34 Colo. 393 | Colo. | 1905
Lead Opinion
delivered the opinion of the court.
The plaintiff alleges that there was submitted to the taxpaying voters of the city and county of Denver the following question: “Shall the city and county of Denver issue bonds to an amount not exceeding four hundred thousand dollars, bearing interest at a rate of four per cent per annum and maturing in not less than fifteen years nor more than thirty years, the principal to be payable in equal annual installments commencing the next year following the issuance of said bonds, for the purpose of erecting a public auditorium, including the purchase of a site therefor, if desired?” That subsequently to the submission of said question the city council of the city and county of Denver passed an ordinance providing for the issuance of four hundred thousand dollars in bonds for the purpose of erecting a public auditorium, including the purchase of a site therefor.
Section 4 of the ordinance provides that the bonds "shall be payable at the option of the city and county fifteen years after date, and absolutely due and payable twenty-five years after date. They shall be of the denomination of one thousand dollars and shall bear interest at the rate of four per centum per annum, payable semiannually." The complaint further alleges that the city and county of Denver has no power or authority to construct or have an auditorium, nor to issue bonds for the payment of the
Demurrer to the complaint was overruled. The defendants elected to stand by the demurrer; judgment was rendered in accordance with the prayer of the complaint, and the defendants appealed to this court.
The judgment of the district court was right. The power to direct the issuance of bonds for the erection of an auditorium was granted by the people when they voted affirmatively upon the question submitted; but the people granted the- power to issue bonds “bearing interest at the rate of four per cent per annum, maturing in not less than fifteen nor more than thirty years, the principal to be payable in equal annual installments commencing the next year following the issuance of said bonds,” not bonds “payable at the option of the city and county fifteen years after date, and absolutely due and payable twenty-five years after date.” The people vested in the city council the discretion of determining when, after fifteen years and within thirty years from their date,
The city attorney urges that bonds providing for the payment of the principal in equal annual installments are unsalable, and that the will of the people in voting for an auditorium will be overthrown unless bonds such as proposed are held to be in accordance with the question submitted. The city council derives all its powers to issue bonds for' an auditorium from the people. The plain, unambiguous mandate was that the bonds when issued should be payable in equal annual installments. If the bonds then authorized cannot be sold, we know of no' authority that can direct the issuance of another and different character of bond.
It is also said that the charter requires a sinking fund to meet the bonded indebtedness, and that the annual deposit in that fund is the equivalent of payment ; and that the bonds are made “payable in equal annual installments,” when annual deposits in the sinking fund are made. The word “payable,” in this connection, is not susceptible of any such construction. “Payable in equal annual installments” means that an equal amount of each bond or of the whole debt shall become due each year; that the payment thereof shall become legally enforcible against the city, that it is the right of the city to make annual payments of the principal, and the duty of the holders of the bonds to accept such payment. The words are in daily use by the English-speaking people and need no interpretation, and to construe them as meaning that the city may place annually in its sinking
In holding, as we do, that the bonds proposed are not the bonds directed by the people to be issued, we have determined the case, and might well refuse to decide the other questions involved. But in as much as the power of the city to erect a public auditorium is challenged and the question is of public moment and concern, and as much time and expense will be saved by a determination of this, the main question, we are constrained by the force of the public interests to give our opinion upon this subject.
This court, in passing upon the authority of the city of Leadville to license certain occupations, said, page 520 of 14th Colorado: “ It is a well settled elementary principle that the charter of a municipal corporation, or, if organized under a general law, that such general law is the instrumentality by means of which the legislature of the state delegates to" the municipal body the right to exercise such franchise, and such legislative power and authority as may.be essential to the safety, well-being and prosperity of the community. It is equally well settled that the charter or tire law by which the municipal body is created is to be strictly construed and that no powers are to be exercised except those which are expressly conferred or which exist by necessary implication. This principle of law is expressed with extraordinary clearness in 1 Dil. Mun. Corp. 389: ‘It is a general and understood proposition of law that a municipal corporatipn possesses and can exercise the following powers and- no others: First, those granted in express words; second, those necessarily or fairly implied in, or incident to, the powers expressly granted; third, those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable. Any fair, reasonable
It is therefore necessary to determine whether the legislature could have conferred upon the city of Denver power to purchase a site, erect an auditorium thereon, and issue bonds to discharge the indebtedness. In a number of cases before this court as well as the court of appeals it has been held that with respect to municipal corporations, except as limited by the constitution, the general assembly has plenary power; that it is clearly a legislative function to determine what power shall be granted, what withheld, and what restrictions shall be imposed in the exercise of the powers granted. — Dietz v. City of Central, 1 Colo. 323; Darrow v. People, 8 Colo. 426; People ex rel. v. Hall, 8 Colo. 485; Valverde v. Shattuck, 19 Colo. 104; Trimble v. People, 19 Colo. 187; City of Denver v. Coulehan, 20 Colo. 471; Johnson v. People, 6 Colo. App. 163; Dillon’s Municipal Corporations, 44.
