City of Pueblo v. Flanders, 16216

• Decision Date: 30 October 1950
• Docket Number: No. 16216,16216
• Parties: CITY OF PUEBLO et al. v. FLANDERS.
• Court: Colorado Supreme Court

Page 832

225 P.2d 832

122 Colo. 571

CITY OF PUEBLO et al. v. FLANDERS.

No. 16216.

Supreme Court of Colorado, en Banc.

Oct. 30, 1950.

William L. Lloyd, Laurence E. Langdon, Pueblo, for plaintiffs in error.

Matthew J. Kikel, John W. Elwell, and Harold C. Rudolph, all of Pueblo, for defendant in error.

STONE, Justice.

This action was brought to enjoin the officers of the city of Pueblo from furnishing fire protection to property located outside the city limits, and the trial court granted a writ of injunction declaring that, 'The maintenance and operation of a fire department by a municipality is exercising a governmental function and therefore has no extraterritorial powers; that the primary purpose of a municipal corporation is to contribute toward the welfare, health, happiness and public interest of the inhabitants of such corporation, not to further the interests of those residing outside its limits; that the welfare and public interests of the municipality and the taxpayers therein are being neither promoted nor protected by permitting the city's fire department to answer calls for the extinguishment of fires in the territory and districts lying outside of the municipality's corporate limits; that the city council of Pueblo is without authority to take the city's fire equipment paid for by the taxpayers and give it, or donate its use, to territory beyond the city limits.' The writ commanded that the city commissioners 'do absolutely refrain from and desist from the practice as heretofore followed by defendants of using the city's fire equipment and firemen for the purpose of the extinguishment of fires in territory and districts outside and beyond the corporate limits of said municipality.'

In reviewing this judgment and writ, we are confronted with a question novel in this jurisdiction and, so far as our study discloses, without precedent elsewhere. In such a case it is particularly unfortunate that the questions involved are not explored in the briefs.

Courts should not grant the equitable remedy of injunction against other branches of government in the absence of convincing proof of threatened and impending wrongful action. 'The injury which plaintiff seeks to prevent by the injunction must be immediate and imminent'. 64 C.J.S., Municipal Corporations, § 2143, p. 959. In the record before us there is evidence of occasional response by the fire department to calls outside the city limits over a term of years; there is evidence also of action by the city council at various times prohibiting such response, and counsel for defendant ion error Flanders, in their answer brief, state: 'The city council has changed its opinion several times as to the advisability and expediency of sending Pueblo's fire-fighting equipment and firemen outside of the city limits. The present council was elected since the suit was brought and their opinion has not yet been expressed, but the question before the court is not whether the council acts wisely or foolishly but whether it has power to act at all in the premises.' That admission refutes the allegation of the complaint that, 'defendants are threatening and intending to furnish further and continued fire protection outside the city limits of the City of Pueblo,' and leaves the question raised in this action one of idle speculation rather than of urgent concern. We think the showing here insufficient to justify the drastic remedy of injunctive relief, but are not content to rest our decision on that ground alone.

Further, it is generally held that an action against corporate authorities for injunction may not be maintained by a taxpayer upon the ground alone of the illegality of their conduct, except in cases of great public concern, but only upon showing of substantial financial damage by reason of increased tax burden. As said by the Kansas court in Robertson v. Kansas City, 143 Kan. 726, 56 P.2d 1032, 1035: 'While testimony was taken showing the various acts and contracts complained of, there was no showing in the evidence that plaintiffs would have their tax burdens increased. Their apprehension that such a result would follow depends on events which may or may not occur. * * * There was no showing appellants would sustain any special damages and different in kind from the public generally. * * * The question raised has been before this court many times, and it has been repeatedly held the only proper plaintiff in an action for injunctive relief against abuse of power by municipal officers is the state, or one of its officers charged with responsibility of scrutinizing the acts of public officers and boards.' In the record here, we find no showing that the issue raised is of such moment as to require interference by the court; no showing that protection of property within the city has been jeopardized, no showing that the city has incurred expense because of responding to fire calls outside the city limits, or that any such expense is contemplated. Even if we take notice of an unshown expense of operation of the truck used for such fires in going a few blocks or even a few miles outside the city limits, we think the rule de minimis would apply. In the words of the Illinois court, in Ryan v. City of Chicago, 369 Ill. 59, 15 N.E.2d 708, such petty expense is 'too trifling to amount to an injury to a taxpayer.' We think the record fails to justify interposition of a court of equity, but we are not content to rest our decision on that ground alone.

The injunction here issued by the trial court does not concern contract obligations to supply fire protection to outside areas whereby the city might be obligated to send out its equipment in circumstances leaving its own area unprotected, but only the discretionary use of such equipment at such times as may be deemed advisable by the appropriate city officials.

It will be noted that the injunction here issued by the trial court contains no exception, and prohibits use of fire equipment or firemen outside the corporate limits even in the case of public buildings constructed from tax funds to which the people of Pueblo have contributed. It applies, regardless of the location, nature or threatened consequences of the fire, and regardless of whether its extinguishment might save the city itself from serious conflagration.

It appears from the court's opinion that the principal grounds for issuing the writ were: First, that the operation of a fire department is a governmental function and in its exercise the municipality has no extraterritorial powers; and, second, that the purpose of a municipal corporation is to promote the welfare and interests of its inhabitants, not of those residing outside its limits, and that the welfare and interests of the municipality and its inhabitants are not being promoted by the extinguishment of fires outside the corporate limits.

We do not challenge the rule that in exercising a governmental function a municipality generally has no extraterritorial powers, except as they may be delegated by the legislature, but the authority of permissive statute is essential, not because the city may otherwise not act outside its limits, but rather because it does not have the power to enforce its actions upon the people or property against which it acts in invitum, in the absence of statute. The question here before us does not concern the right to enforce a municipal power against properties or citizens outside the city limits, but rather the right of city officials to volunteer service outside. The distinction, we think, is fundamental, and in cases involving actions of municipal authorities outside the city limits, it is important to distinguish which question may be involved: the power to enforce the authority of the municipality as against property or people outside its borders, or the right of municipal officers to act outside the city limits where no enforcement of authority is involved. The former right, if existing at all, is absolute; the latter is discretionary and dependent on purpose and result. The former, as raised in People v. Raims, 20 Colo. 489, 39 P. 341, is dependent on legislative delegation of authority; the latter is dependent on whether or not the use of the city's officers or facilities or funds is, or is not, for the benefit of the municipality. Admittedly the operation of a fire department within the city limits is a proper municipal activity. Its purpose is to benefit the city, and, where there is no conflict of rights, its relation to that purpose, rather than arbitrary city boundary lines, must determine the extent of its use.

As to the second ground, we cannot agree with the unsupported declaration of the trial court that the welfare and public interest of the municipality and the taxpayers therein are neither promoted nor protected by permitting the city's fire department to accept calls for the extinguishment of fire outside the municipality's corporate limits, even where public buildings are not involved. In many cases prompt action in extinguishing a small fire outside the city limits may prevent its increase and spread across the city line with disastrous results to the city and its taxpayers. The destruction by fire of a factory located outside the city limits may deprive resident taxpayers of means of livelihood and they and the city suffer loss thereby. Mutual assistance by neighboring cities may well work to the advantage of each. Perhaps in some cases the very good will acquired by assistance outside the city in emergency may be of value to the city and its taxpayers. On the other hand, there are doubtless many cases many cases where large districts refuse to become annexed to the city, and the burden of furnishing fire protection to such areas becomes an imposition on the city and its taxpayers, and discretion might well require refusal of fire service except where there is danger of the fire spreading across the city lines.

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