Gordon v. Wheatridge Water Dist.

• Court: Colorado Supreme Court
• Writing for the Court: KNOUS, Justice.
• Citation: Gordon v. Wheatridge Water Dist., 107 Colo. 128, 109 P.2d 899 (Colo. 1941)
• Decision Date: 13 January 1941
• Docket Number: 14882.
• Parties: GORDON v. WHEATRIDGE WATER DIST. et al.

109 P.2d 899

107 Colo. 128

GORDON v. WHEATRIDGE WATER DIST. et al.

No. 14882.

Supreme Court of Colorado, En Banc.

January 13, 1941

Error to District Court, Jefferson County; Samuel W. Johnson Judge.

Proceeding by Jack G. Gordon against Wheatridge Water District, a quasi municipal corporation, Henry W. Wilmore, as president, Walter Vogeler as vice president, Stephen Burry as treasurer, and Arthur J. Apel as secretary of the board of directors of said district, seeking a declaratory judgment and injunctive relief. From a judgment for defendants, plaintiff brings error.

Judgment affirmed in part and reversed in part, and cause remanded with directions.

OTTO BOCK J., dissenting in part.

Thomas Keely, of Denver, for plaintiff in error.

Emory L. O'Connell and Myles P. Tallmadge both of Denver, for defendants in error.

KNOUS Justice.

The questions presented in this proceeding pertain to the alleged unconstitutionality of chapter 175, S.L.1939, chapter 173A, 1939 Supp. '35 C.S.A., providing for the organization of water and sanitation districts and arise on the issues raised by the demurrer of defendant in error district to the complaint of plaintiff in error, to whom we shall refer hereinafter as plaintiff, seeking a declaratory judgment and injunctive relief with respect to the matters involved. The district court sustained the demurrer and upon plaintiff's election to stand on his complaint, the court, in conformity with the practice under the uniform declaratory judgment law, sections 78 to 92, inclusive, chapter 93, '35 C.S.A., made certain findings and entered a decree wherein it was determined and declared, in substance, that the district, located in Jefferson county, had been organized, its officers elected and the issuance of its bonds in the principal sum of $90,000 authorized by the electors of the district, strictly in accordance with the provisions of the act first above cited; that such law was not unconstitutional, invalid or unenforcible on any of the grounds alleged in the complaint, and that the officers of the district might lawfully issue the bonds thereof and levy a tax on all of the taxable real property in the district for the payment of said bonds and interest thereon. Plaintiff does not contend that deviation from the terms of the act occurred in the organization of the district or in any of the subsequent transactions mentioned but, as he did in the trial court, asserts that the act itself offends the Constitution in four particulars.

First, it is said the act violates section 21 of article V of the Constitution which forbids, (1) the union in the same legislative bill of separate and distinct subjects, and (2) requires that the subject treated in the body of the bill shall be clearly expressed in the title. The enactment under consideration is entitled: 'An Act for the organization of water and sanitation districts and to define the purposes and powers thereof.' S.L.1939, c. 175, p. 597. Premised on the circumstance that section 2 thereof defines two types of districts, viz.: 'Water district' as 'one to supply water for domestic purposes by any available means,' and a 'sanitation district' as 'one to provide for sewage disposal,' and further states that 'A district may be created for a combination of water and sewer purposes', the plaintiff argues that the formation of three distinct and separate classes of districts are contemplated by the act, as a result of which it is said the act either embraces more than one subject, or that the provisions of the act itself are not in all particulars germane to the title. Our examination of the measure leads to a diverse conclusion. Clearly, we think, the contents of the entire statute merely provide for the organization and operation of districts which may perform any one or more of the defined functions singly or in combination. In other words, the latter functions are merely germane or subordinate to the main object expressed in the title, and, hence, no constitutional inhibition arises on this score. See Fahey v. State, 27 Tex.App. 146, 11 S.W. 108, 11 Am.St.Rep. 182.

