DeMoulin v. City and County of Denver

• Decision Date: 24 January 1972
• Docket Number: No. 24315,24315
• Citation: 495 P.2d 203,177 Colo. 129
• Parties: Charles J. DeMOULIN et al., Plaintiffs in Error, v. The CITY ANC COUNTY OF DENVER, a body politic and corporate, et al., Defendants in Error.
• Court: Colorado Supreme Court

Page 203

495 P.2d 203

177 Colo. 129

Charles J. DeMOULIN et al., Plaintiffs in Error, v. The CITY ANC COUNTY OF DENVER, a body politic and corporate et al., Defendants in Error.

No. 24315.

Supreme Court of Colorado, En Banc.

Jan. 24, 1972.

Rehearing Denied April 17, 1972.

Carroll & Bradley, P.C., John S. Carroll, Marvin B. Woolf, Denver, for plaintiffs in error.

Max P. Zall, City Atty., Brian H. Goral, Asst. City Atty., Denver, for defendant in error City and County of Denver and its Election Commissioners.

Lee, Bryans, Kelly & Stansfield, Donald D. Cawelti, Denver, for defendant in error Public Service Co. of Colorado.

GROVES, Justice.

The parties appear here in the same order as in the trial court. The plaintiffs sought to void a special election held on February 7, 1967. There a 20-year franchise was granted to Public Service Company of Colorado for use of the Denver city streets and public ways for the distribution of electricity, gas and steam. Trial was to the court, which, at the conclusion, dismissed the complaint. We affirm.

Colo.Const. art. XX, § 4 and Denver Charter § C3.1 describe the proper electorate for such an election as 'qualified taxpaying electors.' Only those who had paid a property tax to the City and County of Denver during the twelve months preceding the election were permitted to vote upon the franchise. Registered, non-taxpaying voters were permitted to vote upon other propositions on the ballot. There were 204,687 registered voters. Of these, 91,691 voted at the special election. There were 76,601 who voted as to the franchise matter and, presumably, the remaining 15,090 were not permitted to vote on that question. The franchise was approved by a vote of 66,566 to 10,035, with 56,531 more 'for' votes than those 'against.'

The plaintiffs contend that the denial of the right to vote on the franchise by non-taxpaying electors is a denial of equal protection under the Fourteenth Amendment. While we do not reach the question, it is noted in passing that Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), and Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), which are cited here in support of reversal, were announced subsequent both to the election and the trial court's determination. The trial court ruled that Denver's election commission improperly defined the term 'qualified taxpaying electors.' It held, nevertheless, that relief of voiding the election could not be granted because there was no allegation and showing that, absent the illegality, the result would have been otherwise.

We agree with this latter ruling, except that the allegation and showing need only be that the result Could have been, and not Would have been, otherwise. Suttle v....