Appeal
from district court, Jefferson county.
Action
by Jeremiah Coulehan, suing for himself and others, against
the city of Denver and others. From a judgment for plaintiff
defendants appeal. Affirmed.
Action
to enjoin the assessment, levy, and collection of taxes upon
certain property in Jefferson county by or for the use of the
city of Denver. Trial, and judgment in favor of plaintiff
granting the perpetual injunction as prayed for. Defendants
appeal. The complaint is very lengthy. The following extracts
will be sufficient for an understanding of the opinion
'The plaintiff, suing as well for the behalf of all other
owners of taxable property situate within the district of
lands aforesaid, similarly situated, as for himself
complaining, saith that plaintiff is, and for twenty years
and more last past hath been, the owner of those certain
premises described as the northeast quarter of section
twenty-three (23), township three (3) south, of range
sixty-nine (69) west; * * * that by a certain act of the
general assembly of the state of Colorado approved on the
third day of April, A. D. 1893, entitled 'An act to
revise and amend the charter of the city of Denver,' it
was and is provided, among other things, that the corporate
limits of the said city of Denver should begin, etc.
[description, including lands of plaintiff], 'excepting,
however, out of the said city, as so established, all towns
and cities incorporated and then existing under the general
laws of the state, situate within said last mentioned
boundaries.' * * * Plaintiff further avers that the
plaintiff's land hereinbefore described, and all of the
lands hereinbefore mentioned, situate in the said township
three (3) south, of range sixty-nine (69) west, and township
four (4) south, of range sixty-nine (69) west, are, and
always have been, included within the limits of the said
county of Jefferson; that the said lands of the plaintiff are
agricultural lands, and now are, and for many years last past
have been, by plaintiff planted and cultivated for the
rearing of grasses, small grains, and small fruits; that the
said lands are valuable only as agricultural lands; that the
same are not and never have been divided into streets,
alleys, lots, blocks, or outlots, nor doth plaintiff propose
or intend, nor hath plaintiff ever proposed, intended, or
desired, to so subdivide the same into parcels, or sell or
expose the same to sale as urban or suburban property, nor
are the same valuable for such purpose; that no public
buildings or other improvements have ever been erected or
made by the said city of Denver upon or within three miles of
said lands of plaintiff or said district of lands afore
described, situate in said county of Jefferson; that none of
the public streets or alleys of the city of Denver extend
into or near to the same, or any part thereof, or into or
within two miles of any part of the said district of lands
aforedescribed; and that neither light, heat, police
protection, water, nor other convenience or public service
furnished by or under authority of the city of Denver for the
benefit of the inhabitants thereof hath ever been extended or
afforded to plaintiff or any of the people residing within
the said district; nor doth or can plaintiff or the other
owners of lands situate within the said district have any,
benefit, advantage, or convenience whatsoever of the
government of the said city of Denver, or any department
thereof; nor are the said lands of plaintiff, nor any of the
lands situate within the district aforesaid, in range
sixty-nine (69) aforesaid, necessary to be added to the city
of Denver for opening streets or ways between other parts of
the said city of Denver, or for any other municipal purpose
whatsoever; and that the whole purpose of the city of Denver
and those active in and about procuring such enlargement of
the bounds of said city was and is to enable the authorities
of the said city of Denver to levy taxes upon the lands and
other taxable property within the said district for raising
moneys for discharging the current expenses of the said city,
and for discharging the principal and interest of the bonded
indebtedness of the said city hereinafter mentioned. * * *
Plaintiff further avers that the said district of lands in
every part thereof was at the date of the passage of the said
act, and still is, separated from the bounds of the said city
of Denver, as established prior to the passage of the said
act, by a distance of two (2) miles or more, and by certain
municipal corporations theretofore and now still existing, to
wit, the town of North Denver, the town of Highlands, the
town of Colfax, and the town of Barnum, all which, as
plaintiff on information and belief avers, at the date of the
passage of the said act, and for many years before that,
were, and still are, municipal corporations, lawfully
organized and existing under the laws of the state of
Colorado. * * * Plaintiff is advised by counsel, and
therefore avers, that the attempt made by the said enactment
to include the said district of lands within the limits of
the city of Denver solely for subjecting the same to taxation
for the purposes of the said city of Denver, and the attempt
by the said enactment to subject the said lands to the burden
of the indebtedness heretofore contracted by the said city of
Denver for loans as hereinbefore mentioned and the other
indebtedness of the said city of Denver, was beyond the
authority of the general assembly, and wholly without effect.
