prescribe the manner and circumstances of such inspection.

4. A charter vesting the executive power of a city in officers to be elected by the people, and in a commissioner of inspection and other officers named, and such other officers as may be provided for by ordinance, does not authorize a provision for an assistant to the commissioner of inspection, but only for officers of the same rank as those named.

5. Provisions of a city charter making the mayor the head of the department of public health and safety, of which the bureau of inspection is a part, and providing that the subordinate officers of the departments shall be appointed by the heads of the departments, do not authorize the appointment by the mayor of an assistant to the commissioner of inspection, where another provision of the act is that the commissioner may appoint his own assistants.

6. A city charter authorizing a city council to provide for the employment of such clerks and other persons in any of the departments as the public service may demand applies only to cases not specifically provided for in the charter.

7. Where one was appointed an inspector of buildings of a city after the office was abolished by the charter, and for his services was paid $150 per month, though his services were accepted, and the ordinance which created the office provided for a salary of $200 per month, the city is not liable to him for the difference between these sums for the time he served.

Appeal from District Court, Arapahoe County.

Action by Leonard Cutshaw against the city of Denver for balance due on salary as inspector of buildings. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

On the 23d day of November, 1889, the following ordinance was adopted by the city council of the city of Denver:

"Be it enacted by the city council of the City of Denver.

"Article 1.

"Section 1. There shall be in the city of Denver a department to be called the 'Department for the Inspection of Buildings' which shall be supplied with suitable office rooms, and the necessary supplies and printing, for the proper transaction of business, in the same manner as now provided for other executive departments of the city.

"Sec. 2. The chief officer of said department shall be called the inspector of buildings, and shall be appointed by the mayor and confirmed by a majority of the members of the board of supervisors. He shall hold his office for the term of two years, and until his successors shall be appointed and qualified, by, and with the consent of a majority of the board of supervisors, but may

be removed by the mayor for malfeasance, incapacity or neglect of duty. He shall receive a salary of $2,400 per annum, payable in equal monthly installments, out of the city treasury, and shall receive no other fees or emoluments by virtue of said office."

On the 15th day of April, 1893, M. D. Van Horn, then mayor of the city, appointed the appellant to the office of building inspector, and issued and delivered to him the following certificate of appointment:

"To All to Whom These Presents Shall Come, Greeting: That, having confidence in the ability, sobriety and integrity of Leonard Cutshaw, I, Marion D. Van Horn, Mayor of Denver, do by these presents constitute and appoint him, the said Leonard Cutshaw of the City of Denver to the office of Building Inspector, to have and to hold said office at the pleasure of the appointing power, with the pay as provided by ordinance, for duty in city.

"In Witness Whereof, I, Marion D. Van Horn, mayor of the City of Denver, have hereunto set my hand.

"Done at the City of Denver this 15th day of April, A. D. 1893.

"M. D. Van Horn, "Mayor."

This appointment was never submitted to the board of supervisors for confirmation. On the 3d day of April, 1893, 12 days before the date of appointment of the appellant, an act of the General Assembly took effect, entitled "An act to revise and amend the charter of the city of Denver." Sess. Laws 1893, pp. 131-235. Section 1 of article 9 of that act provides that all ordinances of the city in force at the time of the taking effect of the act, and not inconsistent with it, shall remain in full force and effect as the ordinances of the city of Denver, until altered or repealed. Section 1 of article 3 provides as follows:

"The executive power of the city shall be vested in a mayor, a city clerk, a city treasurer, a city auditor, a city attorney, a city engineer, a street commissioner and a water commissioner, who shall be elected by the qualified electors of the city; in a board of public works, consisting of a president and two other members who shall be appointed by the Governor of the state of Colorado; in a fire and police board, consisting of three members who shall be appointed by the Governor of the state of Colorado; also in a health commissioner, a commissioner of inspection, a park commission, a superintendent of supplies and such other boards and officers as may be provided for by ordinance, not inconsistent with the provisions of this act, to be appointed by the mayor in writing filed with the city clerk, with power of suspension or removal by the mayor at any time, but not for political reasons."

The following are sections 2, 3, 44, and 79 of article 3.

"Sec. 2. There shall be the following executive departments: (1) A department of finance. (2) A department of law. (3) A department of public works. (4) A department of public health and safety. (5) A department of parks. (6) A department of supplies.

