*1 14,882. No. Wheatridge et

Gordon District al. Water

(109 899) P. [2d] January 13, 1941. Decided *2 Mr. Thomas Keely, for in plaintiff error. Myles Emory P. L. Mr.

Mr. Tallmadge, O’Connell, for in error. defendants

En Banc. of the court.

Mr. Justice the opinion Knous delivered pertain questions presented proceeding in this The alleged unconstitutionality chapter S.L. C.S.A.), (chapter Supp. providing ’35 173A, 1939 organization arise and sanitation districts and water on the issues raised the demurrer of defendant complaint plaintiff error, to district to the error seeking plaintiff, refer hereinafter whom we shall respect injunctive declaratory judgment relief with district court sustained The matters involved. upon plaintiff’s his election to stand demurrer and complaint, conformity practice court, with *3 (sec- Declaratory Judgments Law Uniform under the C.S.A.), chapter made 93, ’35 inclusive, to 92 tions 78 findings it was de- decree and entered a wherein certain district, substance, that the declared, in and termined organized, county, its had been in Jefferson located prin- in the the issuance of its bonds elected and officers cipal the electors $90,000 authorized sum of provisions strictly the in accordance with unconsti- cited; that such law was act first above grounds any of the or unenforceable tutional, invalid the complaint, of alleged officers and that the in the might lawfully thereof and issue the bonds district in the the real all of taxable a tax on thereon. payment interest bonds and of said for the the terms from contend that deviation does not Plaintiff organization of the district of the act occurred but, subsequent mentioned transactions of of- act itself asserts that the court, in the trial he did particulars. in four the Constitution fends First, it is said the act violates section 21 of (1) article V of the forbids, Constitution which legislative separate union in the same bill of and distinct subjects, (2) requires subject that the treated body clearly expressed of the bill shall be in the The title. enactment under consideration is entitled: Organization “An Act for the of Water and Sanitation Purposes Districts and to Define the and Powers There p. of.” S.L. 597. Premised on the circumstance types that section thereof defines two of districts, viz.: supply “Water district” as “one to for water domestic purposes by any means,” available and a “sanitation dis provide sewage disposal,” “one trict” as fur ther states that “A district be created for a com purposes,” plaintiff bination of water and sewer argues separate that the formation of three distinct and contemplated by classes districts are the act, as a result which it is said act either embraces more subject, provisions than one or that the of the act itself particulars germane are not in all to the ex: title. Our amination of the measure leads to a diverse conclusion. Clearly, think, the contents of the entire statute merely provide organization operation for the may perform any districts which one or more singly defined functions or in combination. In other merely germane words, latter functions are or sub object expressed to the ordinate main title, and, in the no hence, constitutional inhibition arises on this score. Fahey App. State, See, Tex. 146, 11 S.W. Rep. 182. Am. St. supra,

As to second mandate of the Constitution, fairly expresses subject title we are satisfied the matter *4 convey of the act in such manner as to to object of the mind an indication to relates, which it sufficiency expressed is the criterion of which in John- Harrison, son Minn. 575, 923, N.W. 28 Am. St. Rep. Breene, 401, In Re 382. Colo. 24 Pac. 3, we said: assembly general may, within reason, “The make the comprehensive thus chooses, as it title of a bill as many legislation, relating but associated cover to minor example, rela- ‘An Act in matters. For an act entitled: may provide municipal corporations’ for the tion government, powers, organization, duties, offices corporations, as as for all other revenues of such well generality pertaining title,’ ‘The of a thereto. matters Judge Cooley, objection says it, so ‘is therefore no legislation incongruous long it is made a cover to as by intendment can con- itself, and which no fair having necessary proper connection.’ a sidered (5th ed.) is not that the Lim. 174. It essential Const. particularly every specify each and subdivision title shall subject.” of the considering

