Sanborn v. City of Boulder

• Decision Date: 03 December 1923
• Docket Number: 10636.
• Citation: 221 P. 1077,74 Colo. 358
• Parties: SANBORN et al. v. CITY OF BOULDER et al.
• Court: Colorado Supreme Court

221 P. 1077

74 Colo. 358

SANBORN et al. v. CITY OF BOULDER et al.

No. 10636.

Supreme Court of Colorado, En Banc.

December 3, 1923

Rehearing Denied Jan. 7, 1924.

Error to District Court, Boulder County; George H. Bradfield Judge.

Suit by Alice C. Sanborn and others against the City of Boulder and others. Decree for defendants, and plaintiffs bring error.

Affirmed.

John R. Wolff, of Boulder, for plaintiffs in error.

Frank L. Moorhead, of Boulder (Martin, Newcomer, Fitzgerald &amp Tinglof, of Boulder, of counsel), for defendants in error.

CAMPBELL J.

This is a writ of error to review a decree dismissing the plaintiffs' action in equity, whose object was to enjoin the municipal authorities of the city of Boulder from enforcing an alleged void city ordinance, purporting to create a paving improvement district. The city of Boulder is a special charter city, whose organic law was adopted by its qualified electors under permission of the Twentieth Amendment to our state Constitution. This court has repeatedly held that, with respect to purely local matters the legislative power of these special charter cities is, with exceptions not material here, as comprehensive as that of our General Assembly over municipalities organized under the general statutes. The charter of the city of Boulder confers upon that municipality the power to create public improvement districts, either under the provisions of the state statutes applying to such districts, or under such provisions as may be provided by charter or as the council may by ordinance adopt. The city council of Boulder has seen fit not to avail itself of the power to create these districts under the general statutes, but has elected to provide, and has provided, by general ordinance, the method of procedure in such cases. Thereby the city council, upon its own initiative, or upon the written request of a majority of the owners of the frontage to be assessed therein, may create improvement districts, including the paving of its streets and alleys. The method of procedure under general ordinance No. 804 is the same, whether the request for the improvement is made by the frontage owners or is at the instance of the city council itself. It is not necessary to summarize the procedure as plaintiffs concede, at least do not deny, that the city has strictly observed, and conformed to, all the preliminary requirements of the general procedure ordinance, down to July 18, 1922, when the city council took up for consideration the proposed ordinance for creating the improvement district. This was the day fixed by the city council for hearing protests and objections by any person interested. On this day complaints and objections by the property owners, including plaintiffs, theretofore filed by the frontage owners, were duly heard and were all overruled. The city council then took up for consideration the proposed ordinance No. 975 for creating the district and assumed to adopt the same in accordance with its prescribed rules. The ordinance contained an emergency section. If it was an emergency ordinance and was properly passed, then, under sections 17 and 18 of the charter, it took effect on the day of its adoption, but if it was not an emergency ordinance or properly passed as such it did not take effect, if at all, until 30 days after final passage.

Upon the adoption of this creating ordinance on July 18, the city council, having declared it properly passed, proposed to enforce it by advertising for bids and entering into a contract to be let upon competitive bidding for the work of paving, and to issue bonds for the purpose of paying for the improvements, and, at the appropriate time, for passing an assessing ordinance. Before the ordinance could be enforced, these plaintiffs brought an action in the district court of Boulder county to restrain the municipal authorities from enforcing it. A preliminary restraining order was issued, which afterwards, on final hearing, was made permanent. Four days after the final decree was rendered, the city council, at a regular meeting, introduced a new ordinance, No. 976, which is identical with Ordinance No. 975, except that the emergency clause is omitted, and in one of the sections of 976 relating to the payment of the bonds, 'only' was inserted after 'payable,' whose effect is merely to make more emphatic the declaration of the former ordinance that the bonds are payable only out of the money collected upon assessments against the property owners in the district. Ordinance No. 976 was published, as ordered, thereafter duly presented for final passage, read a second time, as required under the rules of the council, adopted, properly signed and authenticated, and published on September 6, 1922, and, if a valid ordinance, became effective October 5, 1922. Before it went into effect, and on September 28, 1922, the plaintiffs herein, who were also plaintiffs in the former action, filed their complaint in the same court to restrain the enforcement of Ordinance No. 976, upon the same grounds relied on in the former action to destroy 975, and upon the additional ones that the city council had lost jurisdiction over the subject-matter of a creating ordinance by its adjournment since die July 18, 1922, after the passage of Ordinance No. 975, and that the injunction decree in the former action gave rise to a contract between the city and the plaintiffs, which was impaired by the passage of Ordinance 976. A temporary restraining order was granted, and, upon final hearing, the court set it aside and entered a decree dismissing the action. It is this decree dismissal which is now before us for review at the instance of the plaintiffs.

