City of Aurora v. Zwerdlinger
| Decision Date | 24 October 1977 |
| Docket Number | No. 74-146,No. C-1102,74-146,C-1102 |
| Parties | CITY OF AURORA, Colorado, a Municipal Corporation, Petitioner, v. Jack ZWERDLINGER, Morris Dickhart and Jo Coates, Individually and as representatives of a class of persons signing that certain referendum petition protesting the going into effect of Ordinanceenacted by the City Council of the City of Aurora, Colorado, and entitled "Utility Rates," and establishing rates for water services in the City of Aurora, Colorado, Respondents. |
| Court | Colorado Supreme Court |
Leland M. Coulter, Richard Kaufman, Aurora, for petitioner.
Bader & Dufty, Robert A. Dufty, Denver, for respondents.
Dawson, Nagel, Sherman & Howard, Robert M. Johnson, Michael L. Cheroutes, Jane E. Roberts, Denver, for amicus curiae, The Colorado Municipal Bond Dealers Association, Inc.
Susan K. Griffiths, Wheat Ridge, for amicus curiae the Colorado Municipal League.
We granted certiorari to review the court of appeals' decision in City of Aurora v. Zwerdlinger, Colo.App., 558 P.2d 998 (1976).
On July 22, 1974, the Aurora City Council enacted Ordinance No. 74-146, raising the rates and charges for water supplied by the city. This ordinance was passed to satisfy the requirements of Ordinance No. 73-221. In the earlier ordinance, the city had authorized the issuance of certain bonds and covenanted "that it will establish, maintain, collect and enforce rates and charges for the connection to, use of and services furnished by the municipal water system of the City. . . ." The revenues thus generated, together with other available tax proceeds, were covenanted to be sufficient to pay the costs of operation and maintenance and the principal and interest on the bonds.
A referendum petition demanding the repeal of Ordinance No. 74-146 or its submission to a vote of the qualified electors of Aurora was subsequently filed with the city. The petition was proper in all procedural respects and was timely filed. Aurora refused to repeal the ordinance or to call an election and filed an action seeking declaratory judgment.
The trial court entered a declaratory judgment in behalf of Aurora, holding that the ordinance was not subject to the referendum process. The court of appeals reversed, holding that the Aurora City Charter provided that a referendum could be applied to "all ordinances," unless specifically exempted. Since no exemption existed for utility rate ordinances, the present ordinance was, in the opinion of the court of appeals, subject to the referendum power. We reverse the court of appeals.
Petitioner City of Aurora's primary allegation of error concerns the court of appeals' interpretation of the referendum powers reserved by the Colorado Constitution and the Aurora City Charter. Two questions of first impression are presented: (1) Do the referendum powers in this case apply to administrative, as well as legislative actions?, and (2) Is a municipal ordinance which increases utility rates an administrative or legislative action?
Article V of the Colorado Constitution reserves the initiative and referendum powers to the people:
We have held that the purpose of these constitutional provisions is to expeditiously permit the free exercise of legislative power by the people. Brooks v. Zabka, 168 Colo. 265, 450 P.2d 653 (1969); Brownlow v. Wunsch, 103 Colo. 120, 83 P.2d 775 (1938). The terms of the article, being a reservation of powers to the people, are to be liberally construed to effectuate their purpose. Colorado Project-Common Cause v. Anderson, 178 Colo. 1, 495 P.2d 220 (1972); Burks v. City of Lafayette, 142 Colo. 61, 349 P.2d 692 (1960).
The intention evidenced by Article V of the Colorado Constitution is to vest only legislative power directly in the people. The language of the article itself refers specifically to the initiative and referendum powers as the means by which the people can exercise the legislative power. It is also not unimportant that these powers are reserved in the article of our Constitution which deals expressly and singularly with the legislative branch of government. We, therefore, construe the constitutional provisions to apply only to acts which are legislative in character, which is consistent with the majority view. Carson v. Oxenhandler, 334 S.W.2d 394 (Mo.App.1960); Keigley v. Bench, 97 Utah 69, 89 P.2d 480 (1939); see also People v. Graham, 70 Colo. 509, 203 P. 277 (1921).
The City of Aurora Charter also reserves the referendum power to the people. Article VI, Section 4 of the Charter provides:
"The referendum shall apply to all ordinances passed by the council, except ordinances fixing the rate of taxation on property each year for municipal purposes, making the annual appropriation, calling a special election, or ordering improvements initiated by petition and to be paid for by special assessments . . .."
Notwithstanding the limitation of the constitutional referendum power to legislative actions, the terms of the City Charter must be examined because the two reservations are independent of each other. The Charter provisions cannot limit powers reserved by the Constitution. However, if the powers reserved by the Charter exceed the powers reserved by the Constitution, those powers are operative and will be given effect. Burks v. City of Lafayette,supra; Leach & Arnold Homes, Inc. v. City of Boulder, 32 Colo.App. 16, 507 P.2d 476 (1973).
Aurora's Charter provides that the referendum power applies to "all ordinances" except the four listed exemptions. Respondents contend that this language must be read literally to include the ordinance in this case. But references in municipal charters to "all ordinances" have generally been interpreted as meaning only ordinances which are legislative in character. This general rule was reviewed in Carson v. Oxenhandler, supra :
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