Opinion
No. 20,235.
Decided February 11, 1963. Rehearing denied March 4, 1963.
From a judgment holding annexation of land to city to be invalid, the city and landowner bring error.
Reversed.
1. ANNEXATION — Constitutional Law — Counties — Boundaries — Right to Change. Parties claiming to be aggrieved by the detachment of land from a county are not denied due process or equal protection of the law under the Federal constitution, since they have no vested right in the existence of the county, which, being an adjunct of the state for administrative purposes, may be increased or diminished in size by the people by constitutional amendment, or under Art. XIV, Sec. 3, of the state constitution.
2. INJUNCTION — Grounds — Vacation. Where no grounds exist for the granting of an injunction, it should be forthwith vacated.
3. ANNEXATION — Aggrieved Person — Statute. C.R.S. '53, 139-11-6, specifying the class of persons who may be aggrieved by an annexation proceeding, and requiring such party to bring an action in the county in which his land is situate, does not require that he be a landowner in the area being annexed.
4. Aggrieved Person — Not Resident of Tract. The general rule is that a resident of an unincorporated area, but not of the particular tract to be detached by annexation proceedings, is not a person aggrieved thereby, since such person does not suffer a detriment peculiar to himself as distinguished from the detriment shared by all property owners in the governmental unit.
5. County — Interest — Person Aggrieved. A county has such an interest in the detachment of its territory as to be a "person aggrieved" under the statute where it is charged that an annexation is invalid.
6. SCHOOLS AND SCHOOL DISTRICTS — Annexation — Person Aggrieved. A school district is a "person aggrieved" under the statute (C.R.S. '53, 139-11-6 where it is claimed that an illegal annexation will seriously impair both its tax base and the interests of its students.
Error to the County Court of Arapahoe County, Hon. John E. Fitzpatrick, Judge.
Mr. ROBERT S. WHAM, Mr. RICHARD P. MATSCH, Messrs. NEEF, SWANSON and MYER, for plaintiff in error City and County of Denver.
Mr. BELMORE T. MARTIN, for plaintiff in error The Robinson Brick and Tile Company.
Mr. RICHARD SIMON, Mr. GEORGE LOUIS CREAMER, for defendants in error.
THIS matter involves the validity of the annexation of certain Arapahoe County lands to the City and County of Denver. We shall refer to the parties by name, or to plaintiffs in error as defendants and defendants in error as plaintiffs, as they appeared in the trial court.
Plaintiff, alleging themselves to be aggrieved persons under C.R.S. '53, 139-11-6, filed their complaint in the trial court alleging in substance that Robinson's land, which is industrial in nature and contains no residents therein, was both ineligible for annexation under the statute because lacking the one-sixth boundary requirement and that the action of Denver in passing its annexation ordinance (Ordinance No. 141, Series 1961) violated both the state and federal constitutions as well as the "The school district organization act of 1957" [1960 Perm. Supp., C.R.S., Section 123-25-1 et seq.].
After hearing, judgment was awarded plaintiffs on their second through eighth claims. These claims alleged either or both constitutional and statutory violations the than seeking relief under the annexation statute (C.R.S. '53, 139-11). Plaintiffs' eighth claim sought a mandatory injunction against the Arapahoe County Assessor and Treasurer requiring them to continue to assess and collect taxes on the subject property and prohibiting Denver from so acting.
Denver seeks reversal of the judgment asserting that plaintiffs' second through seventh claims are the same as those recently held by this court to be without validity. See Board of County Commissioners of Jefferson County, et al., v. City and County of Denver, et al., 150 Colo. 198, 372 P.2d 152 (1962). It is further asserted that plaintiffs' eighth claim upon which injunctive relief was granted must fail as a result thereof. Defendants continue to assert here as they did in the trial court, that none of plaintiffs are in fact persons aggrieved under the statute qualifying them to challenge the annexation. It is asserted that error was committed by the trial court in denying Denver's motion to dismiss on that ground. We shall consider the issues presented in the above order.
FIRST
An examination of this record discloses that Denver is correct in its assertion that our prior decision above mentioned governs in determining the validity of plaintiffs' second through seventh claims. Though they were not parties to that action the issues involved are stare decisis.
Plaintiffs urge, however, that in the prior decision we failed to fully treat the alleged applicability of the 14th Amendment of the Federal Constitution to this problem. In addition it is said that the issue of reapportionment of the Colorado legislature (now pending in this court in Stein v. The General Assembly, No. 20,240, and in Lisco, et al., v. McNichols and Myrick, et al., v. General Assembly, Nos. 7501 and 7637, combined actions now pending in the United States District Court for Colorado), is now involved in this action. They urge that specific rulings be made on each of these points in relation to the same issues decided in the [prior case.
