City of Westminster v. District Court In and For Adams County
| Decision Date | 18 November 1968 |
| Docket Number | No. 23640,23640 |
| Parties | The CITY OF WESTMINSTER, a municipal corporation existing in the County of Adams and State of Colorado, under and by virtue of the laws of the State of Colorado; the City Council of the City of Westminster; and Marshall E. Dodson, Vi June, Gilbert Bean, Harvey England, Harold Peterson, Donald Koch, and Harold F. Harris, individually and as members of and being and constituting the said the City Council of the City of Westminster, Petitioners, v. The DISTRICT COURT IN AND FOR the COUNTY OF ADAMS, State of Colorado, Clifford J. Gobble, as the Chief Judge thereof, and F. Leonard Pomponio, Rose Marie Pomponio, Yolanda Pomponio, Northgate Shopping Center, Inc., and F. Leonard Pomponio, Rose Marie Pomponio, and Yolanda Pomponio, as Co-Executors of the Estate of Felix Pomponio, Deceased, Respondents. |
| Court | Colorado Supreme Court |
Holland & Hart, Warren L. Tomlinson, James R. Stitt, Denver, for petitioners.
Morris Rutland, Creamer & Creamer, Denver, for respondents.
Charles B. Howe, Boulder, amicus curiae.
Original Proceedings
The City of Westminster has petitioned this court to decree that the Adams County district court is acting in excess of its jurisdiction in an annexation contest. We issued a show cause order to the court and other respondents, and they have answered. The matter is now at issue before the court without oral argument.
Westminster has alleged that it has complied with all the requirements of 1965 Perm.Supp., C.R.S.1963, 139--21--1 to 23, and has annexed 116 acres of unincorporated land which has been two-thirds contiguous to the City of Westminster for not less than three years. After notice and hearing and compliance with other steps provided by the statute, the annexation ordinance became effective June 1, 1968. On June 5, 1968 certain of the property owners, hereinafter referred to as respondents, filed an action in the district court to review the annexation proceeding. On the same day the district court, in an ex parte proceeding, issued the order here in question which provided, Inter alia:
'That all proceedings of the Defendants with relation to the annexations the subject matter of this action be and hereby are stayed pending further order of this Court, and the Defendants and each of them and all persons acting by, through, or under them are stayed from in any manner interfering with or seeking to interfere with the conduct of the package liquor store of the Plaintiff F. Leonard Pomponio or the business of the corporate Plaintiff, Northgate Shopping Center, Inc., or any of its tenants or the merchants in the said Northgate Shopping Center, all until final determination by this Court of the rights of the several parties hereto with relation to the said claimed annexation.'
On June 20 legal arguments were heard on Westminster's motion that the court dissolve the stay order. The motion was denied, and the original proceeding then followed in this court.
The central issue in this case relates to the validity and effect of 1965 Perm.Supp., C.R.S.1963, 139--21--16(1) which provides as follows:
'Effect of review and of voiding of annexation ordinance by court order.--(1) After the effective date of an annexation ordinance, the annexing municipality shall apply all pertinent ordinances to the annexed area irrespective of any proceedings for judicial review.'
The statutory language makes it clear that no discretion is afforded the annexing municipality. The statute is mandatory and therefore, absent a finding of inapplicability or unconstitutionality, the district court lacked jurisdiction to order the City of Westminster to disobey the clear mandate of the statute.
Respondents first point out that section 139--21--15(1)(a) of the annexation statute provides that a review proceedings shall be had in accordance with the Colorado Rules of Civil Procedure; and that rule 106(a)(4) gives the court power to issue a stay order.
