Bradfield v. Pueblo

• Decision Date: 08 August 1960
• Docket Number: No. 18769,18769
• Citation: 354 P.2d 612
• Parties: L. E. BRADFIELD, Plaintiff in Error, v. PUEBLO, a Municipal Corporation, and Duke W. Dunbar, as Attorney General of the State of Colorado, Defendants in Error.
• Court: Colorado Supreme Court

Page 612

354 P.2d 612

143 Colo. 559

L. E. BRADFIELD, Plaintiff in Error, v. PUEBLO, a Municipal Corporation, and Duke W. Dunbar, as Attorney General of the State of Colorado Defendants in Error.

No. 18769.

Supreme Court of Colorado, En Banc.

Aug. 8, 1960.

Seavy & Seavy, Pueblo, for plaintiff in error.

Gordon D. Hinds, Lee R. Wills, Pueblo, for defendants in error.

SUTTON, Chief Justice.

This action involves the validity of certain ordinances and city charter provisions relating to the levying, collecting and payment of taxes for a special improvement district within the City of Pueblo.

The parties appear here in the same order as they appeared in the trial court, where, after hearing upon stipulated facts, the court entered its Findings of Facts, Conclusion of Law and Order and Judgment dismissing the complaint.

Pursuant to the authority granted by Sections 7-25 and 7-27 of its charter, the City of Pueblo on October 14, 1955, adopted Ordinance Number 2190, the title of which is:

'AN ORDINANCE CREATING A SPECIAL IMPROVEMENT DISTRICT IN THE CITY OF PUEBLO, COLORADO, TO BE KNOWN AS PUEBLO SPECIAL IMPROVEMENT DISTRICT NO. 55-1, ORDERING

THE CONSTRUCTION THEREIN OF STREET IMPROVEMENTS, PROVIDING FOR THE ISSUANCE OF BONDS OF THE DISTRICT TO PAY THE COSTS AND EXPENSES OF SAID IMPROVEMENTS, AND PROVIDING FOR THE PAYMENT OF SUCH BONDS AND INTEREST THEREON.'

Subsequently, on November 9, 1955, the City adopted Ordinance Number 2203, the same being a tax levy ordinance which included a two mill tax levy to be used to implement the provisions of Ordinance Number 2190.

It appears that the improvement district in question was for the construction of highways and that part of the cost was assessed against the private landowners residing therein and part of the cost was to be borne by the city itself. The city created a reserve fund by general taxation to not only pay its share but also to 'advance' sums necessary to meet any deficiencies which might occur.

Among the pertinent provisions of Ordinance 2190 are the following:

'SECTION 5. * * * local improvement bonds of the City shall be issued for the purpose of paying for the special improvements in this Ordinance described and provided to be constructed in said Improvement District No. 55-1, in an amount not to exceed the cost of said improvements, * * *.

'SECTION 6. Said bonds * * * shall be payable out of the moneys collected on account of the assessments made for said improvements and from the special funds hereinafter mentioned. * * *.

'* * *

'SECTION 10. Whenever there is a deficiency in said special improvement district fund to meet the payment of outstanding bonds of this issue and interest thereon, such deficiency shall be paid out of the surplus and deficiency fund of said City, designated in Section 7-26 of the City Charter, and 'Whenever a special or local improvement district has paid and cancelled three-fourths (3/4) of its bonds issued, and for any reason the remaining assessments are not paid in time to take up the remaining bonds of the district and interest due thereon, and there is not sufficient money in the special surplus and deficiency fund, then the City shall pay the bonds when due and interest due thereon and reimburse itself by collecting the unpaid assessments due the district'.

'SECTION 11. For the purpose of paying for general benefits conferred on the City at large from the construction of said improvements, for the payment of assessments levied against the City, and for the purpose of advancing money to maintain current payments of interest and equal annual payments of principal of said bonds, the City shall levy annual taxes on the taxable property within the City, or shall annually transfer to a special fund for such purposes any available money of the City, in accordance with Section 7-27 of the City Charter and Ordinance No. 2159 of said City. Immediately after the period allowed for cash payments of assessments in full, such payments shall be applied in the payment of said bonds in regular numerical order. The remaining bonds authorized herein shall be paid in amounts not less than one-tenth of the principal amount each year, so that all of said bonds and the interest thereon shall be paid in full on or before their maturity date, such payments to be made from assessments and from said special funds as hereinbefore provided.'

