City and County of Denver v. Miller

• Decision Date: 11 February 1963
• Docket Number: No. 20235,No. 1,1,20235
• Parties: The CITY AND COUNTY OF DENVER, a Municipal corporation, and the Robinson Brick and Tile Company, a Colorado corporation, Plaintiffs in Error, v. O. J. MILLER, Blanche E. Miller, Carroll c. Elkins, Kerstin E. Elkins, School Districtin the County of Arapahoe and State of Colorado, the Board of County Commissioners of the County of Arapahoe, Al Hively, as Assessor of Arapahoe County, and Paul W. Wolf, as Treasurer of Arapahoe County, Defendants in Error,
• Court: Colorado Supreme Court

Page 169

379 P.2d 169

151 Colo. 444

The CITY AND COUNTY OF DENVER, a Municipal corporation, and the Robinson Brick and Tile Company, a Colorado corporation, Plaintiffs in Error, v. O. J. MILLER, Blanche E. Miller, Carroll c. Elkins, Kerstin E. Elkins, School District No. 1 in the County of Arapahoe and State of Colorado, the Board of County Commissioners of the County of Arapahoe, Al Hively, as Assessor of Arapahoe County, and Paul W. Wolf, as Treasurer of Arapahoe County Defendants in Error,

No. 20235.

Supreme Court of Colorado, En Banc.

Feb. 11, 1963.

Rehearing Denied March 4, 1963.

Robert S. Wham, Richard P. Matsch, Neef, Swanson & Myer, Denver, for plaintiff in error City and County of Denver

Belmore T. Martin, Denver, for plaintiff in error the Robinson Brick and Tile Company.

Richard Simon, George Louis Creamer, Englewood, for defendants in error.

SUTTON, Justice.

This matter involves the validity of the annexation of certain Arapahoe County lands to the City and County of Denver. We shall refer to the parties by name, or to plaintiffs in error as defendants and defendants in error as plaintiffs, as they appeared in the trial court.

Plaintiffs, alleging themselves to be aggrieved persons under C.R.S. '53, 139-11-6, filed their complaint in the trial court alleging in substance that Robinson's land, which is industrial in nature and contains no residents therein, was both ineligible for annexation under the statute because lacking the one-sixth boundary requirement and that the action of Denver in passing its annexation ordinance (Ordinance No. 141, Series 1961) violated both the state and federal constitutions as well as the 'The school district organization act of 1957' [1960 Perm. Supp., CRS, Section 123-25-1 et seq.].

After hearing, judgment was awarded plaintiffs on their second through eighth claims. These claims alleged either or both constitutional and statutory violations Denver seeks reversal of the judgment asserting that plaintiffs' second through seventh claims are the same as those recently held by this court to be without validity. See Board of County Commissioners of Jefferson County, et al. v. City and County of Denver, et al., 150 Colo. ----, 372 P.2d 152 (1962). It is further asserted that plaintiffs' eighth claim upon which injunctive relief was granted must fail as a result thereof. Defendants continue to assert here as they did in the trial court, that none of plaintiffs are in fact persons aggrieved under the statute qualifying them to challenge the annexation. It is asserted that error was committed by the trial court in denying Denver's motion to dismiss on that ground. We shall consider the issues presented in the above order.

other than seeking relief under the annexation statute (C.R.S. '53, 139-11). Plaintiffs' eighth claim sought a mandatory injunction against the Arapahoe County Assessor and Treasurer requiring them to continue to assess and collect taxes on the subject property and prohibiting Denver from so acting.

FIRST

An examination of this record discloses that Denver is correct in its assertion that our prior decision above mentioned governs in determining the validity of plaintiffs' second through seventh claims. Though they were not parties to that action the issues involved are stare decisis.

Plaintiffs urge, however, that in the prior decision we failed to fully treat the alleged applicability of the 14th Amendment of the Federal Constitution to this problem. In addition it is said that the issue of reapportionment of the Colorado legislature (now pending in this court in Stein v. The General Assembly, Colo., 374 P.2d 66 and in Lisco et al. v. McNichols and Myrick et al. v. General Assembly, D.C., 208 F.Supp. 471, combined actions now pending in the United States District Court for Colorado), is now involved in this action. They urge that specific rulings be made on each of these points in relation to the same issues decided in the prior case.

The gist of plaintiffs' complaint, both in the trial court and here, is stated at page 7 of their answer brief to be that:

'The developed portion of the tricounties (Arapahoe, Adams, and Jefferson which completely surround Denver) lies in narrow belts closely adjacent to Denver. In those areas are intensive housing, substantial industrial and commercial development, and many businesses. Basically, these areas are the tax base of the surrounding counties.

