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determining that a statute providing incentives to encourage United Airlines to construct and operate a maintenance facility in Colorado did not create an illusory class because it contained no time limit and another aviation-related business could meet the statutory criteria in the future and receive the same benefits provided by the statute
Summary of this case from The Sierra Club v. the Dept of Trans.Opinion
No. 91SA225
Decided July 11, 1991.
Original Proceeding Pursuant to Article VI, Section 3, of the Constitution of the State of Colorado.
Barbara A. McDonnell, Chief Legal Advisor, for Governor Roy Romer.
Office of Legislative Legal Services, Douglas G. Brown, William A. Hobbs, Alice Boler Ackerman, Sharon L. Eubanks, for the Colorado General Assembly.
Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, for the Colorado Attorney General.
Fairfield Woods, P.C., Jac K. Sperling, Craig A. Umbaugh, Thomas M. Pierce, for the Greater Denver Chamber of Commerce and Greater Denver Corp.
John K. Reynolds, for American Constitutional Law Foundation, Inc.; The Colorado Union of Taxpayers, Inc.; Senator Jim Roberts, Representative Charles Duke, and John Andrews.
Richard E. Young, for Amicus Curiae Richard E. Young.
Larry Carroll, for Amicus Curiae United Veterans Committee of Colorado.
William N. Baird, Interested Party.
The Governor of the State of Colorado has submitted an interrogatory to this court pursuant to Colorado Constitution, article VI, section 3, asking whether House Bill No. 91S-1005, in conjunction with House Bill No. 91S-1009, is constitutional under five specific provisions of the Colorado Constitution. We now hold and determine that House Bill No. 91S-1005, on its face, does not violate any of these five constitutional provisions.
I
The governor's interrogatory requested this court's opinion on the following questions:
"Is House Bill No. 91S-1005 titled 'Concerning Incentives to Establish a New Business Facility That Will Employ a Substantial Number of New Employees' in conjunction with House Bill 91S-1009 titled 'Concerning the Allocation of Revenues Attributable to Taxes Imposed on Aviation Fuel to The Aviation Fund in Accordance With Section 18 of Article X of the Colorado Constitution, and in Connection Therewith, Providing for the Use of the Moneys in Such Fund and Making an Appropriation' constitutional under the following provisions of the Constitution of the State of Colorado:
"A.
"1. Article XI, Section 2, concerning aid to corporations.
"2. Article V, Section 34, concerning appropriations to private institutions.
"B. Article II, Section 11, concerning the irrevocable grant of special privileges.
"C. Article V, Section 25, concerning special legislation.
"D. Article XI, Section 3, concerning public debt of the state."
The interrogatory was submitted on June 12, 1991, and stated that House Bill No. 91S-1005 (H.B. 1005) and House Bill No. 91S-1009 (H.B. 1009) were enacted by the Colorado General Assembly and were delivered to the governor on June 10, 1991. The governor asserted that he had until July 10, 1991, to act on H.B. 1005 and to file it in the Office of the Secretary of State, and that if he did not file it by that date it would become law.
After agreeing to answer the governor's interrogatory, we are advised that the governor signed H.B. 1005 and H.B. 1009 into law on July 5, 1991.
Section 3 of article VI of the Colorado Constitution provides that "[t]he supreme court shall give its opinion upon important questions upon solemn occasions when required by the governor, the senate, or the house of representatives . . . ." We determined that the governor's questions were sufficiently important and proper and we agreed to exercise our original jurisdiction to answer the interrogatory. See In re House Bill No. 1353, 738 P.2d 371, 372 (Colo. 1987); In re Interrogatories by the Governor, 116 Colo. 318, 319, 180 P.2d 1018, 1019 (1947). This court solicited briefs concerning the governor's interrogatory from all interested persons. The General Assembly, the governor, the Colorado attorney general, and the American Constitutional Law Foundation, Inc., among others, have filed briefs as amici curiae. Oral argument on the questions submitted by the governor was held in the Supreme Court Courtroom on June 26, 1991. We have considered the briefs and arguments of amici in answering the governor's interrogatory.
In H.B. 1005, the General Assembly established the "Colorado Business Incentive Fund" (CBIF), which consists of moneys transferred in accordance with the provisions of H.B. 1009. In addition, H.B. 1005 authorizes the state to enter into "intergovernmental agreements" with local governments or the Colorado Housing and Finance Authority (CHFA) for the purpose of providing incentives for "entities" to establish new business facilities employing a substantial number of new employees. The attorney general is to approve all intergovernmental agreements "as to form." Such intergovernmental agreements are to be funded from the CBIF and may never be funded from general fund moneys or other state moneys. The moneys in the CBIF are subject to annual appropriation by the General Assembly. Although the intergovernmental agreements are to be funded from the CBIF, H.B. 1005 does not state whether the funds appropriated by the General Assembly from the CBIF are to be paid to the local government or CHFA, or to some other entity. Nor does the bill define the term "incentive."
