City Council of City and County of Denver v. Board of Com'rs of Adams County

• Decision Date: 20 June 1904
• Parties: CITY COUNCIL OF CITY AND COUNTY OF DENVER v. BOARD OF COM'RS OF ADAMS COUNTY.
• Court: Colorado Supreme Court

77 P. 858

33 Colo. 1

CITY COUNCIL OF CITY AND COUNTY OF DENVER v. BOARD OF COM'RS OF ADAMS COUNTY.

Supreme Court of Colorado

June 20, 1904

Error to District Court, City and County of Denver; Frank T Johnson, Judge.

Mandamus proceedings by the board of county commissioners of the county of Adams against the city council of the city and county of Denver, sitting as a board of county commissioners. The writ was granted, and defendants bring error. Affirmed.

Henry A. Lindsley and Charles R. Brock, for plaintiff in error.

C. H Pierce and C. M. Kendall, for defendants in error.

CAMPBELL J.

This proceeding in mandamus, instituted by the board of county commissioners of Adams county against the city council of the city and county of Denver, sitting as a board of county commissioners, was to compel the latter to levy a tax to pay a certain claim in favor of the county of Adams and against the city and county of Denver, which was imposed by the General Assembly in connection with the dismemberment of Arapahoe county and the formation of three new counties out of its territory.

Prior of the year 1901, what may be properly designated as old Arapahoe county was geographically the same as when our state Constitution was adopted. At the regular session of the Thirteenth General Assembly, held in that year, there was before that body a general scheme to grant to its county seat, the former city of Denver, so-called home rule, which involved the subdivision of Arapahoe county into two new counties proper, and the erection of a new body politic partaking of the nature and characteristics both of a city and county. To bring about this result, the General Assembly passed, in the form of an act, a proposed amendment to the Constitution, which has been submitted to and ratified by the people, and is now known as article 20 of that instrument. By this amendment all the territory theretofore included within the outer boundaries of the former city of Denver, which inclosed several distinct municipalities and some unorganized territory, was merged into one body corporate, to be known thereafter as the city and county of Denver. At the same session the General Assembly passed two acts by which all of the remaining portion of the territory of old Arapahoe county was divided into two parts, one of which was made into the new county of Adams, and the other into the county of South Arapahoe, which were to take effect on November 15, 1902, only in the event that the constitutional amendment was adopted. When these three measures went into effect, that which was formerly the county of Arapahoe therefore became three separate political subdivisions of the state, bearing the names just mentioned; and it is apparent that the entire scheme was dependent upon the adoption of the constitutional amendment. This amendment was voted upon at the general election held on the 4th day of November, 1902, and received a majority of the legal votes cast. Section 1 thereof provides that the new city and county of Denver shall own all of the property theretofore owned or possessed by the included municipalities and by the county of Arapahoe, and shall succeed to all the rights, liabilities, and benefits, and shall assume and pay all bonds, obligations, and indebtedness, of these constituent bodies. Section 3 provides that, immediately upon the canvass of the vote showing the adoption of the amendment, it shall be the duty of the Governor to issue his proclamation accordingly, and thereupon the former city of Denver and the pre-existing municipal corporations and the desiganted part of the county of Arapahoe shall merge into the city and county of Denver.

In the acts of the General Assembly creating the two new counties proper, and carving the same out of Arapahoe county, provision was made for a division of property between them; and at the next succeeding regular session of the General Assembly, in 1903, the appropriate sections of these acts of 1901 were amended so as to make more definite the method of appraising the property of the respective counties, and for adjusting the equities between them arising out of the dismemberment of old Arapahoe county and the creation of the new ones. Sess. Laws 1901, p. 133, c. 57; Sess. Laws 1903, p. 159, c. 79. Acting under the amendment of 1903, and in accordance with its directions, it was ascertained that the new city and county of Denver should pay to the county of Adams about $60,000. The city and county of Denver refused to pay the same, or to levy a tax for that purpose, whereupon this proceeding was instituted to compel the levy of the necessary tax. In the court below, as shown by the original return to the alternative writ, the only defense interposed was that the act of 1903 under which the alleged indebtedness had been ascertained was unconstitutional. By an amendment to the return an additional defense was that no power was given to, and no duty imposed upon, the council to levy the tax demanded.

