People ex rel. Shaklee v. Milan, 12678.

• Decision Date: 09 November 1931
• Docket Number: 12678.
• Citation: 89 Colo. 556,5 P.2d 249
• Parties: PEOPLE ex rel. SHAKLEE et al. v. MILAN.
• Court: Colorado Supreme Court

5 P.2d 249

89 Colo. 556

PEOPLE ex rel. SHAKLEE et al. v. MILAN.

No. 12678.

Supreme Court of Colorado, En Banc.

November 9, 1931

Error to District Court, Weld County; Robert G. Smith, Judge.

Action by the People of the State of Colorado, on the relation of Ross I. Shaklee and others, against Mike Milan. To review an adverse judgment, the named relator brings error and defendant assigns cross-errors.

Reversed and remanded with directions.

William R. Kelly and M. E. H. Smith, both of Greeley, for plaintiff in error.

S.E Naugle, of Denver, and T. A. Nixon, of Greeley, for defendant in error.

Ponsford & Pender, of Denver, amici curiae.

ALTER J.

Ross I Shaklee and Mike Milan were rival candidates for the office of director of the Second division of the Henrylyn irrigation district, a public and quasi municipal corporation. The directors' canvass of the votes cast at the election resulted in a determination that Milan had been successful; a certificate of election was thereupon issued and delivered to him, and he thereafter duly qualified and is now acting as a director of the Henrylyn district. Ross I. Shaklee, the unsuccessful candidate, contends that certain errors mistakes, and irregularities occurred at the election, but for which he would have been declared elected; he thereupon took the oath of office, tendered his statutory bond, and demanded the office, which was refused him. With the consent of the district attorney, and by leave of the district court, Shaklee and others began this action in the nature of quo warranto under the provisions of chapter 28, Code of Civil Procedure, C. L. 1921 (sections 321-330), to obtain a judicial determination of his claim to the office. Upon the trial, the district court found and determined that Milan had been legally elected, and was regularly qualified as director, and rendered its judgment accordingly. Shaklee prosecutes this writ, assigning as error certain adverse rulings of the trial court respecting the qualifications of voters at the election; cross-errors are also assigned as to adverse rulings. The trial court determined this matter upon stipulated and undisputed facts, and it may be said that the only difference between the parties arises over the proper construction to be given that portion of section 1963, C. L. 1921, Session Laws of 1917, p. 292, § 2, fixing the qualifications of voters under the irrigation district act. The portion of this act with which we are particularly concerned reads as follows: 'At all elections held under the provisions of this act every owner, or entryman of agricultural or horticultural land within said district, over the age of twenty-one years, who is a citizen of the United States, or has declared his intention to become a citizen of the United States, and is a resident of the State of Colorado, and who shall have paid property taxes upon the real property located within said district during the calendar year preceding any such election shall be entitled to vote at such election in the precinct where he resides, or, if a non-resident of the precinct, then in the precinct within which the greater portion of his land is located; * * * All lands platted or subdivided into residence or business lots shall not be considered agricultural or horticultural land, unless used exclusively for agricultural or horticultural purposes by the owner who shall reside thereupon and cultivate said lands as a farmer, gardener or horticulturist.' (Italics ours.)

It was stipulated that Hudson and Keenesburg are incorporated towns within the irrigation district, and that the plats of said towns on file in the office of the county assessor of Weld county, showing the subdivision of the lands within the towns into business and residence lots and blocks, are accepted as correct; that where one of several tenants in common has paid taxes on real property within the irrigation district, it shall be deemed to have been paid in behalf of and by each tenant in common; and, further, that payment of either general or irrigation taxes on real property in the irrigation district shall be considered as a payment of property tax thereon.

The questions submitted to the trial court for its determination were:

1. The right of cotenants to vote.

2. The right of those holding contracts to purchase lands within the district to vote.

3. The meaning of the phrase 'during the calendar year preceding any such election' as the same is used in section 1963, C. L. 1921.

4. When a voter is otherwise qualified, must his vote be cast in the precinct within which the greater portion of his land is located?

