Colorado Open Space Council, Inc. v. City and County of Denver By and Through Bd. of Water Com'rs

• Decision Date: 29 December 1975
• Docket Number: No. 26748,26748
• Citation: 543 P.2d 1258,190 Colo. 122
• Parties: COLORADO OPEN SPACE COUNCIL, INC., a Colorado non-profit Corporation, et al., Plaintiffs-Appellants, v. The CITY AND COUNTY OF DENVER, acting By and Through its BOARD OF WATER COMMISSIONERS, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1258

543 P.2d 1258

190 Colo. 122

COLORADO OPEN SPACE COUNCIL, INC., a Colorado non-profit Corporation, et al., Plaintiffs-Appellants, v. The CITY AND COUNTY OF DENVER, acting By and Through its BOARD OF WATER COMMISSIONERS, Defendant-Appellee.

No. 26748.

Supreme Court of Colorado, En Banc.

Dec. 29, 1975.

DeMoulin, Anderson, Campbell & Laugesen, J. Kent Miller, Denver, for plaintiffs-appellants.

Lawrence R. Reno, Denver, for plaintiff-appellant Trout Unlimited.

George L. Zoellner, J. J. Petrock, Saunders, Snyder, Ross & Dickson, P.C., Glenn G. Saunders, Denver, for defendant-appellee.

DAY, Justice.

Plaintiffs-appellants (four nonprofit corporations and four named individuals) sought a declaratory judgment and an injunction decreeing a judicial limitation on the authority of defendant-appellee City and County of Denver, through the Denver Water Board, to deliver water outside of its political boundaries. This appeal is taken from an order of the trial court granting appellee's motion for judgment of dismissal on a single stipulated question of law: What is the extent of the authority of Denver to sell and deliver water outside its municipal limits? We affirm.

Colo.Const. Art. XX, Sec. 1 in relevant part provides that the city:

'. . . shall have the power, Within or without its territorial limits, to construct, condemn and purchase, purchase, acquire, lease, and to, maintain, conduct and operate, water works, light plants, power plants, transportation systems, heating plants, and any other public utilities or works or ways local in use and extent, in whole or in part, and everything required therefore, for the use of said city and county and the inhabitants thereof, . . ..' (Emphasis added.)

Accordingly, the trial court properly determined that Denver is constitutionally empowered to serve water users outside the city limits.

Art. XX, Sec. 6 provides home rule cities (including Denver) with the power to legislate on local and municipal matters: 'Such charter . . . shall supersede within the territorial limits And other jurisdiction of said city or town any law of the state in conflict therewith.' (Emphasis added.)

Sec. 6 further provides that a home rule city shall have all powers '. . . necessary, requisite or proper for the government and administration of its local and municipal matters, including power to legislate upon . . . (t)he consolidation and management of park or water districts in such cities or town Or within the jurisdiction thereof . . ..' (Emphasis added.) These provisions clearly indicate that Denver is constitutionally empowered to supply water beyond its boundaries.

In Fort Collins v. Public Utilities Commission, 69 Colo. 554, 195 P. 1099 (1921), we stated:

'. . . The Home Rule Amendment (Art. XX) was intended to reiterate unmistakably the will of the people that the power of a municipal corporation should be as broad as possible within the scope of a republican form of government of the state, . . .

'. . . a municipal corporation has power to . . . assume whatever power the Legislature might grant; . . ..'

The legislature has specifically defined selling water by a municipality both within and without its territorial boundaries to be a proper exercise of its powers. Section 31--12--101(39), C.R.S.1971. ¹ The legislature has empowered municipalities to operate and maintain water facilities for the benefit of users within And without their territorial boundaries. Section 31--35--402(1)(b), C.R.S.1973. ²

Denver is also a county as well as a city and, as such, could be said to have parallel powers to serve non-county water users under section 30--20--402(1) (b), C.R.S.1973. But there is no need to strain for the authority as Denver, a home rule city, has all the powers of a statutory city or town, unless otherwise provided by its charter. Denver v. Board of Commissioners, 113 Colo. 150, 156 P.2d 101 (1945).

Consistent with the above-cited constitutional and statutory provisions, Denver has specifically empowered their officials to lease water outside of the city limits, subject only to the limitations provided in the charter. The Denver City Charter C4.26 states:

'The Board shall have power to lease water and...