Opinion
No. 19,557.
Decided August 21, 1961.
Taxpayers' action to determine validity of ordinance established improvement district. Judgment for defendant.
Reversed.
1. STATUTE — Construction — Inconsistency — Duty of Court. If two acts of the legislature may be so construed as to avoid an inconsistency so that both may be upheld, it is the duty of the court to so construe them.
2. MUNICIPAL CORPORATIONS — Cities of Second Class — Form of Government — City Manager — Statute. C.R.S '53, 139-6-1, et seq., established the procedure under which a city of the second class may adopt a Council-City Manager form a government, and provision that old government shall continue in office until completion of election, canvass of the votes and declaration of the results when officers elected shall immediately assume office, applies only to municipal election at which the proposition was submitted and new officers elected.
3. Cities of Second Class — City Manager Form — Adoption — Subsequent Elections. Once a city of the second class has adopted a council-city manager form the government, subsequent elections are governed by the provisions of the general statutes (C.R.S. '53, 139-4-1) providing that in all second class cities, not under charter, council members shall hold their respective offices for the term of two years commencing on the first Monday after the first Tuesday in January following their election.
4. Election — Council Members — Beginning of Term — Ordinance — Adoption — Validity. Where a city of the second class had previously adopted a council-city manager form of government, council members elected at a subsequent election were not qualified to act officially until their term of office began pursuant to C.R.S. '53, 139-4-1, hence an ordinance adopted by such council, purporting to act as such immediately following election was valid.
Error to the District Court of Jefferson County, Hon. William E. Buck, Judge.
Mr. BEN KLEIN, Messrs. CREAMER CREAMER, for plaintiffs in error.
Messrs. BRADLEY, CARNEY JOHNSON, for defendants in error.
PLAINTIFFS in error appeared as plaintiffs in the trial court and we will so refer to them. We will refer to defendants in error as the city or the city council.
Plaintiffs are taxpaying electors residing in Golden, Colorado, within the boundaries of a purported improvement district known as Golden Downtown General Improvement District, which allegedly was organized pursuant to the provisions of C.R.S. '53, 89-4-1, et seq. They objected to having the property owned by them included in the district, and within the time provided by the statute, and in the manner provided thereby, they filed the action in the district court to have determined the question as to whether the district was legally organized.
As we view the controversy, all pertinent questions of fact are presented here by stipulation of counsel for the parties. These agreed facts raise but a single question of law. We will accordingly make reference only to those facts which bear directly upon that question.
We are concerned with a construction of two provisions of the statutes governing the affairs of cities of the second class. The City of Golden is a city of that class and a long time prior to the election of the officers here involved, had adopted the City Manager form of government as provided for by C.R.S. '53, 139-6-1 to 22. We think it important to direct attention to the fact that the municipal election involved in this controversy, which took place November 3, 1959, was not the election which changed the form of government to a City Manager operation. That change had been brought about at a much earlier date.
The instant controversy arises out of the fact that the city council as it was constituted on October 8, 1959, passed on first reading the ordinance creating the district. At the election five of the old council members were re-elected and four new members were elected. The only hearing shown to have been had with reference to the ordinance or formation of the district was held November 5, 1959. That hearing was held with members of the old council acting in their official capacity as councilmen.
On November 12, 1959, there was a meeting of the old council of Golden. The minutes of that meeting appear in the record. At that meeting "Councilman Crawford moved, Councilman Dillingham seconded that the meeting be adjourned sine die. All Councilmen voted in the affirmative. The Mayor declared the motion carried." Thereupon the new council took office. The city clerk asked that the newly elected councilmen rise and be sworn into office as councilmen for City of Golden, and District Judge Quiat administered the oath of office to the new council. Much business was then transacted by the new council in organizing and making appointments. There was then considered the matter of the instant district.
"FILE No. 592-24 ORDINANCE NO. 445 'AN ORDINANCE ORGANIZING THE GOLDEN DOWNTOWN GENERAL IMPROVEMENT DISTRICT PURSUANT TO THE PROVISIONS OF 89-4-1 ET. SEQ. C.R.S. '53.'"
The new council then adopted the ordinance creating the district by passing the same on second reading.
It is argued by counsel for plaintiffs that the ordinance was not legally adopted because hearings were held before a different council than the one which adopted the ordinance, and that one body of men sitting as the council passed the ordinance on first reading and a different body of men, purporting to act as the city council, passed the ordinance on second reading. It is argued that C.R.S. '53, 139-4-1 precluded the newly elected councilmen from functioning in an official capacity until "the first Monday after the first Tuesday in January following their election," at which time their term of office commenced. This section provides in pertinent part:
"The qualified electors of the cities of the second class * * * shall elect, on the first Tuesday in November * * * two aldermen from each of the several wards, who shall hold their respective offices for the term of two years, commencing on the first Monday after the first Tuesday in January following their election. * * *":
C.R.S. '53, 139-15-5 provides, inter alia:
"The members of the council elected for each city, * * * on the first Monday after the first Tuesday in January following their election in cities of the second class, shall meet and organize the city council * * *."
On behalf of the city it is argued that C.R.S. '53, 139-6-6 is controlling. This chapter sets forth the procedures to be followed in cities of the second class who desire to reorganize as a City Manager form of government. The section of the chapter relied on by the city contains the following:
"The election of the members of the council shall be conducted in other respects as provided by law for the election of officers of the municipality prior to its adoption of the provisions of this article. The old municipal government shall continue in office until the completion of said election, the canvass of the votes thereof and the declaration of the results thereof." 139-6-7 provides in parts:
"At the first meeting of the council following every regular municipal election, the council shall choose * * * one of its members as chairman * * *." This section also is relied on by the city.
We think another statutory provision has a definite bearing on the controversy. The section is C.R.S. '53, 139-6-4, in which we find:
"(1) All laws of the state applicable to the municipality before the adoption of the city council-city manager form of government and not inconsistent with the provisions of this article shall apply to and govern such reorganized municipality."
Under well established rules of statutory construction, if the foregoing provisions can reasonably be construed to be consistent with each other, it is our duty to so construe them. If two acts of the legislature may be so construed that an inconsistency will be avoided and both upheld, it is the duty of the court to so construe them. People ex rel, Wade v. Downen, 106 Colo. 557, 108 P.2d 224; People v. Rapini, 107 Colo. 363, 112 P.2d 551.
[2, 3] The purpose of C.R.S. '53, 139-6-1, et seq., is to define and establish the procedure under which a city of the second class may change its governmental structure to the City Council-City Manager form of government. The portion of section 6 of that article which reads,"The old municipal government shall continue in office until the completion of said election, the canvass of the votes thereof and the declaration of the results thereof" applies exclusively to that municipal election at which the question of the adoption of a new form of city government is submitted. It was the intention of the legislature to provide for the reorganization of the city government immediately following the election at which the change was authorized. One the reorganization has been accomplished the provisions of the general statutes relating to cities of the second class apply, and C.R.S. '53, 19-4-1, provides specifically that in all second class cities, not under charter, the council members "shall hold their respective offices for the term of two years, commencing on the first Monday after the first Tuesday in January following their election." By the foregoing construction of these statutory provisions no inconsistency results.
It follows that when the individuals elected to membership in the city council on November 3, 1959, assumed to act as council members on November 12, 1959, they were not qualified to act officially. Their term of office did not begin until the first Monday after the first Tuesday in January, 1960. The only city council authorized to act prior to that date was the city council as it was constituted at the time the ordinance was introduced and passed upon first reading.
The judgment is reversed.