5. Are owners of town lots, upon which they reside and have gardens, entitled to vote at district elections?

The trial court found as a matter of law:

'1. Co-tenants, that is to say, tenants in common of record title to land, are entitled to vote, and such votes are legal.

'2. That those who have only contracts to purchase, are not entitled to vote.

'3. That the words 'calendar year preceding such election' mean in this case, the year 1928, beginning January 1st, 1928, and ending December 31st, 1928.

'4. That those votes cast in the wrong precinct, should not be counted.

'5. That owners of town lots with gardens thereon are, under this statute, entitled to vote.'

It is conceded by counsel that the Henrylyn irrigation district was organized in the year 1907 under the provisions of the irrigation district act of 1905, chapter 113, p. 246, and is now operating under and is controlled by the 1905 act and amendments thereto.

It is within the exclusive power and province of the Legislature to fix and determine the qualifications of voters in all public and quasi municipal corporations, and all reasonable provisions with reference thereto will be upheld. In People et al. v. Lee et al., 72 Colo. 598, 607, 213 P. 583, 588, it is said: 'Whether owners of land have any right to participation in the administration of quasi municipal corporations 'by vote or otherwise' is a political question merely. The right of the Legislature to create a quasi municipal corporation and provide for the manner of its administration and the personnel of its officers in any manner it may see fit is well established. People v. Earl, 42 Colo. 238, 94 P. 294.'

The plaintiff in error contends that the trial court erred in determining (1) that owners of town lots, under the stipulated facts, were entitled to vote; (2) that holders of contracts of purchase were not entitled to vote; (3) that voters, otherwise qualified, must vote in the precinct in which the greater portion of their lands lie. The defendant in error contends that the trial court erred in determining (1) that tenants in common, otherwise qualified, might vote, and (2) assigns errors as to specific votes.

It may be said that acts in this state concerning irrigation districts were enacted to enable those interested in the development and increased productivity of their lands to organize public and quasi municipal corporations for the purpose of securing water for irrigation, and to provide ways and means of applying that water to the soil. Upon those interested and benefited the burden must necessarily fall, and it is reasonable to assume that these interested parties should within certain limits, be the ones most vitally concerned with the economic problems and the efficient administration of the district. The legislative department has recognized this principle of self-government, with reference to irrigation districts, and has accordingly prescribed certain qualifications for those who participate in the economic and elective matters of the district.

The first irrigation district act in Colorado, providing for the organization and government of irrigation districts, was enacted in 1901, Session Laws of Colorado 1901, page 198. The portion of that act relating to the qualifications of voters at district elections reads: 'No person shall be entitled to vote at any election held under the provisions of this act unless he shall be a qualified elector and the owner of real estate in such district.' Session Laws of Colorado 1901, page 201, § 2.

In 1905, the Legislature enacted a statute repealing the 1901 act, supra, with certain exceptions, and re-enacted a more complete and comprehensive irrigation district statute. Session Laws of Colorado 1905, page 246. The portion of the 1905 act with reference to the qualifications of voters at all elections held under the 1905 act reads: 'At said election and all elections held under the provisions of this act, all persons who are qualified electors within said proposed district and are resident freeholders and shall have paid a property tax in said proposed district during the year preceding such election shall be entitled to vote, and none others.' Session Laws of Colorado 1905, page 249, § 4.

In 1907, an amendment to the 1905 act, supra, was enacted, and the qualifications of the voters were further limited: 'At all elections held under the provisions of this act all persons shall be entitled to vote, who are resident freeholders of agricultural lands within said district, or who are the owners of lands to the extent of forty acres or more within said district and reside within any county into which any part of said district shall extend, and who are qualified electors under the general laws of the state therein and who shall have paid property taxes upon property located within said district during the year preceding any such election. Electors not residing within the district shall be entitled to vote only within the division of such district wherein their lands or a major portion thereof are located. * * *' Session Laws of Colorado 1907, page 488 et seq.

In 1915,...