"Sec. 3. The department of finance shall include a bureau of audit and account, of which the city auditor shall be the head, and a bureau of the treasury, of which the city treasurer shall be the head. The city attorney shall be the head of the department of law; the board of public works of the department of public works; the mayor of the department of public health and safety; the park commission of the department of parks; and the superintendent of supplies of the department of supplies. All subordinate officers and employés except of said boards and commission, shall be appointed in writing by the heads of their respective departments, the appointments to be filed with the city clerk; and all subordinate officers and employés of each board or commission shall be appointed by resolution of such board or commission."

"Sec. 44. The department of public health and safety shall include the following officers, who shall respectively be the heads and have active charge of the affairs of the following bureaus, to wit: A fire commissioner, of the bureau of fire. A police commissioner, of the bureau of police. An excise commissioner, of the bureau of excise. A health commissioner, of the bureau of health. A commissioner of inspection, of the bureau of inspection. The fire commissioner, police commissioner and excise commissioner shall constitute the fire and police board of the city of Denver, and all the operations of the bureaus of are, police and excise, shall be subject to the general control of said board.”

"Sec. 79. The commissioner of inspection may employ such assistants as may be authorized by the mayor, and it shall be his duty to enforce the laws and ordinances of the city applicable to the work of said bureau."

Relative to the commissioner of inspection, section 47 of the same article provides as follows: "The commissioner of inspection shall have general charge of the inspection of buildings, and parts of buildings, drains, drain laying, elevators, boilers, gas and electric fittings, gas and electric lights, and all other apparatus and machinery requiring inspection and regulation, as the same may be authorized by ordinance; the inspection and control of electric wires, electric wiring, and all other electrical apparatus and machinery; the location, maintenance, marking, insulation and removal of wires, and the use of all electric wiring, electric wires and conductors for light, heat, power, telegraph, telephone or other commercial purposes, whether public or private; the inspection of weights and measures; the sources of dense

smoke; the erection and care of workhouses, charities and corrections; the care of markets and public baths." By the terms of subdivision 4 of section 20 of article 2, power is conferred upon the city council "to provide for the inspection and regulation, among other things, of buildings and parts of buildings"; and section 23 of the same article authorizes it to provide for the employment of such clerks and other persons in any of the departments of the city government as the exigencies of the public service may require.

The services of the appellant commenced at the time of his appointment, and he acted as inspector of buildings for five years. He received during that time only $150 per month, protesting frequently that by virtue of the ordinance he was entitled to $200. Each of the annual appropriation bills passed during the five years set apart $1,800 for the salary of "the assistant commissioner of inspection in charge of buildings." The total amount received by the appellant for his five years of service was $9,000. At $200 per month, the amount would have been $12,000; and he brought this suit to recover from the city $3,000, the difference between the two sums. His complaint set forth the ordinance of November 23, 1889; averred his appointment on the 15th day of April, 1893, in pursuance of its provisions; the performance by him of his duties as inspector of buildings for five years; his right to a salary of $200 per month, amounting for his term of service to $12,000; and the payment to him of only $150 per month, or $9,000 in all. The complaint was demurred to on the ground of insufficiency, and, the demurrer being overruled, an answer was made to the effect that at the time of the plaintiff's appointment the ordinance was no longer in force, having been repealed by the amended charter of April 3, 1893, and that the duties he discharged were those of assistant to the commissioner of inspection, the only compensation for the performance of which was that named in the appropriation ordinances. By the judgment of the court the plaintiff's claim was disallowed, and he has brought the case here by appeal.

F. A. Williams, for appellant. J. M. Ellis, N. B. Batchtell, Henry A. Lindsley, and Charles R. Brock, for appellee.

THOMSON, P. J. (after stating the facts). It is conceded that the ordinance in question was consistent with the provisions of the charter in force at the time of its adoption, and, by the terms of section 1 of article 9 of the act of April 3, 1893 (Sess. Laws 1893, p. 231), if it was not inconsistent with the provisions of that act, it remained a valid ordinance. For the plaintiff it is contended that the ordinance, at least in so far as the validity of the plaintiff's appointment and the fixing of his salary are concerned,

was not overthrown by the amended charter, while in behalf of the city it is argued that the effect of that law was to abrogate it in all its parts. We shall therefore compare each of the provisions of the ordinance with the corresponding provision of the amended charter, to see how far the two may stand together.

