Board of County Com'rs of Jefferson County v. City and County of Denver

• Decision Date: 15 November 1977
• Docket Number: No. 27592,27592
• Parties: The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF JEFFERSON, State of Colorado, a body politic and corporate, John A. Topolnicki, Darrel M. Pinckney, Richard Hollowell, Patricia Hollowell, Jerry Grosvenor, and Danna B. Grosvenor, Plaintiffs-Appellants, v. The CITY AND COUNTY OF DENVER, State of Colorado, a Municipal Corporation, the City Council of the City and County of Denver, State of Colorado, the Board of County Commissioners of the City and County of Denver, State of Colorado, Harlan H. Holben, Gasper F. Perricone, Michael F. Morrisey, Bernard H. Thorn, Frank J. Johns, Donald Lavers, Arthur D. Boyd, Jean Boyd, and Brad Wolf, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 1094

571 P.2d 1094

194 Colo. 252

The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF JEFFERSON, State of Colorado, a body politic and corporate John A. Topolnicki, Darrel M. Pinckney, Richard Hollowell Patricia Hollowell, Jerry Grosvenor, and Danna B. Grosvenor Plaintiffs-Appellants, v. The CITY AND COUNTY OF DENVER, State of Colorado, a Municipal Corporation, the City Council of the City and County of Denver, State of Colorado, the Board of County Commissioners of the City and County of Denver, State of Colorado, Harlan H. Holben, Gasper F. Perricone, Michael F Morrisey, Bernard H. Thorn, Frank J. Johns, Donald Lavers, Arthur D. Boyd, Jean Boyd, and Brad Wolf, Defendants-Appellees.

No. 27592.

Supreme Court of Colorado, En Banc.

Nov. 15, 1977.

Patrick R. Mahan, County Atty., Richard J. Scheurer, Asst. County Atty., Golden, George J. Robinson, Sp. Counsel, Lakewood, for plaintiffs-appellants.

Max P. Zall, City Atty., Herman J. Atencio, Asst. City Atty., David J. Hahn, and C. Thomas Bastien, Sp. Counsels, Denver, for defendants-appellees.

ERICKSON, Justice.

This appeal challenges the decision of the district court which upheld the constitutionality of the Municipal Annexation Act of 1965 (hereinafter Annexation Act). ¹ We affirm.

On June 6, 1973, the Board of County Commissioners of Jefferson County (hereinafter county commissioners), along with other named individuals, filed a complaint and petition for certiorari review and also sought a declaratory judgment relating to Denver Annexation Ordinance No. 189, Series 1973 (hereinafter ordinance). The ordinance effected the annexation of a portion of Jefferson County by the City and County of Denver and was based upon a petition signed by the owners of 100% of the property to be annexed. Section 31-8-107(1)(g), C.R.S.1973.

After trial, the district court entered a judgment invalidating the ordinance on the basis of Denver's failure to comply with the procedural requirements of the Annexation Act. On appeal, the court of appeals affirmed. Board of County Comm'rs. v. City and County of Denver, 35 Colo.App. 295, 533 P.2d 521 (1975). We reversed and remanded to the court of appeals. City and County of Denver v. Board of County Comm'rs., Colo., 550 P.2d 862 (1976).

Upon remand, the court of appeals reversed the original judgment and remanded to the district court for a determination of the constitutionality of the Annexation Act. The district court subsequently entered a judgment upholding the validity of the Annexation Act.

On appeal, the county commissioners contend that the Annexation Act is so replete with contradictions, inconsistencies, and irreconcilable conflicts that it is unconstitutionally vague and incapable of judicial interpretation without resort to judicial legislation.

I.

The county commissioners have standing to challenge the constitutionality of the Annexation Act. A county and its commissioners possess only such powers as are expressly conferred upon them by the constitution or statute and such incidental implied powers as are reasonably necessary to carry out such express powers. Board of County Comm'rs. v. Love, 172 Colo. 121, 470 P.2d 861 (1970); People v. District Court, 127 Colo. 280, 255 P.2d 743 (1953). The county commissioners' standing to challenge the constitutionality of the Annexation Act is derived from an express legislative grant authorizing the county commissioners to appeal annexation decisions. Section 31-8-116, C.R.S.1973; ² see Wimberly v. Ettenberg, Colo., 570 P.2d 535 (Announced October 11, 1977). This statutory provision permits the county commissioners to challenge the constitutionality of the Annexation Act under the circumstances of this case.

