Davis v. Pueblo, 21515
| Decision Date | 11 October 1965 |
| Docket Number | No. 21515,21515 |
| Citation | 406 P.2d 671,158 Colo. 319 |
| Parties | W. H. DAVIS, Robert Borinsky, and Joe Kark, Plaintiffs in Error, v. PUEBLO, a Municipal corporation, and Duke W. Dunbar, as Attorney General of the State of Colorado, Defendants in Error. |
| Court | Colorado Supreme Court |
Thomas T. Farley, Pueblo, for plaintiff in error W. H. Davis.
Lawrence Litvak, George Louis Creamer, Denver, for plaintiffs in error Robert Borinsky and Joe Kark.
Gordon D. Hinds, City Atty., Pueblo, Dawson, Nagel, Sherman & Howard, Raymond
J. Turner, James B. Daley, Denver, for defendant in error.
Plaintiffs in error brought an action in the Pueblo District Court in which they sought to invalidate an ordinance authorzing the issuance of off-street parking revenue bonds of the City of Pueblo, which ordinance was adopted and approved February 24, 1964. We will refer to them as plaintiffs. The defendant in error, City of Pueblo, a home rule municipal corporation, will be referred to as Pueblo.
The Attorney General was named as a defendant in the court below, but was there dismissed from the suit. He has filed with this court a pleading indicating that he has no interest in the matter and is therefore not participating in this writ of error.
A trial was held on stipulation of the parties. The court in its findings of fact, conclusions of law and judgment declared the ordinance valid for the reasons:
1. That the bonds in question are legal revenue bonds payable from special funds and are not a debt or obligation of the city;
2. That because of their character as revenue bonds, the provisions of the charter of the City of Pueblo pertaining to the issuance of general obligation bonds are not applicable;
3. That the provisions of Article XI, section 8 of the Colorado constitution is not applicable to revenue bonds issued by a home rule city;
4. That the provisions of C.R.S.1963, 89-4-1 et seq., do not preclude Pueblo as a home rule city from authorizing and funding off-street parking facilities;
5. That no Colorado or Federal constitutional provisions or any Colorado law was violated by submitting the question of the acquisition and funding of off-street parking facilities to the taxpaying electors of Pueblo.
It is herein argued as gounds for reversal that each of these findings of the trial court is erroneous as is the judgment in favor of Pueblo.
We perceive no error in the judgment of the trial court and submit the following questions for resolution:
1. ARE THE BONDS AUTHORIZED BY THE ORDINANCE GENERAL OBLIGATION BONDS OF THE CITY OF PUEBLO?
This question is answered in the negative.
In support of their contention, the plaintiffs state that the ordinance, in addition to pledging the revenue from the off-street parking facilities, additionally provides for the use of parking meter revenues to be used for payment of interest and principal of the bonds. They assert that, traditionality, this revenue has gone into the general fund for the operation of the expenses of the city and that to the extent that the parking meter revenues are applied to these bonds, the general fund will be 'shorted' and that additional revenue, by ad valorem property taxes, will have to be raised to supplant the parking meter revenue heretofore available.
This argument presents no marterial differences from that asserted in Brodhead v. City and County of Denver, 126 Colo. 119, 247 P.2d 140. In that case we rejected the argument repeated in this writ of error, and the Brodhead case, being a complete answer, requires no lengthy comment. The reasoning in the Brodhead case has found support in other jurisdictions. See Poole v. City of Kanakee, 406 Ill. 521, 94 N.E.2d 416; Skidmore v. City of Elizabethtown, (Ky.) 291 S.W.2d 3; Gate City Garage v. City of Jacksonville, (Fla.) 66 So.2d 653. We hold, therefore, that the bond issue here under attack does not come within the purview of general obligation bonds.
2. DOES THE BOND ISSUE IN QUESTION CONTRAVENUE THE PROVISIONS OF ARTICLE XI, SECTION 8, OF THE COLORADO CONSTITUTION?
This question is answered in the negative.
The argument advanced here that the bond authorization violates the limitations imposed by the Colorado constitution, supra, was answered in Berman v. City and County of Denver, Colo., 400 P.2d 434. Therein we held that the matter of financing a program of capital improvements by a home rule city is one dealing with a local and municipal matter and that Article XX of the state constitution has superseded Article XI by providing, inter alia, 'Anything in the constitution of this state in conflict or inconsistent with the provisions of this amendment is hereby declared to be inapplicable to the matters and things by this amendment covered and provided for.' The home-rule amendment specifically empowers a home-rule city to issue bonds. If there is no limitation on the bonds in question in the city charter, neither Article XI nor Article XX are violated. The only limitation imposed in the Pueblo city charter refers to general obligation bonds, and, as we have held, the are revenue bonds.
3. DO THE PROVISIONS OF C.R.S.1963, 89-4-1 ET SEQ., APPLY TO THESE BONDS AND THE FACILITY SOUGHT TO BE PROVIDED?
This question is answered in the negative.
The statute alluded to by this argument refers to improvement districts. Assuming, but not deciding, that the statute may be followed by a home-rule city (as provided in 89-4-2), the statute is permissive but not mandatory if the improvement sought to be constructed is one of local and municipal concern. Pueblo did not, in the ordinance, seek to create an improvement district, and Pueblo, under its powers, is not precluded from following other methods in constructing and funding off-street parking facilities. In City and County of Denver v. Board of Commissioners, 113 Colo. 150, 156 P.2d 101, this court held that Denver, under Article XX of the constitution, is not restricted by an act of the legislature allowing acquisition and construction of...
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