Newton v. City of Fort Collins

• Decision Date: 07 December 1925
• Docket Number: 11425.
• Citation: 78 Colo. 380,241 P. 1114
• Parties: NEWTON et al. v. CITY OF FT. COLLINS et al.
• Court: Colorado Supreme Court

241 P. 1114

78 Colo. 380

NEWTON et al. v. CITY OF FT. COLLINS et al.

No. 11425.

Supreme Court of Colorado, En Banc.

December 7, 1925

Error to District Court, Larimer County; Charles C. Butler, Judge.

Suit by Byron Newton and others against the City of Ft. Collins and others. From a judgment dismissing the complaint, plaintiffs bring error and apply for supersedeas.

Supersedeas denied, and judgment affirmed.

Thomas J. Warren and Fred W. Stow, both of Ft. Collins, for plaintiffs in error.

Neil F Graham, of Ft. Collins, and Pershing, Nye, Tallmadge &amp Bosworth, of Denver, for defendants in error.

DENISON, J.

Newton and others, taxpayers of the city of Ft. Collins, brought suit against that city and members of the city council to enjoin proceedings under an ordinance of the city to extend waterworks and issue bonds for that purpose. A demurrer to their amended complaint was sustained, they stood by their complaint, and the cause was dismissed; they bring error. The judgment was right. The court below rendered a written opinion with which we agree, and this opinion is scarcely more than an abstract of it.

The question is whether the said proceedings could be had without a vote of the taxpaying electors of the city. The proposition of the plaintiffs in error is that they could not, because subdivision 67 of section 8987, C. L., requires such a vote before waterworks may be erected, because the purpose of the ordinance is alleged to be to erect a new system rather than add to the old, and because the Twentieth Constitutional Amendment requires such vote.

The question before us may be divided for discussion into two parts: First, can the city erect waterworks without a vote of the taxpaying electors? Second, can the city issue bonds for such purpose without such vote?

On the first question: We have repeatedly held that the Twentieth Amendment conferred upon cities adopting charters every power possessed by the Legislature in granting charters; therefore Ft. Collins, a self-chartered city, has constitutional power to erect waterworks. There is no constitutional provision requiring a vote of the electors, or any of them, for this purpose; but the contention is that by section 2 of article 20 of the Ft. Collins charter the erection of waterworks is forbidden until approved by the electors. That section is as follows:

'The laws of the state of Colorado in force at the time this charter goes into effect in relation to cities of the second class shall apply to and be the law applicable to Ft. Collins in all respects, except in so far as they conflict with the provisions of this charter or amendments hereafter made hereto, or the ordinances of Ft Collins, enacted pursuant to the authority granted by this charter, and where so in conflict, and where existing ordinances or parts thereof are in conflict, the same are hereby repealed.'

The contention is that this was an adoption of paragraph 67 of section 8987 above mentioned; but, if it was, any ordinance or part of the charter in conflict therewith would repeal it and the ordinance at present in question, if in conflict therewith, repeals it. It is therefore inconsequential whether the ordinance is for the purpose of erecting or extending the waterworks of the city. Said section...