Mayor v. Shattuck

• Decision Date: 30 October 1893
• Citation: 19 Colo. 104,34 P. 947
• Parties: MAYOR, ETC., OF TOWN OF VALVERDE v. SHATTUCK et al. [1]
• Court: Colorado Supreme Court

34 P. 947

19 Colo. 104

MAYOR, ETC., OF TOWN OF VALVERDE v. SHATTUCK et al. ^[1]

Supreme Court of Colorado

October 30, 1893

Error to Arapahoe county court.

Petition by N. B. Shattuck and others, citizens of the town of Valverde, for the dissolution of that town, and for its annexation to the city of Denver. From the order entered requiring an election on question presented, the mayor and trustees of the town bring error. Reversed.

The other facts fully appear in the following statement by ELLIOTT, J.:

Special proceeding in the county court under the act of April 11 1893, providing for the annexation of contiguous towns and cities. See Session Laws of that year, page 451. Upon petition by citizens of the town of Valverde for the dissolution of said town, and for its annexation to the city of Denver, the court made an order requiring the mayor and trustees of said town to call an election for the purpose of determining the question of dissolution and annexation. The original order required the question to be submitted 'to a vote of the qualified electors of the town of Valverde entitled to vote at said election.' Subsequently the mayor and three of the trustees of said town appeared, and by a counter petition prayed that the order requiring the election might be vacated, on the ground, as they alleged that the legislative act under which the order was obtained is unconstitutional and void. Upon further consideration it was adjudged by the court that said act, 'in so far as it prescribes a property qualification for voters, is unconstitutional and void; but that the remainder of said act is, nevertheless, valid and sufficient;' and thereupon the original order was by the courts so modified as to require the mayor and trustees of said town to call an election for the submission of the question by ordinance to a vote of the qualified electors of said town, 'without regard to the payment of a property tax therein.' To reverse the judgment of the county court, the mayor and trustees bring the record of the proceedings to this court by writ of error.

The following provisions of the constitution of Colorado are referred to, but not quoted at length, in the opinion Article 10: 'Sec. 7. The general assembly shall not impose taxes for the purposes of any county, city, town, or other municipal corporation, but may by law vest in the corporate authorities thereof respectively the power to assess and collect taxes for all purposes of such corporation.' Article 11: 'Sec. 1. Neither the state nor any county, city, town, township or school district shall lend or pledge the credit or faith thereof, directly or indirectly, in any manner to or in aid of any person, company or corporation, public or private, for any amount or for any purpose whatever, or become responsible for any debt contract or liability of any person, company or corporation, public or private, in or out of the state. * * * Sec. 8. No city or town shall contract any debt by loan in any form, except by means of an ordinance, which shall be irrepealable, until the indebtedness therein provided for shall have been fully paid or discharged; specifying the purposes to which the funds to be raised shall be applied, and providing for the levy of a tax, not exceeding twelve (12) mills on each dollar of valuation of taxable property within such city or town, sufficient to pay the annual interest, and extinguish the principal of such debt within fifteen, but not less than ten years from the creation thereof; and such tax when collected shall be applied only to the purposes in such ordinance specified, until the indebtedness shall be paid or discharged. But no such debt shall be created unless the question of incurring the same shall at a regular election for councilmen, aldermen or officers of such city or town, be submitted to a vote of such qualified electors thereof as shall, in the year next preceding, have paid a property tax therein, and a majority of those voting on the question, by ballot deposited in a separate ballot box, shall vote in favor of creating such debt; but the aggregate amount of debt so created, together with the debt existing at the time of such election, shall not at any time exceed three per cent. of the valuation last aforesaid. Debts contracted for supplying water to such city or town are excepted from the operation of this section. The valuation in this section mentioned shall be in all cases that of the assessment next preceding the last assessment before the adoption of such ordinance.' Article 15: 'Sec. 12. The general assembly shall pass no law for the benefit of a railroad or other corporation, or any individuals or association of individuals, retrospective in its operations, or which imposes on the people of any county or municipal subdivision of the state, a new liability in respect to transactions or considerations already past.'