The ordinance created a new executive department, called the "Department for the Inspection of Buildings," and placed it on the same footing with the other executive departments of the city government. But the charter of 1893 itself established and defined the city's executive departments. It fixed the number, and assigned to each its place in the city government. The inspection of buildings was committed to the department of public health and safety, and placed specially in charge of one of its bureaus, named the "Bureau of Inspection," the head of which was an officer called the "Commissioner of Inspection," upon whom was cast a multiplicity of duties aside from the inspection of buildings. When the department of public health and safety was established, and divided into bureaus, to one of which was assigned the inspection of buildings, the department created by the ordinance ceased to exist. It was displaced by a department of much more extensive scope, but which included all the powers and duties pertaining to it. The ordinance, therefore, in so far as it created a department, was abrogated by the charter. The ordinance provided for a chief officer or head of the department it created, to be appointed by the mayor and confirmed by the board of supervisors, and to be called the "Inspector of Buildings"; but, when the department fell, the office of chief or head of the department fell with it. The charter left no room for any such office or any such officer. The head of the department which embraced the bureau of inspection was the mayor himself; and the head of the bureau of inspection was the commissioner of inspection.

It cannot be said that the department of inspection created by the ordinance survived in the charter as the bureau of inspection, or that, in harmony with the charter, the head of the department of inspection might become the head of the bureau of inspection, because the department of inspection was created with reference to but one subject, and the authority of its chief officer extended to but one subject, whereas the functions of the bureau of inspection included a number and variety of subjects in addition to the inspection of buildings, which were placed under the control of its head, and in respect to which the chief of the department of inspection could, in virtue of his appointment under the ordinance, exercise no control.

But it is said that, so far as the provision for the appointment of an inspector of buildings is concerned, the ordinance may still be harmonized with the charter, because the

charter confers upon the city council the power to provide for the inspection and regulation of buildings, and the inspector appointed under the ordinance might, in virtue of his appointment, and the nature of the duties committed to him, consistently with the provisions of the charter, continue the exercise of his functions as assistant to the commissioner of inspection. Let us examine this proposition. Subdivision 4 of section 20 of article 2 does, in terms, empower the city council to provide for the inspection and regulation of buildings; but, in view of the fact that the charter places the inspection of buildings under the exclusive control of the commissioner of inspection, it was certainly not the intention of the Legislature to bring the charter into conflict with itself by authorizing the council to provide for the appointment of some other officer to exercise the same control. That provision would be satisfied by an ordinance prescribing the manner of inspection, the circumstances under which it should be made, and the duties of the inspector and the owner in relation to it. But we find in the charter another and insurmountable objection to the proposition. Section 79 of article 3 provides for the employment by the commissioner of inspection of his own assistants, subject only to the condition that they be authorized by the mayor. Counsel, however, say that the authority of the mayor to make the appointment in question is found elsewhere in the charter, so that an inspector of buildings was not intended to be included among the assistants whom the commissioner might employ. Section 1 of article 3 vests the executive power of the city in a number of officers to be elected by the people, and in a health commissioner, a commissioner of inspection, a park commissioner, a superintendent of supplies, and such other boards and officers as may be provided for by ordinance, not inconsistent with the provisions of the act, to be appointed by the mayor. It is upon the last clause that counsel relies. But by the rule ejusdem generis, where there is an enumeration of particular things, followed by general words, the latter shall be construed as having reference only to things of the same kind or class with those specifically mentioned. St. Louis v. Laughlin, 49 Mo. 559; Morse v. Morrison, 16 Colo. App. 449, 66 Pac. 169; Bouvier's Law Dictionary, tit. "Ejusdem Generis." The other boards and officers to be provided for by ordinance, whose appointment was given to the mayor, must therefore be boards or officers belonging to the same general class, rank, or grade with those enumerated. The multifarious duties of the commissioner of inspection would doubtless necessitate the employment of a number of assistants; but a mere assistant of an officer to whom certain of the details of the office are intrusted, if he may properly be called an officer at all, is not an officer of the same class, grade, or rank with the officer under whom he serves, and hence

the words "other officers" would not include him.

