Abts v. Board of Ed. of School Dist. Re-1 Valley in Logan County

Decision Date22 December 1980
Docket NumberRE-1,No. 80SA377,80SA377
Citation622 P.2d 518
PartiesClifford ABTS, Lyle Ring, and John Roberts, Appellants, v. BOARD OF EDUCATION OF SCHOOL DISTRICTVALLEY IN LOGAN COUNTY, Colorado, Appellee.
CourtColorado Supreme Court

Allen J. Kincaid & Associates, Michael L. Fager, Brush, for appellants.

Miller & Swearingen, Frederick C. Kuhlwilm, Denver, for appellee; Sherman & Howard, Thomas B. Faxon, Jane E. Roberts, Denver, on brief.

LOHR, Justice.

This is an appeal by Clifford Abts, Lyle Ring, and John Roberts (contestors), pursuant to section 1-10-111(2), C.R.S. 1973, from a judgment of the Logan County court dismissing the contestors' challenges to the validity of a school bond election. We affirm.

On May 13, 1980, the Board of Education for School District RE-1 Valley in Logan County (Board) submitted the following question to the voters of the school district:

"Shall the Board of Education of School District No. RE-1, Valley, in Logan County, Colorado, be authorized to contract in one series or more, a bonded indebtedness of not exceeding $4,300,000 for the purpose of constructing a rural elementary school building, on the Caliche Junior/Senior High School site north of Proctor, of constructing a junior high school building in Sterling, of equipping and furnishing school buildings, but only in connection with a construction project for new buildings or for an addition to an existing school building, of acquiring or purchasing school grounds and of improving school grounds, all within and for the District, ...?"

More that 4000 votes were canvassed, 1 and the measure passed by a margin of 77 votes.

Within the ten-day period prescribed by section 1-10-110(3), C.R.S. 1973, the contestors filed in Logan County court a notice of intent to contest the school bond election. Five grounds of contest were asserted: (1) that the designation of the precinct boundaries in the notice of the election was insufficient to satisfy statutory requirements; (2) that voters were permitted to mark their ballots in lead pencil instead of ink or indelible pencil; (3) that ballots of unqualified voters were received; (4) that a citizens committee favoring the school bond measure received financial assistance from RE-1 Valley School District for mailing brochures promoting the bond issue; and (5) that the ballot failed to separate the question concerning construction of a junior high school from the question concerning construction of an elementary school at a different location, and failed to permit separate votes on these questions. The notice of contest ended with a general allegation that the specified irregularities were "such as to affect the result of the school board (sic) election."

On June 2, 1980, the contestors filed a complaint 2 restating the contentions raised in the notice of intent to contest, with some elaboration. It also was averred in the complaint that county registration books were used in lieu of separate registration lists without a proper contract with the county clerk. 3

The Board filed its answer and thereafter moved for judgment on the pleadings. After a hearing on the motion, the court dismissed the contestors' allegations concerning the pencil-marked ballots, the absence of a contract for use of county registration books, the receipt of votes of unqualified and unregistered voters, and the failure to divide the measure into separate questions. Dismissal was based upon failure to state a claim upon which relief can be granted. See C.R.C.P. 12(b); R.C.C.C.P. 312. 4 On the issue of proper notice, the trial court treated the motion as one for summary judgment, see C.R.C.P. 12(c), and granted summary judgment in favor of the Board. The court did not consider the question of the school district's financial assistance to a citizens committee to be appropriate for decision based on the pleadings alone, and the matter proceeded to trial on that issue.

During the course of trial the contestors sought and were denied permission to file a second amended complaint. At the close of the contestors' case the court granted the Board's motion to dismiss, pursuant to R.C.C.C.P. 341(b)(1). The contestors appealed to this court.


Proceedings to contest school bond elections are governed by section 22-42-111(2), C.R.S. 1973. Pursuant to that statute, the county court for the county wherein the school district headquarters is situated has jurisdiction of all such contests. Rowland v. Theobald, 159 Colo. 1, 409 P.2d 272 (1965). The rules, practice, and procedures for contested elections for county officers, found in sections 1-10-110 and -111, C.R.S. 1973, apply insofar as applicable. Section 22-42-111(2), C.R.S. 1973. Appellate review of a county court's decision is available by direct appeal to this court. Russell v. Wheeler, 159 Colo. 588, 413 P.2d 700 (1966); see C.A.R. 1(c).

