Board of County Commissioners of Pitkin County v. Friedl Pfeifer and Capital Improvement Corporation, a Texas corporation
No. C-652
Supreme Court of Colorado
February 23, 1976
Opinion modified and as modified rehearing denied March 22, 1976.
(546 P.2d 946)
Accordingly, we make the rule absolute, direct that the contempt judgment be vаcated, and remand for proceedings not inconsistent with the views expressed herein.
MR. JUSTICE ERICKSON does not participate.
Davis, Graham & Stubbs; Morgan, Lewis & Bockius, for respondent Friedl Pfeifer.
En Banc.
MR. JUSTICE KELLEY delivered the opinion of the Court.
The Board of County Commissioners of Pitkin County (Board) sought review of a court of appeals decision which held that the trial court does not have the power to set aside a conveyance in a suit by the Board on the ground that the grantor violated state and county subdivision requirements. Board of County Comm‘rs v. Pfeifer, 35 Colo. App. 89, 532 P.2d 51 (1974). The Court of Appeals also held that the Board‘s pleadings were not adequate to support the issuance of an injunction against any future “use” of the land. We granted certiorari, and we now affirm the court of appeals in part, and reverse in part.
On February 6, 1973, respondent Pfeifer sold and conveyed, allegedly from a larger parcel of land, approximately 23 acres in Pitkin County to respondent Capital Improvement Corporation (Capital). On August 16, 1973, the Board filed a complaint in the district court seeking to set aside the conveyancе or, in the alternative, to enjoin Capital from “any use” of the property in question until the applicable state and local subdivision laws were complied with. The Board alleged that such relief was proper because respondents had violated state and county subdivision laws by failing to obtain the approval of its plat by the Board prior to the sale.
The district court granted Capital‘s motion to dismiss the complaint on the basis that the court had no jurisdiction to set aside a conveyance оf land. The court subsequently granted Pfeifer‘s motion for summary judgment, and entered judgment against the Board on the theory that Capital was a necessary party. The Board appealed to the court of appeals which affirmed the district court. Board of County Comm‘rs v. Pfeifer, supra.
The Board advances three arguments for reversal: (1)
We are not unmindful of the Board‘s argument that a statute should be liberally construed to effect the legislative purpose, but such a rule of statutory constructiоn occupies a secondary role when construing the powers of a county which are in derogation of the common law.
I.
The Board contends that, as a matter of statutory construction,
“(a) Any subdivider, or agent of a subdivider, who transfers or sells or agrees to sell or offers to sell any subdivided land before a final plat for such subdivided land has been approved by the board of county commissioners and recorded or filed in the office of the county clerk and recorder is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than five hundred dollars for each parcel or interest in subdivided land which is sold or offered for sale....
“(b) The board of county commissioners of the county in which the subdivided land is located has the power to bring an action to enjoin any subdivider from selling, agreeing to sell, or offering to sell subdividеd land before a final plat for such subdivided land has been approved by the board of county commissioners.” (Emphasis added.)
The earliest predecessor of the above-quoted statute was enacted in 1939, and provided in pertinent part:
“Whoever, being the owner or agent of the owner of any land located within a subdivision, transfers or sells or agrees to sell or negotiates to sell any land by reference to or exhibition of or by use of a plan or plat of a subdivision, before such plan or plаt has been approved by such planning commission and recorded or filed in the office of the county recorder, shall
forfeit and pay a penalty of $100 for each lot or parcel so transferred or sold or agreed or negotiated tо be sold. . . . The county may enjoin such transfer or sale or agreement by action for injunction brought in any court of equity jurisdiction or may recover the said penalty by civil action in any court of competent jurisdiction.” (Emphasis added.) Colo. Sess. Laws 1939, ch. 92, pр. 307-308.
It is interesting to note that the 1939 law stated the remedies available to the county in terms of the disjunctive. It could bring an action to enjoin or it could recover the monetary penalty. In 1961, the legislature amended the 1939 law to allow the county to pursue its remediеs concurrently by changing the disjunctive “or” to the conjunctive “and.” At the same time, the legislature increased the monetary penalty to $500 for each offense, and stated that each day of violation constituted a separate offense. Colo. Sess. Laws 1961, ch, 191, 106-2-9(4) at 592-593.
In 1972, the amended 1939 law was repealed and reenacted in the identical form in which we now find it.
