Vickery v. Wilson

40 Colo. 490 | Colo. | 1907

Mr. Justice G-abbert

delivered the opinion of the court:

The first point is manifestly without merit. The election was not held at the time required by law.Article 10 of the charter refers to franchises. It is there provided, by general § 265, that no franchise, relating to the streets, alleys and public places of the city, shall be granted, except upon the vote of qualified, tax-paying electors. By § 267, it is provided that no ordinance submitting such franchise shall be put upon its final passage within thirty days of its introduction or initiation. It thus appears that no franchise of the character under consideration can be granted except on a vote of qualified, tax-paying electors, and that the question of submission may be initiated in one of two ways: Either by introduction by a member of the city council, or by petition of electors. Nothing is said in article 10, or elsewhere, with respect to the time when the question of granting a franchise shall be submitted to a vote, when the matter of such submission originates with the city council; but what the power of the city authorities may be in this respect is not material, because, it appears, the ordinance submitting the question of granting a franchise originated by the method known as the initiative. We must, therefore, turn to the provisions of the charter on this subject. By § 22, under the caption of “Initiative and Beferendum,” it is said:

“Any proposed ordinance may be submitted to the council by a petition therefor of the qualified electors, in number not less than twenty-five (25) per cent, of the vote at the next preceding election for mayor, and the council shall forthwith pass such ordinance without alteration, or refer the same to the qualified electors at the next general election, not held within thirty (30) days after such petition is filed. ’ ’

This embraces all ordinances initiated by the electors. Its • purpose was to compel an unwilling council to act, or submit the proposed ordinance to the qualified electors; but the ordinance in question related to a franchise over the streets and other public places of the city, and, therefore, could not be passed by the city council because of the inhibition contained in § 265, supra; so that all the city authorities could do was to submit the question to the qualified voters at.the next general election, as expressed in § 22, supra.

What election is meant by the expression “next general election,” is the next important question. The charter deals entirely with city and county affairs. It made provision for an election to be held on the third Tuesday of May, 1904, and every two ’years thereafter. .It refers to this election as “a general city and county election, ’ ’ § 166. Its purpose was to provide for elections entirely independent of the general election to be held under the laws of the state for the election of state and county officials, and it did, in fact, make such provision; so that the expression “general election,” as used in § 22, clearly refers to the next general city and county election, which occurs in May biennially, dating from 1904, and not to the biennial elections for state and county officials, held in November of the years when such elections, according to law, shall be, held. It must, therefore, follow, that the election was not held at the time when, by the fundamental law of the city and county of Denver, it can only be held; and hence, whatever the result may have been, it confers no rights. An election, to be valid, must be held on the date which the law relating to it designates.— 15 Cyc. 341; Dickey v. Hurlburt, 5 Cal. 342; 10 Enc. 679.

Notwithstanding our conclusion that the election in question was not held upon the date required by law, we are of the opinion that the court was without jurisdiction to enjoin the defendant from canvassing the vote thereon. The power to canvass the votes cast at an election for public purposes and certify the result thereof is political, and not judicial, • and hence, a court of equity has no jurisdiction to inhibit the exercise of this power. — Dickey v. Reed, 76 Ill. 261; State v. Carlson, 101 N. W. 1004; Hamilton v. Carroll, 33 Atl. 648; Harris v. Schryock, 82 Ill. 119; note to Fletcher v. Tuttle, 42 Am. St. Rep. 220 (234).

It is sought to take the case at bar out of this general rule, because, it is claimed, the election is illegal, and that the county clerk has no authority to canvass the vote and certify the result. This claim is without merit, because these questions can be litigated and determined in the proceeding contemplated by § 289 of our Civil Code, to test the validity of a franchise. Besides, if the defendant has no authority to canvass the votes and certify the result, the plaintiff will not be injured. In such circumstances, it will be the grantee of the franchise who would suffer. Canvassing the returns and certifying the result does not render the election valid, if, in fact and in law, it is invalid. The action of the defendant, which the plaintiff seeks to restrain, will not prevent an appropriate action to test the validity of the franchise, nor complicate matters in any respect. In an action in equity the plaintiff must show that he will be injured by the acts sought to be restrained.

In support of the contention that the lower court had jurisdiction, it is claimed that it appears, from the averments of the complaint, that the plaintiff will suffer irreparable injury, because the value of his stock in The Colorado Telephone Company will be depreciated and the streets and public places of the city burdened with unnecessary appliances by the construction of a competitive telephone system. The franchise in controversy belongs to the public. So far as the plaintiff is concerned, it does not appear from the averments of his complaint that he will be injured different from others, because the streets of the city may be burdened with poles, wires and other appliances erected and maintained for an additional system, and, therefore, no facts are stated which would entitle him to maintain the action on that account. A bill in equity will not lie at the suit of an individual to enjoin the alleged invasion of a public right, where it appears the damage he may suffer is no different from that of the public generally.— Landis v. Walls, 66 N. E. 679.

It is claimed that the code proceeding to test the validity of the franchise is not adequate, because not sufficiently speedy, and plaintiff will suffer a loss by reason of the depreciation of the value of his stock in The Colorado Telephone Company pending the determination of the validity of the franchise by proceedings in quo warranto under the code, which can be avoided by a determination of the questions presented in the case at bar. Whatever may be the result upon the stock of plaintiff is not a matter which can be considered in support of the contention of his counsel, that the present action should be maintained. The law has provided a special remedy by which the validity of the franchise voted upon may be tested, and if that remedy is not as speedy as it should be, this is a fault which lies with the legislature to correct. That body has made special .provision for an action, wherein all the questions raised by plaintiff may be settled, and it is not within the power of the courts to adopt another.

The cases cited by counsel for plaintiff, in which a court -of equity assumed jurisdiction to test the validity of an election, are not in point. With the exception of the State v. Eggleston, 34 Kan. 714, they are based upon the theory that no special remedy was provided by statute, and in such, circumstances a court of equity would assume jurisdiction where injury was threatened, without remitting the parties to an action at law.

We passed upon the validity of the election, because it was the desire of counsel on both sides that this question be determined.

The judgment of the district court is reversed and the cause remanded, with directions to dismiss the complaint. Reversed and remanded.

Decision en banc. Chief Justice Steele not participating. _