In entering into an intergovernmental agreement, the state is to consider a number of guidelines including the financial incentives provided by the local jurisdiction, the number of new jobs generated by the new business facility, the extent of employment of Colorado residents, and the extent to which the entity establishing the new business facility intends to contract with Colorado residents and companies for goods and services at the new facility. At a minimum, however, intergovernmental agreements relating to the establishment of a new business facility are subject to following requirements: (1) there must be an agreement between the local jurisdiction and the "entity which is to establish a new business facility" that the entity is to operate the new facility for at least thirty years; (2) the intergovernmental agreement shall provide that the entity employ at least 3,000 employees by July 1 of the tenth year following the effective date of the agreement between the local jurisdiction and the entity; (3) the agreement between the local jurisdiction and the entity shall require an average annual salary of at least $45,000 for employees at the new facility; (4) the intergovernmental agreement shall provide that the entity employ at least 2,000 employees at ancillary facilities in Colorado by July 1 of the tenth year following the effective date of the agreement between the local jurisdiction and the entity and that the ancillary employees' average annual salaries must be at least $22,500; and (5) the intergovernmental agreement shall provide that the agreement between the local jurisdiction and the entity contain certain sanctions, remedies, and procedures to enforce that agreement's terms, including, but not limited to, forfeiture of real and personal property rights. See H.B. 1105, sec. 1, § 24-46.5-103(1) (2). We refer to intergovernmental agreements authorized by section 24-46.5-103(1) (2) as "subsection (1)" intergovernmental agreements.
Effective January 1, 1992, local governments are authorized to enter into intergovernmental agreements "in relation to the establishment of new business facilities which shall employ a substantial number of new employees receiving an average annual salary of no less than the average annual salary for such local government." H.B. 1005, sec. 1, § 24-46.5-103(3) (emphasis added) ("subsection (3)" intergovernmental agreements). Any entity that has received, or was eligible to receive, incentives pursuant to subsection (1) may not receive benefits under subsection (3). Subsection (1) intergovernmental agreements are funded from the CBIF by means of moneys transferred to the CBIF pursuant to H.B. 1009. The General Assembly, however, has identified no specific funding for subsection (3) intergovernmental agreements in either H.B. 1005 or H.B. 1009.
Finally, the total amount of incentives financed "for any person or entity under intergovernmental agreements under this article by the Colorado Business Incentive Fund shall not exceed one hundred fifteen million dollars." H.B. 1005, sec. 1, § 24-46.5-103(5).
An "aviation fund" is established in H.B. 1009, consisting of certain revenues derived from the state excise tax, sales tax, and use tax on aviation fuel. Section 43-10-110 of H.B. 1009 provides for monthly disbursements from the aviation fund to be made to the airport operating fund of the governmental entity operating the public-accessible airport from which the taxes are derived, except
"if an intergovernmental agreement is entered into pursuant to the provisions of section 24-46.5-103(1), C.R.S., the portion of the sales and use tax revenues that would otherwise be transferred to the governmental entity operating the largest airport in the state shall be transferred to the Colorado Business Incentive Fund created in section 24-46.5-102, C.R.S. If such an intergovernmental agreement is entered into, moneys shall be transferred by the state treasurer, beginning July 1, 1991, for the length of the intergovernmental agreement, and, following the conclusion of the agreement, or if no agreement is entered into, the moneys shall be transferred to such governmental entity in accordance with the provisions of this section. . . . Such moneys shall only be used for aviation purposes."
H.B. 1009, sec. 7, § 43-10-110((2). Colorado Constitution, article X, section 18, provides in pertinent part:
" License fees and excise taxes — use of. On and after July 1, 1935, the proceeds from the imposition of any license, registration fee, or other charge with respect to the operation of any motor vehicle upon any public highway in this state and the proceeds from the imposition of any excise tax on gasoline or other liquid motor fuel except aviation fuel used for aviation purposes shall, except costs of administration, be used exclusively for the construction, maintenance, and supervision of the public highways of this state. Any taxes imposed upon aviation fuel shall be used exclusively for aviation purposes."
(Emphasis added.) "Aviation purposes" is defined in H.B. 1009, sec. 1, § 43-10-102(3) as
"any objective that provides direct and indirect benefits to the state aviation system and includes, but is not limited to:
. . . .
"(f) the promotion of economic development which is related to the promotion, development, operation, or maintenance of the state aviation system . . . ."