As to the second mandate of the Constitution, supra, we are satisfied the title fairly expresses the subject matter of the act in such manner as to convey to the mind an indication of the object to which it relates, which is the criterion of sufficiency expressed in Johnson v. Harrison, 47 Minn. 575, 50 N.W. 923, 28 Am.St.Rep. 382. In Re Breene, 14 Colo. 401, 24 P. 3, 4, we said: 'The general assembly may, within reason, make the title of a bill as comprehensive as it chooses, and thus cover legislation, relating to many minor but associated matters. For example, an act entitled 'An act in relation to municipal corporations' may provide for the organization, government, powers, duties, offices, and revenues of such corporations, as well as for all other matters pertaining thereto. 'The generality of a title,' says Judge Cooley, 'is no objection to it so long as it is not made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection.' Const. Lim. (5th Ed.) 174, 180. It is not essential that the title shall specify particularly each and every subdivision of the general subject.'

It would seem in considering the constitutional sufficiency of the title of the enabling act for a public corporation of the pattern under scrutiny here that, in the sense above expressed, the standard applicable to municipal corporations should attain. We, therefore, conclude that plaintiff's first objection is without merit.

Section 13(l) of the act, relating to the powers of the board of directors, recites: 'To fix and from time to time to increase or decrease water and sewer rates, tolls or charges for services or facilities furnished by the district, and to pledge such revenue for the payment of any indebtedness of the district. The board shall fix such rates, tolls or charges as shall be approved by the public utilities commission of the state of Colorado.'

As his second contention, plaintiff asserts that the above provision for approval by the Public Utilities Commission of rates to be fixed by the board of the water district, violates section 8, article XVI of the Constitution, in that the board of county commissioners of the county in which the water district may be located thereby is deprived of the constitutional power conferred by the article and section last cited to establish reasonable maximum rates to be charged for the use of water. In so far as we are advised this constitutional provision has never been considered other than in controversies relating to the reasonableness of charges fixed by carrier ditches for the bulk carriage of water, and the statutes enacted in pursuance to this mandate seem to be so limited. See chapter 90, § 139 et seq., '35 C.S.A. It might be urged with logic that such section of the Constitution has no application in situations, seemingly paralleled in the proceeding Before us, where water is distributed be quasi municipal corporations through a system of pipe lines of small capacity solely for domestic purposes, including sewerage and sewerage disposal, involving many factors such as purification, filtering, and precipitation, not encountered in carrier ditch operations as ordinarily understood. However, we need express no convictions on the subject, and we do not, since, as we said in People ex rel. v. Letford, 102 Colo. 284, 79 P.2d 274, 290, on the basis of reasons there assigned in detail concerning similar objections directed to the Water Conservancy Act of Colorado, chapter 266, S.L.1937, chapter 173B, 1939 Supp. to '35 C.S.A.: 'In any event, these matters have no bearing upon the primary validity of the organization of the district or the act authorizing it, and at the most, the district administration would be subject only to the regulatory power of the county commissioners.'

Involved in the remaining objections are the following sections of the act:

'§ 14. In addition to the other means of providing revenue for such districts as herein provided, the board shall have power and authority to levy and collect ad valorem taxes on and against all taxable real property within the district.'

'§ 15. To levy and collect taxes as herein provided, the board shall, in each year, determine the amount of money necessary to be raised by taxation, taking into consideration other sources of revenue of the district, and shall fix a rate of levy which, when levied upon every dollar of assessed valuation of real property within the district, and with other revenues will raise the amount required by the district annually, to supply funds for paying expenses of organization and the costs of construction, operating and maintaining the works and equipment of the district, and promptly to pay in full, when due, all interest on and principal of bonds and other obligations of the district, and in the event of accruing defaults or deficiencies, an additional levy may be made as provided in section 16 hereof. * * *'

'§ 16. The board in certifying annual levies as herein provided, shall take into account the maturing indebtedness for the ensuing year as provided in its contracts, maturing bonds and interest on bonds, and deficiencies and defaults of prior years, and shall make ample provision for the payment thereof. In case the moneys produced from such levies, together with other revenues of the district, are not sufficient punctually to pay the annual installments on its contracts or bonds, and interest thereon, and to pay defaults and deficiencies, then the board shall make such additional levies of taxes as may be necessary for such purposes, and notwithstanding any

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