The supremacy of the legislative authority over municipal corporations is not, however, in all respects unlimited, but the limitation must be sought in the national or state constitution. — Dillon’s Mun. Corp., §9.
The same author, at page 79, says: "Permitting the voters of a municipality' to decide upon questions of local interest or expediency, such as those mentioned in this section and in the notes, seems to the
The general purpose of all municipal corporations is to promote the general welfare and happiness of the people; and provisions are generally made for the suppression of vice and immorality, and the advancement of public health and good order, and the promotion of trade and industry. For many years Denver has had power under her charter to appropriate funds for the entertainment of visitors and for the expenses of funerals, power to take an enumeration of the inhabitants, to foster and encourage manufactories, for laying out and ornamenting grounds for a cemetery and for the sale of lots therein, and to support or own a public library. Not one of these powers can be regarded as indispensable to a municipality. Municipalities are permitted to exercise them because they tend to- the advancement, the culture, the convenience and the general welfare of the public. It is not a valid objection to the exercise of such powers that one class of the inhabitants would receive more benefit than another. The test is whether the power, if exercised, will promote the general objects and purposes of the municipality, and of this the legislature is the judge in the first instance; and unless it clearly appears that some constitutional provision has been infringed, the law must be upheld.
An act of the legislature of the state of New York authorizing the cities of New York and Brooklyn to build a bridge connecting the two cities was upheld by the court of appeals. The act, it was urged, was in conflict with the constitution of the state, which ordains that no city “ * * * shall be allowed to incur any indebtedness except for * * *
In Cooley on Taxation, at page 185, it is said: “Public and private interests are so commingled in many cases that it is difficult to determine which predominates ; and the question whether the public interest is so distinct and clear as to justify taxation is often embarrassing to the legislature, and not less so to the judiciary. All attempts to lay down general rules whereby the difficulties may be solved have seemed, when new and peculiar eases arose, only to add to the embarrassment instead of furnishing the means of extrication from it.” After quoting from several cases which we shall presently cite, he further
In sustaining an act of the legislature authorizing the city of Cincinnati to construct the Cincinnati Southern Railroad, a road several hundred miles in length, having Cincinnati and Chattanooga its northern and southern termini respectively, Chief Justice Scott, in Walker v. Cincinnati, 21 Ohio State 14, said: “Courts cannot, in our judgment, nullify an act of legislation on the vague ground that they think it opposed to a general ‘latent spirit’ supposed to pervade the constitution, but which neither its terms nor its implications clearly disclose in any of its parts. To do so would be to arrogate the power of making the constitution what the court may think it ought to be, instead of simply declaring what it is. The exercise of such power would make the court sovereign over both constitution and people, and convert the government into a judicial despotism. Whilst we declare that legislative power can only be exercised within the limits prescribed by the constitution, we are equally bound to keep within the sphere allotted to us by the same instrument. ’ ’ And in speaking of the power of the legislature said: “But we must bear in mind that the question is one of legislative power, and not of the wisdom or even justice of the manner in which that power, if it exists, has been exercised. Had we the jurisdiction to pass upon the latter question, we should probably have no hesitation in declaring the act under review to be an abuse
It is held in Illinois that a public purpose is a corporate purpose, and that a tax imposed for a corporate purpose is one to be expended in a manner which shall promote the general prosperity and welfare of the municipality which levies it. — Johnson v. County of Stark, 24 Ill. 75; Taylor v. Thompson, 42 Ill. 9; C. D. & V. R. R. Co. v. Smith, 62 Ill. 268; Burr et al. v. City of Carbondale, 76 Ill. 455; Q. M. & P. R. R. Co. v. Morris, 84 Ill. 411.
Judge Dixon, in 19 Wisconsin 686, says: “The legislature cannot create a public debt or levy a tax
The legislature of New York conferred upon the city of Brooklyn the power to establish and maintain public baths, and the city was held liable for the use of a private pier at which place a public bath had been established. — Poillon v. Brooklyn, 101 N. Y. 132.
