Howard v. City of Boulder, 17804
| Decision Date | 17 October 1955 |
| Docket Number | No. 17804,17804 |
| Parties | Reginald L. HOWARD, Plaintiff in Error, v. CITY OF BOULDER, a municipal corporation, John D. Gillaspie, Alfred H. Allen, Leo V. Aspinwall, Harold W. Copeland, Mrs. Bly E. Curtis, Abram A. McCoy, Leo C. Reithmayer, A. A. Wickstron, and James J. Yeager, as members of the City Council of the City of Boulder, Leonard R. Jones, as Director of Finance and Record and Ex-Officio Clerk of the City of Boulder, James D. Lewis, Robert G. Nelson, John J. Pudlik, Howard R. Wells and James Haggart, as members of the Committee for Petitioners designated pursuant to the Charter of the City of Boulder, Defendants in Error. |
| Court | Colorado Supreme Court |
Max D. Melville, Fred M. Winner, William G. Berge, Denver, for plaintiff in error.
Rinn & Connell, Boulder, for defendants in error.
On May 10, 1955, plaintiff in error as plaintiff and as taxpayer, filed a complaint in his own behalf and in behalf of others similarly situated, for injunction and declaratory relief in the district court against the city of Boulder, a municipal corporation; the individual members of the city council; the director of finance and ex-officio clerk of the city of Boulder and the members of the Committee for Petitioners designated pursuant to the charter of the city of Boulder.
The action was for relief against an initiated amendment to the charter of the city Boulder, changing the method of electing city councilmen from election at large to election from councilmanic districts geographically created. This attack is based upon a claimed violation of Article XX, Section 5 of the Colorado Constitution, adopted by reference in the Boulder charter, and further, as a violation of section 48 of the charter of the city of Boulder.
Defendants' motion to dismiss or for summary judgment was timely filed, as was their answer, and the entire matter, together with certain stipulated facts, was taken under advisement on July 27, 1955. The trial court, on August 31, 1955, determined all issues before it, including defendants' motion to dismiss, and entered its order dismissing the complaint, and dispensed with motion for new trial. A record on error according to designation was filed in this court; a writ of error issued; and, it being shown the matter is of great public importance, it is now before us for determination.
The charter amendment under attack was adopted at a special municipal election held October 26, 1954, at which election 2,972 votes were cast in favor of, and 2,568 votes were cast against said amendment. This fact is according to a stipulation in the record which also shows that the petition for charter amendment presented to the city council contained signatures in number more than ten per cent of the votes cast at the last gubernatorial election; that the ordinances submitting the proposed amendment to the people were duly enacted by the city council of the city of Boulder; and finally, that three named councilmen had theretofore been duly elected as such, their terms expiring in 1959, and that three other councilmen were duly elected with terms expiring in 1957.
Our hesitancy to interfere with the will, as expressed by a vote of the people, applies forcibly where the people voting are fully aware of what they are voting for or against. It is contended that the ballot title, submitted to the electors, did not contain a clear, concise statement, descriptive of the substance of the proposed amendment. It is contended also that plaintiff, as a taxpayer, did not have an interest sufficient to entitle him to bring this action.
As to the latter contention, we can conceive of no greater interest a taxpayer can have than his interest in the form of government under which he is required to live, or in any proposed change thereof. In the last analysis, this interest may well exceed any pecuniary interest he may have. The interest and concern of plaintiff as a taxpayer is not primarily confined to himself alone, but is of 'great public concern'; particularly so when it is apparent that the municipality and its officers have avoided doing anything that would raise the question of the validity of their acts under the charter amendment now under attack. If a taxpayer and citizen of the community be denied the right to bring such an action under the circumstances presented by this record, then wrong must go unchallenged, and the citizen and taxpayer reduced to mere spectator without redress. We can think of none who have a better right.
It is not disputed that the city of Boulder, by its charter, adopted the provisions of Article XX of the state Constitution including its provisions concerning amendments. By express language the charter compels compliance with the amendment requirements of Article XX of the state Constitution. The petition filed with the city council contained the full context of the ballot, which disclosed that the proposed amendment would effectuate certain changes in the charter; namely, one councilman to be elected from each of the nine councilmanic districts instead of nine councilmen being elected at large; that a councilman be required to be a taxpayer for two years before his election, whereas formerly he needed only be a qualified elector; the five year residence requirement is changed to three years; the...
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