People ex rel. Elder v. Sours

• Citation: 74 P. 167,31 Colo. 369
• Parties: PEOPLE ex rel. ELDER, Treasurer, v. SOURS, Treasurer.
• Decision Date: 02 March 1903
• Court: Colorado Supreme Court

74 P. 167

31 Colo. 369

PEOPLE ex rel. ELDER, Treasurer, v. SOURS, Treasurer.

Supreme Court of Colorado

March 2, 1903

Original application for mandamus by the people, on the relation of C S. Elder, as treasurer of the city and county of Denver against Paul J. Sours, treasurer of the city of Denver, to compel him to turn over all the property in his possession belonging to the city of Denver. Granted.

The controversy is between C. S. Elder, treasurer of Arapahoe county, and Paul J. Sours, treasurer of the city of Denver. Prior to December 1, 1902, C. S. Elder served upon Paul J Sours a written demand and notice, in which it is stated that upon the issuance of the proclamation of the governor of the state, declaring that article 20 had been ratified by the people, he, the said Elder, became the treasurer of the city and county of Denver, and demanding that the said Paul J Sours deliver to him, as the treasurer of the city and county of Denver, all moneys, books, papers, records, and all property of every kind and nature belonging to the office of city treasurer of Denver. This demand was formally refused on the 1st day of December, 1902, and shortly thereafter the said C. S. Elder filed in this court his petition praying that the writ of mandamus issue, commanding the said Paul J. Sours to turn over to him, the said C. S. Elder, all the property of every kind in the hands of said Paul J. Sours and belonging to the city of Denver. To this petition Paul J. Sours filed his answer, in which he admitted that he had in his possession property belonging to the city of Denver, that a demand had been made upon him to turn over said property, and that he had declined to turn it over. He further set forth that he was the duly elected treasurer of the city of Denver, and that he held said property by virtue of his said office, and that the said Elder claimed the said property under an alleged amendment to the Constitution of the state of Colorado, known as article 20 thereof (Sess. Laws 1901, p. 97, c. 46); that said article 20 was not a part of the Constitution of the state, for the reason that the same had not been properly submitted to the people of the state for their approval or rejection. And in the amended answer it is averred that the bill for said constitutional amendment as passed by the Senate is not the same as that passed by the House, and that the provision of our Constitution, which requires that proposed constitutional amendments shall be entered in full upon the journals of the two houses, was not complied with.

The questions presented being of great public importance, we decided to take original jurisdiction of the cause under the section of the Constitution which authorizes this court to issue the writ of mandamus. What is called article 20 of the Constitution provides for the consolidation of the city and county governments of the city of Denver and of the county of Arapahoe within the limits of the city of Denver into one municipality, to be known as the 'City and County of Denver,' and for the government of such consolidated city and county. It is perhaps not necessary to set out the entire amendment. Section 1 is in part as follows: 'The municipal corporation known as the city of Denver, and all municipal corporations and that part of the quasimunicipal corporation known as the county of Arapahoe, in the state of Colorado, included within the exterior boundaries of the said city of Denver as the same shall be bounded when this amendment takes effect, are hereby consolidated, and are hereby declared to be a single body politic and corporate by the name of the 'City and County of Denver.' By that name said corporation shall have perpetual succession, and shall own, possess and hold all property, real and personal, theretofore owned, possessed or held by the said city of Denver and by such included municipal corporations, and also all property, real and personal, theretofore owned, possessed or held by the said county of Arapahoe, and shall assume, manage and dispose of all trusts in any way connected therewith; shall succeed to all the rights and liabilities, and shall acquire all benefits, and shall assume and pay all bonds, obligations and indebtedness of said city of Denver and of said included municipal corporations and of the county of Arapahoe; by that name may sue and defend, plead and be impleaded, in all courts and places, and in all matters and proceedings; may have and use a common seal and alter the same at pleasure; may purchase, receive, hold and enjoy, or sell and dispose of, real and personal property; may receive bequests, gifts, and donations of all kinds of property, in fee simple, or in trust for public, charitable or other purposes; and do all things and acts necessary to carry out the purposes of such gifts, bequests and donations, with power to manage, sell, lease or otherwise dispose of the same in accordance with the terms of the gift, bequest or trust; shall have the power, within or without its territorial limits, to construct, condemn and purchase, purchase, acquire, lease, add to, maintain, conduct and operate, water works, light plants, power plants, transportation systems, heating plants, and any other public utilities or works or ways local in use and extent, in whole or in part, and everything required therefor, for the use of said city and county and the inhabitants thereof, and any such systems plants or works or ways, or any contracts in relation or connection with either, that may exist and which said city and county may desire to purchase, in whole or in part, the same or any part thereof may be purchased by said city and county which may enforce such purchase by proceedings at law as in taking land for public use by right of eminent domain, and shall have the power to issue bonds upon the vote of the taxpaying electors, at any special or general election, in any amount necessary to carry out any of said powers or purposes, as may by the charter be provided.' It is then provided that the general annexation laws of the state shall apply to the new municipality as if it were not merged into the city and county of Denver, and that any contiguous town hereafter annexed to the city and county of Denver shall be detached per se from any other county, and become a municipal and territorial part of the city and county of Denver; and, further, that the city and county of Denver shall alone always constitute one judicial district of the state.

