THE CITY AND COUNTY OF DENVER, ET AL., v. KENNETH G. HOLMES, ET AL.
No. 21070
Supreme Court of Colorado
April 5, 1965
Rehearing denied April 26, 1965
400 P.2d 901 | 156 Colo. 586
MR. JUSTICE DAY delivered the opinion of the Court.
H. E. CARLENO, ROBERT R. GALLAGHER, JR., for defendants in error Kenneth G. Holmes, Dorothy V. Holmes, Robert G. Fawcett and Loretta V. Fawcett, and College View Civic Association.
RICHARD D. DITTEMORE, for defendant in error Board of County Commissioners of Arapahoe County.
En Banc.
MR. JUSTICE DAY delivered the opinion of the Court.
THIS action was instituted pursuant to
The plaintiffs in the trial court are the defendants in error here. The four named plaintiffs are residents and real estate taxpayers in the area sought to be annexed, representing the landowners who are opposed to the annexation. The College View Civic Association is in like category; the Board of County Commissioners are referred to as the legal representatives of the County of Arapahoe, which latter entity is designated in the complaint as “the owner” of certain roads, streets, public ways and alleys in the аrea sought to be annexed.
The basis of the court‘s ruling was a stipulated computation that the signers of the petition for annexation represented 58% of the area proposed for annexation if roads, streets, alleys and rights of way are excluded; but that they represented only 48% of the area if the public roads, streets, alleys and rights of way are “thrown on to the scale” in opposition to the annexation. On this point the trial court rules: “The total ‘legal’ signatures, as required by 139-11-8, C.R.S. 1953 represent less than 50% of the unincorporated area proposed to be annexed. If, however, the streets, alleys and roads (which constitute about 17% of the area) are excluded from the area in determining whether the petition was signed by the owners of more than 50% of the territory, the statutory requirement has been satisfied. The single legal issue to be determined is whether the streets, alleys and roads are to be included.”
Although the trial court declared the attempted annexation void based upon the holding of this court in City and County of Denver, et al., v. Board of County Commissioners of Arapahoe County, et al., 145 Colo. 451, 359 P.2d 1031, it is to be noted that that case affirmed an Arapahoe County Court judgment by operation of law on a three to three vote of this court, one justice not participating.
The statute,
“Proceedings initiated—when complete.—Proceedings for annexation of territory eligible as defined in
section 139-11-2 shall be initiated by a written petition pre-sented to the legislative body of the city, city and county or incorporated town to which it is proposed to annex such territory, signed by the owners of more than fifty per cent of the area of such territory who shall also comprise a majority of the landowners residing in the territory at the time the petition is filed. * * *”
It is admitted that the majority of the landowners residing in the territory have signed the petition. We are, therefore, called upon to consider whethеr the words of the statute require an interpretation that compels computing the streets and alleys as being opposed to the annexation or whether the statute permits a construction that the streets and alleys are not properly part of the calculable area.
With reference to the construction of statutes, this court in Kirschwing v. O‘Donnell, 120 Colo. 125, 207 P.2d 819, quoting with approval Klench v. Board of Pension Fund Com‘rs., 79 Cal. App. 171, 249 Pac. 46, said:
“If the meaning of the language as it was intended to be understood * * * be uncertain or doubtful, then a question of legislative intent is presented and that intention must be ascertained by a consideration of the language in connection with the context of the statute in which the language is employed in its entirety, the object which said statute was designed to attain, and the obvious consequences which would follow a construction either way.”
In reading sections
In Western Lumber and Pole Co. v. City of Golden, 22 Colo. App. 209, 124 Pac. 584, the rule was stated to be that the interpretation of a statute the legislative purpose and the objects sought to be accomplished by the enactment are to be always borne in mind. And, it is not to be admitted that an unjust or unnatural consequence was contemplated by the legislature, unless this intention is too plain to admit of doubt. And the court should not adopt an interpretation, which produces absurd, unreasonable, unjust, or oppressive results, if such interpretation can be avoided.
In 50 Am. Jur. Statutes, Section 370, at page 377, it is stated that a construction should be avoided which renders the statute unfair or unjust in its oрeration, where the language of the statute does not compel such a result.