"'State Aviation System' means the network of facilities which includes airports, navigational aids, and safety-related facilities." H.B. 1009, sec. 1, § 43-10-102(8.5). Moneys not transferred to governmental entities operating public-accessible airports as provided in section 43-10-110(2), and not appropriated for administrative expenses, are to be used exclusively for aviation purposes, including the awarding of grants pursuant to section 43-10-108.5 of H.B. 1009. Such grants may be awarded to any entity operating a public-accessible airport and are to be used solely for aviation purposes. The City and County of Denver, however, is not eligible for section 43-10-108.5 grants.
II
The amici have urged us to take judicial notice of certain facts pertaining to the reason the governor called the special session of the legislature, and the purpose and intent of the General Assembly in enacting H.B. 1005 and H.B. 1009. Under certain circumstances, this court may take judicial notice of adjudicative facts. CRE 201(b) provides that "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." This is an original proceeding pursuant to section 3 of article VI. The absence of an appellate record requires us to take judicial notice of certain historical facts.
In a proceeding on interrogatories propounded by the governor with respect to the constitutionality of a bill passed by the General Assembly, this court may take judicial notice of matters of public record and common knowledge. In re Senate Bill No. 95, 146 Colo. 233, 238, 361 P.2d 350, 353 (1961). We may take judicial notice of the history of a statute when the history is a matter of public record in the office of the legislative reference service. Industrial Comm'n v. Milka, 159 Colo. 114, 119, 410 P.2d 181, 183-84 (1966). In addition, "[t]hat which is of common knowledge to an interested public can be judicially noticed." Four-County Metro. Capital Improvement Dist. v. Board of Comm'rs, 149 Colo. 284, 296, 369 P.2d 67, 73 (1962). Finally, in considering interrogatories propounded to the court by the senate, this court took judicial notice of the governor's proclamation convening the Extraordinary Session of the Legislature then in session. In re Opinion of the Justices, 94 Colo. 215, 216, 29 P.2d 705, 705 (1934).
On May 30, 1991, the governor issued a "Proclamation Call for the First Extraordinary Session of the Fifty-Eighth General Assembly." The special session of the General Assembly was convened at 10:00 a.m. on June 4, 1991, and the governor designated the following subject for consideration and appropriate legislative action:
"Concerning incentives for employers who establish or commence construction of a new business facility on or before July 1, 1994 in an enterprise zone in a Metropolitan Statistical Area that will employ at least 3,000 new employees at an average annual salary of at least $45,000 or in an enterprise zone in a non-Metropolitan Statistical Area that will employ at least 1,500 new employees at an average salary of at least $45,000, and the financing of such incentives."
Proclamation Call for the First Extraordinary Session of the Fifty-Eighth General Assembly. The governor's call stated that "in the opinion of the Governor, an extraordinary occasion has arisen because a unique economic development opportunity has been presented which requires immediate action . . . ." Id.
Governor Romer addressed a Joint Session of the General Assembly on June 6, 1991, in the House Chamber. At this joint session, the governor stated that he had called the extraordinary session because a unique economic opportunity for the state had presented itself — the proposed construction of a maintenance facility in Colorado by United Airlines. Tape Recording of Governor's Message to Joint Session, First Extraordinary Session, June 4, 1991 (available at the offices of Legislative Council). The governor stressed that the "United deal" was a "unique" circumstance and opportunity for the state because of the number of new jobs involved in the United Airlines proposal and the average salaries of those jobs. He suggested that dedication of the aviation fuel tax in a specific fund could accomplish two things: (1) it could finance the United deal; and (2) it would take care of rural Colorado by making funds available for economic development related to aviation beyond the paving of runways. Id.
In Senate Bill No. 95, we said:
"Senate Bill No. 95 has had a stormy and very public legislative history. As judges we may not close our eyes to facts which as men we conclusively know to be true, which we would have to do if we pretended to be unaware of the fact that this legislation was known to every member of the legislature and to every other interested person as 'The Glendale Bill.' We would be blind to stark reality indeed if we assumed the possibility of any other geographical areas in Colorado to which it would apply, save and except the city of Denver and the town of Glendale."
In re Senate Bill No. 95, 146 Colo. at 238, 361 P.2d at 353. This court takes judicial notice that the primary purpose of the governor's call for the special session was to enable the General Assembly to consider legislation authorizing "incentives" to encourage United Airlines to construct and operate a new maintenance facility in Colorado.
We have also been asked to take judicial notice of the existence and terms of a proposed intergovernmental agreement between the state and Denver or CHFA, relating to a proposal by United Airlines to build a maintenance facility in Colorado. We decline to do this for two reasons. First, we believe that the existence and terms of a hypothetical intergovernmental agreement are not relevant to the specific questions presented by the governor's interrogatory, which is confined to the facial constitutionality of H.B. 1005 under five provisions of the state constitution. We would be exceeding the narrow scope of our original jurisdiction under Colorado Constitution article VI, section 3, if we were to offer an opinion on an intergovernmental agreement that is not contained in the governor's interrogatory, is apparently only proposed, and which may never be executed. See In re House Resolution No. 12, 88 Colo. 569, 570-71, 298 P. 960, 960 (1931); In re Proposed Amendments to the Constitution, 50 Colo. 84, 114 P. 298 (1911).