Plaintiff filed his complaint on December 5, 1955, alleging inter alia:

'That the provisions of the Charter of Pueblo reciting that the installation of special improvements confer general benefits upon the City at large in special or local improvement districts and in Section 11 of Ordinance 2190 and purporting thereby to authorize a tax, to pay special improvement assessments on improvements located in one district, on all the property within the corporate limits of Pueblo and not within the boundaries of the district where special improvements are made and for the purpose of advancing money to maintain current payments of interest and equal annual payments of interest and equal annual payments of the principal amount of bonds issued for any special or local improvement district hereafter created are void, illegal, unconstitutional and of no force and effect for the following reasons, to wit:

'(a) That plaintiff is thereby deprived of his property without due process of law;

'(b) That a tax is thereby levied upon plaintiff's property for which no benefit is or can be derived.'

It is not urged that Ordinance 2190 violates any other provision of the State or Federal Constitutions than those relating to due process of law. Among the facts stipulated by the parties and followed by the trial court are the following: (1) that plaintiff is the owner of real property within the City of Pueblo, (2) that none of the special improvements are within a radius of eight blocks of plaintiff's property, and (3) that by reason of the taxes levied on account of the special improvements made under Ordinance 2190 the taxes of plaintiff have been raised.

Section 7-25 of the Charter in pertinent part reads:

'The City of Pueblo shall have power to construct or install special or local improvements of every character within designated districts in said City, which improvements shall confer special benefits on the real property within said districts and general benefits to the City at large. * * *.'

And Section 7-27 of the Charter states:

'Special or Local Improvement District Bonds--General Benefits--In consideration of general benefits conferred on the City at large from the construction or installation of improvements in special or local improvement districts, the City Council may levy annual taxes on the taxable property within the City, not exceeding two (2) mills in any one year, to be disbursed, as determined by the City Council, for the purpose of paying for such benefits, for the payment of any assessments levied against the City itself in connection with bonds issued for special or local improvement districts, and for the purpose of advancing money to maintain current payments of interest and equal annual payments of the principal amount of bonds issued for any special or local improvement district hereafter created. The proceeds of such taxes shall be placed in a special fund and shall be disbursed only for the purposes specified herein, provided however, that in lieu of such tax levies, the City Council may annually transfer to such special fund any available money of the City, but in no event shall the amount transferred in any one year exceed the amount which would result from a tax levied in such year as herein limited. As long as any bonds issued for special or local improvement districts hereafter organized remain outstanding, the tax levy or equivalent transfer of money to the special fund created for the payment of said bonds shall not be diminished in any succeeding year until all of said bonds and the interest thereon shall be paid in full, unless other available funds are on hand therefor, or such bonds and interest are paid by the City as required in Section 7-26 of this Part III.'

Plaintiff urges as error here:

1. That before a general tax may be imposed upon all of the real property in Pueblo, there must be a factual determination that the improvements in 'Pueblo Special Improvement District No. 55-1' are of a general benefit to the City at Large.

2. That the tax provided for in Section 7-27 of the Charter and in Section 11 of Ordinance No. 2190, and imposed under Ordinance No. 2203, the same being the Tax Levy Ordinance, is unconstitutional for the reason that the City of Pueblo is thereby lending or pledging its credit or faith thereof in aid of private persons, contrary to Section 1, Article XI, of the Colorado Constitution.

It is under plaintiff's first ground of error that he would have us hold that he is being unconstitutionally deprived of his property for two reasons: (a) by having to pay taxes assessed against his lands because of no purported direct benefit to him; and (b) because of alleged impropriety in the city creating a fund to meet future deficiencies, if any, in bond and interest payments.

We direct our...