City and County of Denver v. Board of Com'rs of Arapahoe County

• Decision Date: 08 January 1945
• Docket Number: 15497.
• Citation: 156 P.2d 101,113 Colo. 150
• Parties: CITY AND COUNTY OF DENVER v. BOARD OF COM'RS OF ARAPAHOE COUNTY.
• Court: Colorado Supreme Court

156 P.2d 101

113 Colo. 150

CITY AND COUNTY OF DENVER v. BOARD OF COM'RS OF ARAPAHOE COUNTY.

No. 15497.

Supreme Court of Colorado, En Banc.

January 8, 1945

Rehearing Denied Feb. 19, 1945.

Error to District Court, Arapahoe County; Osmer E. Smith, Judge.

Action by the Board of Commissioners of the County of Arapahoe State of Colorado, against the City and County of Denver, to enjoin the defendant City from further proceeding to acquire land and to establish an airport in Arapahoe County. To review a judgment issuing a permanent injunction, the City and County of Denver brings error.

Injunction dissolved and judgment reversed.

JACKSON J., dissenting.

Malcolm Lindsey, Glenn G. Saunders, and Thomas E Boyles, City Attys., all of Denver, for plaintiff in error.

C. L. Harrison, of Aurora, and Kenneth Robinson and Albert T. Frantz, both of Denver, for defendant in error.

YOUNG Chief Justice.

The City and County of Denver prosecutes a writ of error to reverse a judgment of the district court of Arapahoe County in an action wherein the Board of County Commissioners of said county sought to have the district court find and determine certain facts, make certain declarations of law, and upon such findings and declarations enjoin the city from further proceedings to acquire land and to establish an airport in Arapahoe County. The Court made findings and declarations in favor of the Board and against the City, and issued a permanent injunction to restrain the City from proceeding further to carry out the project. The parties are designated, for convenience, as 'Denver,' or the 'City,' and the 'County,' since the Board of County Commissioners sues as the respresentative of the County.

Denver regularly passed an ordinance which, so far as pertinent, provides:

'Section 1. In order to meet the rapidly increasing need for airport facilities, the Mayor is hereby authorized to acquire, on behalf of the City and County of Denver, not to exceed two thousand acres of land for an additional airport for the City and County of Denver.

'Section 2. The said land so to be acquired for an additional airport shall be located in Sections 22, 23, 26, 27, and 35, in Township 5 South, of Range 68 West of the 6th Principal Meridian, and shall consist of such lands as the Mayor shall determine to be most suitable for an airport.'

Section 3 provides, in the event the lands can not otherwise be procured, for their condemnation. Consideration of the remaining sections is not pertinent to any issues here involved. This will be referred to for brevity, as the 'Ordinance.'

Pursuant to the ordinance the Mayor selected for the projected airport a site south of Denver and southeast of the town of Littleton; determined that a tract of 1552 acres was necessary and proper to effect the City's object and designated the land to be procured. 168 acres were purchased and the City instituted condemnation suits to procure the remainder. The larger portion of this land is more than five miles from the boundary of Denver. It was at this point in the procedure that the County brought suit to enjoin the City from proceeding further, resulting in the judgment above mentioned.

The City in its brief argues its case under five headings, or issues, all of which are properly raised by the specification of points for reversal. The County in rebuttal of the City's contentions argues six points in its brief which we think responsive and properly require consideration. For the sake of brevity we shall follow the paths so outlined by the parties inasmuch as a determination of the issues so raised will indicate the proper resolution of the controversy.

The City's first point is: 'Denver's power to acquire lands for an airport is not limited to lands within five miles of its boundaries.' The right of Denver to acquire lands within five miles of its boundary is not controverted. Section 42, ch. 163, vol. 4, '35 C.S.A., provides: 'The city council and board of trustees in towns shall have the power to acquire, establish, construct, own, control, lease, equip, improve, maintain, operate and regulate airports and landing fields for the use of aeroplanes and other aircraft either within such municipalities or within five miles of the boundaries of such cities and towns, or may set apart and use for such purpose real property owned by the city or town. * * *'

Section 43 of said chapter 163 provides for the condemnation of lands for such airports, if not otherwise obtainable. Section 44 of said chapter 163 provides: 'The city council or boards of trustees in towns shall have the power to incurr indebtedness for any of the purposes mentioned in this subdivision and to issue bonds for the acquisition, construction and improvements of airports and landing fields and appurtenances thereto, in the same form and manner as debt is incurred and bonds issued for other municipal purposes.'