Our task in reviewing a judgment dismissing challenges to a school bond election is a limited one. If the dismissal of the contest is proper on any ground whether or not the trial court relied thereon, the judgment must be affirmed. Graham v. Swift, 123 Colo. 309, 228 P.2d 969 (1951).


The contestors first argue that the trial court erred in granting the Board's motion for judgment on the pleadings with respect to four of the six grounds for challenge. In considering such a motion, the court must construe the allegations of the pleadings strictly against the movant and must consider the allegations of the opposing party's pleadings as true. Strout Realty, Inc. v. Snead, 35 Colo.App. 204, 530 P.2d 969 (1975). 5 Even under these stringent standards, however, we conclude that the contestors' arguments must fail.

We consider those arguments as to each of the four dismissed grounds for challenge under the following subheadings A, B, and C. Under subheading D we then consider whether the contestors should have been permitted to amend their complaint in an effort to cure the defects.

A. Use of Pencils to Mark Ballots; Lack of a Contract for Use of County Voter Registration Books

On numerous occasions over a long span of time we have held that no election will be set aside unless the alleged irregularities might affect the result. Jardon v. Meadowbrook-Fairview Metropolitan District, 190 Colo. 528, 549 P.2d 762 (1976); Kelly v. Novey, 136 Colo. 408, 318 P.2d 214 (1957); Suttle v. Sullivan, 131 Colo. 519, 283 P.2d 636 (1955); Clough v. City of Colorado Springs, 70 Colo. 87, 197 P. 896 (1921); Todd v. Stewart, 14 Colo. 286, 23 P. 426 (1890).

Two of the irregularities alleged by the contestors and disposed of by the order granting partial judgment on the pleadings were permitting some voters to mark their ballots by lead pencils rather than ink or indelible pencil, cf. section 1-5-106(1), C.R.S. 1973 (requirement for general election), and using the county voter registration books without a proper contract between the Board and the county clerk authorizing such use, see sections 22-42-109, 22-31-106(3), and 22-31-103(2), C.R.S. 1973. Although the contestors alleged generally in the amended complaint that all of the specified irregularities and illegal votes affected more than seventy-seven votes "which is sufficient in number to change the result of the election," neither the notice of intent to contest nor the amended complaint contains any factual allegations indicating how the result was affected.

Where the complaint does not allege facts showing that the irregularities complained of changed the result of the election, the complaint does not state a claim. Suttle v. Sullivan, supra; Todd v. Stewart, supra; see Kelly v. Novey, supra. Therefore, the trial court properly granted partial judgment on the pleadings in favor of the Board on the grounds discussed in this section II.A. 6

B. Voting by Unqualified and Unregistered Voters

Where the cause of contest is that illegal votes have been received, the statute mandates factual specificity. Section 1-10-110(6), C.R.S. 1973, requires that "(w)hen the reception of illegal votes or the rejection of legal votes is alleged as the cause of the contest, a list of the number of persons who so voted, or offered to vote, shall be set forth in the statement of contestor ...." This provision requires a list of the names of persons whose votes were received illegally. Graham v. Swift, supra; Schwarz v. County Court, 14 Colo. 44, 23 P. 84 (1890). Because the contestors did not comply with the statute, the trial court could not consider the challenge. Id. 7

C. Failure to Divide the Measure into Separate Questions

The trial court also rejected the contestors' contention that the bond issue constituted two distinct proposals which should have been submitted separately to the voters. Article XI, § 6, of the Colorado Constitution provides that no political subdivision of the state shall contract any general obligation debt by loan in any form "unless the question of incurring the same be submitted to and approved by a majority of the qualified taxpaying electors 8 voting thereon," with certain exceptions not applicable here. We have construed a similar prior constitutional provision with respect to creation of municipal debts 9 to require that each purpose for which a debt is to be created must be separately stated and submitted to the electors. In City of Denver v. Hayes, 28 Colo. 110, 63 P. 311 (1900), we said:

"The purpose of the framers of the constitution, which they expressed in the section under consideration, and the object of the general assembly which is embodied in the city charter, were to prohibit municipal authorities from creating a debt for municipal purposes and from issuing bonds unless a majority of the legal electors of the city gave their consent thereto. By the proceedings under review no opportunity was given by the city council to the...

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