Second, judicial notice would be inappropriate because the existence and contents of any such proposed intergovernmental agreement is neither "(1) generally known within the territorial jurisdiction of the trial court [n]or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." CRE 201(b). Accordingly, we confine our analysis of the provisions of H.B. 1005 and H.B. 1009 to the five constitutional questions contained in the governor's interrogatory.
III A [36] 1. Article XI, Section 2
Colorado Constitution, article XI, section 2, provides, in pertinent part:
" Section 2. No aid to corporations — no joint ownership by state, county, city, town, or school district. Neither the state, nor any county, city, town, township, or school district shall make any donation or grant to, or in aid of, or become a subscriber to, or shareholder in any corporation or company or a joint owner with any person, company, or corporation, public or private, in or out of the state, except as to such ownership as may accrue to the state . . . or to any county, city, town, township, or school district, or to either or any of them, jointly with any person, company, or corporation, by forfeiture or sale of real estate for nonpayment of taxes, or by donation or devise for public use, or by purchase by or on behalf of any or either of them, jointly with any or either of them, under execution in cases of fines, penalties, or forfeiture of recognizance, breach of condition of official bond, or of bond to secure public moneys, or the performance of any contract in which they or any of them may be jointly or severally interested."
(Emphasis added.) At first this prohibition of aid to corporations, absent consideration, was strictly enforced. For example, in The Colorado Central R.R. v. Lea, 5 Colo. 192 (1879), this court struck down a donation of 2,000 shares of stock belonging to Boulder County, to the Colorado Central Railroad Company. The court stated:
"These and similar considerations of public benefit and advantage [the construction of a proposed line of railroad giving the county's citizens increased and superior facilities for traffic and commerce], had constituted for years, under our territorial government, the basis of appeals for and grants of county and municipal aid to railroad companies, and it was undoubtedly the intention of the framers of the Constitution, whether wisely or not, to prohibit, by the fundamental law of the new State, all public aid to railroad companies, whether by donation, grant or subscription, no matter what might be the public benefit and advantages flowing from the construction of such roads. . . .
" If the existence of a public benefit is to give such an agreement the character of a sale of the stock, and take it out of the constitutional prohibition, then the prohibition is utterly nugatory and valueless, as such consideration would exist in every probable case."
5 Colo. at 196 (emphasis added). Notwithstanding the apparent absolute prohibition of article XI, section 2, a "public purpose" exception has evolved. See McNichols v. City County of Denver, 131 Colo. 246, 280 P.2d 1096 (1955) (upholding validity of ordinance establishing retirement program for city employees and distribution of the fund in event of termination of plan on the basis of the plan's "public purpose"). More recently, we said:
"Our prior cases have held that article XI, section 2 of the Colorado Constitution does not prohibit a municipality from conferring a monetary benefit on a private company in consideration of the company's undertaking a project, even though the company might have been required to undertake the project without such benefit, as long as the expenditure by a municipality furthers a valid public purpose."
City of Aurora v. Public Utils. Comm'n, 785 P.2d 1280, 1289 (Colo. 1990) (upholding PUC rule establishing certain methodology for calculating utility construction allowance applicable to service extension facilities for new electric utility customers). See also Witcher v. Canon City, 716 P.2d 445 (Colo. 1986) (authorization of improvements to Royal Gorge Bridge served valid public purposes of improving and extending life of valuable source of municipal revenue); Denver Urban Renewal Auth. v. Byrne, 618 P.2d 1374, 1385 (Colo. 1980) (strong public purpose served by urban renewal projects; fact that private interests are indirectly benefitted does not render plan unconstitutional under article XI, section 2); Lyman v. Town of Bow Mar, 188 Colo. 216, 533 P.2d 1129 (1975) (ordinance establishing improvement district for burying overhead utility lines owned by corporations, and providing for issuance of bonds to pay conversion costs was not prohibited "donation").
In answering the governor's interrogatory in this proceeding, it is unnecessary to further define the contours of either the consideration requirement or the public purpose doctrine. On its face, H.B. 1005 makes no "donation or grant to, or in aid of . . . any corporation or company . . . ." While the bill provides for appropriations by the General Assembly from the CBIF to fund subsection (1) intergovernmental agreements, H.B. 1005 does not require that any private corporation or company receive a grant or donation from the state. We have held that article XI, section 2, does not forbid grants from the state to political subdivisions of the state such as CHFA; the provision only prohibits grants to private corporations. In re Interrogatories Concerning House Bill No. 1247, 193 Colo. 298, 307, 566 P.2d 350, 356 (1977).
