Cook v. City of Delta, 14014.

• Decision Date: 11 January 1937
• Docket Number: 14014.
• Parties: COOK et al. v. CITY OF DELTA et al.
• Court: Colorado Supreme Court

64 P.2d 1257

100 Colo. 7

COOK et al. v. CITY OF DELTA et al.

No. 14014.

Supreme Court of Colorado, En Banc.

January 11, 1937

Rehearing Denied Feb. 1, 1937.

Error to District Court, Delta County; Straud M. Logan, Judge.

Action by A. Irving Cook and others, as taxpaying electors, for themselves and for all others similarly situated, against the City of Delta, Colorado, and others. To review an adverse judgment, plaintiffs bring error, defendants assigning cross-errors.

Reversed in part, and affirmed in part.

Charles E. Blaine, of Delta, Moynihan, Hughes &amp Knous, of Montrose, Fairlamb & Fairlamb, of Delta, and Moynihan & Hughes, of Montrose, for plaintiffs in error.

Milton R. Welch, of Delta, and Clyde C. Dawson, Jr., and Pershing Nye, Bosworth & Dick, all of Denver, for defendants in error.

YOUNG Justice.

The parties to this litigation appear here as in the district court, and reference will be made to them as plaintiffs and defendants.

The city of Delta operates under a charter adopted pursuant to article 20 of the State Constitution and is known as a home rule city. Its electric and power demands are now supplied by a privately owned public utility the franchise of which expired in 1928. Section 100 of the city charter as adopted in 1912 provided that the city might acquire a municipal light and power plant only after submission of the question of such acquisition to a vote of the taxpaying electors of the city and if a majority of such voters was in favor thereof. At the election in November, 1935, an amended section 100 was submitted to the general electorate of the city, a majority of whom voted in its favor. The section as amended is as follows: 'Sec. 100. Municipal Electric Light and Power System. The City Council shall have the right, and without other or further preliminaries, it shall be the duty of the City Council forthwith to acquire, by any lawful means, a municipal electric light and power system, consisting of a generating plant and distribution system with all necessary appurtenances, and to issue in full payment therefor municipal electric light and power, interest bearing, revenue bonds, which bonds shall be payable solely out of the earnings and revenues to be derived from the operation of said system and secured by a pledge of such earnings and revenues, such revenue bonds in no event to be paid by taxation or out of the general funds of the city, except that the city shall pay reasonable rates for all light and power service actually rendered to the City of Delta, or its agencies, as such services accrue, should the city elect to avail itself of such services. The City Council shall have power to maintain and operate said system for the use and benefit of said city and its inhabitants and shall have all other powers and shall adopt all means necessary or appropriate to carry out the requirements, purpose and intent of this section in accordance with the most liberal construction which may be placed thereon. Any and all parts of the city Charter and all laws in conflict herewith are hereby repealed.

'Paragraph 2. The foregoing amendment shall be voted upon by the qualified electors of the City of Delta in accordance with the provisions of Article XX of the Constitution of the State of Colorado and the Charter of said city.

'Dated at Delta, Colorado, October 3, 1935.'

Plaintiffs brought this action as taxpaying electors of the city for themselves and all others similarly situated seeking to have the amendment declared null and void, to enjoin the secretary of state from filing it; to enjoin the city and the three city commissioners from taking any action pursuant thereto, and particularly from issuing any revenue bonds unless the matter of such issuance should first be submitted to and approved by a majority vote of the taxpaying electors of the city. To reverse an adverse judgment of the district court the plaintiffs prosecute this writ of error.

Except as to certain issues raised by assignment of cross-errors, which will hereafter be noticed, the numerous assignments of error in effect present but four questions: (a) Have the plaintiffs the capacity to prosecute the action? (b) Did the people of Delta have the power to write the provisions of section 100, as amended, into their charter? (c) If they had such power, did they comply with the procedural requirements for doing so? (d) Was it necessary to submit to the taxpaying electorate of the municipality, a home rule city, the question of issuing revenue bonds payable out of the earnings of a light and power plant thereafter to be constructed?