It appears that the legislative purpose and object in enacting article 11 was to afford landowners, as that term is defined in the statutes, an orderly opportunity to petition for annexation of their lands to a municipality if they can procure more than 50% of the persons who own more than 50% of the land sought to be annexed. It is not reasonable to assume оr hold that the legislature intended to impose an additional burden or requirement upon the landowners in favor of annexation by requiring them to overcome, with their petition, the area which goes to make up the public streets, alleys and roads. Moreover, the construction of the statute which the county and the opponents of the annexation here seek would lead to an absurd, unjust, unreasonable and oppressive burden upon the fee owning, tax liable landowners in their quest for a legally acceptable an-
Because annexation statutes in various states are not uniform and differ radically from state to state, there is very little law to guide this court in its duty to carry out the intent of the legislative act. However, in a number of cases in other jurisdictions where attempts have been made to use the weight of publicly owned, tax exempt lands to defeat this or a comparable type of proceeding, courts have held against such use. Annexation of Lots v. Mutual National Bank (Ill. 1959), 163 N.E.2d 215 (Annexation); Gorman v. City of Phoenix (Ariz. 1953), 258 P.2d 424 (Annexation); American Community Builders v. Chicago Heights (Ill. 1949), 85 N.E.2d 837 (Disconnection); Heller v. Seal Beach (Calif. 1958), 321 P.2d 97 (Annexation).
We hold, therefore, that the streets and public ways in the area are not to be included in calculating the area to be annexed.
The judgment of the trial court is reversed and the cause remanded with directions to enter judgment in favor of the City and County of Denver and a decree declaring the annexation valid.
MR. CHIEF JUSTICE PRINGLE and MR. JUSTICE SCHAUER сoncur in the result.
MR. JUSTICE FRANTZ dissents.
MR. JUSTICE FRANTZ dissenting:
Our function is adjudicative and not legislative. We
In restraining a department of gоvernment from exercising an authority constitutionally appertaining to another department, we wield an awesome but appropriate power because it is bestowed upon the judiciary by the Constitution of Colorado.
But what shall restrain us if we are not mindful of our circumscribed role in state government, and if we do not respect the distribution of powers among the “three distinct departments” as proclaimed in Article III of the Constitution? Our peculiar рower induces self-restraint. A vigilant, dutiful judiciary should recognize its sphere of operation and readily restrain itself from any inchmeal intrusion on that which properly belongs to another branch of government.
It is within the sole province of the General Assembly to amend one of its enactments. When this Court amends an act of the legislature under the guise of interpretation, it trespasses upon an area of state action entrusted to the General Assembly alоne.
Annexation is controlled by statute. Our General Assembly has discretionary power to determine the conditions and requirements under which annexation of territory to a municipality may be had. Pueblo v. Stanton, 45 Colo. 523, 102 Pac. 512. Courts may not expand, abridge, or revise these conditions and requirements. City of Pass Christian v. Town of Long Beach, 157 Miss. 778, 128 So. 554; State ex rel. v. Texas City, 157 Tex. 450, 303 S.W.2d 780.
In a case involving disconnection of a territory from a town, we rеcently said:
“To give effect to such construction would require the Court to indulge in judicial legislation. This we cannot do.” Littleton v. Wagenblast, 139 Colo. 346, 338 P.2d 1025.
“Courts should be exceedingly careful to avoid” judicially legislating. Denver City Tramway v. Kennedy, 50 Colo. 418, 117 Pac. 167. Judicial legislation “is beyond our lawful power.” Sheely v. Sheely, 102 Colo. 194, 78 P.2d 378. The rule that words will be departed from where absurd results would follow from an adherence to the literalness of a statute does not justify a court in amending the statute or giving it a meaning to which its language is not susceptible, in order to avoid what the court believes are inequitable and unjust rеsults. Fullerton v. Lamm, 177 Ore. 655, 163 P.2d 941; State ex rel. Associated Indemnity Corp. v. Mortensen, 224 Wis. 398, 272 N.W. 457, 110 A.L.R. 524; see Morris v. Adams County, 25 Colo. App. 416, 139 Pac. 582.