A bill that has been enacted by the General Assembly is "presumed to be constitutional and cannot be declared unconstitutional unless that conclusion is established beyond a reasonable doubt." In re House Bill No. 1353, 738 P.2d at 372. This presumption of constitutionality is not overcome by speculation that state officials may at some future time act in an unconstitutional manner under color of H.B. 1005. We conclude that H.B. 1005, on its face, does not violate article XI, section 2.
We express no opinion, however, on whether the various proposals for the implementation of H.B. 1005 that have been suggested in the briefs of amici violate article XI, section 2. The actual execution of an intergovernmental agreement and the provisions of incentives must of course also comply with article XI, section 2. Compare Allardice v. Adams County, 173 Colo. 133, 476 P.2d 982 (1970) (upholding constitutionality of agreement in which a governmental entity agreed to issue bonds to acquire an agricultural plant and lease the plant to a private corporation that would pay rent sufficient to pay all bond obligations as they came due, plus maintenance and insurance costs and an amount equal to the taxes on the project, and the corporation retained the option to purchase the project after the bonds were paid) and Milheim v. Moffat Tunnel Dist., 72 Colo. 268, 211 P.2d 649 (1922) (holding constitutional the creation of an improvement district for the construction of a railroad tunnel that the district would own and control) with Lord v. City County of Denver, 58 Colo. 1, 143 P. 284 (1914) (holding unconstitutional an agreement in which a railroad would control and charge rent for the use of a railroad tunnel during the life of bonds issued by a governmental entity to fund two-thirds of the cost of constructing the tunnel and the railroad would acquire title to the tunnel after paying the interest and principal of the bonds).
2. Article V, Section 34
Colorado Constitution, article V, section 34, provides in relevant part that "[n]o appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the state . . . ." Like article XI, section 2, there is a "public purpose" exception to this provision. See Americans United for Separation of Church State Fund, Inc. v. State, 648 P.2d 1072, 1085-86 (1982) (upholding Colorado Student Incentive Grant Program against article V, section 34, challenge).
A "public purpose" with respect to the Anti-Appropriation Clause is not to be presumed from the mere passage of a legislative enactment. Americans United, 648 P.2d at 1086. To come within the public purpose exception, "the legislation must evince a discrete and particularized public purpose which, when measured against the proscription of Article V, Section 34, preponderates over any individual interests incidentally served by the statutory program." Id.
In In re Interrogatories Concerning House Bill No. 1247, 193 Colo. 298, 566 P.2d 350, we upheld an act appropriating $150,000 to the Colorado Housing and Finance Authority for the purpose of increasing the supply of safe and sanitary housing for low and moderate income families against the claim that the act violated article V, section 34. In Americans United, 648 P.2d at 1086 n. 10, we noted that the constitutionality of the act in H.B. 1247 did not turn on the "public or private status of the ultimate recipient of the appropriation." See also Bedford v. White, 106 Colo. 439, 106 P.2d 469 (1940) (statute authorizing payment of pensions to former Colorado Supreme Court justices did not offend article V, section 34, since it served a valid public purpose).
The public purposes specifically enunciated by the General Assembly in H.B. 1005 include increased employment and economic development in Colorado. In addition to these general public benefits, the General Assembly has also identified at least two "discrete and particularized public purpose[s]." Americans United, 648 P.2d at 1086. The first is the "development of new businesses and the expansion of existing businesses [resulting from] entities making a commitment to build and operate new business facilities which will result in substantial and long-term expansion of new employment within the state." H.B. 1005, sec. 1, § 24-46.5-101(1)(d). The second discrete purpose is to "provide direct and indirect benefits to the state aviation system . . . ." H.B. 1009, sec. 1, § 43-10-101(3). We conclude that these public purposes are no less legitimate or particularized than the public purposes we have approved in prior cases. E.g., Americans United, 648 P.2d at 1085-86 (Student Incentive Grant program); In re Interrogatories Concerning House Bill No. 1247, 193 Colo. 298, 566 P.2d 350 (low and moderate income housing); Bedford v. White, 106 Colo. 439, 106 P.2d 469 (pensions to former supreme court justices).
The General Assembly has found that "the public purpose to be served by the passage of this article outweighs all other individual interests." H.B. 1005, sec. 1, § 24-46.5-101(e). "Although the expressed intent of the legislature has no magical quality which validates the invalid, it is entitled to reverent weight in determining whether the Act promotes a public purpose." Allardice v. Adams County, 173 Colo. 133, 147, 476 P.2d 982, 989 (1970). On this record, and within this original proceeding, we cannot say that the General Assembly's determination of a predominating public purpose is either in bad faith or erroneous. We conclude that, on its face, H.B. 1005 does not violate article V, section 34.
