Burks v. City of Lafayette

• Court: Colorado Supreme Court
• Writing for the Court: DOYLE
• Citation: Burks v. City of Lafayette, 349 P.2d 692, 142 Colo. 61 (Colo. 1960)
• Decision Date: 29 February 1960
• Docket Number: No. 19157,19157
• Parties: Shirley M. BURKS, Clarence A. Clark, Clarence W. Dinsmore, Nemicio Montmayor, Jack H. Smith and others similarly situated, Plaintiffs in Error, v. CITY OF LAFAYETTE, the City Council of Lafayette and W. F. Autrey, City Clerk, Defendants in Error.

Page 692

349 P.2d 692

142 Colo. 61

Shirley M. BURKS, Clarence A. Clark, Clarence W. Dinsmore Nemicio Montmayor, Jack H. Smith and others similarly situated, Plaintiffs in Error, v. CITY OF LAFAYETTE, the City Council of Lafayette and W. F Autrey, City Clerk, Defendants in Error.

No. 19157.

Supreme Court of Colorado, En Banc.

Feb. 29, 1960.

Lindsey R. Wingfield, Boulder, for plaintiffs in error.

R. Jerry Russell, Broomfield, John M. Sayre, Richard F. Hansen, Boulder, for defendants in error.

DOYLE, Justice.

The plaintiffs in error, who will be here referred to as plaintiffs, seek review of a judgment of the district court dismissing their complaint which demanded injunctive and mandatory relief against the council of the City of Lafayette. As tax-paying electors, plaintiffs presented to the city council a referendum petition demanding the repeal of Ordinance No. 355 which provided for an improvement district within the city of Lafayette, Colorado in order to carry out a program of street paving. The ordinance in question declares:

'An emergency exists for the preservation of the public health, peace and safety.'

The city council took the position that it was not required to take action on the referendum petition by reason of inclusion in Ordinance No. 355 of the above safety declaration. Thereupon, plaintiffs filed this action in the district court and following dismissal of their complaint bring the matter here by writ of error.

The Charter of Lafayette contains detailed provisions for the enactment of legislation. In general an ordinance may be enacted only at a meeting following the meeting at which it is introduced, and after intervening publication. Further, the effective date may not be earlier than ten days after enactment nor before there has been publication. An exception is made in the case of 'emergency' legislation so that it may be made effective as of the date of its enactment. [Sec. 7.3]

It also provides that:

'* * * a referendum on an enacted ordinance may be made by petition * * *'

and that a valid referendum petition requires the signatures of at least 'ten per cent of the number of persons who were registered electors of the city, as of the date of the last regular city election.' The submission of such a petition:

'Shall automatically suspend the operation of the ordinance in question pending repeal by the Council or final determination by the electors.'

Limitations are imposed on the repeal by referendum of an ordinance enacted by initiative and on the re- enactment of ordinances repealed by referendum but none of these limits are absolute since it is

'* * * provided, however, that any ordinance may be adopted, amended or repealed at any time by appropriate referendum or initiatory procedure in accordance with the foregoing provisions of this chapter or if submitted to the electorate by the Council on its own motion.'

Thus, even though the Council can declare that the measure is necessary for the preservation of health and safety, there is no express Charter limitation on the power of referendum itself.

Plaintiff's contentions are:

That the City of Lafayette is a home rule city under Article XX of the Constitution of Colorado, and that as such it has the power to adopt a Charter which places no restriction on the exercise of the referendum power by the people; that although the Charter of Lafayette authorizes the Council to make legislation effective immediately by use of a safety clause, it does not restrict the referendum power in such case since it expressly provides that a matter can be referred for repeal even after it becomes law. They argue further that this charter provision is not in conflict with Article V, Section 1 of the Constitution-- contending that such constitutional provision does not limit the referendum power in a home rule city.