The legislature of Nebraska authorized counties to participate in interstate expositions, to issue bonds for such purpose and to erect and maintain suitable buildings with which to make a county exhibit. The act was upheld and the bonds declared to be for a public purpose. — State v. Cornell, 53 Neb. 556. The opinion cites many cases upholding the validity of laws appropriating money for state and municipal exhibits at expositions, from Pennsylvania, California, Kentucky and Tennessee. The citation from the case Shelby County v. Exposition Co., 96 Tenn. 653, is as follows: “To our minds it is entirely clear that an exhibition of the resources of Shelby county at the approaching State, Centennial Exposition is a county purpose. In view of the fact that the event to be celebrated is one of no' less note and importance than the birth of a great state into the American Union, and of the further fact that the exposition is reasonably expected to attract great and favorable attention throughout the country, and be participated in and largely attended by intelligent and enterprising citizens of numerous other states at least, it is beyond plausible debate that such an exhibition is well calculated to advance the material interests and promote the general welfare of the people of the county making it. It will excite industry, thrift, development and worthy emulation in different avenues of commerce, agriculture, manufacture, art and
In the case Sun Printing Company v. New York, 152 N. Y. 257, in which was involved the power of the legislature to invest the city of New York with authority to build a railroad within the limits of the city and issue bonds to meet the indebtedness, the court said, with reference to a city purpose: “We are aware that the expenditures of our city governments have become enormous, and that appropriations have been made for a great variety of purposes, many of which may be open to criticism and that a complete definition of a ‘city purpose’ may not be possible, in view of the fact that many reasons may arise which we are unable to foresee or now consider. The authorities, in so far as they have spoken upon the subject, have only attempted a definition as to certain specified purposes. We shall not now attempt a definition, except in general terms, further than is necessary to determine the meaning of the acts which we have under review. Generally, we think, the purpose must be necessary for the common good and general welfare of the people of the municipality, sanctioned by its citizens, public in character, and authorized by the legislature."
In Massachusetts, towns have power to raise money by taxation for celebrations (Hill v. East Hampton, 140 Mass. 381) , and may appropriate money for public concerts by a band (Hubbard v. Taunton, 140 Mass. 467).
It is within the power of the officers of a school district in Vermont to build a hall in connection with a schoolhouse, designed to accommodate the schools and the inhabitants of the district, for the purpose of examinations and exhibitions and such other things as are proper and customary in connection with district schools. — Greenbanks v. Boutwell, 43 Vt. 207.
The town organizations, particularly in the New England states, do not act through representative bodies, but the few corporate powers they possess are exercised by the citizens through town meetings; yet the authority of these towns to build town halls
A Vermont town had built a two-story building for town purposes; the upper story was known as the opera hall, which was fitted up for the accommodation of theatrical troupes. The court held the building’ of the town hall was a valid exercise of power, and that as the primary object of the building was for municipal purposes, the fact that the building was incidentally used for theatrical purposes did not have the effect of rendering the action invalid. — Bates v. Bassett, 60 Vt. 530.
It was held in Tennessee, where the constitution authorizes municipal corporations to appropriate money for corporate purposes, that the city of Knoxville could legally appropriate money in aid of a college located without the city limits. — East Tennessee University v. Knoxville, 65 Tenn. 166.
It is held that Philadelphia has power to entertain distinguished visitors at public expense. —Tathan v. Philadelphia, 11 Phila. 276.
The Century Dictionary defines auditorium as “A hall of audience. In a church, theater, public hall, or the like, the space allotted to the hearers or audience.” If the primary object of a building is to provide a place for public meetings, the building itself may properly be designated an auditorium, although other portions of it are devoted to, other uses than that of an auditorium in the strict sense of that term, and this is what the framers of the charter had in mind when the question submitted was proposed.
It is said that one of the principal purposes for which the proposed building is to be used is that of providing a place of meeting for the national conventions of the various organizations throughout the
It will not be disputed that the public buildings in Denver are not now suited to the demands of the public. They are poorly ventilated, and crowded, and a wise and economical administration of public affairs will require that an auditorium, if erected, be so constructed as to provide accommodations for
If Cincinnati may build a railroad connecting it with a city in another state; if Philadelphia may appropriate public money for the entertainment of visitors; if Brooklyn may enjoy a public bath; if New York may build a bridge over water not owned by it, to connect it with another city; if Knoxville may
As power to erect an auditorium is not granted by the twentieth article, the provisions of that article relating to the issuance of bonds to carry out the powers and purposes enumerated in section 1 of the article, however they may be construed, have no application to the case at bar. Bonds for the building of an auditorium must be issued under the limitations of section 8 of article XI of the constitution, and the question, if again submitted, should be drawn with reference to that article and section.
Our conclusions, therefore, are:
1. That the bonds proposed are not responsive to the question submitted.
2. That the question submitted not being in compliance with section 8 of article XI of the constitution, the bonds proposed would be illegal, and therefore nothing can be done under the present charter provision.
The judgment of the district court is affirmed.
Decision by the court en banc.
In arriving at the conclusion that the judgment of the district court should be affirmed the justices all agree.