Section 2 provides that the officers of the new city and county, and their terms, duties, qualifications, and compensation, shall be as fixed by the charter.

Section 3, in general terms, provides for the transfer of government from the city of Denver and from the county of Arapahoe to the new municipality. It is set out in full later on in the opinion, because the alleged disagreement between the records of the two houses relates solely to the provisions of this section.

Section 4 provides for the making of a charter, and prescribes certain limitations to be contained in the charter concerning franchises. It is expressly provided in this section that the people of the city and county of Denver shall always have the exclusive power of making, altering, revising, or amending their charter.

Section 5 provides for new charters and amendments to the charter, and further provides that the city council shall, upon the request of 5 per cent. of certain qualified electors, submit any amendment to the charter or any measure requested in said petition to the electors of the city and county of Denver.

Section 6 empowers cities of the first and second class to submit to a vote of the qualified electors proposals for charter conventions, that they may adopt charters containing the provisions found in sections 4 and 5 of the article, and that they shall have the same power as to real and personal property and public utilities as is given in section 1.

Section 7 provides for the consolidation of the school districts within the territorial limits of the city and county of Denver.

Section 8 provides that anything in the Constitution of this state in conflict or inconsistent with the provisions of this amendment is to be inapplicable to the matters and things by the amendment covered and provided for.

Campbell C.J., dissenting.

Guy Le Roy Stevick, J. Warner Mills, Harry A. Lindsley, T. E. McIntyre, John A. Rush, George F. Dunklee, Charles S. Thomas, and Thomas M. Patterson, for plaintiff.

Charles J. Hughes, Jr., H. M. Orahood, T. E. Watters, C. P. Butler, Clay B. Whitford, Fred.

W. Parks, R. D. Rees, and H. B. O'Reilly, for defendant.

STEELE, J. (after stating the facts).

At the time of the filing of the pleadings in the case we determined that the burden was upon the respondent to establish the fact that the Constitution had been violated in proposing and submitting the amendment. At the outset it should be stated that every reasonable presumption, both of law and fact, is to be indulged in favor of the validity of an amendment to the Constitution when it is attacked after its ratification by the people. In the determination of these questions we ought constantly to keep in mind the declaration of the people in the Bill of Rights 'that the people of this state have the sole and exclusive right of governing themselves, as a free, sovereign and independent state; and to alter and abolish their Constitution and form of government whenever they may deem it necessary to their safety and happiness'; and we should examine the objections which have been raised against the validity of this amendment from the viewpoint of a fair and liberal construction, rather than from that of one which unnecessarily embarrasses the exercise of the right of amendment....