The gist of plaintiffs' complaint, both in the trial court and here, is stated at page 7 of their answer brief to be that:
"The developed portion of the tri-counties (Arapahoe, Adams, and Jefferson which completely surround Denver) lies in narrow belts closely adjacent to Denver. In those areas are intensive housing, substantial industrial and commercial development, and many businesses. Basically, these areas are the tax base of the surrounding counties.
"Urbanization places ever heavier burdens upon the counties, burdens which may be met only from taxes derived from that base. It is that very urbanized base which Denver seeks to absorb. Such a development is neither economically nor politically sound and, when it is implemented by a set of legal provisions adopted without proper legislative representation of the victims upon the basis of a State Constitutional provisions (sic) (referring to Article XX Colo. Const.) which is, in its very terms, a direction violation of the essence of equal protection of the laws, the policy is a deadly and an unconstitutional one." (Portions in parenthesis added.)
The question of legislative reapportionment was neither raised nor considered in the trial court and it will not be ruled upon here, even if we deemed it to have some applicability, which we do not. The difficulty with plaintiffs' position is that the problem to which they seek a judicial solution is as legislative and political one. The people adopted Article XX of the Constitution, under which Denver is granted a special status as both a city and county. Legislatures elected by the people, before the current struggle over reapportionment arose, enacted the various statutes the applicability of which to the present problem is either urged to objected to by plaintiffs. And, we add, no statute so questioned is shown to have been enacted by an unconstitutional or de facto legislature. Hence, we fail to see how the issue of legislative reapportionment, as now before us in a different action, can have any bearing on this action. Nor are we persuaded that the basis of our earlier decision, the effect of which is to nullify plaintiffs' second through seventh claims, should be re-examined.
As noted in Commissioners v. Denver, supra, the 14th Amendment to the Federal Constitution can afford no relief to plaintiff, for they have no vested rights in the existence of Arapahoe County. The county is a mere adjunct of the state for administrative purposes. The people of the entire state have been and are free to increase or decrease its size or abolish it altogether by a constitutional amendment or proper legislative act consistent with Article XIV, Sec. 3, of the Colorado Constitution.
The issues involved in claims second through seventh are foreclosed by that decision and the trial court was in error in entering judgment thereon although it should be stated that the opinion therein was not available to the trial court at the time of judgment in this action.
SECOND
As to the injunctive relief afforded plaintiffs by the trial court; having concluded that no grounds exist for the granting thereof, it should be forthwith vacated.
THIRD
The next question is whether the trial court erred in denying Denver's motion to dismiss on the ground that none of plaintiffs are in fact aggrieved persons under the statute, qualified to challenge in this annexation proceeding.
We have here a parcel of land owned and used by Robinson for industrial purposes. No persons reside thereon and Robinson petitioned for its annexation to Denver which the city accepted under existing laws.
The named individual plaintiffs are residents, electors and taxpayers of Arapahoe County but do not reside in the subject area, they sue individually and as a class in behalf of others similarly situated; they and the school district own no property in the annexed territory; the Board of County Commissioners alleges that it exercises 'powers politic and corporate" in the affected area and that it "is the owner of a road, street, and public way in the area sought to be annexed * * *"; the assessor and the treasurer have and assert no direct interest of any kind in the land. Thus, the individuals' interest is solely that of the general public; the school district, that of a tax-supported municipal corporation; the County Commissioners as owners of public rights-of-way on and adjoining the land and as public officials charged with the duty of administering general county affairs and adopting tax levies. The assessor and treasurer are officials who levy and collect taxes pursuant to law.
The statute states in pertinent part:
"Any person aggrieved by any annexation proceedings had under this article many apply at any time within ninety days after the effective date of the approving ordinance to the county court of the county in which his land is situated for a hearing and for appropriate relief. * * *." C.R.S. '53, 139-11-6. (Emphasis supplied.)
This statute in specifying the class of persons who may be "aggrieved" thereunder requires such party to bring an action in the county in which his land is situated and does not require that he be a landowner in the area of land being annexed. Thus, in Tanner v. Boulder, 151 Colo. 283, 377 P.2d 945, it was held that a resident and taxpayer of the City of Boulder had the right to challenge an annexation in the Boulder County Court where the annexation ordinance both annexed and zoned at one time, and where it was alleged that the plaintiff was aggrieved and that the ordinance violated the Boulder City Charter. In that case the taxpayer brought his action in "the county court of the county in which his land is situated."
