Opinion
No. 77-1071
Decided August 31, 1978. Rehearing denied September 29, 1978. Certiorari granted January 29, 1979.
Trial court refused to set aside incorporation proceedings for an area entirely within and completely surrounded by city, and city appealed.
Reversed
1. MUNICIPAL CORPORATIONS — Incorporation — Barred — Area "Embraced" by Municipality — Definition — Encircled and Enclosed — Allowing Incorporation — Such an Area — Error. Where statute relative to incorporation of territory into a municipality precluded such incorporation if territory was "embraced within the limits of any existing municipality," the meaning of the word embraced in such context is to encircle, enclose, or encompass; thus, since area sought to be incorporated was completely circled by and enclosed within the exterior city limits of existing municipality, the trial court erred in allowing the incorporation efforts of the residents of that area to continue.
Appeal from the District Court of Arapahoe County, Honorable M. O. Shivers, Jr., Judge.
Arkin Hanlon, P.C., Michael M. McCloin, for petitioner-appellee.
Leland M. Coulter, Richard Kaufman, Lawrence R. Keuter, for intervenor-appellant.
The City of Aurora appeals from an order of the trial court refusing to set aside incorporation proceedings for an area known as Eastridge. We reverse.
Eastridge was an unincorporated area which for more than three years had been entirely within and completely surrounded by Aurora. During the afternoon of October 10, 1977, some of the residents of Eastridge filed in the Arapahoe County District Court a petition for incorporation of that area under the name of the Town of Eastridge. That evening, a bill for an ordinance for the unilateral annexation of this Eastridge enclave pursuant to § 31-12-106, C.R.S. 1973 (1977 Repl. Vol.), was presented to the Aurora city council and was passed on first reading. This council bill was subsequently passed on final reading on October 24, was then published, and became effective on November 26, 1977.
On October 20, in the incorporation proceedings, the district court appointed commissioners to conduct an election as to whether the proposed area should be incorporated, and the election was scheduled for November 15. Aurora filed a motion to intervene and a motion to stay the election, on the ground that the court was exceeding its jurisdiction in allowing the incorporation proceedings to continue. On November 14, the trial court allowed the city to intervene but denied its motion to stay.
The election was held on November 15, and resulted in a vote in favor of incorporation. The election results were duly certified to the court, and on November 21 an order was issued adjudging the election to be valid. The petitioners are now proceeding with the incorporation of the Eastridge area. Aurora's motion to stay proceedings pending appeal was denied.
The primary issue on this appeal is whether under § 31-2-101(1), C.R.S. 1973 (1977 Repl. Vol.), an enclave can be incorporated. That statute provides in pertinent part:
"Whenever the inhabitants of any territory not embraced within the limits of any existing municipality desire to be organized into a city or town, they shall file a petition for incorporation. . . ." (emphasis supplied)
Thus, by that statute, inhabitants of a territory "embraced within the limits of any municipality" cannot incorporate, and the key question becomes what is meant by "embraced within the limits." Aurora contends that the language precluded the incorporation of the Eastridge enclave because it was completely surrounded by Aurora. The petitioners argue that the words merely prohibited the incorporation of any territory which is already a part of a city or town.
[1] Statutory words are to be given "their familiar and generally accepted meaning. Forced, subtle, strained or unusual interpretation should never be resorted to where the language is plain, its meaning is clear, and no absurdity is involved." Harding v. Industrial Commission, 183 Colo. 52, 515 P.2d 95 (1973). See American Metal Climax, Inc. v. Butler, 188 Colo. 116, 532 P.2d 951 (1975). The "familiar and generally accepted meaning" of the word "embrace" in the context used here is: "encircle, enclose, encompass." Webster's Third New World International Dictionary 740 (1966). When we apply that meaning, we must conclude that Eastridge, an area completely encircled by and enclosed and encompassed within the exterior city limits of Aurora, cannot be incorporated. This is consistent with the legislative policy expressed in the municipal annexation act, enacted at the same time as the incorporation statute. See § 31-12-102, C.R.S. 1973 (1977 Repl. Vol.). Thus, the trial court erred in allowing the incorporation proceedings to continue.
Judgment reversed and cause remanded with directions to set aside the incorporation proceedings.
JUDGE PIERCE and JUDGE RULAND concur.