74 Colo. 358 | Colo. | 1923
delivered the opinion of the court.
This is a writ of error to review a decree dismissing the plaintiffs’ action in equity, whose object was to enjoin the municipal authorities of the city of Boulder from enforcing an alleged void city ordinance, purporting to create a paving improvement district. The city of Boulder is a special charter city whose organic law was adopted by its qualified electors under permission of the Twentieth Amendment to our state Constitution. This Court has repeatedly held that, with respect to purely local matters, the legislative power of these special charter cities is, with exceptions not material here, as comprehensive as that of our General Assembly over municipalities organized under the general statutes. The charter of the city of Boulder confers upon
1. If, as contended by the plaintiffs, the power of the city over the subject-matter of creating the proposed improvement district was exhausted by its adjournment sine die July 18, 1922, after it voted favorably for Ordinance 975, and if the district court, in the former suit, held such ordinance absolutely void and a nullity, then the decree in this action might be reversed. We here state the contents of the complaint in the former action, which set forth the grounds relied upon by the plaintiffs for relief, because these grounds, and the additional ones above mentioned, are included in the complaint in the present action. Ordinance 975, as appears by the decree in the former action, was assailed on the grounds that the city officials had entered into a conspiracy with certain persons to bring about the condition of the streets which had crystallized public sentiment in favor of paving; that they entered into a conspiracy with certain persons to award a contract for its construction to a particular firm or corporation; the bonded indebtedness sought to be created by the ordinance was that of the city of Boulder, and, as such, was beyond the power of the city to incur, not that of the proposed paving district, because it was prohibited by the State Constitution and the charter of the city limiting indebtedness to a certain sum, and the bonds provided for were issued for a longer period than allowed by the provisions of these instruments ; that the ordinance, in designating a certain kind of paving to be used, constituted a monopoly which could not be purchased or used by paving contractors in general,
The district court, in the former action on final hearing, found against the plaintiffs upon all of these issues, except one, and held that the city council was within its rights in creating the paving district, and its actions were neither fraudulent, unreasonable nor oppressive. In effect the court found that all the preliminary proceedings leading up to the passage of the creating ordinance had been fully complied with, but 'said, notwithstanding the council for that reason had the right to pass an ordinance creating the district, the ordinance in question, which purported to be an emergency ordinance, because of the absence of a statement therein of the facts which constituted the necessity and urgency, was defective and irregularly passed and, as it then existed could not be enforced. In other words, the meaning of the decree in question is not that the ordinance is a nullity or absolutely void, but that it is defective. Since the council proposed at once to put it into effect from and after the day of its passage, and proposed to base all subsequent proceedings upon it, and before it became effective, if at all, as a non-emergency ordinance, the district court restrained its threatened enforcement.
The findings and decree on their face show that the court could not, and did not, hold Ordinance 975 void, or a nullity, and evidently did not intend to do so. The decisions in this country, so far as we have examined them, are unanimous that the effect of an invalid emergency clause does not make a statute or ordinance itself void, but simply postpones the time when it shall take effect. Michelson v. City of Sacramento, 173 Cal. 108, 159 Pac. 431; Barton v. Recorder’s Court, 60 Ore. 273, 119 Pac. 349; In Re Hoffman,
The former decree, not having been declared void, but merely non-enforcible as an emergency ordinance, and the court havihg found that the city council was within its rights in passing an ordinance creating the district, which necessarily implies that all the essential preliminary proceedings have been complied with, the city council might safely have waited for a period of thirty days after July 18, and thereafter enforced Ordinance No. 975, as it improperly proposed to do before the same became effective under a mistaken notion that the emergency clause was valid. True, plaintiffs say Ordinance 975 could never take effect at all, because it was not published ten days before final passage, as section 18 of the charter requires. Plaintiffs do allege in their complaint no such publication. But the district court, in its decree in the former action, held that the city council was within its rights in creating the district and this necessarily involves the finding that publication was