It is basic law that when a statute creates a cause of action and designates those who may sue thereunder, none except the persons so designated may bring such an action. Avery v. County Court of Gilpin County, 126 Colo. 421, 250 P.2d 122 (1952); 39 Am. Jur. 858. Parties, Sec. 9. A proper party plaintiff is essential to confer jurisdiction on the court. Avery, supra.
The problem here, however, is who is in fact a "person aggrieved"? Does it include any person except those who reside on or own land in the area to be annexed or those taxpayers and citizens who allege they are directly affected and who reside in an incorporated area to which the land is being annexed?
The general rule is that an individual who is a resident of an unincorporated area, but not of the particular tract to be detached therefrom by annexation proceedings, is not such a person. The reason is that such person does not suffer, by reason of the annexation, a detriment peculiar to himself as distinguished from the general detriment theoretically shared by all property owners in the governmental unit. See for example Markos v. Cain, (Ohio), 154 N.E.2d 196 (1955).
Also, according to 13 A.L.R.2d 1279 et seq. many jurisdictions consider such an attack by private persons to be an attack on the corporate existence itself and limit attack to quo warranto proceedings.
We point out that one trouble with limiting a challenge to quo warranto in circumstances such as that before us in that if the attorney general under either his common law or statutory powers has the right to challenge but fails or refuses to do so, complete defiance of statutory requirements could occur. No such matter affecting both a public and private interest should be left in that posture by the courts if a proper remedy is available. Hence, even if quo warranto proceedings by the attorney general is the relief to which these individual taxpayers are relegated, it does not necessarily follow that the same rule should apply to the county or the school district.
As to the county, it makes general allegations of injury and specifically asserts it owns right-of-ways within the areas to be annexed. C.R.S. '53, 36-1-1 expressly authorizes counties to sue or be sued.
In De Kalb County v. City of Atlanta, 132 Ga. 727, 65 S.E. 72 (1909), where the factual situation was different but where the question arose as to whether a county was a proper party plaintiff where a suit was filed to resist altering county lines, it was said:
"* * * If a county is a body corporate, with power to sue, no express limitation is put upon the class of subject-matter in respect to which that power can be exercised. If the county has a right which it becomes essential to enforce by process of law, or a wrong is being done which will be detrimental to the county and its interests, why should it not be allowed to enforce the right or seek a remedy against the wrong? The county of De Kalb now has jurisdiction over the territory involved in this controversy. From the property therein taxes are collected, and it furnishes county revenue. It exercises dominion over the roads and the working of them and may collect road tax, if the alternative road law is or should be put in force. If there are persons residing in that territory exercising any business which requires as county license, this payment furnishes a further source of revenue. Jurors are drawn from citizens there. If forms now an integral part of De Kalb county, subject to its management, control, and any revenue or benefit derivable therefrom. It cannot be that a county must submit to have such portion of its territory unlawfully taken from it and transferred to another county, without being able to contest the legality of the proceeding. The county of De Kalb could bring the suit. If a county can sue and be sued, who shall determine whether a suit shall be brought or resisted, if not the official or officials having general charge of county matters?"
We hold, therefore, that as county has such an interest in the detachment of its territory as to be a "person aggrieved" under the statute where it is charged that the annexation is invalid.
What has been said as to the rights of counties applies with equal force to as school district, even though it has fewer sticks in is bundle of rights than a county. It at least has two major grounds of grievance, viz., that an illegal annexation will seriously impair both its tax base and the interests of its students. Uncertainty and confusion attendant upon description of its school district boundaries by detachment of a part thereof, even if it is not land owned by the school district, and the consequent deprivation of part of its tax base, should not be allowed if the statute can reasonably be interpreted to include such a public body. We see nothing in 139-11-6 precluding a school district, obligated to carry on its functions within the affected county, from being a "person aggrieved" by detachment of a part of its district's territory. We hold it to be proper party in the instant action. See City of Oshkosh v. Winnebago County School Committee, 9 Wis.2d 32 100 N.W.2d 374 (1960).
The judgment is reversed and the cause remanded with directions to the trial court to vacate the mandatory injunction entered therein; to dismiss plaintiffs' claims second through eighth; to grant defendants' motion to dismiss as parties plaintiff all of the individual plaintiffs as well as the assessor and the treasure; and to proceed expeditiously to trial on the merits of plaintiffs' remaining first claim for relief, permitting the parties to amend their pleadings as they may be advised.
MR. CHIEF JUSTICE FRANTZ concurs in part and dissents in part.
MR. JUSTICE MOORE not participating.
MR. JUSTICE McWILLIAMS concurs in part and dissents in part.