From that portion of the opinion which holds that the people of the city and county of Denver have the power to direct the erection of a public auditorium at public expense, to purchase a site therefor, and to direct the issuance of bonds to pay for the same, Chief Justice Gabbert, Mr. Justice Campbell and Mr. Justice Maxwell dissent, it being their opinion that the purpose mentioned is not a ‘ ‘ corporate purpose.”
Rehearing
On Rehearing.
delivered the opinion of the court.
In behalf of the city and county of Denver, we are urged to modify the opinion and to hold that the city and county may issue bonds under the question submitted, so that the entire debt will be extinguished at the expiration of fifteen years. Counsel stated in submitting the case that bonds which provided for an annual payment of the principal, or bonds maturing annually through the period of fifteen years, were unsalable; and that unless depositing the required amount annually in a sinking fund could be regarded as a payment, the charter must be amended. Because of these statements we gave to the question now presented no serious consideration. We have held that article XX does not expressly confer power upon the municipality to erect an auditorium, and as that article does not purport to amend section 8 of article
Section 8 provides: “No city * * * shall contract any debt by loan in any form, except by means of an ordinance * * * specifying the purposes to which the funds to be raised shall be applied, and providing for the levy of a tax * * * sufficient to pay the annual interest and extinguish the principal of such debt within fifteen but not less than ten years from the creation thereof.” The question submitted to the electors'was: “Shall the city and county of Denver issue bonds * * * bearing interest at the rate of four per cent per annum, and maturing in not less than fifteen years nor more than thirty years, the principal to be payable in equal annual installments?” We are asked to determine whether, in view of the limitation of section 8 of article XI, and under the question thus submitted, the city and county may issue bonds maturing in fifteen years. If the question submitted had been, “Shall the city and county issue bonds maturing in ten years?” or had been “Shall the city and county issue bonds maturing in fifteen years?” an affirmative vote upon either question would have authorized the issuance of bonds and have met the requirements of the constitution. And we are satisfied that although the people, in directing the issuance of bonds maturing in not less than fifteen no-r more- than thirty years, exceeded the authority conferred upon them through the constitution, they did thereby confer power upon the council to issue bonds maturing in fifteen years; and that if the council shall direct the issuance of bonds providing for the annual installments of principal so that the entire debt will be extinguished at the expiration of fifteen years, the bonds will conform to the question submitted and will
“The idea of counsel seems to be that in this section 10 there is presented an extra inducement to the voters of the township to incur this indebtedness ; that but for such inducement the bonds would not have been voted, and as the inducement fails, the vote must also fail. Yet as all persons are presumed to know the law, the presumption of course is that the voters all knew that this section is unconstitutional, and were therefore uninfluenced in their action by this apparent inducement.”
The objection here is that the people cannot be said to have understood that the minimum limit of time was in fact the maximum, nor can it be told how they would have voted if the question had been put and had been ordered to be put in this restricted form. The objection is, we think, disposed of by the decision of the case we have cited.
It is suggested that this opinion is contrary to that in the case City v. Hayes, 28 Colo. 110, but. we do not so regard it. In the Hayes case the court held invalid the proceedings of the city council in submitting to the electors of the city of Denver the proposition of creating a debt for eleven distinct purposes, without giving to the voter an opportunity to express his will as to any one of them.
1. That the bonds proposed are not responsive to the question submitted.
2. That it is within the power of the city and county of Denver to provide by charter for the erection of an auditorium, to purchase a site therefor, and to issue bonds to discharge the indebtedness.
3. That bonds maturing in fifteen years after date, providing for the payment of one-fifteenth of the principal of the bond in annual installments, or bonds maturing each year through the period of fifteen year's, so that one-fifteenth of the entire debt will be extinguished each year, will be responsive to the question submitted to the people, and will not be in conflict with section 8 of article XI of the constitution, and that when so issued will be valid obligations of the city, authorized by the charter.
That portion of the former opinion stating our conclusions is withdrawn.
Decision by the court en banc.
In arriving at the conclusion that the judgment should be affirmed the justices all agree. From that portion of the opinion which holds that the people of the city and county of Denver have the power to direct the erection of a public auditorium at public expense, to purchase a site therefor, and to direct the issuance of bonds to- pay for the same, Chief Justice Gabbert, Mr. Justice Campbell and Mr. Justice Maxwell dissent, it being their opinion that the purpose mentioned is not a ‘ ‘ corporate- purpose. ’ ’
Chief Justice Gabbert, Mr. Justice Campbell and Mr. Justice Maxwell also dissent from that portion of the opinion which holds that it is not necessary to resubmit the question to the- people, and that the city may by ordinance issue bonds under the authority already given.