City of Denver v. Hayes

• Decision Date: 03 December 1900
• Citation: 28 Colo. 110,63 P. 311
• Parties: CITY OF DENVER et al. v. HAYES et al.
• Court: Colorado Supreme Court

63 P. 311

28 Colo. 110

CITY OF DENVER et al. v. HAYES et al.

Supreme Court of Colorado

December 3, 1900

Appeal from district court, Arapahoe county.

Action by William J. Hayes and others against the city of Denver and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

J. M Ellis, City Atty., Guy Le Roy Stevick, Asst. City Atty., S L. Carpenter, Asst. City Atty., and N. B. Bachtell, Asst City Atty. (Fred. A. Williams, George F. Dunklee, and James H. Brown, of counsel), for appellants.

Bicksler McLean & Bennett and Thomas W. Heatley, for appellees.

CAMPBELL C.J.

The ultimate object of this action is to test the validity of an issue of so-called 'Auditorium Bonds' of the city of Denver, aggregating $400,000. Appellees, who were the successful bidders therefor, accompanied their bid by depositing with the city treasurer $8,300 as evidence of their good faith, which, if their bid was accepted, was to be applied on the purchase price. Discovering, as they say, the invalidity of the bonds after the deposit was made, they brought this action to recover the same, when the city refused to refund it. It is a friendly action, but the controversy is real, and the pleadings are so framed as to demand a decision of the question argued.

The constitutional and statutory provisions which control are section 8 of article 11 of the constitution, and sections 154 and 156 of the charter of the city of Denver,--the former of which is found in Sess. Laws 1899, pp. 371, 372; the latter in Sess. Laws 1893, p. 200, § 9. The sections, excluding words superfluous in this discussion, are:

'No city or town shall contract any debt by loan in any form, except by means of an ordinance * * * specifying the purposes to which the funds to be raised shall be applied. * * * But no such debt shall be created unless the question of incurring the same shall at a regular election for councilmen, alderman or officers of such city or town, be submitted to a vote of such qualified electors thereof as shall, in the year next preceding, have paid a property tax therein, and a majority of those voting on the question, by ballot deposited in a separate ballot box, shall vote in favor of creating such debt. * * *' Const. art. 11, § 8.

'No loan shall be made and no bonds shall be issued for any purpose except in pursuance of an ordinance authorizing the same; * * * and such ordinance shall specify the purposes for which the sums to be raised shall be applied; * * * but no such debt shall be created nor bonds issued unless the question of incurring the same and issuing bonds therefor shall be submitted to the vote of such of the qualified electors of the city as shall in the next year preceding have paid a property tax therein, and a majority of such voting upon the question by ballot shall vote in favor of creating such debt and issuing such bonds.' Sess. Laws 1893, p. 200, § 9.

'The city council is hereby authorized to contract an indebtedness on behalf of the city, and upon the credit thereof, by borrowing money and issuing bonds of the city at a rate of interest not exceeding five (5) per cent. per annum: (a) For the purpose of erecting public buildings, including a public auditorium. (b) For the purpose of constructing and maintaining public sewers for the city. (c) For the purpose of purchasing lands for parks and public squares within or without the city limits, and for the purpose of condemning sites for parks and public squares, and the assessments of benefits for the same and for sites for public buildings for said city. (d) For the purpose of improving existing parks. (e) For the purpose of building and constructing viaducts for the city, or aiding in the building or construction thereof. (f) For the purpose of constructing reservoirs within or without the city limits, for the storage of water to be used in irrigating the trees in said city, and for sanitary or domestic purposes in said city, and to acquire lands for such reservoirs. (g) For the purpose of constructing bridges and their approaches. (h) For the purpose of taking up, paying, redeeming and refunding any bonded indebtedness of the city, or any part thereof. (1) For the purpose of improving the banks and channels of South Platte river, and for acquiring a right of way for a new channel for Cherry creek, and for turning the same. (j) For the purpose of constructing and purchasing a channel or channels, or ditches, or conduits, or some suitable system of supplying waters in the city. (k) For paying the city's proportion of any local improvements, where by this act any part of the cost thereof is to be paid by the city. Said indebtedness and bonds for all said purposes, together with all general indebtedness and bonds of the city previously issued, not to exceed in the aggregate the amount limited by the constitution of the state of Colorado.' Sess. Laws 1899, pp. 371, 372.

The city council passed Ordinance No. 31 of the Series of 1899, which provided for submission, at the regular municipal election of that year, to the vote of the qualified electors of the city, the question of incurring an indebtedness in behalf of the city of $400,000 for the eleven separate and distinct purposes above classified, from 'a' to 'k.' The form of the ballot as therein prescribed required each elector to designate, by a cross mark in the margin of the ballot, his answer to the questions submitted. They were two, or rather the question was only one, but in the alternative,--for incurring, and against incurring, the indebtedness. The eleven separate and distinct purposes were so grouped in one proposition that an elector desiring to vote for any one purpose was, to accomplish it, obliged to vote for all collectively, though he might favor one only, and be against the others; and, if he wished to vote against any one purpose, though he might not object to any of the others, he must vote against all. In other words, he was not permitted to vote for one or more of the separate purposes, and against the others, but he must vote for all, against all, or not vote at all.

A majority of the electors voted in favor of incurring the indebtedness and issuing the bonds. After the vote was taken and canvassed, and the result declared, the city council proceeded to enact Ordinance No. 67, Series of 1899, whereby it assumed to create an indebtedness in the sum of $400,000, and to issue bonds therefor, and out of the proceeds received from their sale it was proposed to set aside one-eighth as a park fund (the charter elsewhere providing that one-eighth of all proceeds from bonds voted should be so applied), and seven-eighths to the building of a public auditorium.

There are four particulars in which the bonds are said to be invalid. In the view we take of the controversy, it is necessary to consider only one. It is the contention of plaintiffs that the bonds are invalid because Ordinance No 31, providing for ascertaining the will of the voters, and the election called in pursuance thereof, were invalid, in that in the ordinance and the notice for the election, and in the form of the ballot to be used, eleven separate purposes were included as one proposition to be voted upon, and electors were not able understandingly to cast their ballot. Defendants, on the other hand, contend that several purposes may be submitted as a single proposition at the same...