Board of Com'rs of Larimer County v. City of Fort Collins

• Decision Date: 03 May 1920
• Docket Number: 9525.
• Citation: 189 P. 929,68 Colo. 364
• Parties: BOARD OF COM'RS OF LARIMER COUNTY et al. v. CITY OF FT. COLLINS.
• Court: Colorado Supreme Court

189 P. 929

68 Colo. 364

BOARD OF COM'RS OF LARIMER COUNTY et al. v. CITY OF FT. COLLINS.

No. 9525.

Supreme Court of Colorado

May 3, 1920

Department 3.

Error to District Court, Larimer County; Robert G. Strong, Judge.

Action by the Board of County Commissioners of the County of Larimer and others against the City of Ft. Collins. Judgment for defendant, after sustaining of demurrer to complaint, and plaintiffs bring error.

Reversed and remanded, with directions.

Lee &amp Shaw and Stow, Stover & Mantz, all of Ft. Collins, for plaintiffs in error.

Frank J. Annis, of Ft. Collins, for defendant in error.

ALLEN J.

This is an action brought by the board of county commissioners of the county of Larimer, and the successors in interest of one C. B. Andrews, deceased, against the city of Ft. Collins, a municipal corporation, upon the contract hereinafter mentioned. A demurrer to the amended complaint was sustained. The plaintiffs elected to stand upon their complaint, and, judgment having been entered against them they bring the cause here for review.

The principal question raised by the demurrer, and presented by the record for our consideration, is whether or not the contract sued upon is ultra vires.

The contract in question is evidenced by a certain petition of the county commissioners and C. B. Andrews, and a resolution of the city council of the defendant. The petition is dated December 2, 1901, addressed to the mayor and city council of the defendant, and, so far as material, reads as follows:

'The undersigned respectfully petition the city that they wish to lay a four-inch cast iron main from the present terminus of the city waterworks, at the east end of Garfield street to the road on the west side of the county poor farm, so the water service may be had at the poor farm buildings, and, in the event of the land adjoining the water main shall be hereafter platted and added to the city, that service may be had for the consumers thereunder, and respectfully ask permission to make connection with said water main for that purpose, agreeing that water meters will be used, and that the takers will pay for the use of water at the schedule rates that are now or may be hereafter adopted.

'It is further agreed that said extension shall be made under the supervision of the water superintendent of the city of Ft. Collins. * * *

'It is purposed that if permission is granted to make this connection and extension the cost thereof shall be paid by the undersigned, and whenever the service by said extension shall pay to the city in rents an amount per annum equal to 20 per cent. of the cost thereof, then the line shall be conveyed to the city and an amount equal to the expense of constructing the same according to prices then prevailing be refunded to the undersigned, and thereafter said main to be owned and maintained by the city of Ft. Collins.'

The foregoing petition was granted by the city council of Ft. Collins, by a resolution, reading as follows:

'Resolved: That the petition from the county commissioners for an extension of the city waterworks to the poor farm be granted with the modification that the payment of the water taps and for the use of the water be made to the city and if the petitioners lay the main prayed for it is upon that express understanding.'

The complaint alleges facts showing that the water main was laid, and that the plaintiffs have done all that is or was required of them under the agreement, but that the city refuses to refund to them the money agreed to be refunded by it, in the agreement. The demurrer to the complaint goes no further than to question the validity of the contract. The principal ground of the demurrer is that the contract is ultra vires for the reason that: (1) The water main in question 'is and was constructed without the corporate limits of the city'; and (2) that 'the inhabitants then to be served and now served are wholly without the corporate limits of said city.'

It is the contention of the plaintiffs in error that the contract sued upon is not rendered ultra vires by reason of the facts thus recited in the demurrer, and in support of this contention counsel rely principally upon the case of City of Colorado Springs v. Colorado City, 42 Colo. 75, 94 P. 316. Whether or not that case is decisive of the instant case, it at least strongly supports the view taken by the plaintiffs in error. The contract there upheld, by this court, was one whereby the city of Colorado Springs agreed to furnish water from its mains to the city of Colorado City and its inhabitants. There can be no doubt that the contract involved in the instant case is not ultra vires from the mere fact that it provides for furnishing of water to consumers outside of the corporate limits of the city. City of Colorado Springs v. Colorado City, supra; Pikes Peak Power Co. v. City of Colorado Springs, 105 F. 1, 44 C.C.A. 333; Milligan v. Miles City, 51 Mont. 374, 153 P. 276, L.R.A. 1915C, 395. This much is conceded by counsel for the defendant city, but in his brief he states that 'the sole objection' is 'one respecting the right of the city to acquire pipe lines' constructed and laid, as stated in the demurrer, 'without the corporate limits of the city.'

Under the authorities already cited, and many others, it is well settled that a city in operating a waterworks system acts in its proprietary or business, and not in its...