The proceedings in the district court were pursuant to R.C.P.Colo. 106(b) as implemented by our decisions. Mesch v. Board of County Commissioners, 133 Colo. 223, 293 P.2d 300; Board of Adjustment of City and County of Denver v. Handley, 105 Colo. 180, 95 P.2d 823; County Court of Phillips County v. People, 55 Colo. 258, 133 P. 752; Morefield v. Koehn, 53 Colo. 367, 127 P. 234. It could not be seriously contended, although the words were 'dropped' among the verbiage in the complaint that the Westminster City Council had no jurisdiction to institute annexation proceedings or adopt ordinances pursuant thereto; and, as we have already pointed out, no discretion nor abuse thereof was involved. R.C.P.Colo. 106(a)(4). The proceedings were to review the annexation proceedings and for a court determination whether Westminster had regularly pursued its authority. In the complaint certain of the respondents as plaintiffs below alleged that they were exempt from annexation by reason of acreage and assessed valuation. Others challenged the constitutionality of certain specific sections of the annexation statute.
While it is true that we have recognized the power of courts to issue stay orders in certiorari proceedings, statutes may modify or abrogate that power. See 14 C.J.S. Certiorari § 108. In the annexation statutes it is clear that the legislature intended...
To continue reading
Request your trial
-
State Farm Mut. Auto. Ins. Co. v. Broadnax
... ... Nos. 91SA175, 91SA129 ... Supreme Court of Colorado, ... March 23, 1992 ... Page 532 ... Company (State Farm) appeals from two district court orders in two unrelated actions. In each ... 39, 493 P.2d 1086 (1972); City of Westminster v. District Court, 167 Colo. 263, ... Board of County Comm'rs v. Winslow, 706 P.2d 792 (Colo.1985), ... ...
-
Norwood v. Horney
... ... 2006-Ohio-3799 ... CITY OF NORWOOD, Appellee, ... HORNEY et al., ... No. 2005-1211 ... Supreme Court of Ohio ... Submitted September 28, 2005 ... Ohio Farm Bureau Federation and Hamilton County Farm Bureau ... Browning & ... , 1981), 644 F.2d 551, 559-560 (affirming district court's use of injunctive relief as part of its ... annexation proceedings, see, e.g., Westminster v. Adams Cty. Dist. Court. (1968), 167 Colo ... ...
-
Lloyd A. Fry Roofing Co. v. State Dept. of Health Air Pollution Variance Bd.
... ... No. 27093 ... Supreme Court of Colorado, En Banc ... Aug. 23, 1976 ... as Fry Roofing Company), challenges a district court order which imposed a fine and an ... 935, 226 P.2d 587 (1951); Penn-Dixie v. City of Kingsport, 189 Tenn. 450, 225 S.W.2d 270 ... 39, 493 P.2d 1086 (1972); City of Westminster v. District Court, 167 Colo. 263, 447 P.2d 537 ... ...
-
State Farm Mut. Auto. Ins. Co. v. Cabs, Inc., 86SA124
... ... No. 86SA124 ... Supreme Court of Colorado, ... Feb. 22, 1988 ... Company (Zone), appeals an order of the district court confirming an arbitration award entered ... in the juvenile and probate courts of the City and County of Denver, in all actions, suits and ... 39, 493 P.2d 1086 (1972); City of Westminster v. District Court, 167 Colo. 236, 447 P.2d 537 ... ...
-
Rule 106 FORMS OF WRITS ABOLISHED.
...respect they were not legislating on procedure but declaring by substantive law a legal status. City of Westminster v. District Court, 167 Colo. 263, 447 P.2d 537 (1968). Where the general assembly, in the interest of public safety, has provided a reasonable limitation upon the right to sec......
-
Preparation of the Appeal from an Administrative Decision
...Board of Examiners). 46. See generally V. Dittman, 5 Colorado Practice § 106.5 at 145. 47. See, e.g., Westminster v. District Court, 167 Colo. 263, 447 P.2d 537. 48. C.R.S. 1973, § 24-4-106(5). 49. C.R.S. 1973, § 24-4-106(4). 50. See, e.g., C.R.S. 1973, § 12-40-119(2) (90 days---State Board......
-
Rule 81 APPLICABILITY IN GENERAL.
...are inconsistent or in conflict therewith. Wright v. Tinsley, 148 Colo. 258, 365 P.2d 691 (1961); City of Westminster v. District Court, 167 Colo. 263, 447 P.2d 537 (1968); Durbin v. Bonanza Corp., 716 P.2d 1124 (Colo. App. 1986). If a statute creates a special statutory procedure relating ......