B. Article II, Section 11
Article II, section 11, of the Colorado Constitution provides in pertinent part that "[n]o . . . law . . . making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly." Although the "irrevocable grant of special privileges, franchises or immunities" clause of article II, section 11, has been referred to in a number of cases, e.g., Public Serv. Co. v. City of Loveland, 79 Colo. 216, 245 P. 493, 497 (1926); City of Leadville v. Leadville Sewer Co., 47 Colo. 118, 107 P. 801 (1909); Virginia Canon Toll Rd. Co. v. People ex rel. Vivian, 22 Colo. 429, 45 P. 398 (1896) (suggesting that the provision prohibits perpetual grants or franchises); Thomas v. City of Grand Junction, 13 Colo. App. 80, 56 P. 665 (1899), the precise meaning of the clause has not been discussed, and no alleged grant or franchise has been found to violate the clause.
In City County of Denver v. Denver Tramway Corp., 23 F.2d 287, 301-02 (8th Cir. 1927), cert. denied, 278 U.S. 616 (1928), the federal circuit court of appeals examined the state cases and concluded that a city's grant without time limit of an easement to a public utility did not violate article II, section 11, and that "[i]rrevocability and duration as applied to a grant under an ordinance . . . have no connection with each other." Id. at 302. See also Schafer v. Aspen Skiing Corp., 742 F.2d 580, 583-84 (10th Cir. 1984) (apparently applying "reasonable grounds" test to uphold Colorado Ski Safety Act against article II, section 11, "irrevocable grant" claim).
To come within the constitutional prohibition, the "irrevocable grant" must be contained in a "law." Perl-Mack Enters. v. City County of Denver, 194 Colo. 4, 9, 568 P.2d 468, 472 (1977). There is no "irrevocable grant of special privileges, franchises or immunities" within the four corners of H.B. 1005, and we conclude that the bill does not, on its face, violate article II, section 11.
C. Article V, Section 25
The governor next asks whether H.B. 1005, in conjunction with H.B. 1009, constitutes special legislation prohibited by article V, section 25. Article V, section 25, provides in part:
"The general assembly shall not pass local or special laws in any of the following enumerated cases . . . granting to any corporation, association, or individual any special or exclusive privilege, immunity or franchise whatever. In all other cases, where a general law can be made applicable no special law shall be enacted."
While judicial notice may be taken of the fact that the impetus for this legislation was to structure incentives to cause United Airlines to locate its maintenance facility in Colorado, that fact by itself does not vitiate H.B. 1005 as special legislation. The question posed by article V, section 25, is whether the legislation creates true classes and, if so, whether the classifications are reasonable and rationally related to a legitimate public purpose.
Soon after the state constitution was adopted, we said that the state's attempt to manage the Denver Public Schools was a per se violation of the Special Legislation Clause's enumerated prohibition against special legislation "providing for the management of common schools." In re Senate Bill No. 23, 23 Colo. 499, 48 P. 647 (1897). Even when an enumerated prohibition is implicated, however, if there is a rational reason for distinguishing the class involved and the members of that class are treated alike, the legislation is not special. City of Montrose v. Public Utils. Comm'n, 732 P.2d 1181 (Colo. 1987); Vogts v. Guerrette, 142 Colo. 527, 546, 351 P.2d 851, 862 (1960) (upholding automobile guest statute by holding that the statute applies to "all owners and operators of motor vehicles and their guests and none are excluded"). When an enumerated prohibition is implicated, the class cannot be limited to one. In re Senate Bill No. 95, 146 Colo. at 233, 361 P.2d at 350; Darrow v. People ex rel. Norris, 8 Colo. 417, 8 P. 661 (1885).
If no enumerated prohibition is implicated, the question of whether a general law could be made applicable is within the discretion of the General Assembly, and will not be disturbed absent an abuse of that discretion. Morgan County Junior College Dist. v. Jolly, 168 Colo. 466, 452 P.2d 34, appeal dismissed, 396 U.S. 24 (1969); Coulter v. Board of County Comm'rs, 9 Colo. 259, 11 P. 199 (1886); Carpenter v. People ex rel. Tilford, 8 Colo. 116, 5 P. 828 (1885); cf. City of Denver v. Bach, 26 Colo. 530, 533, 58 P. 1089, 1091 (1899) (striking down Sunday closing laws that applied to certain businesses but not to others as lacking "any substantial reason"). That standard requires only that whatever classification is employed by the legislature be "reasonable." People v. Sprengel, 176 Colo. 277, 279, 490 P.2d 65, 67 (1971) (violation of fourteenth amendment amounts to special legislation); People v. Maxwell, 162 Colo. 495, 427 P.2d 310 (1967) (rational basis for distinguishing between developers with more than twenty sites from those with less than twenty sites).
