Norton v. People ex rel. Rudbeck
| Docket Number | 14358. |
| Decision Date | 20 June 1938 |
| Parties | NORTON et al. v. PEOPLE ex rel. RUDBECK. |
| Court | Colorado Supreme Court |
Rehearing Denied July 11, 1938.
In Department.
Error to District Court, Weld County; Claude C. Coffin, Judge.
Action in quo warranto by the People of the State of Colorado, on the relation of Mary M. Rudbeck, against L. P. Norton and others to test the sufficiency of the incorporation of the Town of Garden City. Judgment for relator, and defendants bring error.
Affirmed.
David W. Oyler and Nathan I. Golden, both of Denver, and Benjamin A. Woodcock, of Greeley, for plaintiffs in error.
J Emery Chilton, of Denver, and Herbert E. Mann, of Greeley for defendants in error.
Action in quo warranto testing the sufficiency of the incorporation of the town of Garden City in Weld county. The respondents who are plaintiffs in error here, are the mayor and members of the board of trustees, respectively, of the town. They apply for supersedeas and ask that the judgment of annulment of the incorporation and ouster against them be vacated, and the complaint dismissed. We think it will be for the best interest of all concerned to make final disposition of the matter on this application.
The issues were formed by appropriate pleadings. Relator demurred to respondents' third defense (statute of limitations), which demurrer was sustained, and the respondents elected to stand. At the trial, respondents interposed, ore tenus, a general demurrer to the complaint, which was overruled, following which relator submitted his proof.
There are sixteen assignments of error, all comprehended in the following defenses: 1. That the relator had not sufficient interest to bring the action; 2. That the complaint did not state facts sufficient to constitute a cause of action; 3. that the action was barred by special statute of limitation.
1. Relator, Rudbeck, had received written permission from the district attorney to bring the action, but respondents allege that he still is not qualified, because, at the time of the filing of the petition, he was not a resident of, or a taxpayer or voter in, Garden City, and had not that sufficiency of interest required of one who seeks as a private relator to maintain an action in quo warranto.
It will be noted that the code provision (35 C.S.A., vol. 1, c. 28, § 321, S.L.1887, p. 182, § 289) contains no particular requirements as to the private party, when the district attorney neglects or refuses to act, but since it is an adaptation of the general provisions of the common law requiring the private relator to have some special interest as distinguished from that held by the general public, such as that of being a voter, taxpayer, etc., we must determine whether relator here had such an interest.
The record discloses that he had operated a gasoline filling station in Garden City since 1932 under a long term lease; that some time prior to the filing of the petition herein, he agreed to, and did, buy the property which he had so operated, and made the payments therefor, although the deed to the same was taken in his wife's name Before this action was instituted. Tax receipts in the record show that he had paid the personal taxes assessed against property in the station for several years. While it is true his home was in Greeley, his source of livelihood was in, and the results of his labor came from, Garden City. Being in actual charge of the operation of his business in Garden City, and subject to its license and police regulations, we would say that he had a rather definite and substantial interest in the town--sufficient to satisfy the requirements laid down by our decisions. People ex rel. v. Grand River Bridge Co., 13 Colo. 11, 21 P. 898, 16 Am.St.Rep. 182; People ex rel. v. Regents, 24 Colo. 175, 49 P. 286; People ex rel. v. Lockhard, 26 Colo.App. 439, 143 P. 273; Canon City Club v. People, 21 Colo.App. 37, 121 P. 120. A slight interest has been held to fulfill this requirement. State ex rel. v. Tularosa Community Ditch, 19 N.M. 352, 143 P. 207. The complaint alleged, 'Relator, Harry M. Rudbeck, is a property owner in the town of Garden City, State of Colorado, and is operator and general manager of a filling station in said town.' This allegation, being well pleaded, was admitted by respondents' general demurrer, and on its face, supported by the proof as well, shows sufficient special interest.
2. The complaint, after reciting the capacity in which relator was suing, alleges in substance: That the respondents claimed to and did exercise authority as mayor and trustees, respectively, of a certain pretended town in Weld county, which was never legally organized or existing, by levying taxes, taking charge of streets and highways, issuing licenses, appointing town officers and otherwise intruding themselves into said offices, respectively, and usurping all power and authority within the described territory; that the petition for incorporation of the town was and is illegal, insufficient, and not in compliance with section 8979, Compiled Laws, 1921 ('35 C.S.A., vol. 4, p. 1302, c. 163 § 2), in that: (a) Less than thirty of the signers were bona fide landowners; (b) less than thirty of the signers were bona fide residents and; (c) less than thirty of the signers were qualified electors, respectively, in and of the territory embraced in said pretended incorporated town; that no one of said signers, exceptIda F. Ray, was at the time of signing and presenting said petition a bona fide owner, resident and qualified elector of said territory; that the election held on September 17, 1936, was a pretense, and that the respondents were elected to their respective offices in form only; that said pretended twon has no right to authority to exist as an incorporated twon other than the right attempted to be conferred by the aforesaid proceedings.
Counsel for respondents contend that these are mere conclusions of the pleader and do not tender any issues of fact. As to the allegations that certain things are illegal and not in conformance with the statute, that is true, but the allegations as to the signers not being bona fide landowners, residents and electors are certainly statements of ultimate fact which, being denied, tender issues that not only are material, but vital, because, if proved, the petition would be insufficient, and the incorporation based thereon, void. People ex rel. v. Stratton, 33 Colo. 464, 81 P. 245. This being established by satisfactory proof, the relief prayed for would follow as a matter of course. Velasquez v. Zimmerman, 30 Colo. 355, 70 P. 419; Eldred v. Johnson, 18 Colo.App. 384, 71 P. 891. We think the complaint states a cause of action.
3. The defense of the statute of limitations presents a more difficult problem. The statute relied on reads as follows 'Any city or twon which has been formed, organized or incorporated previous to the passage of this law, or which...
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