1. The law of this state requires the levy of the annual county tax to be made not later than November 30th, but, if laid at a lator time, it is not for that reason invalid. On this day the county of Adams caused a demand to be made upon the city council of Denver to pay, or levy a tax to pay, the claim in question, which the latter refused to do. These proceedings were thereupon instituted, and the alternative writ issued, to which the city council made return on the 21st of December, 1903--in form, an answer; in legal effect, a demurrer. The only defense set up was that the act of 1903 by which this demand was imposed is unconstitutional, in that it places upon the city and county of Denver burdens, and provides a basis and method for adjusting the equities between these respective counties, other than and different from those which Const. Amend. art. 20, prescribes. The court indicating that it entertained a contrary view, the respondent was permitted to file an amended return, which in substance, states that after the issuance and service of the alternative writ, and the filing of the original return, the respondent, on January 2, 1904, sitting as a board of county commissioners, enacted an ordinance by which it reached the limit of its power to levy a tax to raise a fund for ordinary county purposes, and caused such levy to be certified to the county assessor, and that, by reason of the premises, it is without authority to make any further or additional levy for the year 1903, since its power in that respect was exhausted by the enactment of the ordinance referred to.

It was improper for the city council, after the service of the alternative writ, and while the proceeding was pending, to enact any ordinance which provided for a levy inconsistent with or contrary to its command. Neither the original nor the amended return constitutes a defense to the writ, if the statute of 1903 is valid. The amended return certainly shows no cause why the writ should be discharged. In Sess. Laws 1899, p. 330, c. 133, it is enacted that there shall be levied and assessed upon all taxable property within counties of the first class, for ordinary county revenues, including the support of the poor, and for the purpose of raising a fund to meet any unforeseen contingency, taxes at such rate as may be necessary, but not to exceed three mills on each dollar of valuation. If this act is now applicable to the city and county of Denver, as to which we express no opinion, it certainly has no bearing upon this case. The demand which the General Assembly has imposed upon the city and county of Denver is not one whose payment must be made only out of its ordinary county revenues, and it is not a claim upon either of the other two funds. It is not an expense or claim or demand against the county of an ordinary, but of an extraordinary, kind; and the power to impose it, if it exist at all, carries with it, as a necessary implication, the power, residing in the city and county of Denver, to pay the same, and to levy a tax for that purpose other than, and in addition to, that which it may levy to secure its ordinary county revenue. This, we think, clearly appears from the authorities. Ralls County Court v. U.S., 105 U.S. 733, 26 L.Ed. 1220; U.S. v. New Orleans, 98 U.S. 381, 25 L.Ed. 225; Scotland County Court v. U.S., 140 U.S. 41, 11 S.Ct. 697, 35 L.Ed. 351.

The fact that the city council assumed to make the annual levy after service of the alternative writ did not exhaust its power in the premises or defeat the proceeding. If by such action a municipality can escape the performance of its duty, it might by the merest subterfuge easily repudiate all its just obligations. It was entirely competent for the district court, in the circumstances of this case, as was done, before the books passed into the hands of the treasurer, to compel the council to reconvene and to correct the levy theretofore made, by amending the same, or by adding an additional levy sufficient to pay this claim, which, in fact, counsel say, has been done. People v. Salomon, 54 Ill. 39; Wartman v. Wartman, Fed. Cas. No. 17,210; State v. Headlee, 22 Wash. 126, 60 P. 126; Sharpe v. Engle, 2 Okl. 624, 39 P. 384; County Com'rs v. Melvin, 89 Md. 37, 42 A. 910.

2. The other defense to the writ, upon which plaintiff in error mainly relies, is that the act of 1903, p. 159, c. 79, is unconstitutional. We observe, in the first place, that the General Assembly in this act selected as its representatives for carrying out its commands those who were acting as boards of commissioners of the respective counties....