Recently, we have applied the rational basis test to any challenge under article V, section 25, regardless of whether an enumerated prohibition was implicated or whether the challenge was simply that a general law could have applied. Poudre Valley Rural Elec. Assoc. v. City of Loveland, 807 P.2d 547, 553 (Colo. 1991) ("a statutory classification not involving a fundamental right or a suspect class [does] not violate article V, section 25, so long as it reasonably related to a legitimate state objective. . . . [A] statute is not special legislation if 'it is general and uniform in its operation upon all in [a] like situation.'" (quoting City of Montrose v. Public Utils. Comm'n, 732 P.2d at 1191)); Bloomer v. Board of County Comm'rs, 799 P.2d 942, 948 (Colo. 1990) ("In analyzing constitutional challenges that are based on the special legislation clause, we have upheld legislation if a reasonable basis exists for the legislation's distinction between classes it has created.").
The prohibition against special legislation, however, is more than a redundant Equal Protection Clause. First, if an act is challenged as special legislation, and an enumerated prohibition is implicated, the threshold question is whether the classification adopted by the legislature is a real or potential class, or whether it is logically and factually limited to a class of one and thus illusory. See In re Senate Bill No. 95, 146 Colo. at 238-40, 361 P.2d at 353-54; Darrow v. People ex rel. Norris, 8 Colo. at 481-19, 8 P. at 662. If there is a genuine class, the next question is whether the classification is reasonable. Bloomer, 799 P.2d at 948 (upholding immunity granted to state political subdivisions); Curtiss v. GSX Corp. of Colo., 774 P.2d 873, 876-77 (1989) (upholding Workers' Compensation Act against challenge that it granted a special immunity against tort liability); Yarbro v. Hilton Hotels Corp., 655 P.2d 822, 827-28 (Colo. 1982) (upholding statute of limitations against challenge that it granted certain classes of defendants special or exclusive privilege); Vogts v. Guerrette, 142 Colo. at 546, 351 P.2d at 862; Young v. Board of County Comm'rs, 102 Colo. 342, 345, 79 P.2d 654, 655 (1938); see also Denver Urban Renewal Auth. v. Byrne, 618 P.2d at 1385. If the classification is reasonable, the act is not barred by article V, section 25.
If the challenge is based on the final clause of article V, section 25, i.e., that a general law could be made applicable, the question is whether the General Assembly has acted arbitrarily or capriciously in its decision that a special law is required. Morgan County Junior College Dist., 168 Colo. 466 at 471, 452 P.2d at 36-37; People v. Maxwell, 162 Colo. at 501, 427 P.2d at 313; Mosko v. Dunbar, 135 Colo. 172, 179-80, 309 P.2d 581, 586 (1957); People ex rel. Dunbar v. Schaefer, 129 Colo. 215, 268 P.2d 420 (1954). If no enumerated prohibition is implicated, the size of the class becomes irrelevant so long as the legislature has not abused its discretion. Morgan County Junior College Dist., 168 Colo. at 471, 452 P.2d at 36-37.
For example, in Morgan County Junior College District, we said: "Time with its tides brings new conditions which must be cared for by new laws. Sometimes the new conditions affect the members of a class. If so, the correcting statute must apply to all alike. Sometimes the new conditions affect one only or a few. If so the correcting statute may be as narrow as the mischief . . . . The problem in last analysis is one of legislative policy, with a wide margin of discretion conceded to lawmakers. Only in cases of plain abuse will there be revision by the courts." Morgan County Junior College Dist., 168 Colo. at 471, 452 P.2d at 36-37 (quoting Justice Cardozo in Williams v. Mayor City Council of Baltimore, 289 U.S. 36, 45 (1933) (emphasis added)).
Applying these standards, we conclude that H.B. 1005 is not, on its face, constitutionally prohibited special legislation. For purposes of analysis, we first assume that the enumerated prohibition in article V, section 25, against "granting to any corporation, association, or individual any special or exclusive privilege, immunity or franchise whatever," is implicated. Assuming, arguendo, that H.B. 1005 does grant a privilege or immunity, the legislation is not prohibited special legislation if there is a genuine class and if the classifications are reasonable. Curtiss, 774 P.2d at 876-77; Yarbro, 655 P.2d at 827-28.
In In re Senate Bill No. 95, we struck down the "Glendale Bill," which would have allowed Denver to annex Glendale involuntarily, because it was "unquestionably conceived, cut, tailored and amended to accomplish a particular purpose with reference to a particular area, to-wit, Glendale." 146 Colo. at 239, 361 P.2d at 354. The Glendale Bill was written and amended so that it only applied to Glendale, since there was no other city of less than 640 acres that was completely surrounded by a city or town. Id. Moreover, a repealing clause contained in the legislation provided for its automatic repeal the following year, so that there was no possibility "of any other geographical areas in Colorado to which it would apply." 146 Colo. at 238, 361 P.2d at 353.