Nevertheless, plaintiff saith the city council of the said
city of Denver thereaten to and will levy upon the lands
situate in said district, including the lands of plaintiff,
hereinbefore described, taxes for city purposes to an amount
not exceeding the limit in the said act provided, to wit, ten
mills on the dollar upon the assessed value of said property,
and cause the said levy to be certified to the county clerk
of the said county of Jefferson; and the said John Vivian,
who is the county clerk and recorder of the said county of
Jefferson, threatens to and will, unless restrained by the
writ of injunction hereinafter prayed, extend the same upon
the tax lists of the said county of Jefferson for the now
current year and every year hereafter, in the manner directed
in the said act, and include the said city taxes in his
warrant to the county treasurer of the said county of
Jefferson; and the said Robert E. Jones, who is the county
treasurer of the said county of Jefferson, will, unless
restrained as aforesaid, proceed to levy and collect the said
taxes, either by sale of plaintiff's lands aforedescribed
or by distraint and sale of plaintiff's personal
property. And plaintiff avers that the taxes so levied and
assessed as aforesaid will be a cloud on the lands of
plaintiff and all other lands situated within the district
aforesaid whereupon such taxes shall be levied and assessed
as aforesaid, and the levy and assessment of such taxes from
year to year in every year hereafter, as the said city of
Denver proposes and threatens to do, will be a continuous and
constantly recurring injury, irreparable by any action at
law. Plaintiff, therefore, as well for and on behalf of the
owners of other taxable property within the said district
similarly situated as for himself, prays judgment that the
said city of Denver, and the said city council thereof, and
all and singular the officers, agents, and servants thereof,
be strictly restrained and prohibited from levying upon the
lands aforedescribed or the other taxable property within the
said district, or other lands or taxable property similarly
situated to the lands and taxable property of plaintiff
aforedescribed within the said district, any assessment or
tax whatsoever to meet the expenses of said city of Denver,
or for other purpose whatsoever, and from causing any such
levy to be certified to the county clerk and recorder of said
county of Jefferson; that the said county clerk and J. A.
Ferris, assessor, as well as their successors in office, be
likewise restrained and enjoined from levying or extending
any such tax upon the tax list of the said county of
Jefferson in any year, and from including any such taxes in
any warrant to the county treasurer of said county; and that
the said county treasurer and all and singular his successors
in office be in like manner strictly restrained and enjoined
from collecting, or assuming to collect, any such city taxes
of the city of Denver at any time levied or assessed upon or
against any such lands or other taxable property within the
said district; and that plaintiff may have such other and
further relief or such different relief as to the court shall
seem meet, and his costs.'
Syllabus by the Court
The
legislature of this state does not have the power to extend
or enlarge the territorial limits of a specially chartered
town or city by adding thereto noncontiguous lands,--that is,
lands entirely separated from the municipality by intervening
territory; and the courts may declare the annexation of such
noncontiguous territory invalid, and enjoin the collection of
municipal taxes upon the property thus sought to be annexed.
A. B. Seaman, City Atty., and Louis K. Pratt, for
appellants.
Wells,
Taylor & Taylor, for appellee.
ELLIOTT,
J. (after stating the facts
The
city of Denver was organized and existing under and by virtue
of a special charter long before and at the time of the
adoption of our state constitution. The constitution did not
abrogate such charters, nor does it exempt them from
legislative amendments. Const. art. 14, § 14; also
Id. art. 15, § 2. Brown v. City of Denver, 7 Colo.
305, 3 P. 455; ...