made, for, if it was not, the council was not within its right in creating the district. Plaintiffs are bound by the unfavorable, as well as favorable, parts of the former decree and may not, in this action, indirectly impeach any part of the decree which they themselves invoke. Instead, however, of enforcing 975, the council, without beginning over again the preliminary proceedings, at a subsequent regular meeting on August 22, caused to be introduced Ordinance No. 976, which was identical, with the exception of the omitted emergency clause, with Ordinance No. 975. This it had the right to do. The decree of the district court did not constitute or give rise to a contract between the plaintiffs and the city, which prevented the latter from completing or finishing the work of creating the district. This contention by plaintiffs is based upon an erroneous conception of the force and meaning of the decree. There is no provision of the charter or of the pro
The disposition we have made of this objection, it is true, makes unnecessary consideration of the power of the city council to validate a defective, previously enacted ordinance. It is proper, however, to say that the city council, in a special charter city, has the same legislative power in enacting ordinances that our General Assembly possesses in validating a defectively executed ordinance of municipal corporations organized under the general statute. In 8 McQuillin on Municipal Corporations, section 1893, it is said: “An ordinance that is merely insufficient or defective, which is within the scope of the municipal powers to pass, may be validated, as well as the proceedings taken thereunder, by subsequent appropriate action.” If Ordinance 976, adopted by the Boulder city council on September 6, 1922, be considered a validating ordinance, it could be upheld under the doctrine announced by the author in the above quotation. Of course, if the defect in the enactment of the former was clearly ultra vires, or jurisdictional, such as a failure to give notice of the intention to make the improvement district, it can not be cured by a subsequent resolution or ordinance. But such is not the case here. The plaintiffs had notice of the hearings and that their objections to the creation of this district would be considered. They appeared at the hearing which the charter and ordinances provided, presented their objections and were overruled. All the preliminary proceedings were regular, and the prescribed hearing was enjoyed by the plaintiffs.
2. Another objection is that the city council, in this ordinance, adopted a specification for “Warrenite Bi'tulithic” pavement, which is said to be a patented or copyrighted brand or material, which selection is expressly prohibited by section 6 of General Ordinance 804, that provides: “No petitions or specifications shall name any material from any specified locality, quarry or kiln, or of any particular name, brand or source.” This particular objection is without merit. Under the finding of the trial court upon conflicting evidence, and by the decisions generally, this pavement is not “material” at all, but is a completed or finished product, properly denominated a pavement, and was selected by the city council, which, under the charter, had such choice.
3. The most important objection raised is that the council adopted a closed specification that would not admit of competitive bidding which is mandatory under the charter and ordinances of the city of Boulder. Similar questions have been before the courts of-'this country and an attempt to reconcile the conflicting decisions would be futile. One rule, which is known as the Wisconsin rule, would make this ordinance void upon the ground that it prohibits competitive bidding, and the other rule, known as the Michigan rule, permits the adoption of a patented pavement, notwithstanding the fact that, in a sense, it is said to restrict competition. Our Court of Appeals, in Rhodes v. Board, etc., 10 Colo. App. 99, 113, 49 Pac. 430, in an exhaustive opinion by Mr. Justice Thomson, although in that case the question was not expressly decided, in referring to the opinion of Judge Cooley in Hobart v. City of Detroit, 17 Mich. 246, 97 Am. Dec. 185, the first, in order of time, and one of the leading cases applying the Michigan rule, and to the
Plaintiffs cite Temple v. Portland, 77 Ore. 559, 151 Pac. 724, as overruling Johns v. Pendleton, 66 Ore. 182, 133 Pac. 817, 134 Pac. 312, 46 L. R. A. (N. S.) 990, Ann. Cas. 1915B, 454. On the contrary, the opinion in the later case expressly states that, in the Johns Case, it was held that where the patentee of a patented pavement offers to all bidders alike, as in the instant case, the right to the use of the patented article, there can be no objection to specifying the patented pavement. The court- then distinguishes the Johns Case from the one in hand by saying that in the latter the right to lay the patented pavement selected by the city council was exercised exclusively by the owner, who refused to furnish'it to other bidders, and the owner was the only, and necessarily could be the only, bidder. Hence there was no opportunity for competition.