It seem in would the constitutional suf- ficiency enabling public of the title of the act for cor- poration pattern scrutiny of the that, under here expressed, applicable sense above the standard to mu- nicipal corporations We, therefore, should con- attain. plaintiff’s objection clude that first is merit. without (1) relating powers Section of the directors, of the fix from time board recites: “To rates, to time to increase or decrease water and sewer charges by tolls or for services or facilities furnished pledge payment district, the of and to such revenue for the indebtedness of the district. The board shall fix charges approved by rates, tolls or as shall be public utilities commission the state Colorado.” plaintiff As his contention, second asserts that provision approval above Public Utilities Commission rates to be fixed board water violates section article XVI Con- county stitution in that the board of commissioners of county in which the water district be located thereby deprived of the constitutional conferred by the article and section last cited to establish reason- charged to be able maximum rates for the use of water. provision this In far as we are advised constitutional so *5 has never been considered other than in controversies relating charges by to the reasonableness of fixed car- carriage rier ditches for the bulk of water, and the pursuance statutes enacted in of this mandate seem to chapter seq. be so limited. See, 90, §139, et ’35 C.S.A. might logic urged It with that such section of the application seemingly Constitution has no in situations, paralleled proceeding in the us, before where water by quasi-municipal corporations through distributed system pipe capacity solely lines of small for domestic purposes, including sewerage sewerage disposal, and in- volving many purefaction, filtering, factors such as and precipitation, operations not encountered in carrier ditch ordinarily express However, understood. we need no subject, not, convictions on the and we do since, as we People said in ex rel. 102 Colo. Letford, 284, 79 P. (2d) assigned 274, on the basis of there reasons detail concerning objections similar directed to the Water Con- servancy chapter chapter of Colorado, Act S.L. Supp. 173B, 1939 to ’35 event, C.S.A.: “In these bearing upon primary validity matters have no organization authorizing the and, the act most,

at the the district administration would be subject regulatory power county to commis- sioners.” remaining objections

Involved in the are the fol lowing sections of the act:

“Section 14. In pro- addition to the other means of viding provided, revenue for such districts as herein authority levy board shall have and col- against lect ad valorem taxes on and all taxable real property within district.” levy

“Section 15. To pro- and collect taxes as herein year, vided, the board shall, in each determine the money necessary amount to be raised taxation, taking into consideration other sources of' revenue of the district, and shall fix a rate of which, when levied upon every dollar of assessed of real valuation

within the and with other revenues will raise required annually, supply the amount the district paying expenses organization funds for and the costs operating maintaining of construction, the works equipment promptly pay of the district, and *6 principal full, due, when all interest on and of bonds obligations district, and other of the and in the event of accruing levy may deficiencies, defaults or an additional * * provided be made as in section 16 hereof. *.” certifying

“Section 16. The board in annual levies as provided, herein maturing shall take into account the ensuing year provided indebtedness for the tracts, as in its con- maturing bonds and interest on bonds, and de- prior years, ficiencies and defaults of and shall make ample provision payment for the In thereof. case the moneys produced together from levies, such with other punctually revenues of the district, are not sufficient pay the annual installments on its bonds, contracts or pay and thereon, interest and to defaults and deficien- cies, then the board shall make such additional levies of may necessary purposes, taxes as he and not- for withstanding any limitations, such taxes shall he made and to he continue levied until the indebtedness of ” fully paid shall he provides duty

Section 17 that it shall be the of the proper county levy officers to and collect the taxes as general other taxes. provides Section 18 that, “If the taxes levied are not * * *

paid delinquent property then the real shall regular payment sold at the tax sale for the of said penalties, provided by taxes, interest and in the manner selling of property statutes the state of Colorado for non-payment general for the of taxes.” “Section 19. Whenever indebtedness has been in- district, curred a it shall he the hoard to lawful for purpose taxes and collect revenue creat- of ing may a reserve in such amount as the board fund obligations determine, be used meet the .which charges operating and maintenance district, for provide of and better- depreciation, extensions and improvements the district.” ments to pri- objections are plaintiff’s fourth third and Since foregoing marily sections to the directed together. these conten- In a sense them shall consider asserts reciprocal The third and alternative. tions are attempting to author- construed that if the act is to be improvement it is violative special ize local or Constitution, and, corol- II of the of section article II process 15, article larially, clause, section the due assembly neither the act the thereof, in that in that determined nor of the districts fixed the boundaries by the property be benefitted therein would all of the improvement apportionment provide for the and did levying propor- to the benefits there-against for notice of hear- tionate assessments ing thereon. urges