Section 3 of article 3 makes the city attorney the head of the department of law; the board of public works, of the department of public works; the mayor, of the department of public health and safety; the park commission, of the department of parks; and a superintendent of supplies, of the department of supplies; and then provides that all subordinate officers and employés, except of the board and commission, shall be appointed in writing by the heads of their respective departments, and that subordinate officers and employés of each board or commission shall be appointed by a resolution of the board or commission. A construction of these provisions which would cast on the heads of the departments plenary power as to the appointment of subordinate officers and employés of every degree in all the departments would furnish an argument that, as the mayor is the head of the department of public health and safety, the appointment by him of the plaintiff as inspector of buildings was proper, and that thus far, at least, the ordinance was in harmony with the charter; and this is the view which is urged upon us in behalf of the plaintiff. But such a construction would array different provisions of the charter against each other, because, as to the department of public health and safety, in several instances the power of appointment of subordinates is specially lodged, not in the mayor, but in the officers and boards constituting it. Thus, by the terms of sections 45, 60, 64, and 65 of article 3, the fire and police board, composed of the fire commissioner, police commissioner, and excise commissioner, is empowered to appoint a secretary of the board, a chief, assistant chiefs, and wardens of the fire department, chiefs of police and detectives, and such other officers and assistants as it may deem proper. The general authority of appointment conferred upon the mayor, as head of this department, must therefore be held inapplicable to cases which come within special provisions lodging the power of appointment elsewhere; and one of those provisions is that authorizing the commissioner of inspection, with the approval of the mayor, to appoint his own assistants.

Neither is the ordinance aided by section 23 of article 2, authorizing the city council to provide for the employment of such clerks and other persons in any of the departments of the city government as the exigencies of the public service may demand. That section can be applicable only to cases concerning which there is an absence of provision in the charter. But as we have seen, the charter itself provides the manner in which the assistants of the commissioner of inspection shall be employed.

The result of our comparison of the ordinance with the charter is that the former contained no provision which is not inconsistent with some provision of the latter, and that,

upon the taking effect of the charter, the whole ordinance became void.

But the appointment in question does not seem to have been made upon the authority of the ordinance. It was not the appointment for which the ordinance provided. The ordinance fixed the term of office of the appointee at two years, but the plaintiff was appointed to hold his office during the pleasure of the appointing power. By the terms of the ordinance, the appointment could not take effect until it was confirmed by the board of supervisors, but this appointment was not submitted to the board of supervisors. In making the appointment the mayor probably supposed he was acting by authority of the charter, and independently of the ordinance; but, under the charter, such an appointment by him was a nullity. The plaintiff, however, acted for five years as assistant to the commissioner of inspection, and, having accepted his seryices, how far the city might be estopped to question the validity or regularity of his employment under the charter, it is unnecessary to inquire, because he was paid for his services. He claims a balance over what he received, on the theory that he was entitled to the salary provided by the ordinance; but that salary was inseparably attached to the office created by the ordinance, and, when the office was abolished by the charter, there was no officer entitled to receive it. The salary, being payable only to the incumbent of the office, became extinct with the office. Except in the annual appropriation bills, no salary was provided for the plaintiff as assistant to the commissioner of inspection, and, beyond the sums appropriated for his benefit, he had no claim to compensation. But those sums were paid to him in full, and, in so far as he ever had a legal demand against the city, that demand was satisfied.

The judgment will be affirmed. Affirmed.

(19 Colo. App. 334)

CARLIN v. FREEMAN et al. (Court of Appeals of Colorado. Jan. 11, 1904.)

MINES

[ocr errors]

ABANDONMENT AND RELOCATION —

CERTIFICATE-DESCRIPTION-SUF-
FICIENCY-STATUTE.

1. Under Mills' Ann. St. § 3162, providing that the relocator of an abandoned lode claim "may" sink the original shaft 10 feet deeper than it was at the time of abandonment, "may" is used in a permissive, not a mandatory, sense.

2. A location certificate describing the claim as "Beginning at corner No. 1, being the N. E. corner of the said claim, which is situated 550 feet in a southwesterly from Corner No. 4, P. lode patent, survey No. 8870," by tying the claim by course and distance to a patented claim, is a sufficient compliance with the statute requiring the description to refer to some natural object or permanent monument.

3. Error predicated on the refusal of the court to grant a continuance will not be considered on appeal, in the absence of exception having been duly taken to the ruling of the court, and preserved by a bill of exceptions.

4. Error predicated on the refusal of the court to grant a new trial on motion, supported by affidavits, which motion and affidavits appear in

the abstract of the record proper, but not in the abstract of the bill of exceptions, will not be considered on appeal.

5. The recital of an exception in the record proper, immediately following the ruling of the court on a motion, is not equivalent to a preservation of the exception by a bill of exceptions. Appeal from District Court, La Plata County.