The Wisconsin court has later restricted the rule announced in Dean v. Charlton, supra. Other courts, holding the Wisconsin doctrine, under a state of facts like that now before us, have receded from the proposition that patented articles can not be purchased by public boards or officials where contracts must be let to the lowest bidder. Kilvington v. Superior, 83 Wis. 222, 53 N. W. 487, 18 L. R. A. 45.
The “Warrenite Bitulithic” pavement is patented, not an unpatented article, and the authorities generally make this a controlling distinction in such cases. McQuillin on Municipal Corporations, section 1204.
Colorado Springs v. Coray, 25 Colo. App. 460, 139 Pac. 1031, cited by plaintiffs is not in point. The decision there was that services rendered in the construction of a public improvement under an unauthorized contract made in disregard of the formalities required by the statute, afforded no action against the municipality. That case is essentially different from the instant case in the facts to which the principle of law was applied.
5. Another objection is that the provision in the ordinance for the issuing of bonds without submitting the question to a vote of the qualified electors, is void as in conflict with section 2, clause “d” of the charter, reading, the city “shall have the power * * * to construct, purchase and acquire and operate waterworks, power plants and other public utilities or works or ways, local in use and extent, and shall have the power to issue bonds upon the vote of the taxpaying electors in any amount necessary to carry out any of its said powers or purposes,” and also contravenes section 97 of the charter reading: “Except as otherwise in this Charter provided, no bonds shall be issued for any purpose, except in pursuance of an ordinance authorizing the same, * * * and no bonds shall be issued unless the question be submitted to the vote of such qualified electors of the city as shall have paid a property tax therein,” etc.
First, we observe that the clause of section 2 quoted, is restricted to bonds to pay for specified public utilities, local in use and extent. -Manifestly this section was intended to apply only to bonds issued and made payable by the city in its corporate capacity, and were to be paid by the city out of general (taxes. The first sentence of section 97 contains an exception, the necessary implication of which is that
Plaintiffs say that the decision of this Court in Deter v.
6. Another objection is that this ordinance contravenes article 11, section 8 of the state Constitution, which provides that no city or town “shall contract any debt by loan •in any form except by means of an ordinance,” and then only after approval of the taxpayers at a regular election, and only in a total aggregate amount, together with the existing debt, not in excess of 3 per cent, of the assessed valuation, and that the bonds, being issued for a term of 17 years, are invalid under the state Constitution, which limits them to a period not to exceed 15 years. These constitutional provisions relate to obligations of the city and not to obligations of a local improvement district. These bonds, as we have held, are, and on their face they purport to be, bonds of the local improvement district, and not bonds of the city, and are made payable only out of assessments for the improvements and levied upon the frontage. They are obligations, therefore, not of the city, but of an improvement district and are not within such inhibitions pf the state Constitution or any provision of the special
In Board v. Fullen, 111 Ind. 410, 12 N. E. 298, 13 N. E. 574, the court states that the city authorities, in issuing and negotiating local improvement bonds, act merely as an agency; not of the city but as special agents of the imr provement districts, to accomplish a public end. The very language of the bonds issued in this case, reciting that they are local improvement bonds of the Boulder paving district No. 20, issued in payment of improvements, and are payable only out of the moneys collected on the assessments, clearly distinguishes this case from United States v. Fort Scott, 99 U. S. 152, 25 L. Ed. 348, and Fowler v. Superior, 85 Wis. 411, 54 N. W. 800.
In reaching our conclusion, we have not been unmindful of the decisions of this Court that the procedure prescribed by the Constitution, statutes and ordinances, in creating improvement districts, is to be strictly followed, and that any substantial deviation therefrom, or non-observance thereof, will render void creating and assessing ordinances. Even so, and giving full effect to this rule, every condition precedent to the right and power of the city council to enact an ordinance creating the district has been complied with.
There are' some other and minor questions raised by plaintiffs, which, in view of the foregoing, we consider of no moment. They concern administrative and discretionary power of the city council and are, at best, irregularities, or such as not to affect the result.
Mr. Chief Justice Teller, Mr. Justice Allen and Mr. Justice Denison, not having heard the oral argument, did not participate in the decision.