Denver and Rio Grande Western R. Co. v. City and County of Denver

• Decision Date: 29 November 1983
• Docket Number: No. 83SA242,83SA242
• Parties: The DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY, a Delaware corporation; the Atchison, Topeka and Santa Fe Railway Company, a Delaware corporation, Plaintiffs-Appellees, and The Burlington Northern Railroad Company, a Delaware corporation, Involuntary Plaintiff-Appellee, v. The CITY AND COUNTY OF DENVER, a municipal corporation, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 354

673 P.2d 354

The DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY, a

Delaware corporation; the Atchison, Topeka and

Santa Fe Railway Company, a Delaware

corporation, Plaintiffs-Appellees,

and

The Burlington Northern Railroad Company, a Delaware

corporation, Involuntary Plaintiff-Appellee, v. The CITY AND COUNTY OF DENVER, a municipal corporation,

Defendant-Appellant.

No. 83SA242.

Supreme Court of Colorado,

En Banc.

Nov. 29, 1983.

Kathleen M. Snead, Denver, for The Denver and Rio Grande Western R. Co., plaintiff-appellee.

Grant, McHendrie, Haines & Crouse, P.C., Peter J. Crouse, Patrick A. Grant, Denver, for The Atchison, Topeka and Santa Fe R. Co., plaintiff-appellee.

No appearance for The Burlington Northern R. Co., involuntary plaintiff-appellee.

Max P. Zall, City Atty., Thomas A. Gilliam, Robert M. Kelly, John L. Stoffel, Jr., Asst. City Attys., Denver, for the City and County of Denver, defendant-appellant.

ERICKSON, Chief Justice.

This appeal was taken after the district court granted a writ of prohibition. The court found that the City and County of Denver (Denver) exceeded its jurisdiction by initiating proceedings under Ordinance 362 and publishing notice requiring The Denver and Rio Grande Western Railroad Company, The Atchison, Topeka and Santa Fe Railway Company, and The Burlington Northern Railroad Company (Railroads) to pay for construction of the West Eighth Avenue Viaduct (Viaduct). We affirm.

I.

The present Viaduct in Denver was constructed by the Colorado State Highway Department under the provisions of an agreement dated November 9, 1936. ¹ The Viaduct has deteriorated to the extent that it has been necessary for Denver to reduce the allowable weight limits of vehicles on the Viaduct. The continuing deterioration of the Viaduct may require Denver to close it for safety purposes within the next year.

In the early 1980's, Denver started appropriating funds to pay for the engineering, including design work and detailed plans and specifications, for a replacement for the existing Viaduct. Detailed plans and specifications for rebuilding the Viaduct were prepared and completed by the spring of 1982. These plans and specifications provide for a wider Viaduct on essentially the same centerline as the existing Viaduct, with minor variations. They also provide for new supporting columns, one of which would be located in the middle of a Rio Grande storehouse dock. Upon completion of the plans and specifications, the Mayor and the Manager of Public Works (Manager) decided to recommend to the Denver City Council that Denver proceed with the demolition of the existing Viaduct and the construction of a replacement Viaduct under the newly finished plans and specifications pursuant to Denver City Charter § A2.3-6 (1955).

In order to initiate the process under Denver City Charter § A2.3-6, the Mayor and the Manager presented Council Bill 407 to the City Council. Council Bill 407 authorized the Manager to secure estimates for the cost of constructing the Viaduct and directed him to adopt whichever plan for construction he decided was the most satisfactory. Upon the adoption of a plan, the Manager was directed to recommend a bill for an ordinance requiring the construction of the Viaduct and apportioning the cost as he deemed proper and reasonable among the Railroads. Before recommending the bill, the Manager was to give notice of the adoption of a plan and set a date for hearing all objections to the plan. The City Council passed Council Bill 407 as Ordinance Number 362 on July 6, 1982.

In accordance with the requirements of the ordinance, on December 30, 1982, the Manager published notice that he had adopted a plan for construction of the Viaduct, which he proposed to recommend to the council; had estimated the cost to construct it; and had prepared an apportionment of the total cost among the Railroads. The notice set a hearing for January 27, 1983, at which time the Manager would entertain any objections to the plan and other relevant matters including, but not limited to, the appropriate apportionment of the cost among the Railroads. On January 27, 1983, representatives of the Manager and of the Railroads agreed to postpone the hearing until February 24, 1983.

