Perkins v. People

• Decision Date: 01 March 1915
• Docket Number: 8563.
• Citation: 147 P. 356,59 Colo. 107
• Parties: PERKINS et al. v. PEOPLE ex rel. MacFARLAND et al.
• Court: Colorado Supreme Court

147 P. 356

59 Colo. 107

PERKINS et al. v. PEOPLE ex rel. MacFARLAND et al.

No. 8563.

Supreme Court of Colorado, En Banc.

March 1, 1915

Error to District Court, Denver County; William D. Wright, Judge.

Mandamus by the People of the State of Colorado, on the relation of Finley L. MacFarland and another, against James M. Perkins individually and as Commissioner of Social Welfare of the City and County of Denver, and others, to compel a special levy of a tax for parks. There was a judgment awarding the writ, and defendants bring error. Affirmed.

Gabbert C.J., and Bailey, J., dissenting.

I. N. Stevens, Geo. Q. Richmond, and Con K O'Byrne, all of Denver, for plaintiffs in error.

W. H. Malone, Warwick M. Downing, F. W. Sanborn, and F. S. Tesch, all of Denver, for defendants in error.

SCOTT J.

This is an action wherein the district court of the city and county of Denver made permanent an alternative writ of mandamus compelling the commissioners of the said city and county to make a special levy of one-half mill upon each dollar of the taxable property within said city and county, for the year 1914, and for the purposes specified in section 104a of the charter of the city and county of Denver, which section was adopted by the electors of the city on the 21st day of May, 1912, and is as follows:

'Sec. 104a. The park commission, with the approval of the mayor, shall have power by purchase, gift or condemnation proceedings, to acquire and improve land for parks, parkways and roads outside the limits of the city and county of Denver, and to construct and maintain public roads, and to aid in constructing and maintaining public roads outside the limits of the city and county of Denver, for the purpose of establishing a system of roads connecting the city and county of Denver and said parks.

'A franchise or franchises for the construction or maintenance of railways or street car lines or for the maintenance of other special privileges affecting any such lands so acquired, may be granted as in other cases upon a vote of the taxpaying electors. As part of the annual tax levy of each year, commencing with the levy immediately following the enactment of this amendment, the council shall annually and for five years assess and collect upon each dollar of taxable property within the city and county of Denver, a special levy of one-half mill, the proceeds of which shall be set aside and constitute a special park fund, to be used only for the purposes above stated, and shall thereafter annually so assess and collect a special levy sufficient for such purposes, which levy may be less, but shall not exceed one-half mill rate as aforesaid. The limitation in section 212 of the charter shall not apply to the special park levy authorized hereby. Upon recommendation of the park commission the council shall submit to a vote of the qualified taxpaying electors at any regular election the question of incurring a debt and issuing bonds for any and all of the above purposes for which the special park fund as above may be used, as the same may be specified in such ordinance. The amount of said indebtedness and the form of such bonds shall in like manner be as prescribed in said ordinance submitting the question. In case of a bond issue, as aforesaid, the special park levy may be reduced below the half-mill rate as aforesaid, or at the discretion of the council may be abolished, except for maintenance.'

The council proceeded to make a levy for the purposes contemplated by this section, and in all respects in manner and form as provided by the city charter, but fixed the levy for such purposes at one-sixth of a mill, instead of one-half mill, as required by said section. This action is to compel the council to fix the amount of the levy at one-half mill.

It is contended by the plaintiff in error that the requirement as to the amount of the levy fixed by the said amendment to the city charter is discretionary with the commissioners, and not mandatory, and that the word 'must,' as used therein, should be construed to mean 'may,' as it relates to the making of such levy, that the commissioners have determined that there is no necessity for the amount of the levy demanded, and that to so make it would be to impose a burden upon the taxpayers of the municipality, for which there is neither use nor demand. It is true that in Constitutions, statutes, city charters, and ordinances the word 'must' is sometimes construed as 'may'; that is to say, that the act required is permissive only. But this can be only in a case where the context seems to require such construction. It is never permissible where the provision, considered in its entirety, plainly indicates that it was intended to be mandatory, and in such case the word 'must' is a command, and cannot be construed as permissive, but must be given that signification which it imports.

The plain purpose of section 104a was to provide for a system of mountain parks for the city, and to likewise provide the means with which to purchase and maintain them, and to also secure and maintain a system of roads connecting the city with such parks. For this purpose the charter amendment declared that there must be an annual levy of one-half mill for a period of five years; that thereafter the levy should be only such as is sufficient for such purposes; that the same may then be less, but shall not exceed the one-half mill named for the five-year period. Then, after the period of five years, the officials are expressly given the discretion to make such levy as the necessity of the occasion may require, within the maximum limit. It is not possible to conceive, under these circumstances, that discretion was intended within the fixed and limited period. It will be noticed, further, that it was also expressly provided that section 212 of the charter, which provides for a limit of total levies to 15 mills, should not apply to the levy for such park purposes.

Again, the amendment provides that, in case of an issue of bonds as authorized by said section 104a, the said special park levy may be reduced below the half mill, or, at the discretion of the council, may be abolished, except for the purpose of maintenance. Here is a second specific proviso in which the half-mill levy may be reduced at the discretion of the council. Why should these exceptions be made, if discretion and judgment was intended to be given to the council as to the amount of the levy for the five-year period? Plainly the one-half mill levy for that period is mandatory and compulsory. It is not for city councils or courts or question the wisdom of the people of a city in the making of improvements and in providing the manner and means of the payment therefor, if acting within their constitutional or statutory power.

Further, it is plain that this fixed levy for the five years was not to maintain an existing improvement, but to create a special fund for the establishment of a new and future improvement--to acquire and improve lands for parks, parkways, and roads, outside of the city limits. It is expressly provided that this fund shall be created by a fixed levy for each year for five successive years, and that 'the proceeds thereof shall be set aside and shall constitute a special park fund.' This tax for the five years is not for ordinary revenue, nor for general purposes. It is a special tax for the purpose of creating a specific fund for a particular purpose. The council can have no more power to reduce the amount of the fund, by reducing the amount of the levy, than it can do so by reducing the number of years for which the levy is to continue. It can have no more authority to reduce the amount of the fund by the employment of either of these methods than to reduce the amount of a bond issue, if that plan had been adopted for the creation of a fund for the same purpose.

Plainly, this fund was to be created, regardless as to whether or not any of it was to be expended within the fixed period; for the park commission was not required to purchase or improve any of such lands within any particular time, and may well have waited until the entire fund was provided before making any such purchase. Then the sole purpose of the levy for the five-year period was for the creation of a fund for a future use, and not for an existing requirement or necessity. If we were to assume that no part of this special fund, so far collected, has been expended, can the city counsel say that for such reason there remains no longer a necessity for the levy, and that this fixed sum shall not continue to be annually collected, and so set aside as provided by the charter, until the expiration of the fixed period? Would this not be a nullification of the will of the people providing for the creation of such a fund?

It is argued by counsel for the city that, at the time the amendment to the charter was adopted, property in this state was assessed upon the basis of one-third its cash value while now it is assessed at its full cash value, and hence the sum to be realized by a half-mill levy is far in excess of what was contemplated. The answer to this is that the law as to assessment at the full cash value was in force many years prior to the adoption of the present city charter, whatever may have been the custom of the tax officials, and that the later statute upon that subject was enacted nearly a year prior to the adoption of section 104a. It cannot therefore be presumed that the electors of the city did not know the law in this particular at the time. The presumption must be that they intended the very thing they did, in adopting the amendment to their charter. But, if we are to concede the correctness of the contention of counsel in this respect, then we answer that...