City of Montrose v. Niles, 16725
| Decision Date | 03 December 1951 |
| Docket Number | No. 16725,16725 |
| Citation | 238 P.2d 875,124 Colo. 535 |
| Parties | CITY OF MONTROSE v. NILES et al. |
| Court | Colorado Supreme Court |
Moynihan-Hughes-Sherman, Montrose, for plaintiff in error.
Theodore L. Brooks, Montrose, for defendants in error.
We will herein refer to defendants in error as plaintiffs, and to plaintiff in error as defendant.
On February 6, 1951, the City of Montrose conducted a special election to determine whether the city should issue $250,000 of general obligation bonds for the purpose of improving and enlarging the city water storage, processing, and distribution; and $100,000 of general obligation bonds for the purpose of improving and extending the city sewer system. The two issues were submitted to the voters as separate questions. The water bond issue was approved by a vote of 484 'for' to 453 'against.' The sewer bond issue was approved by a vote of 466 'for' to 464 'against.'
March 30, 1951, plaintiffs filed their complaint as residents and property owners within the City of Montrose, seeking on their own behalf and on behalf of 'all persons similarly situated,' to prevent the issuance of said bonds by injunction directed to defendant city. It was alleged in the complaint that twenty-one illegal votes had been cast in favor of both bond issues. The alleged twenty-one illegal voters were not identified. Plaintiffs also alleged that one of the counting judges had illegally revealed the count to proponents of the issues, as it stood from time to time during the progress of the election, at which times the bond issues were trailing, and that this information caused the proponents of the bond issues to secure additional votes sufficient to change the result of the election.
Defendant, by answer, placed in issue all material facts alleged as grounds for the relief sought. Affirmative defenses were set up by answer, raising questions as to the jurisdiction of the court to grant injunctive relief, and whether plaintiffs were guilty of laches.
The trial court disposed of the controversy relating to the water bonds by pointing out that even if all twenty-one votes which were alleged to be illegal were withdrawn from the support of the water bond issue, the result of the election would not be changed, since that issue carried by more than twenty-one votes. The only other ground alleged as to the water bond issue was that an election judge illegally gave out information concerning the count of the votes cast from time to time during the election. With reference to this issue the court said: 'While the statute makes it a misdemeanor for a judge or clerk to disclose to anyone the comparative standing of candidates or questions being voted upon during the election while the polls are still open, for this reason alone the election will not be set aside unless this fact has been shown to affect the result of the election, which, in the opinion of the Court, has not been done in this case.'
Although cross specification of points was filed by plaintiffs, it is not seriously argued that the court erred in thus disposing of the case in so far as it relates to the water bonds. We find no error with relation thereto and accordingly we hereinafter consider only the contentions made as they relate to the sewer bond issue. The trial court in its findings and judgment on that issue ruled, in substance, that payment of a specific ownership tax on an automobile did not qualify a person to vote in this municipal bond election; that a purchaser of realty under a contract of sale was not a qualified voter in said election; that an owner of personal property which had been assessed in the name of the spouse of such owner was not a qualified elector in the election, notwithstanding the fact that the taxes upon such personal property were paid out of joint funds of the husband and wife; that an owner of real property purchased in the year preceding the election, but after the time of the assessment thereof, was not a qualified elector; and that a person in all other respects qualified as an elector, but who was not registered as such, was not eligible to vote at the municipal bond election in controversy.
Applying these conclusions of law to the facts of the case, the result was that 449 valid votes were cast for the sewer bonds and 457 valid votes were cast against them. The court found that it had jurisdiction in the action; that there were no laches on the part of plaintiffs; and judgment was entered granting the injunction which prohibited the issuance of the sewer bonds. Defendant seeks reversal by writ of error.
First: Was an owner of an automobile, who had paid the specific ownership tax thereon, a 'taxpaying elector' who was entitled to vote under the law governing the municipal bond election which is the subject of this controversy?
This question is answered in the negative. The charter of the City of Montrose provides that the city counsel 'shall have the power to issue bonds upon the majority of votes cast by the taxpaying electors at any special or general election * * *'; and that 'the provisions of any state law, now or hereafter in force, except as the council may otherwise by ordinance provide, relating to the qualification and registration of electors, the manner of voting, the duties of election officers, the canvassing of returns and all other particulars in regard to the management of elections, except as otherwise provided in this article so far as they may be applicable, shall govern all municipal elections.' The City of Montrose has not made provision by ordinance for the conduct of municipal elections and because of said charter provision and no ordinance giving a different guide, we resort to the statute of the State of Colorado for the definition of the term 'taxpaying elector' as used in the charter. The pertinent statute is section 17, chapter 59, '35 C.S.A., and reads as follows: 'The term 'taxpayer,' 'taxpaying elector' or 'qualified taxpaying elector' shall be held to mean and include only those persons who are qualified voters under the registration and election laws of this state and who, in the calendar year last preceding the election at which such vote is offered, shall have paid a tax, or be liable for the payment of such tax upon real or personal property assessed to them and owned by them in the county where such vote is offered.'
The trial court, in applying this statute to the facts in this case, said, inter aia: 'The qualifications of voters fall under four categories: First, a voter must be a registered, legal voter under the laws of the State of Colorado; Second, the voters shall have paid a tax or be liable for the payment of a tax on real or personal property during the calendar year last preceding, in this instance, of 1950; Third, that said property must...
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...and hence, rules of construction are inapplicable. Lidke v. Industrial Commission, 159 Colo. 580, 413 P.2d 200; City of Montrose v. Niles, 124 Colo. 535, 238 P.2d 875; Jones v. Board of Adjustment, 119 Colo. 420, 204 P.2d 560; People v. Elliff, 74 Colo. 81, 219 P. 224. The inquiry here is p......
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