Fourthly lastly, plaintiff if the tax *7 is con- set out hereinabove the sections authorized general it being that the circumstance tax, as sidered only may imposed of the district estate on the real be property therein, personal upon real and and not both X of places of article with section the act in conflict requiring shall be uni- taxes that “all the Constitution subjects the terri- upon within the class of form same levying authority shall tax, the and limits of the torial be levied and collected general shall laws, which under just regulations prescribe secure a valua- shall as personal,” property, and real and all for taxation of tion providing that all laws same article 6 of the with section property is not other- exempting from taxation which exempt constitutionally See, also, void. shall be wise section that for X. The district concedes 15, article objection, supra, plaintiff’s third stated reasons theory upheld that it authorizes act cannot be objec- improvement special districts. That or local justified permits of no confession and the is sound tion improve doubt. In of a local Colorado, where the cost paid by special assessment, ment is be the tax tax or payer right upon heard, notice, has a to be after question general proportion of benefits and the of may against cost which him—at least assessed where legislative there no determination thereof —and a de right nial of that is a violation of the constitutional People Mil Lee, 598, 583; mandate. v. 72 Colo. 213 Pac. heim District, 268, v. Tunnel 72 Colo. 211 Pac. Moffat People supra. 649; ex rel. Letford, v. attempts provide

Further, so far an act special discharge for cumulative linquencies of levies taxes to de improvement districts, of unen local it is forceable under the doctrine announced in Interstate Valley Trust Co. v. District, 219, Montezuma 66 Colo. See, also, 181 Pac. 123. District, Wilcox v. Riverview (2d) People 115, 172, 93 Colo. 25 P. and ex rel. v. Let- supra. ford,

With third contention eliminated from con consequently question sideration and the tax authorized is not a tax based all as to whether

special special assessment or upon theory apportionment of benefits removed, costs seem would the exaction necessity, general authorized must be a only type tax, since that is the other of direct tax which upon tangible system be levied under our of taxation. For a discussion of distinctions between special taxes, see, Illinois Central R. R. Co. City Sup. v. Decatur, 190, 147 U.S. Ct. L. City 132; Ed. Denver Tihen, 77 Colo. 235 Pac. People supra. 777, ex v. Letford, Indeed, rel. proclaim legislature terms of the act itself that the in general. tended the tax to be of The deliberate omission *8 the method for determination of benefits and the imposition unexplainable. of assessments otherwise is provides of the act Section 7 inter alia that a district governmental be a “shall subdivision of the state of body corporate, powers Colorado and a with all the corporation.” quasi-municipal If the public a or point, the question on this is here raised is power no such and property, levy general real and taxes on all to by personal, be conferred the district within supra. People legislature. Section Letford, ex rel. v. power supra, and author- “The shall have states: board against ity levy on and ad valorem taxes to and collect The method real within district.” all taxable by levy prescribed manner of the and collection and succeeding precise fol- that is in accord with sections general these reasons case of taxes. For in the lowed imposed intend- that the exaction was conclude we must Being general such, tax. it must conform a ed to be uniformity exemption clauses of the Con- with comply not from the That it does so evident stitution. laying realty solely, excepts a tax on the act fact that personalty. attempts exempts The act so far as Illustratively, if the this result thus is void. to authorize general legislature conferred tax has a sought realty property and the district tax on all clearly nullity. Logically, attempt would be a alone, in- which, cannot conceive how law in the first greater validity. restricts, could stance, so have opinion cited the authorities In our theory exemption maintaining authorized its special type tax dis- of direct tax in is a third the act support classification, taxes since tricts, do reality categories of: fall into the authorized therein improvement districts, (1) special in local assessments differently legislature here, the fixed than boun- where, provided means benefits or determined daries and general doing; (2) purposes. taxes for for so type imposed jurisdictions a tax of latter where In provisions realty sustained, was no similar alone X, in sections article of our contained those were involved. Constitution affirmatively urges that if the