Many objections to it are made. They have been presented by plaintiffs' counsel with force and ability in exhaustive briefs, in which are cited and discussed authorities from many courts supposed to sustain his position. A careful consideration of the record leads us to the conclusion that the decree assailed is right, and that it should be affirmed. From the foregoing statement it will be seen that, preliminary proceedings being valid, it is only the validity and effect of Ordinance 976 that is before us for consideration.

1. If, as contended by the plaintiffs, the power of the city over the subject-matter of creating the proposed improvement district was exhausted by its adjournment since die July 18, 1922, after it voted favorably for Ordinance 975, and if the district court, in the former suit, held such ordinance absolutely void and a nullity, then the decree in this action might be reversed. We here state the contents of the complaint in the former action, which set forth the grounds relied upon by the plaintiffs for relief, because these grounds, and the additional ones above mentioned, are included in the complaint in the present action. Ordinance 975, as appears by the decree in the former action, was assailed on the grounds that the city officials had entered into a conspiracy with certain persons to bring about the condition of the streets, which had crystallized public sentiment in favor of paving; that they entered into a conspiracy with certain persons to award a contract for its construction to a particular firm or corporation; the bonded indebtedness sought to be created by the ordinance was that of the city of Boulder, and, as such, was beyond the power of the city to incur, not that of the proposed paving district, because it was prohibited by the state Constitution and the charter of the city limiting indebtedness to a certain sum, and the bonds provided for were issued for a longer period than allowed by the provisions of these instruments; that the ordinance, in designating a certain kind of paving to be used, constituted a monopoly which could not be purchased or used by paving contractors in general, and further violated the provision of the charter providing for competitive bidding; that it was passed as an emergency ordinance by the city council, but it did not contain a statement of the facts constituting the emergency, or a showing of the need of its passage as the mandatory provisions of the charter in such cases require. For all of these reasons the ordinance, plaintiffs say, was absolutely void.

The district court, in the former action on final hearing, found against the plaintiffs upon all of these issues, except one, and held that the city council was within its rights in creating the paving district, and its actions were neither fraudulent, unreasonable, nor oppressive. In effect, the court found that all the preliminary proceedings leading up to the passage of the creating ordinance had been fully complied with, but said, notwithstanding the council for that reason had the right to pass an ordinance creating the district, the ordinance in question, which purported to be an emergency ordinance, because of the absence of a statement therein of the facts which constituted the necessity and urgency, was defective and irregularly passed and, as it then existed could not be enforced. In other words, the meaning of the decree in question is not that the ordinance is a nullity or absolutely void, but that it is defective. Since the council proposed at once to put it into effect from and after the day of its passage, and proposed to base all subsequent proceedings upon it, and before it became effective, if at all, as a nonemergency ordinance, the district court restrained its threatened enforcement.

The findings and decree on their face show that the court could not, and did not, hold Ordinance 975 void, or a nullity, and evidently did not intend to do so. The decisions in this country, so far as we have examined them, are unanimous that the effect of an invalid emergency clause does not...