Action by Frank L. Freeman and others against Patrick V. Carlin. From a judgment for plaintiffs, defendant appeals. Affirmed.

Ben B. Lindsey, Fred W. Parks, and Richard McCloud, for appellant. Reese McCloskey, for appellees.

MAXWELL, J. Appellees filed in the United States land office at Durango an adverse to appellant's application for a patent to the Saxon lode, and in apt time commenced this suit in support of their adverse; the complaint averring that plaintiffs were the owners and entitled to the possession of the Gold Dollar lode by virtue of a full compliance upon their part with all of the requirements of the federal and state statutes relating to the acquisition of mineral lands, and also averring that the Gold Dollar was a relocation of the Saxon, which latter was subject to relocation by reason of the failure of the owners thereof, to perform the assessment for 1897.

Appellant's first contention is, that the relocation of the Saxon was not made in conformity with the statutes, and that it was absolutely void and of no effect. The points involved can be best presented by quoting the assignments of error upon which the argument is based: "(2) The court erred in holding that the location certificate of the appellees (plaintiffs below) as set forth in the complaint was good and sufficient; there being no statement in said certificate showing the same was a relocation, or that said location was a location of property claimed to have been abandoned. (3) The court erred in admitting in evidence, over the objec tions and exceptions of appellant, the said pretended location certificate, as well as the amended location certificate of the Gold Dollar lode mining claim, giving date of location December 15, 1898, and all evidence concerning same, for the reason that said certificate is void under the laws of the state of Colorado." The location certificate admitted over the objection of appellant contained the name of the lode, the name of the locators, the date of location, the number of lineal feet claimed on each side of the center of the discovery cut, the general course of the lode, a statement that the same was in California Mining District, La Plata county, state of Colorado, and this description: "Beginning at Corner No. 1 being the N. E. corner of the said claim, which is situated 550 feet in a southwesterly from Corner No. 4, Platora lode patent, survey No. 8870, and running thence 1500 feet in a southeasterly direction, to Corner No. 2, thence 300 feet in a south

westerly direction to Corner No. 3, thence 1500 feet in a northwesterly direction to Corner No. 4, thence 300 feet in a northeasterly direction to Corner No. 1, the place of beginning." Mills' Ann. St. § 3162, relied upon by appellant, provides: "The re-location of abandoned lode-claims shall be by sinking a new discovery shaft and fixing new boundaries in the same manner as if it were the location of a new claim; or the re-locator may sink the original discovery shaft ten feet deeper than it was at the time of abandonment, and erect new or adopt the old boundaries, renewing the posts if removed or destroyed. In either case a new location stake shall be erected. In any case, whether the whole or part of an abandoned claim is taken, the location certificate may state that the whole or any part of the new location is located as abandoned property." Appellant insists that the word "may," in the last paragraph of the above statute, should be construed to mean "shall" or "must," and, the location certificate not stating that the whole or any part of the ground included therein was located as abandoned property, the certificate was therefore void, and should have been excluded. In this construction we do not agree. "In a statute the word 'may' may be construed in a mandatory sense only where such construction is necessary to give effect to the clear policy and intention of the Legislature; and, where there is nothing in the connection of the language or in the sense or policy of the provision to require an unusual interpretation, its use is merely permissive and discretionary." 20 Am. & Eng. Ency. 237, and cases. "Where by the use in other provisions of the statute of the word 'shall' or 'must,' it appears that the Legislature intended to distinguish between these words and 'may,' 'may' will not be construed as imperative." Id. 238. Read in the light of the above wellsettled rules, it is clear that "may" was used in the statute under consideration in its permissive, and not mandatory, sense. To rule that "may," in this statute, is mandatory, and that the certificate of relocation of abandoned territory is void unless it contains a statement that the ground included therein, in part or whole, is abandoned, would impose upon the locator of such ground the' peril of ascertaining that the ground had never previously been located, which in many cases would be impracticable, and would impose an unreasonable requirement, if, indeed, it would not be in direct conflict with Rev. St. U. S. § 2324 [U. S. Comp. St. 1901, p. 1426], which provides that a claim upon which the annual assessment work has not been performed "shall be open to relocation in the same manner as if no location of the same had ever been made."

Appellant also contends that the description contained in the certificate is so indefinite as to render it inadmissible. A reference to the location certificate discloses that

« ForrigeFortsett »