In re Senate Bill Providing for a Board of Public Works

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. 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 as [190] sembly 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 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. Sec. 6, art. 4. We find no indirect or implied inhibition relating to the subject before us, unless it exists in section 35, article 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 [191] 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 powers, does it essentially differ from the other departments by means of which the public interests are promoted, and the public health, peace and welfare protected, within the municipality; nor is it an unusual agency, though, as above suggested, in some respects its powers are extraordinary. The necessity for boards of public works is shown, and their usefulness is demonstrated, by their continued existence in other cities. If the board of public works, as provided for in the bill before us, is a “special commission,” within the meaning of this constitutional phrase, it must become such by virtue of the manner in which its members receive their appointment. But we are satisfied that such a conclusion would be wholly untenable. The board of supervisors of Denver perform “municipal functions,” but should the general assembly enact that the members of this board shall be appointed by the governor, with the advice and consent of the senate, it would not follow that the body would thereby become a “special commission.” The mayor of Denver also performs municipal functions, but it would hardly be contended that his appointment by the governor, in case the statute so provided, would constitute him ipso facto a “special commission” or commissioner. Amendments to the city charter of Denver are not forbidden by the constitutional inhibition relating to local or special legislation. Darrow v. People, 8 Colo. 426, and cases cited. There is strong reason for recognizing, so far as may be compatible with the general public interests, the right of local self-government in cities and towns; but this is with us generally a matter pertaining to the policy or wisdom of proposed legislation, rather than a question of constitutional construction. We must not, however, be [192] understood as saying that any and every direct legislative interference with local municipal affairs would be free from constitutional objection. We confine our answer to the specific questions propounded, and hold that the provisions referred to in the act before us are not obnoxious to the constitutional objections suggested thereby. Our opinion is not solicited upon the constitutionality of all the minor provisions of the act, and we do not consider them, but we shall take the liberty of expressing a doubt with reference to the legality of fixing the term of office for members of the board in question at six years. See Const. § 12, art. 14, supra.