Annexation is a statutory proceeding. In this respect it may be likened to workmen‘s compensation. In answering a contention regarding certain matters that ought to be considered in a compensation claim, this Court wisely reminded that such was “a purely statutory proceeding,” and that what was proposed involved
“Proceedings for annexation of territory eligible as defined in section
139-10-2 shall be initiated by a written petition presented to the legislative body of the city and county * * * to which it is proposed to annex such territory, signed by the owners of more than fifty per cent of the area of such territory who shall also comprise a majority of the landowners residing in the territory at the time the petition is filed.” (Emphasis supplied.)
“Area of such territory” in itsеlf is so transparent as to expose its very meaning. “Such territory” has an “area” and that is the area involved. Owners of more than fifty per cent of this area must sign. There is no room for excepting from the computation of area the public ways in the “area of such territory.” Such is sheer “judicial amendment of a legislative act; this we are powerless to accomplish.” Jones v. People, 155 Colo. 148, 393 P.2d 366.
“Area of such territory” means the surface of the land included within the described boundaries of such territory. We are dealing with a plane surface. See State v. City of Polytechnic, (Tex. Civ. App.) 194 S.W. 1136.
Other parts of the annexation statute make it luculent that public ways must be included in determining whether the required percentage of the area of the territory proposed to be annexed has been signed for. We enumerate:
(a) Legal annexation involves a territory. Several sections of the statute manifest the intention of the legislature that a surface intact is subjеct to annexation provided other conditions and requirements are present.
A notice must be given by the municipality which has favorably considered a petition for annexation, and among the items required to be mentioned therein is “a description of the territory included in the proposed annexation.”
(b) Territory to be annexed must be bounded tract. The statute makes it clear that the territory to be annexed must be within fixed boundaries, and that every square inch of lаnd within those boundaries is a part of the territory.
Thus,
“Territory shall be eligible for annexation if such territory:
* * *
“(2) abuts upon or is contiguous to * * * city and
* * *
“In determining territory eligible for annexation and establishing boundariеs of any territory to be annexed, no territory owned by the same owner, whether consisting of one tract or parcel of real estate or two or more contiguous tracts or parcels of real estate, shall be divided into separate parts or parcels without the written consent of the owner thereof.”
By
Although a digression, it should be noted that the maps or plats filed in the present case show within the boundaries thereof the public ways in question.
In the notice required to be given after a petition has been filed, the municipality is required to give “a description of the territory included in the proposed annexation.”
(c) Public ways are and must be part of the area of the territory to be annexed. It seems to me that the legislature left nothing to conjecture in the passage of the annexation statute. As already shown, it indicated that the territory to be annexed is enclosed within boundaries. The legislature went further and by use of language demonstrated its awareness that streets would be part of territory to be annexed.
* * *
“(3) Is otherwise qualified under this section but is noncontiguous solely because a plotted street or alley, right of way, public or private, or a lake, reservoir, stream or other waterway lies between the municipality and the territory supposed to be annexed;
* * *
“(5) Is such that the noncontiguous boundaries thereof coincide with existing block lines, or center lines of established streets, roads, highways, or alleys, or with governmental subdivision lines for purposes of identification whenever this is possible.” (Emphasis supplied.)
Manifestly, under either subsections (3) or (5) above, the one-half of the street located outside the annexing city would be annexed and would be included within the boundaries of the territory to be annexed, as those boundaries are required to be delineated by sections of the statute already quoted. If we read
Of significance in showing the meaning of “more than fifty per cent of the area of such territory” is the language appearing in
“* * * If such legislative body shall find that the counterpetition meets the requirements of sections
139-11-3 and139-11-4 , it may nevertheless approve the annexation by ordinance, but shall thereupon petition the county court of the county in which the whole or larger area of such territory for annexation is located . . .” (Emphasis supplied.)
Given the hypothetical problem of determining which county contained the larger area of a territory located in two counties, the only difference in the size of the
(d) Use of the terms “owners” and “landowners” indicates tax exempt properties as being included in area. It should be remembered that
There is a distinction between the words “owners” and “landowners” as used in the statute. Landowners must be residents who are fee owners who have become liable for a property tax.