If questions (b) and (c) are answered in the affirmative and (d) in the negative, we need not determine the capacity of plaintiffs to bring to action. Inasmuch as we hold that these questions must be so answered, we express no opinion as to the capacity of the parties as taxpaying electors to sue, but expressly reserve that matter for determination if and when necessary, in a cause properly Before us.

The state possesses all powers, not expressly or impliedly delegated to the federal government or which it is prohibited from exercising by the Federal Constitution. Upon the exercise of its residual powers it has by its Constitution placed certain restrictions: Some in the nature of absolute prohibitions; some prescribing certain methods by which its powers must be exercised; some by way of a grant of powers to subordinate governmental agencies which are in effect a restriction on its own exercise of such of its residual powers as it thus grants. Since the state has all the power it has not delegated or the exercise of which it has not restricted, its subordinate governmental agencies are vested only with powers expressly or impliedly granted by the Constitution or statutes and they can exercise no other.

Article 20 of the State Constitution is an express grant of certain powers to cities availing themselves of its provisions, and of all such incidental powers as are necessary to confirm to such cities the 'full right of self-government in both local and municipal matters.' Section 6, article 20, State Const. Section 1 expressly grants to home rule cities the right to 'construct, condemn and purchase, purchase, acquire, lease, add to, maintain, conduct and operate * * * light plants, power plants * * * and everything required therefor, for the use of said city * * * and the inhabitants thereof.' Since the avowed intention of the article is to give to the city the full right of self-government in both local and municipal matters, the power granted with respect to light plants must be a grant of power concerning either local or municipal matters or both. In Town of Holyoke v. Smith, 75 Colo. 286, 226 P. 158, we said: 'The operation of the electric light plant by the town of Holyoke is the performance of a municipal function, specifically authorized by statute. Section 8987, C.L. 1921.' In that case we used also the following language: 'It should not be overlooked that a lighting system is owned and operated by a municipality, in a proprietary, and not in a governmental, capacity. As such it is not subject to legislative control.' In People ex rel. v. Loveland, 76 Colo. 188, 230 P. 399, the decision in Town of Holyoke v. Smith, supra was approved.

Since the constitutional amendment expressly delegates the power to acquire light plants and power plants, it remains next to be determined whether the city followed the proper method in exercising such power.

Plaintiffs say the charter prescribes a method which was not followed. Under article 20, supra, the general electorate of the town is authorized to create its charter. The original charter of the city of Delta gave to a limited portion of the general electors, namely, the taxpaying electors, the right to pass upon the question of acquiring a municipal power and light plant, which right they held merely by sufferance of the general electorate that could at any time take away what it had given, provided it followed the procedure prescribed by law. We have observed that section 1 of article 20 provides that the municipal corporation shall have the power to acquire a light and power plant. There is no constitutional grant to the taxpaying electors of the right to determine whether a light or power plant shall be acquired or constructed. This court expressly so held in Newton v. Fort Collins, 78 Colo. 380, 241 P. 1114.

Chapter 192, Session Laws of 1927 (page 730), recognizes the power of home rule cities to provide by charter the methods for acquiring or constructing light and power plants. That chapter lays down the plan to be followed even by home rule cities 'unless otherwise provided by the Charter of such city or town.' Section 1. A recognition of the fact that they may so provide is an acknowledgment that they possess the power to do so.

It is claimed that since by section 8 of the Charter the city adopted certain state laws relating to elections, that all of the proceedings outlined by statute for submitting an initiated measure must be followed in submitting a charter amendment. These provisions are found in section 1, article 5, of the Constitution, which is made self-executing and in sections 26 to 42, C.L.1921. Section 8 of the Delta charter is as follows: 'General Election Regulations. The provisions of any state law now or hereafter in force relating to the qualifications and registration of electors, the manner of voting, the duties of election officers, the canvassing of returns, and all other particulars in respect to the management of elections, except as otherwise provided in this Article, so far as they may be applicable, shall govern all municipal elections; provided, also, that the council shall meet as a canvassing...