Thomas v. City of Grand Junction

• Decision Date: 13 March 1899
• Citation: 13 Colo.App. 80,56 P. 665
• Parties: THOMAS v. CITY OF GRAND JUNCTION.
• Court: Colorado Court of Appeals

56 P. 665

13 Colo.App. 80

THOMAS v. CITY OF GRAND JUNCTION.

Court of Appeals of Colorado

March 13, 1899

Error to district court, Arapahoe county.

Action by Theodore H. Thomas, assignee, against the city of Grand Junction. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Thomas & Thomas, for plaintiff in error.

Rogers & Shafroth and J.S. Carnahan, for defendant in error.

WILSON J.

The purpose of this action, instituted by a taxpayer of the defendant city, is to restrain the city from the issuance of its bonds for the purpose of the construction of a new system of waterworks to be used in supplying the city with water. The judicial determination of the questions necessarily involved in the issues presented will also determine the question as to whether or not the city, under existing circumstances as presented by the record, has the power at all to construct a system of waterworks of its own. All of the questions are purely legal, the case having been presented and tried upon an agreed statement of facts. From this statement we gather the following facts, which are necessary to a proper understanding of the issues:

In 1888, the defendant, then the town of Grand Junction authorized, in a proper manner, one N.J. Krusen, his associates, successors, and assigns, to construct, operate and maintain, for the term of 21 years, a system of waterworks in the town for the supplying of the town and its inhabitants with water for domestic, sanitary, and other uses. The terms of the ordinance granting this franchise were in the usual form, providing that the waterworks should be of a certain capacity; that the grantee should have the right to lay his mains, pipes, etc., in the streets; and also, for the purpose of extinguishing fires and flushing gutters and sewers, the city should, during the term, pay a certain stipulated sum per annum; and also agreeing to rent 50 double-discharge fire hydrants of a certain size, for which a certain stipulated amount of annual rental was to be paid. It was also stipulated that, at the expiration of 10 years, the city should have the right to purchase the waterworks, its rights and privileges, at an appraised valuation, to be made in a certain manner. Thereafter, Krusen assigned the franchise and contract, and all his rights thereunder, to the Grand Junction Water Company, which is the present owner thereof. The works were constructed in accordance with the contract, and accepted by the town in September, 1889. In April, 1892, the city council, the town having then become a city, passed a resolution declaring, in substance, that the franchise had been forfeited, and that the contract between the city and the water company should be, and the same was thereby, rescinded. In March, 1897, an ordinance of the city was duly passed and adopted, entitled in substance, an ordinance to authorize the city council to purchase and improve and repair the waterworks plant and system now in operation in said city, and, in the event of a failure to purchase, to construct a system of waterworks, to be forever owned, managed, and operated by the city, and for this purpose to contract an indebtedness by the issuance of bonds of the city in the sum of $65,000. The ordinance provided that the city council should tender to the water company $35,000 par value of said bonds for the purchase of the waterworks; and, in the event of a refusal, the whole of the issue of said bonds, or so much thereof as might be necessary, should be sold and disposed of for the purpose of raising money with which to construct a system of waterworks for the city. The ordinance was duly submitted to the voters of the city who were taxpayers, and at the election was duly approved by a majority of the voters. Following this election, the city council adopted another ordinance for the purpose of carrying out the provisions of the ordinance last referred to, which had been submitted and approved at the election. This ordinance, in effect, authorized the contracting of an indebtedness on behalf of the city, and an issuance of its bonds in the sum of $65,000 for the purpose recited in the last ordinance, prescribed the form of the bonds, and the duties of the council in reference to the levy of a tax for the payment of interest and the redemption of the bonds, and was made irrepealable until the indebtedness had been fully paid, as was required by law. Following this, a committee of the council, duly authorized, tendered to the waterworks company the bonds of the city to the par value of $35,000, in exchange for a conveyance of the waterworks company's plant and system, but the offer was refused. Thereafter the proper authorities of the city were taking steps to issue and dispose of the full issue of the bonds for the purpose of constructing a water plant and system of their own, when this suit was commenced.