'Urbanization places ever heavier burdens upon the counties, burdens which may be met only from taxes derived from that base. It is that very urbanized base which Denver seeks to absorb. Such a development is neither economically nor politically sound and, when it is implemented by a set of legal provisions adopted without proper legislative representation of the victims upon the basis of a State Constitutional provisions (sic) (referring to Article XX Colo. Const.) which is, in its very terms, a direct violation of the essence of equal protection of the laws, the policy is a deadly and an unconstitutional one.' (Portions in parenthesis added.)

The question of legislative re-apportionment was neither raised not considered in the trial court and it will not be ruled upon here, even if we deemed it to have some applicability, which we do not. The difficulty with plaintiffs' position is that the problem to which they seek a judicial solution is a legislative and political one. The people adopted Article XX of the Constitution, under which Denver is granted a special status as both a city and county. Legislatures elected by the people, before the current struggle over re-apportionment arose, enacted the various statutes the applicability of which to the present problem is either urged or objected to by plaintiffs. And, we add, no statute so questioned is As noted in Commissioners v. Denver, supra, the 14th Amendment to the Federal Constitution can afford no relief to plaintiffs, for they have no vested rights in the existence of Arapahoe County. The county is a mere adjunct of the state for administrative purposes. The people of the entire state have been and are free to increase or decrease its size or abolish it altogether by a constitutional amendment or proper legislative act consistent with Article XIV, Sec. 3, of the Colorado Constitution.

shown to have been enacted by an unconstitutional or de facto legislature. Hence, we fail to see how the issue of legislative re-apportionment, as not before us in a different action, can have any bearing on this action. Nor are we persuaded that the basis of our earlier decision, the effect of which is to nullify plaintiffs' second through seventh claims, should be re-examined.

The issues involved in claims second through seventh are foreclosed by that decision and the trial court was in error in entering judgment thereon although it should be stated that the opinion therein was not available to the trial court at the time of judgment in this action.

SECOND

As to the injunctive relief afforded plaintiffs by the trial court; having concluded that no grounds exist for the granting thereof, it should be forthwith vacated.

THIRD

The next question is whether the trial court erred in denying Denver's motion to dismiss on the ground that none of plaintiffs are in fact aggrieved persons under the statute, qualified to challenge in this annexation proceeding?

We have here a parcel of land owned and used by Robinson for industrial purposes. No persons reside thereon and Robinson petitioned for its annexation to Denver which the city accepted under existing laws.

The named individual plaintiffs are residents, electors and taxpayers of Arapahoe County but do not reside in the subject area, they sue individually and as a class in behalf of others similarly situated; they and the school district own no property in the annexed territory; the Board of County Commissioners alleges that it exercises 'powers politic and corporate' in the affected area and that it 'is the owner of a road, street, and public way in the area sought to be annexed * * *'; the assessor and the treasurer have and assert no direct interest of any kind in the land. Thus, the individuals' interest is solely that of the general public; the school district, that of a tax supported municipal corporation; the County Commissioners as owners of public rights-of-way on and adjoining the land and as public officials charged with the duty of administering general county affairs and adopting tax levies. The assessor and treasurer are officials who levy and collect taxes pursuant to law.

The statute states in pertinent part:

'Any person aggrieved by any by any annexation proceedings had under this article, may apply at any time within ninety days after the effective date of the approving ordinance to the county court of the county in which his land is situated for a hearing and for appropriate relief. * * *' C.R.S. '53, 139-11-6. (Emphasis supplied.)

This statute in specifying the class of persons who may be 'aggrieved' thereunder requires such party to bring an action in the county in which his land is situated and does not require that he be a land-owner in the area of land being annexed. Thus, in Tanner v. Boulder, Colo., 377 P.2d 945, decided December 24, 1962, it was held that a resident and taxpayer of the City of Boulder had the right to challenge an annexation in the Boulder County Court where the annexation ordinance both annexed and zoned at one time, and where it was alleged that the plaintiff was aggrieved and that the ordinance violated the Boulder City Charter. In that case the taxpayer brought his action in 'the county court of the county in which his land is situated'.

It is basic law that when a statute creates a cause of action and designates those who may sue thereunder, none except the persons so designated may bring such an action. Avery v. County Court of Gilpin County, 126 Colo. 421, 250 P.2d 122 (1952); 39 Am.Jur. 858, Parties,...