Defendants argue that a safety clause in an ordinance operates to make the legislation immediately effective, and that Article V, Section 1 of the Constitution serves to limit the exercise of the referendum for home rule cities in the same way that it Limits its exercise in the area of state legislation. That though this is not expressly set forth in the Constitution it is necessarily implied, and different interpretation would mean that the voters in a home rule city would have more referendum power than the voters of the state in relation to the General Assembly. Defendants rely on this Court's decision in Shields v. City of Loveland, 74 Colo. 27, 218 P. 913.

The pertinent home rule provision of the Colorado Constitution provides:

'Each charter shall also provide for a reference upon proper petition therefor, of measures passed by the council to a vote of the qualified electors, and the initiative by the qualified electors of such ordinances as they may by petition request.' Article XX, Section 5, Colorado Constitution.

The section reserving the referendum reads:

'The second power hereby reserved is the referendum, and it may be ordered, except as to laws necessary for the immediate preservation of the public peace, health or safety, and appropriations for the support and maintenance of the department of state and state institutions, against any act, section or part of any act of the general assembly, either by a petition signed by five per cent. of the legal voters or by the general assembly.

* * *

* * *

'The initiative and referendum powers reserved to the people by this section are hereby further reserved to the legal voters of every city, town and municipality as to all local, special and municipal legislation of every character in or for their respective municipalities. The manner of exercising said powers shall be prescribed by general laws, except that cities, towns and municipalities may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation. Not more than ten per cent. of the legal voters may be required to order the referendum * * * in any city, town or municipality.' Article V, Section 1, Colorado Constitution.

The effect of the applicable provision of Article XX is to require that referendum and initiative provisions be included in home rule charters. It does not specify as to the scope and extent of the power but the presence of this provision indicates the importance of this reservation.

Article V, Section 1 is specific in excepting from the referendum reservation 'laws necessary for the immediate preservation of the public peace, health or safety.' This provision is of course applicable to the General Assembly and to state laws, and the question is whether it also limits the power of the referendum in home rule cities and is incorporated in every city charter whether actually included or not. In other words, does this provision limit the referendum at the local level as at the state level regardless of whether it is so spelled out in the charter? To conclude that the referendum is so limited requires a holding that Article V, supra, is not only a reservation of power but is also a limitation on the extent of the power which can be exercised by the people under any circumstances.

It is noteworthy that the General Assembly has not so interpreted it. By enacting C.R.S. '53, 70-1-16 applicable to non-home rule cities, which statute authorizes the councils of such cities to enact ordinances with safety provision, the Assembly recognized that there was no maximum limitation of the referendum power. The Assembly could have, in enacting this statute, eliminated the safety restriction on the referendum reservation and it would have been consistent with Article V, supra.

The fact that the General Assembly has the dispensing authority within its own area in that it can eliminate the safety clause from legislation except appropriation measures at its discretion, also supports the view that the power of referendum is not completely circumscribed by the authority of the legislature or council to declare that a statute or ordinance is one governed by considerations of public health and safety. Thus, the Assembly could not reduce the authority of the voters to exercise the referendum below that which is set forth in Article V, supra, but if the Assembly were to decide that a measure should be subject to referendum it can omit the safety clause and by so doing subject the measure to referendum regardless of whether it in fact affects the health and safety. On the same principle the Assembly can grant or withhold from the council of a non-home rule city the power to declare health and safety, and by 70-1-16, supra, it has chosen to authorize the exercise of the power by councils of such cities. The foregoing serves to show the scope and extent of the referendum. The section (70-1-16) does not apply to the home rule city.

Inasmuch as the home rule city has the power to adopt its own charter and can within its sphere exercise as much legislative power as the Legislature, it follows that such a city has authority to either restrict the power of referendum by allowing its council to declare health and safety or it may validly reserve a full measure of referendum authority to the voters of the community by not restricting it--by providing that it shall be exercisable with respect to any measure--even those measures which have become effective.

It follows from the above that a home rule city council in enacting ordinances does not have a power, constitutional or...