The county commissioners insist that we should also consider the constitutionality of other portions of the Annexation Act and the constitutionality of the Annexation Act as a whole on the basis that the constitutionality of the Annexation Act is publici juris. We disagree.

We have consistently and frequently construed and upheld the validity of the Annexation Act against the various attacks made upon it. Green Valley Ranch Venture Co. v. District Court, 186 Colo. 173, 526 P.2d 141 (1974); Breternitz v. Arvada, 174 Colo. 56, 482 P.2d 955 (1971). Although the provisions of the Annexation Act are not examples of clarity in legislative drafting, the Annexation Act has been used for twelve years to effect countless annexations. No overwhelming question of public interest and importance exists in this case to permit us to disregard the established rule that the constitutionality of a statute will not be passed upon unless it is essential for the determination of the pending case. See Weissman v. Board of Education of Jefferson County School District No. R-1, Colo., 547 P.2d 1267 (1976); Kirk v. Douglas, 176 Colo. 104, 489 P.2d 201 (1971).

II.

The challenge of the county commissioners focuses upon section 31-8-107(1)(g), C.R.S.1973, which provides:

"(g) If the petition is found to be in substantial compliance with this subsection (1), the procedure outlined in sections 31-8-108 to 31-8-110 shall then be followed. If it is not in substantial compliance, no further action shall be taken; except that the city council shall make such determination by a resolution; and except that when the petition is signed by the owners of one hundred percent of the property proposed to be annexed, exclusive of streets and alleys, the city council may by ordinance annex such territory to the municipality without notice or hearing, as provided in sections 31-8-108 and 31-8-109, and without election, as provided in section 31-8-112, unless additional terms and conditions are to be imposed. The ordinance annexing such territory shall include a statement that the owners of one hundred percent of the property have petitioned for such annexation." ³

The county commissioners' argument is that:

"(T)he provisions of 31-8-107(1)(g) purport to dispense with notice under 31-8-108 and hearing under 31-8-109. This cannot be so because 31-8-104 commands a hearing under 31-8-109, sections 31-8-110 and 31-8-111 mandate a hearing to determine compliance with 31-8-104 and 31-8-105, and hearings cannot occur without notice prescribed by 31-8-108." (All sections C.R.S.1973.)

The conclusion is reached by the county commissioners that these inconsistent sections cause any endeavor to judicially interpret the Annexation Act to result in judicial legislation.

"A statute is presumed to be constitutional, and to be declared unconstitutional must be shown clearly to be so." Breternitz v. Arvada, supra; see Love v. Bell, 171 Colo. 27, 465 P.2d 118 (1970). The Annexation Act itself directs that we liberally construe its provisions to effect its purposes. Section 31-8-102, C.R.S.1973; City and County of Denver v. Board of County Comm'rs., supra.

The county commissioners are correct in their assertion that courts cannot construe vague legislation if the effect of the construction is judicial legislation. Colo.Const., Art. III; Littleton v. Wagenblast, 139 Colo. 346, 388 P.2d 1025 (1959); Sheely v. Sheely, 102 Colo. 194, 78 P.2d 378 (1939). But legislation rarely anticipates all the vagaries of a situation; unforeseen cases cause inconsistencies and ambiguities to arise even under the most carefully drawn statutes. Judicial construction and interpretation is often necessary. Only when legislation is "so vague, indefinite and uncertain that the courts are unable to determine, with reasonable certainty, what the legislature intended, or so incomplete and inconsistent in its provisions that it cannot be executed" will it be struck down as unconstitutionally vague. Sullivan v. Brawner, 237 Ky. 730, 36 S.W.2d 364 (1931).

Section 31-8-107(1)(g) employs the phrase "except that." The question in this case is whether that phrase applies only to section 31-8-107, C.R.S.1973, or to the entire statute. A rule of construction is set forth in 2A Sutherland, Statutes and Statutory Construction § 47.09 (4th Ed., C. Sands):

"47.09. Sections to which applicable.

"It is the office of the proviso to restrict the general operation of the enacting part, i. e., other provisions, of an act. Because a proviso is attached to or appears...