The City stresses the point that the section last mentioned provides for the incurring of indebtedness for such airports, as 'for other municipal purposes', and that this is clear evidence that the General Assembly, while it did not declare specifically that the acquisition and construction of an airport is a municipal purpose, by necessary implication did declare it to be such. We think the point well taken. The fact that the General Assembly has authorized cities and towns generally to construct, operate and maintain airports within five miles of their boundaries makes their construction, operation and maintenance within such limits a municipal purpose. The only point necessary to determine here is whether Denver, a charter city under Article XX of the State Constitution, has authority in carrying out the municipal purpose of acquiring, constructing, operating and maintaining an airport to do so beyond five miles from the boundary of the city. There is nothing in the act conferring authority upon cities so to do within a five-mile limit of their boundaries to indicate that in prescribing such limit the state was exercising any police power possessed by it. The act does nothing more than confer additional power on municipalities to permit them to deal in a manner calculated to promote their convenience and economic interests with a new and growing method of transportation. There can be no doubt that the Legislature might have fixed a ten instead of a five-mile limit, in which case the city's proposed airport would be within the area limited by the statute and without question lawfully might be constructed and operated. The Court of Appeals, in Warner et al. v. Town of Gunnison, 2 Colo.App. 430, 31 P. 238, said: 'The power of the legislature to narrow or broaden municipal jurisdiction, save as controlled by constitutional restrictions, is practically unlimited.' Under a line of decisions of this Court we have held that if the General Assembly can confer a power upon any city which derives its authority from statutes passed by the State that a charter city, such as Denver, already possesses the power without legislative action. In the case of Fishel v. City and County of Denver, 106 Colo. 576, 108 P.2d 236, 240, we said: '* * * We have uniformly held that this amendment, among other things, conferred upon Denver as well as other home rule municipalities organized under section 6 thereof, every power possessed by the General Assembly in granting charters generally. [Citing cases.] As Before stated the Legislature prior to the adoption of the Home Rule Amendment, constitutionally could have conferred upon a municipality the power here questioned and in accordance with the view taken in the cases last cited it must be considered that such authority now is vested in the city by virtue of the amendment. This legal situation makes impotent Fishel's corollary objection that the city is without power to condemn property outside its corporate limits. In this connection Fishel does not question that the people and the General Assembly could confer upon a municipality the right to condemn private property outside its boundaries for its local public use, but contends that such has not been done as to the project here involved. It being thus conceded that the Legislature possessed the right here questioned, it would seem clear that under the doctrine of the cases last above enumerated, such power passed to the city by the Twentieth Amendment.'

Under the principle announced in the foregoing case and in others which it follows, we hold that Denver, as a charter city under Article XX of the Constitution, is not restricted by the Act of the Legislature, sections 42 to 46, chapter 163, supra, to the acquisition, construction and operation of an airport to the territory within five miles of her boundaries.

The second proposition which the City asserts is that 'Denver has the power to acquire, for an airport, lands traversed by public roads when there are other public roads which can be made available.'

This proposition involves a factual and a legal question. First are there other roads available? This under the record we think must be answered in the affirmative. The proposed tract is, roughly speaking, north and south, two and one-half miles long, and east and west, a mile wide. It lies between the roads that are the prolongations southerly of two of Denver's principal streets of ingress and egress from the south, University Avenue and South Broadway. Its westerly side abuts on the prolongation of South Broadway. Of the five quarter sections lying between the projected field and the prolongation of University Avenue, which are not designated as part of the field, four abut on said University Avenue road, and two on the county line road south of the field, giving access either to the University Avenue...