City and County of Denver v. Currigan

• Decision Date: 26 June 1961
• Docket Number: No. 19678,19678
• Citation: 362 P.2d 1060,147 Colo. 125
• Parties: CITY AND COUNTY OF DENVER, a municipal corporation, and W. J. Shoemaker, Manager of Public Works of the City and County of Denver, Plaintiffs in Error, v. Thomas G. CURRIGAN, Auditor of the City and County of Denver and Charles Ginsberg, individually and as a resident, elector, and taxpayer of the City and County of Denver, for himself and for all other persons similarly situated, Defendants in Error.
• Court: Colorado Supreme Court

Page 1060

362 P.2d 1060

147 Colo. 125

CITY AND COUNTY OF DENVER, a municipal corporation, and W.

J. Shoemaker, Manager of Public Works of the City and County of Denver, Plaintiffs in Error, v. Thomas G. CURRIGAN, Auditor of the City and County of Denver and Charles Ginsberg, individually and as a resident,

elector, and taxpayer of the City and County of Denver, for

himself and for all other persons similarly situated,

Defendants in Error.

No. 19678.

Supreme Court of Colorado, En Banc.

June 26, 1961.

Donald E. Kelley, Earl T. Thrasher, Hans W. Johnson, Denver, for plaintiffs in error.

Gorsuch, Kirgis, Campbell, Walker & Grover, Ben Klein, Denver, for defendant in error Thomas G. Currigan.

Charles Ginsberg, Denver, pro se. Creamer & Creamer, Denver, for defendant in error Charles Ginsberg.

SUTTON, Justice.

The parties are here in the same order they appeared in the trial court. We will refer to plaintiffs in error by name, as plaintiffs or as the City, and to the defendants in error by name or as defendants.

The action was commenced to obtain an order requiring defendant Currigan, as Auditor of the City and County of Denver, to execute, register and countersign a certain contract which had been submitted to him. The trial court refused to enter such an order. The present proceedings were initiated to review the ruling of the trial court.

The plaintiffs are the City and County of Denver, a municipal corporation, and W. J. Shoemaker, Manager of Public Works. When the action was commenced R. Y. Batterton was the Manager of Public Works. He subsequently was elected Mayor and replaced by L. M. Cooley. Mr. Cooley, in turn, resigned and Mr. Shoemaker is now the present Manager of Public Works.

During the pendency of the action, Charles Ginsberg was authorized to intervene and participate in the trial.

The dispute arose out of the following circumstances:

At a special municipal election held on May 17, 1955, a substantial majority of the electorate approved and authorized the issuance of three series of municipal general obligation bonds. The election had been called and all details concerning these bonds had been fixed by Ordinance No. 81, Series of 1955 of the City and County of Denver. By this ordinance three proposals were submitted for the issuance of as many bond issues. Each proposal was voted upon separately. The first proposal related to bonds in the sum of $8,700,000.00 to be issued for streets and traffic control; the second to parks and recreational facilities, and the third to a sanitary sewer system. We are concerned only with the first proposal, i. e., those bonds relating to streets and traffic control, and our comments relate only thereto. By Ordinance No. 81, Series of 1955, the proceeds from the sale of these bonds were to be expended in a manner set forth in the ordinance which first provided for a group of fifteen specific public improvements. The ordinance then provided that:

'WHEREAS, in the event the accomplishment of the program detailed in the preceding recital does not exhaust the bond proceeds allocated thereto, then any balance may be applied to the accomplishment of all or a part of the following:' (Emphasis supplied.)

Then was set forth a group of five additional specific public improvements.

Fourteen of the fifteen enumerated public improvements constituting the first group have been constructed and completed in their entirety. After this construction there remains unexpended the sum of $1,700,000.00. The remaining public improvement of the first group which has not been constructed was described in the ordinance as follows:

'5. Construction of a 15th Street Viaduct over railroad tracks between Bassett Street and Wazee Street.'

After the passage of the ordinance and upon inquiry, both the Mayor and the Manager of Public Works concluded that the construction of the authorized viaduct was undesirable; in fact, they contend it would create a public hazard and amount to a waste of public moneys. Accordingly, acting in the exercise of an alleged official discretion vested in them, these officials decided that the construction of the viaduct should be abandoned, and in lieu of the viaduct substituted, to the extent of available funds, one of the five specific public improvements enumerated in and constituting the second group, which was described in the authorizing ordinance as:

'1.a. Widen University Boulevard from 1st Avenue to Alameda Avenue to 6 lanes.'

The city then proceeded to enter into a contract with E. B. Horton, Jr., for his services in appraising the value of the land to be acquired under the substituted project. It is this agreement that was submitted to defendant Currigan for registration and countersigning as provided by the Municipal Charter. This he refused to do, giving as his reason therefor in a letter to the Mayor dated October 21, 1959, that available funds could not be used for constructing an improvement enumerated in the second group until all of the improvements constituting the first group had been constructed in full. Contending that the refusal of the Auditor was unlawful, the present action was commenced.

It is conceded by all parties to the action that in the event of literal impossibility of performance the city may abandon any of the first fifteen projects. There agreement ceases. The city contends this is such a case and that in such event it may choose any of the additional five projects. Defendant contends this is not such a case but even if it were that the wording of Ordinance No. 81 does not vest discretion in the city officials to do any other construction work with the funds voted for the now abandoned project. This is the real issue in the case and we believe the defendants' position to be correct.

The record shows that prior to the bond election the city, through its city engineer, knew that the proposed viaduct could not be brought down to grade at Bassett Street and that if proper clearance were to be maintained there would be engineering difficulty in terminating the viaduct at Wazee Street. Further, that it is structurally feasible to build it if extended one block to the north and one block to the south. The two principal problems posed by the city are:

(1) That on the north there is a bridge constructed about 1880 that would not fit into the city traffic plans as developed after the election, resulting in traffic hazards and bottlenecks. This fault in the proposal must or should have been known to the city and the voters when the project was adopted. In fact, the city traffic engineer testified that he knew at the time of the bond election that the viaduct could not be feasibly operated but assumed that some other funds would be made available to take care of the bridge problem; and

(2) That the state now desires arterial type construction of its own in the area and this viaduct should be built to conform therewith. The latter of course shows a realistic analysis of the traffic problems, current and future, by the city but may not be utilized to foil the will of the people who authorized their money to be spent in a specific way.

The pertinent...