On February 23, 1983, the Railroads filed suit in Denver district court. The complaint sought relief under C.R.C.P. 106(a)(4); declaratory relief under the Uniform Declaratory Judgments Act, sections 13-51-101, et seq., C.R.S.1973, and C.R.C.P. 57; and injunctive relief. The Railroads asserted that the Department of Public Works and Denver did not have jurisdiction to hold the hearing scheduled in the notice of December 30, 1982. The Railroads contended that the Public Utilities Commission (PUC), and not Denver, has exclusive jurisdiction over the construction of and apportionment of costs for grade separation structures under Colo. Const. art. XXV and section 40-4-106(3), C.R.S.1973. ²

On February 23, 1983, subsequent to the filing of the complaint and a motion for stay of proceedings, the Railroads and Denver agreed to postpone further proceedings under the notice of December 30, 1982, until such time as the district court could rule on the Rule 106 motion for a stay of further proceedings. On March 8, 1983, the parties appeared before the district court on the Railroads' motion for the issuance of a rule to show cause and for a stay of further proceedings. Denver contended that it was premature for the district court to assume jurisdiction under Rule 106 because the Department of Public Works and the Denver City Council had not taken final action. Denver asserted further that a writ of prohibition was inappropriate because the Railroads claimed that Denver Charter § A2.3-6 was unconstitutional and a constitutional challenge cannot stand as a basis for relief under Rule 106. The district court ruled under Rule 106 that Denver, acting by and through the Manager, had exceeded its jurisdiction by issuing the notice of December 30, 1982 pursuant to Ordinance 362 and that the Railroads were entitled to a writ of prohibition. ³

The district court heard arguments and entered an order in the nature of prohibition on May 3, 1983. Thereafter, a motion for new trial was denied and notice of appeal was filed on May 31, 1983. On June 15, 1983, we entered an order expediting the briefing schedule and oral argument of the case.

II.

Denver claims that the order prohibiting it from proceeding under the notice of December 30, 1982, was inappropriate because the Railroads failed to exhaust their administrative remedies.

We agree that relief under Rule 106 was inappropriate insofar as the Manager may have made changes in his plan for the Viaduct or in his apportionment of costs. However, the basic issue here is the Railroads' challenge to Denver's authority over the construction of and apportionment of costs for a viaduct over railroad tracks. The Railroads' statutory and constitutional claims are the appropriate subjects for a declaratory judgment action. Bonacci, Jr. v. Aurora, 642 P.2d 4 (Colo.1982).

Although the district court here ruled under Rule 106, its ruling was in the nature of a declaratory judgment. The Railroads' complaint sought declaratory and injunctive relief on the same basis as Rule 106 relief. Therefore, rather than returning this case to the district court for a ruling on the statutory and constitutional questions under Rule 57 and the Uniform Declaratory Judgment Act, we shall treat the rulings entered as declaratory and injunctive. Although relief under Rule 106 on the facts of this case may have been premature, the district court had jurisdiction to declare that Denver was proceeding without authority and to enjoin Denver from proceeding to require the Railroads to pay for construction of the Viaduct.

III.

The thrust of Denver's argument is that Denver Charter § A2.3-6 is a proper exercise of the implied police powers granted under Colo. Const. art. XX, § 6 over the construction and apportionment of costs for viaducts within a home-rule municipality. Since the construction and apportionment of costs for viaducts is a matter of exclusive local and municipal concern, Denver claims that section 40-4-106, C.R.S.1973 (1982 Supp. & Colo.Sess.Laws 1983, ch. 453 at 1558-60), which grants jurisdiction to the PUC, is superseded and controlled by Denver Charter § A2.3-6. We reject Denver's argument.

The Home Rule Amendment, Colo. Const. art. XX, recognizes three broad categories into which subjects may be classified in matters of: (1) exclusive local and municipal concern; (2) exclusive state-wide concern; and (3) mixed local and state-wide concern. Woolverton v. City and County of Denver, 146 Colo. 247, 361 P.2d 982 (1961).

In matters involving exclusive local and municipal concern, home-rule charter provisions and ordinances supersede conflicting state statutes. DeLong v. Denver 195 Colo. 27, 576 P.2d 537 (1978); Vela v. People, 174 Colo. 465, 484 P.2d 1204 (1971); see also Colo. Const. art. XX, § 6, p 1 (the people have the power to adopt charters which extend to all its local and municipal matters). In matters of exclusive state-wide concern, state statutes supersede home-rule charter provisions and ordinances. Century Electric v. Stone, 193 Colo. 181, 564 P.2d 953 (1977); Pierce v. Denver, 193 Colo. 347, 565 P.2d 1337 (1977). If, however, the matter is of mixed local and state-wide concern, it must be determined whether there is a conflict between the charter provisions or ordinances and the state statute. If, for example, there is no conflict, the charter provisions and state statute may coexist. Greeley Police Union v. City Council, 191 Colo. 419, 553 P.2d 790 (1976); DeLong v. Denver, supra. If, on the other hand, there is a conflict, the statute supersedes the home-rule charter provisions. Century Electric v. Stone, supra; Denver v. Bossie, 83 Colo. 329, 266 P. 214 (1928); DuHamel v. People ex rel. Arvada, ...