The only statutory provisions involved in the determination of the issues presented are subdivision 6, § 3312, Gen.St., as amended in 1891, and subdivision 67 of the same section, as amended in 1893. The entire section relates to powers which are vested in city councils and boards of trustees in towns. The sixth subdivision provides that they shall have power "to contract an indebtedness on behalf of the city or town, and upon the credit thereof, by borrowing money or issuing the bonds of the city or town, for the following purposes, to wit: *** For the purpose of the purchase or construction of water works for fire and domestic purposes. *** The total amount of indebtedness for all purposes shall not at any time exceed three per centum of the total assessed valuation of the taxable property in the city or town, except such debt as may be incurred in supplying the city or town with water and water works; and no loan for any purpose shall be made except it be by ordinance, which shall be irrepealable," etc. "But no such debt shall be created, except the supplying of the city or town with water, unless the question of incurring the same shall at a regular election of officers for the city or town, be submitted to a vote of such qualified electors of the city or town as shall in the year next preceding have paid a property tax therein," etc. Subdivision 67 of the section, as amended in 1893, is as follows: "(67) They shall have power to purchase or erect water works, gas works, or electric light works, or to authorize the erection of the same by others, but no such works shall be erected or authorized until a majority of the voters of the city or town who are taxpayers under the law, voting on the question at a general or special election, by vote approve the same." The contention of the plaintiff is that the word "or," as it appears in subdivision 67, is used in the disjunctive and alternative sense, and that, the city having elected to authorize the construction of waterworks for the supplying of water to the city and its inhabitants, its power in the premises was exhausted, and it has no power to construct waterworks of its own. The defendant city insists that the word is not used in such a sense, and that, if the contention of plaintiff be allowed, it would defeat the evident intent and purpose of the act, and would render it obnoxious to section 11, art. 2, of the state constitution, which provides that "no law making any irrevocable grant of franchises, privileges or immunities, shall be passed by the general assembly." It further contends that, to carry out the obvious purpose and legislative intent, the word "or" should read "and," and that the judicial construction and interpretation should be that the city should be entitled to exercise all of the powers therein granted. We think that the contention of defendant is correct, and that it is fully sustained by reason and authority.

It is a well-settled rule of statutory construction that all words and phrases used in a statute shall be understood and construed according to the approved and common usage of the language, and that some meaning shall be given to every word used. This rule is expressly recognized by our statute, and declared to be a law of this state. Gen.St. § 3141. It is equally, however, a well-settled rule of construction, that if no sensible meaning can be given to a word or phrase, or if it would defeat, manifestly, the real object of the enactment, it should be eliminated; also that, for the same reason, words may be rejected as surplusage; also, to carry out the intention of the legislature, another word may be read for the word used, where the word used would manifestly defeat the legislative intent, and the substitution of the other would carry it out. These may be said to be exceptions to the general rule as above announced, but the exceptions as will be seen by an examination of the authorities, are almost, if not quite, in as general use as the rule itself. Especially with reference to the words "or" and "and" has it been frequently necessary to invoke this latter rule. As said by Mr. Sutherland: "The popular use of 'or' and 'and' is so loose, and so frequently inaccurate, that it has infected statutory enactments. While they are not treated as interchangeable, and should be followed when their accurate reading does not render the sense dubious, their accurate meaning is more readily departed from than that of other words, and one read in place of the other, in deference to the context." Suth.St. Const. § 252. Mr. Endlich says: "To carry out the intention of the legislature, it is occasionally found necessary to read the conjunctions 'or' and 'and' one for the other. (Indeed, these words are said to be convertible into each other, as the sense of the enactment and the necessity of harmonizing its provisions may require.)" Endlich, ...