The district even questioned tax discussed is unconstitutional last because *9 declared,

of the the act still deficiencies we have just contains which will the provisions levy gen- permit eral taxes on both in real and the personal property district. As so permitting to the points italicized in sections 16 and language 19 hereinabove quoted. Obviously, think, we the words “additional levies of taxes” 16, contained section and the “to power levy a fund, reserve creating taxes and collect revenue” 19, as mentioned in section refer to the limited simply tax on section 14 and not authorized were realty intended to confer additional or other taxing power therein. In addition to the beyond specified gen- eral for financial context administra- provisions tion, this construction made specifically evident from 15, the fact that in section for the providing levy of tax, limited adds “in legislature importing identity the event of deficiencies, defaults or an addi- accruing tional be levy may made as section 16 provided hereof”

As to the corollary district next foregoing, contends that to issue bonds as power conferred by section 13 and section 23 (e) carries it with to power levy taxes as neces may be to sary bonds and the pay interest thereon. In sup of this port among authorities, other are proposition, City Commissioners, 1, cited v. Board 33 Colo. 77 Pac. 858; States, Ralls Court v. United County 733, 105 U.S. 1220; 26 L. Court v. County States, Ed. Scotland United Ct. 35 L. Ed. U.S. 351. From an Sup. all the examination of cases of this practically character cited defendants it that such clearly appears power if a limitation is presumed contained in the act the inference dispels itself which of a general grant taxes to bonds. Such pay limitation is in the case at bar since here injected the act purports method for the prescribe complete payment of the As thereby. bonds authorized seen, have section 15 board, after into taking directs consideration other levy- of revenue of the to make a rate of sources sufficient costs of real estate pay expenses, full, construction, etc., and “to when promptly pay The method due, all interest on and of bonds.” principal in- tax, limited, thus levying being clearly was *10 tended that taxes are to be by legislature imposed as in itself, entirely the act and not in an only provided different manner. fixes the method legislature Where which bonds are to be that method not paid, only must be followed, but is so remedy bondholder’s as him his restricted to seek of require payment bonds out of the the statute. provided by revenues United States v. Court Macon County County, 99 U.S. of Barbara, Potter v. County Santa 582, 331; 25 L. Ed. Corbett Portland, v. City of 349, 1101; Cal. Pac. 407, Ore. 48 Pac. 428. taxation Notwithstanding attempt ed to be authorized to the Con act offensive in the stitution stated and its must be particulars restrained, are of the that as against opinion advanced, here the remainder of the act is objections therefrom. valid and the features questioned severable (sec This is evident from the circumstance that the act that such tax 14) tion was provides designed supple means of providing ment “other revenue districts” and not as sole source thereof. 1939, 31 of the as it in

Section S.L. appears page 610, “If it should determined provides: judicially -unenforceable, such of this act is invalid or any part remaining determination shall not affect parts, the intention to make this act and all its parts being severable.”

The of the district court is affirmed judgment part di- and reversed in and the cause remanded with part, rections -to to conform with modify judgment herein views expressed. heard, Chief the oral Hilliard,

Mr. Justice having does not argument, participate. Justice Otto Bock dissents

Mr. part. Justice Otto Bock dissenting

Mr. part. I dissent from that this portion of opinion construing Constitution, 3 and 6 article X the state sections 1939. In all S.L. other re- applied chapter I concur. spects 14,635.

No. Garbarino, Individually, and as Cahn-Forster Electric Company Savings v. Union and Loan Association.

(109 638) P. [2d] January Decided 1941.