In light of this statutory history, the language of the present statute is quite revealing. It is obvious that one cannot be convicted of a misdemeanor under
Such a construction is consistent with the general principle of equity that an injunction is primarily a preventive and protective remedy, affording relief against future, rather than past, acts. Wyman v. Jones, 123 Colo. 234, 228 P.2d 158 (1951); Werner v. Norden, 87 Colo. 339, 287 P.644 (1930); cf. Seaton Mountain Electric Light, Heat & Power Co. v. Idaho Springs Inv. Co., 49 Colo. 122, 111 P. 834 (1910). Although
We hold that a person who violates
Thе Board argues, and we agree, that the statute creates a problem for the counties in preventing the sales of land where the sale is completed
II.
The Board further argues that, as a matter of public policy, it has the power to set aside a conveyance which violates
The Board contends that an agreement which violates a valid statute, or which cannot be performed without violating such a provision, is illegal and void. Potter v. Swinehart, 117 Colo. 23, 184 P.2d 149 (1947); see 15 S. Williston, Law of Contracts § 1763 (3rd ed. 1972); 6 A. Corbin on Contracts § 1510 (1962). However, this statement is not precisely correct.
“It is more accurate to say that a party to an illegal bargain generally can neither recover damages for breach thereof, nor, by rescinding the bargain, recover the performance that he has rendered thereunder or its value.”
14 S. Williston on Contracts § 1630A (3rd ed. 1972).
The сases and treatises make clear that the doctrine of illegality of contracts applies only to the parties to the illegal contract who seek to gain some benefit through the use of the courts. The Board recognizes the validity of this limitatiоn but asserts that the doctrine of illegality should nevertheless apply in this case where the Board is charged with enforcement responsibility under the subdivision statute. In another statutory context we might be willing to subscribe to the Board‘s theory, but in this case the legislature has сlearly and expressly established the remedies available to the Board in order to enforce its subdivision requirements, and they are so limited. Skidmore v. O‘Rourke, 152 Colo. 470, 383 P.2d 473 (1963).
III.
Finally, the Board argues that it derives its power to set aside the conveyance from
“It is unlawful to erect, construсt, reconstruct, alter, maintain, or use any building or structure or to use any land in violation of any regulation in, or of any provisions of, any zoning resolution, or any amendment thereof, enacted or adopted by any board of county commissioners under the authоrity of this part 1. . . . In case any building or structure is or is proposed to be erected, constructed, reconstructed, altered, maintained, or used, or any land is or is proposed to be used in violation of this part 1 or of any regulation or provision of any resolution, or amendment thereof, enacted or adopted by any board of county commissioners under the authority granted by this part 1, such board . . . in addition to other remedies pro-
vided by law, may institute an injunction . . . to prevent, enjoin, abate or remove such unlawful erection, construction, reconstruction, alteration, maintenance, or use.”
The Board argues that due to the broad language in the statute, “use” can be construed to include “sale.” We agree with the court of appeals that absеnt a clear legislative intent to the contrary, the common meaning of the word “use” does not include “sale.” See Blanchard v. Griswold, 121 Colo. 29, 214 P.2d 362 (1950); Murphy v. Traynor, 110 Colo. 466, 135 P.2d 230 (1943); Estes v. First National Bank of Denver, 15 Colo. App. 526, 63 P. 788 (1900).
The district court dismissed this claim, and the court of appeals affirmed on the theory that the complaint “contained no allegation as to the contemplated use of the land, other than the sale. . . . The eventual use to which Capital may put the land is not before us.”
A complaint seeking injunctive relief must state with some particularity the basic facts justifying the relief sought. See Crowe v. Wheeler, 165 Colo. 289, 439 P.2d 50 (1968). The issue as framed in this case is, what facts must be pled in the case of an alleged violation of
Ordinarily, the actual or proposed use itself would cоnstitute the “violation” under
The judgment is affirmed in part, and reversed in part, and returned to the court of appeals with directions to remand to the district court for further proceedings not inconsistent with the views herein expressed.
MR. JUSTICE PRINGLE dissents in part and concurs in part.
MR. JUSTICE GROVES does not participate.
MR. CHIEF JUSTICE PRINGLE dissenting in part and concurring in part:
Basically, thе position expressed in those sections is that under