Syllabus by the Court

1. Where part only of a legislative act is void, the residue may sometimes be upheld; but judicial authority cannot substitute anything in place of the void part. If the residue of the act cannot stand with the void part cast out, then the whole act must fall; and where a statute has but a single object, if the provisions for the accomplishment of that object be void, the whole act fails.

2. In general, the legislature has plenary power in respect to municipal corporations, and a legislative act relating thereto will be upheld, unless its unconstitutionality is clearly and palpably apparent. As a town or city increases in population, territorial enlargement, public improvements, and modifications of its local government become necessary to the enjoyment of life, the protection of health, and the security of property.

3. The word 'elections,' in section 1, art. 7, of the constitution, is not used in its general or comprehensive sense, but in its restricted political sense, meaning public elections for the choice of public officers. A statute requiring the question of the annexation of a town or city to be submitted to the determination of such qualified electors of the municipality as have in the year next preceding paid a property tax therein, is not unconstitutional.

4. The term 'township' in the legal nomenclature of this state refers to an involuntary corporation, or quasi corporation, and not to a voluntary municipal corporation, such as an incorporated town. Special legislation is not forbidden in respect to incorporated towns or cities, except in cases where a general law can be made applicable.

5. The municipal authorities of incorporated towns and cities may be invested with power to license, regulate, prohibit, or suppress the traffic in intoxicating liquors, subject to the general laws of the state; and such traffic may be prohibited in one part of a town or city and licensed in another part, as the public welfare may require.

6. The constitution of this state does not make it imperative that there shall be local aldermanic representation in towns or cities.

7. Section 10 of the act of 1893, relating to the annexation of contiguous towns and cities, is not obnoxious to certain constitutional provisions relating to taxation and public indebtedness. Article 10, §§ 3, 7; article 11, §§ 1, 8; article 15, § 12,--considered.

J. W. Helbig, for plaintiffs in error.

F. A. Williams, Helm & Goudy, and Platt Rogers, for defendants in error.

ELLIOTT, J., (after stating the facts.)

The assignments of error are to the effect,--First, that the final judgment, or modified order, of the county court is contrary to the terms of the annexation act under which this proceeding was instituted; and, second, that the act itself is unconstitutional and void.

1. That the modified order does not follow the terms of the act is apparent from the language of sections 2 and 5, hereinafter quoted. See Sess. Laws 1893, p. 451 et seq. The county court evidently concluded that the objection to the statute on the ground of its supposed unconstitutionality might be obviated by rejecting that part prescribing a taxpaying qualification for voters, and that the residue of the statute might be upheld. A brief examination of the object and purpose of the act will show whether such conclusion is correct or otherwise. The object of the act in question is to provide for the annexation of contiguous towns and cities. Section 2 requires that the question of dissolution and annexation be submitted 'to a vote of such of the qualified electors of such town or city [to be annexed] as have in the year next preceding paid a property tax therein.' Section 5 further provides that 'no ballot on the question submitted shall be received by the judges of election unless the person offering the same shall be a duly-qualified voter in the election precinct in which he offers to vote, and entitled to vote in such precinct at said election, and, in addition thereto, shall have in the year next preceding said election paid a property tax in said town or city.' Section 8 provides that if a majority of the votes so cast shall be 'for annexation,' a report showing the result of the election shall be duly prepared certified, and filed in the office of the clerk of the county court; that the court shall examine the same, and, if satisfied that the proceedings have been regular, shall approve the report; and that from and after such approval such town or city shall be dissolved, and the territory then included within the boundaries thereof shall be and become annexed to, and part of, the city existing under special charter. Those provisions which require the submission of the question of dissolution and annexation to the determination of taxpaying electors lie at the very foundation of the act itself. If a majority of the votes be ...