City of Englewood v. Daily
| Citation | 407 P.2d 325,158 Colo. 356 |
| Decision Date | 01 November 1965 |
| Docket Number | No. 21628,21628 |
| Parties | The CITY OF ENGLEWOOD, a Municipal Corporation of the State of Colorado, Samuel L. Love, as Mayor of the said City and H. Reece Braun, George H. Allen, Donald G. Fullerton, William B. Hanson, John C. Kreiling, Tymer Rice, as City Councilmen of the City of Englewood; Raymond L. Chase, as City Clerk and Treasurer of the City of Englewood, and Stanley H. Dial as City Manager of the City of Englewood, Plaintiffs in Error, v. Harry A. DAILY and Lillian Daily, Richard H. McQueen, Defendants in Error. |
| Court | Supreme Court of Colorado |
Myrick, Criswell & Branney, Englewood, for plaintiffs in error.
Alan L. Sternberg, Littleton, for defendants in error.
This writ of error is directed to a judgment of the district court of Arapahoe county, the effect of which was to invalidate the annexation of a substantial tract of land to the City of Englewood.
The defendants in error, to whom we will refer as the plaintiffs, were either owners or residents and owners of realty within the area included in the annexation proceedings. They attacked the validity of the proceedings on various grounds.
The trial court held the annexation to be invalid for the reason that city councilmen, officials, or employees of the annexing city engaged in the circulation of petitions requesting that the property described therein be annexed to the City of Englewood. Specifically, the trial court pointed up the issue and gave its answer in the following language:
C.R.S.1963, 139-10, deals with the subject of Annexation of Territory. There is nothing therein which expressly forbids a councilman or city official from circulating a petition for the annexation of land to the city in which he holds office. The trial court, however, held that such a prohibition was implied, for two reasons:
First, if councilmen circulated the annexation petitions, the petitions would actually be theirs, rather than those of the residents and landowners, as required by the statute. Secondly, since the statute requires the annexing city's legislative body to determine whether the petitions meet the requirements of the statute (Colorado Revised Statutes 1963, 139-10-3(2)), which the lower court found to be a quasi-judicial function, the statute would become 'meaningless' if the same person who circulated them later passes upon their sufficiency.
As grounds for reversal of the judgment the plaintiffs in error, who will be referred to as the defendants, argue that:
'1. In reviewing proceedings under Colorado Revised Statutes 1963, 139-10, a court has no authority, other than to determine whether the requirements of the statute have been complied with. It cannot read into the statute either a further requirement or an additional prohibition, unless the statute itself creates it.
'2. Nowhere does Colorado Revised Statutes 1963, 139-10 prohibit, either expressly or by necessary implication, an annexing city's officials from participating in the circulation of annexation petitions.
The hearing had upon the plaintiffs' complaint in the lower court was held pursuant to the provisions of C.R.S.1963, 139-10-6 which allows '[a]ny person aggrieved by any annexation proceedings' to obtain a judicial review of the same. While this section of the statute does not, itself, delineate the authority of the reviewing court upon such review, its obvious purpose is to permit the court to determine only if the procedural mandates of the statute have been met; it cannot pass upon the wisdom of the annexation itself, nor can it invalidate any annexation for a reason other than a failure to comply with the provisions of the statute. City of Littleton v. Wagenblast, 139 Colo. 346, 338 P.2d 1025.
The statute contains no express prohibition against any person becoming the circulator of a petition. It is clear that one who does not own property in the area to be affected may be a circulator. The statute requires that 'the circulator' of a petition shall execute an affidavit 'that each signature thereon is the signature of the person whose name it purports to be.' Annexation proceedings are 'initiated' by presenting the petitions to the legislative body of the city. From this provision, the lower court concluded that, if city officials act as...
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