Brooks v. Zabka

• Decision Date: 24 February 1969
• Docket Number: No. 23933,23933
• Citation: 168 Colo. 265,450 P.2d 653
• Parties: George H. BROOKS, R. C. Husman, Mary L. Wilkinson, Richard A. Perchlik, and Carlos Leal, Jr., aka Charlie Leal, Jr., Plaintiffs in Error, v. Dorothy M. ZABKA, George W. Hall, Thomas A. Rapp, Jr., James P. Rucker, Jr., L. Wayne Wells, Charles A. Gregory, and Harold L. Hyde, individually and as Members of the City Council of Greeley, Colorado, Barton Buss, individually and as City Clerk of the City of Greeley, Colorado, and the City of Greeley, a Municipal corporation, Defendants in Error.
• Court: Colorado Supreme Court

Page 653

450 P.2d 653

168 Colo. 265

George H. BROOKS, R. C. Husman, Mary L. Wilkinson, Richard

A. Perchlik, and Carlos Leal, Jr., aka Charlie

Leal, Jr., Plaintiffs in Error, v. Dorothy M. ZABKA, George W. Hall, Thomas A. Rapp, Jr., James

P. Rucker, Jr., L. Wayne Wells, Charles A. Gregory, and

Harold L. Hyde, individually and as Members of the City

Council of Greeley, Colorado, Barton Buss, individually and

as City Clerk of the City of Greeley, Colorado, and the City

of Greeley, a Municipal corporation, Defendants in Error.

No. 23933.

Supreme Court of Colorado, En Banc.

Feb. 24, 1969.

William E. shade, Greeley, for plaintiff in error.

William E. Bohlender, Greeley, for defendants in error.

Kenneth G. Bueche, Boulder, amicus curiae.

PRINGLE, Justice.

The plaintiffs in error, electors of Greeley, Colorado, presented their petition to the city council of Greeley, a home rule city, requesting that a newly-enacted sales tax ordinance (Ordinance No. 34 (1968)) be referred to a vote of the people. Upon the refusal of the city council, this action was filed in the District Court. The defendants in error filed their answer and moved for summary judgment. After hearing argument on the motion, the trial court found that the provisions of the sales tax ordinance came within the exceptions to the power of referendum, as provided by the Charter of the City of Greeley (hereinafter cited as Greeley Charter), and therefore entered a summary judgment against the plaintiffs in error.

The plaintiffs in error contend here (a) that the Greeley Charter does not exempt the sales tax ordinance from the power of referendum; and (b) that if the ordinance is exempted from referendum, then the referendum provisions of the Greeley Charter conflict with the referendum provisions of the state constitution, and are therefore void. We hold that the Greeley Charter does not exempt the sales tax ordinance from referendum, and we therefore reverse the judgment of the trial court.

I.

The Greeley Charter provides that:

'* * * (t)he referendum shall apply to all ordinances passed by the Council, except ordinances making the tax levy (and) making the annual appropriation * * *' Greeley Charter, art, IX, sec. 9--3.

Thus the people of Greeley reserved to themselves the unqualified power of referendum on all measures passed by the City Council except those specifically set forth in the Greeley Charter itself. The unquestioned purpose of the referendum is to expeditiously permit the total and free exercise of the legislative power by the people except in rare instances. Such a reservation of power in the people must be liberally construed in favor of the right of the people to exercise it. Conversely, limitations on the power of referendum must be strictly construed, and should not be extended by either implication or inference. Burks v. City of Lafayette, 142 Colo. 61, 349 P.2d 692; Brownlow v. Wunsch, 103 Colo. 120, 83 P.2d 775.

Defendants in error contend that the phrase excepting from referendum 'the tax levy' excepts Any tax levy, while plaintiffs in error contend it applies only to the property tax mill levy. We hold that the words 'the tax levy' in the Greeley Charter must, under the rules we have set forth above, refer to the mill levy.

It is a rule of law well established that the definite article 'the' particularizes the subject which it precedes. It is a word of limitation as opposed to the indefinite or generalizing force of 'a' or 'an.' See People v. Enlow, 135 Colo. 249, 310 P.2d 539, and the cases cited therein, for a full discussion of this principle.

In reviewing the Greeley Charter, we find that the framers used the phrase 'tax levy' as such only where they were referring to the annual property tax, e.g., art. V, sec. 5--14 of the Greeley Charter, wherein the City Council is directed to set a tax levy and certify it to the County Commissioners prior to a date set by state law. The tax levy which state law requires to be certified to the Commissioners on a certain date is the mill levy upon taxable property located within the territorial limits of the taxing body. 1967 Perm.Supp. C.R.S.1963, 137--5--28. And in art. V, sec. 5--15 the framers again use the words 'the tax levy' to apply to the levy which is certified to the County Commissioners and, as we have pointed out, the mill levy is the only levy so certified. Had the drafters of the Greeley Charter intended the exception from referendum to apply to All tax levies, they needed only to use words to that effect; and they did, in other sections of the Greeley Charter, use descriptive words such as 'a', 'all' and 'other' to describe taxes when they specifically meant to do so. To infer that the framers meant 'all' when they said 'the' would, in our view, require us to extend by implication the exception to the power of referendum, contrary to the principles of construction relative to the power of referendum we have heretofore announced.

There is another cogent reason for holding as we do that the exception to the referendum must be confined by its terms to the property tax levy. The ordinances which set the mill tax levy on property simply carry out what has been the recognized taxing scheme for revenue purposes since the beginning of government. Such a levy is the traditional source of revenue for a governmental body and one which the people know and recognize and therefore are willing to except from the referendum power so that the sovereign body may not be unduly hampered by the application of the referendum provisions to such measures. But a sales tax is of an entirely different character. It establishes a new policy and a new scheme of taxation. Again, applying the rules of construction applicable to the power of referendum, we will not extend by implication an exception which takes from the people the right to challenge...