Denver Chapter of Colorado Motel Ass'n v. City and County of Denver

• Citation: 150 Colo. 524,374 P.2d 494
• Decision Date: 17 September 1962
• Docket Number: No. 20313,20313
• Parties: The DENVER CHAPTER OF THE COLORADO MOTEL ASSOCIATION, INC., a nonprofit Colorado Corporation, the Denver City Hotel Association, Inc., a nonprofit Colorado Corporation, Writer's Kearney Motor Hotel, Inc., and Alfred B. Richardson, Plaintiffs in Error, v. CITY AND COUNTY OF DENVER, a Municipal Corporation; R. Y. Batterton, as Mayor of the City and County of Denver; and Walter J. Krstich, as Manager of the Department of Public Works of the City and County of Denver, and Thomas G. Currigan, as Auditor of the City and County of Denver, Defendants in Error.
• Court: Supreme Court of Colorado

Page 494

374 P.2d 494

150 Colo. 524

The DENVER CHAPTER OF THE COLORADO MOTEL ASSOCIATION, INC a nonprofit Colorado Corporation, the Denver City Hotel Association, Inc., a nonprofit Colorado Corporation Writer's Kearney Motor Hotel, Inc., and Alfred B Richardson, Plaintiffs in Error, v. CITY AND COUNTY OF DENVER, a Municipal Corporation; R. Y Batterton, as Mayor of the City and County of Denver; and Walter J. Krstich, as Manager of the Department of Public Works of the City and County of Denver, and Thomas G. Currigan, as Auditor of the City and County of Denver, Defendants in Error.

No. 20313.

Supreme Court of Colorado, En Banc.

Sept. 17, 1962.

C. Hamilton Evans, Charles S. Thomas, Denver, for plaintiffs in error.

Robert S. Wham, Tedford Dees, Denver, for defendants in error.

MOORE, Justice.

We will refer to plaintiffs in error as petitioners, to the City and County of Denver as the City, and to Thomas G. Currigan as the auditor.

In March, 1961, the Manager of Public Works of the City solicited proposals for the construction, operation and leasing of a hotel on certain ground at the airport operated by the City. The mayor of the City, with the approval of his cabinet, proposed to enter into a contract with an architect for the purpose of securing advice and expert analysis of proposals which would be received with reference to the contemplated hotel operation. April 13, 1961, the auditor refused to sign the proposed contract. August 28, 1961, the City filed an action in the district court in the nature of mandamus seeking a decree requiring the auditor to approve the contract. Shortly thereafter the council of the City adopted an ordinance authorizing the expenditure of $3,000.00 to compensate the architect for the services covered by the contract. On September 18, the city council by ordinance approved the proposed contract and the previous appropriation, and authorized, directed and empowered the proper municipal officers, '* * * to take such actions as may be necessary and desirable to implement such contract * * *.'

The auditor again refused to approve the proposed contract and thereafter the City filed an amended and Supplementary Complaint in which the prayer for relief sought the entry of a decree 'directing the * * * Auditor * * * forthwith to countersign and register the said contract * * *' which the City proposed to make with the architect. The auditor, appearing by special counsel, filed his answer.

The petitioners sought to intervene in the action in a so-called taxpayer's class action under Rule 24, C.R.C.P. The trial court, after oral argument, denied the application to intervene on the grounds that: (1) Applicants failed to show that they had any interest in the property involved; (2) the applicants have no rights directly involved; and (3) the applicants are properly protected and adequately represented through Thomas G. Currigan, as Auditor of the City, through his attorneys. The court dispensed with any further hearing on the application to intervene and held that such action by the court was a final order.

As grounds for reversal of the judgment it is contended by counsel for petitioners that:

'(1) As individual taxpayers, or otherwise, and as representatives of the class thereof, the plaintiffs have a right of action,

'(2) Representation of the plaintiffs' interests by existing parties is, or may be, inadequate,

'(3) The plaintiffs are, or may be, bound by a judgment in the subject action.'

In opposition to these contentions counsel for the City assert, among other propositions which we need not mention, that:

'I. Applicants have no right to intervene under Rule 24(a)(2) C.R.C.P.

'II. A taxpayer cannot intervene in an action brought by or against a municipality in the absence of fraud or some similar factor.'

The main trust of petitioners' argument is that their right to intervene is absolute and not permissive under R.C.P.Colo. 24(a)(2), the pertinent part of which reads as follows:

'Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action * * *.'

Under the record as presented to us it was a matter which rested within...