Peaker v. Southeastern Colorado Water Conservancy Dist., 22936

• Decision Date: 05 April 1971
• Docket Number: No. 22936,22936
• Citation: 483 P.2d 232,174 Colo. 210
• Parties: Donald PEAKER, John Werme, Jr., and C. D. Buchner, Plaintiffs in Error, v. The SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT; J. Selby Young, William Bauserman, J. Sid Nichols, Harold Christy, George Everett, Jr., Tom McCurdy, James Wagner, Roy Cooper, Herbert Schroeder, James Shoun, Frank Dilley, David Ciruli, Frank Milenski, and Kenneth Shaw, constituting the Board of Directors of the Southeastern Colorado Water Conservancy District, Defendants in Error.
• Court: Colorado Supreme Court

Page 232

483 P.2d 232

174 Colo. 210

Donald PEAKER, John Werme, Jr., and C. D. Buchner, Plaintiffs in Error, v. The SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT; J Selby Young, William Bauserman, J. Sid Nichols, Harold Christy, George Everett, Jr., Tom McCurdy, James Wagner, Roy Cooper, Herbert Schroeder, James Shoun, Frank Dilley, David Ciruli, Frank Milenski, and Kenneth Shaw, constituting the Board of Directors of the Southeastern Colorado Water Conservancy District, Defendants in Error.

No. 22936.

Supreme Court of Colorado, En Banc.

April 5, 1971.

Norman E. Berman, Denver, Rexford L. Mitchell, Rocky Ford, for plaintiffs in error.

Fairfield & Woods, Charles J. Beise, Charles E. Matheson, Denver, for defendants in error.

DAY, Justice.

Plaintiffs in error, hereinafter referred to as Intervenors, are here appealing an order of the Honorable S. Philip Cabibi, Judge of the district court of Pueblo County, limiting the examination of records of the Southeastern Colorado Water Conservancy District, hereinafter referred to as District.

On July 14, 1966, the board of directors in what was designated as 'In the Matter of Southeastern Colorado Water Conservancy District' filed a petition requesting that the district court:

'(D)etermine the procedures to be followed in determining what persons are properly qualified to examine the books and records of the (District) and the terms and conditions under which such examinations should be made (and) the limits and extents thereof.'

The Intervenors were taxpayers owning property within the boundaries of the District and claimed concern about how the tax monies of the District were spent.

The Intervenors had made demand upon the District--among other things--to examine individual restaurant tickets and hotel statements for which vouchers had been drawn to pay the expenditures and also to examine the diary referred to by the District accountant which seemed to support some of the expenditures of the District. The District denied the request for such detailed data and resorted to the district court for guidelines as requested in the petition. Motion of the taxpayers appearing herein to intervene in the district court was granted. Another motion prior to hearing that Judge Cabibi disqualify himself was denied. Error is assigned to the issue of this disqualification of the judge as well as to the findings and rulings of the court.

In view of our disposition of this writ of error on the sole question of the jurisdiction of the trial court, the error assigned by the Intervenors need not be considered. We hold that the trial court did not, in fact, have jurisdiction as an overseer or supervisor of the District although both the court and the District directors appear to have assumed that it did.

The jurisdiction of the court below to hear the petition in question has not been challenged by the Intervenors. However, we have consistently held that '(t)his court may notice questions, not raised by the assignments of error, that appear on the face of the record, when such consideration is necessary to do justice.' Hoggard v. Gen'l Rose Hosp., 160 Colo. 459, 420 P.2d 144 (1966); and '(t)he general rule is that the question of jurisdiction may be raised at any stage of an action, and that, too without an assignment of error on the subject.' Baker v. Denver Tramway Co., 72 Colo. 233, 210 P. 845 (1922). See also Neilson v. Bowles, 124 Colo. 274, 236 P.2d 286 (1951); Universal Indemnity Ins. Co. v. Tenery, 96 Colo. 10, 39 P.2d 776 (1934); C.R.C.P. 12(h).

As noted above, the petition was lodged with the particular district judge under an allegation: 'That (the) court has original and exclusive jurisdiction over said Southeastern Colorado Water Conservancy District, the directors and officers thereof, and all property, contracts, books and records of said district * * *.' In its order setting a time for hearing on the above petition, the court found: 'That this proceeding is a continuing proceeding for all purposes and that this court has exclusive jurisdiction by law over The business and affairs of said district, the directors and officers thereof. * * *' (Emphasis added.)

We are unable to find either statutory or decisional authority for the proposition that the court below had continuing supervisory authority over the business and affairs of the District or the authority to give legal advice as to what records might be open to the public. Adversary proceedings regularly brought under applicable rules of procedure or actions for declaratory judgment are readily available to interested or affected members of the public concerning the corporate actions of the District or the individual actions of the District directors concerning the discharge of their official duties imposed by law.

The appropriate statutes governing the organization and powers exercised by water conservancy districts are found at C.R.S.1963, 150--5--1, et seq. In its appeal brief, the District cites section 150--5--6(2) as granting continuing...