“There are two statutory requirements: First, the annexation petition must be signed by the owners of more than fifty per cent of the land area. * * * A second statutory demand is that the petition be signed by a ‘majority of the landowners rеsiding in the area at the time the petition is filed.’ ”
“Landowners” refers to owners liable for a tax, and “owners” includes those who own tax exempt property. Thus, churches, schools (both public and church related), public parks, public ways, and other properties which are tax exempt are part of the area of the territory because the statute requires that the petition for annexation must be “signed by the owners of more than fifty per cent of the area of such territory” who shall also comprise a majority of the landowners residing in the territory.
Under the law, title to public ways is in the county until such public ways are vacated, at which time title shall vest in abutting owners.
The only sequitur that can be drawn from the plain wording of the statute is that public ways owned by the county but enjoying a tax exempt status must be included in the consideration of what constitutes “the area of such territory” sought to be annexed.
The majority opinion in effect holds that the statute should be construed as providing that the petition for annexation must be “signed by the owners of more than fifty per cent of the area of such territory, but in computing what shall constitute such fifty per cent public ways shall be excepted . . .”
Such a construction would violate fundamental, universal rules applicable to courts in determining the significance of statutes. We have already observed the constitutional bar to courts amending legislative acts. We would further observe that plain language, such as here employed, forbids the exception engrafted on the statute in question by this Court. Denver v. Hobbs Estate, 58 Colo. 220, 144 Pac. 874, Ann. Cas. 1916C, 823.
Perhaps no rule is more honored in the universality of its acceptance than that which ordains that courts should not read into statutes exceptions not made by the legislature. Karoly v. Industrial Commission, 65 Colo. 239, 176 Pac. 284; Stockton Theatres v. Palermo, 47 Cal.2d 469, 304 P.2d 7; State of Minnesota v. Tennyson, 212 Minn. 158, 2 N.W.2d 833, 139 A.L.R. 987; State v. Hamilton, (Okla. Crim.) 298 P.2d 1073; State ex rel. v. Ellsworth, 59 Wyo. 288, 139 P.2d 744.
We should heed this language, taken from the case of State of Minnesota v. Tennyson, supra.
“* * * It is for the legislature and not the court to create exceptions, if there are to be any. Where a statute is couched in broad and comprehensive language admitting of no exceptions, the court is not justified
in engrafting thereon exceptions, however much it may deem the public welfare to require them.” (Emphasis supplied.)
Equally cogent and applicable is the reasoning of the Supreme Court оf California in the case of Stockton Theatres v. Palermo, supra.
“The general rule is that a court is not authorized in the construction of a statute, to create exceptions not specifically made. If the statute announces a general rule and makes no exception thereto, the courts can make none.” (Emphasis supplied.)
It may be argued that the courts can imply an exception. But there are no implied exceptions to a legislative enactment. Imрlied exceptions to legislation are verboten. Garnet Ditch & Res. Co. v. Sampson, 48 Colo. 285, 110 Pac. 79; Spears v. City of San Antonio, 110 Tex. 618, 223 S.W. 166. See Hart Co. v. Burton, 133 Colo. 482, 297 P.2d 267.
During the last several years cases have been before this Court involving the question of whether public ways and places shall constitute part of the area of an annexation for the purpose of determining the sufficiency of compliance with the statute. It would have been easy for the legislature to have specifically enacted the exception which this Court would now engraft on the act. Failure of a legislative body to change the statute under such circumstances has special significance in its construction. Safeway Stores v. Bowles, 145 F.2d 836, cert. den 65 S.Ct. 683, 324 U.S. 847, 89 L.Ed. 1408, and 65 S.Ct. 684, 324 U.S. 847, 89 L.Ed. 1408; Kusior v. Silver, 54 Cal.2d 603, 354 P.2d 657; Bay Creek Lbr. & Mfg. Co. v. Cesla, 213 Ore. 316, 324 P.2d 244.
Cases cited in the majority opinion, said to except public ways from area, will not furnish solace for what this Court is here doing. They are, in my opinion, inapplicable to a statute using the language which is to be found in our annexation statute.
With due deference to the majority, I cannot agree