On the other hand, in Darrow, we upheld an act creating a superior court in any town or city that contained more than 25,000 people, even though that included only a class of one — Denver — when the act was adopted.
"If this act were a clear and unequivocal attempt to evade the constitutional inhibition, and create a superior court for one particular city, we would unhesitatingly accede to the views of counsel. Such legislation, although the purpose be disguised by the use of general language, is not to be tolerated. But, construing all the provisions of the statute together, we cannot discover any such attempted evasion. Denver, it is true, is the only city to which the act at present applies. But the legislature clearly intended to provide for places that may hereafter acquire the population mentioned. The law is general, and is unlimited as to time in its operation. There is nothing unreasonable in the supposition that other towns and cities within the state will eventually contain 25,000 inhabitants."
8 Colo. at 418-19, 8 P. at 662. There are several classifications contained in H.B. 1005. The first, involving subsection (1) entities, is between aviation-related entities and all other entities. The second is between entities establishing new businesses in Colorado that will operate a facility for at least thirty years and employ at least 3,000 people paid an average of $45,000 per year, and all other businesses. There is also a classification between the establishment of new facilities and expansion of existing facilities. Finally, there is a distinction between subsection (1) and subsection (3) entities.
Although the class of subsection (1) companies is necessarily small by virtue of the limited resources of the state, we conclude that the class is not so logically and factually restricted that it amounts to an illusory class of one, such as the Glendale Bill provided. While the legislation specifies that any entity entering into an agreement with CHFA or the locality must remain in the state for at least thirty years, H.B. 1005 contains no other restrictions as to time. Here, unlike the Glendale Bill, there is no time limit, nor provisions in the bill that necessarily limit the benefits that may be obtained by United Airlines or any other single corporation. After thirty years, another aviation-related business, meeting the statutory criteria, may enter into an agreement for the same incentives, unlike the Glendale Bill repealing clause limiting the duration of the statute. Nor does the bill preclude more than one company entering into separate agreements at the same time, so long as the total outlay of incentives does not exceed 115 million dollars. Thus, we cannot say, as we did in In re Senate Bill No. 95, that no entity other than United Airlines will ever meet the statutory criteria set forth in H.B. 1005. There is nothing on the face of the legislation that limits subsection (1) entities to United Airlines. We conclude that H.B. 1005 is not, on its face, per se special legislation.
The next question is whether the classifications adopted by the General Assembly are reasonable. Because no suspect classifications are involved, we must uphold H.B. 1005 if we can conceive of any reasonable relation between legitimate stated purposes and the classifications made. People v. Sprengel, 176 Colo. at 280, 490 P.2d at 67. The classification must be based on some distinguishing peculiarity and must reasonably relate to the purpose of the statute. People v. Maxwell, 162 Colo. at 501, 427 P.2d at 313. Finally, members within the same class cannot be treated differently. City of Montrose v. Public Utils. Comm'n, 732 P.2d at 1191; Vogts v. Guerrette, 142 Colo. at 546, 351 P.2d at 862.
In Maxwell, we said that distinctions based on size are permissible. 162 Colo. at 502, 427 P.2d at 313. Here, the distinction between subsection (1) entities and other businesses can be rationally related to the size difference. Although there may be little distinction between a company employing 3,000 workers and one employing 2,999, "[i]t is generally conceded that a classification having some reasonable basis does not offend against [c]onstitutional provisions merely because it is not made with mathematical nicety or because in practice it may result in some inequality." Vogts, 142 Colo. at 546, 351 P.2d at 861 (citations omitted). The incentives that could be generated pursuant to subsection (1) are of a great enough magnitude that the legislature could have reasonably concluded that the economic advantages that might be gained from a large employer locating in the state would outweigh the expense of the incentives, whereas smaller or existing corporations would not offer as great a benefit to Colorado. The distinction between aviation and nonaviation-related businesses is reasonable in the context of article X, section 18, of the Colorado Constitution, which mandates that taxes imposed on aviation fuel be used exclusively for aviation purposes.
Finally, the classifications are reasonably related to the stated purpose of "continued encouragement, development, and expansion of opportunities for employment in the private sector in this state," H.B. 1005, sec. 1, § 24-46.5-101(a), and "any objective that provides direct and indirect benefits to the state aviation system," H.B. 1009, sec. 1, § 43-10-102(3). We conclude, therefore, that H.B. 1005, in conjunction with H.B. 1009, does not, on its face, violate article V, section 25.
The isolated comments of individual legislators in committee do not change our conclusion that H.B. 1005 is not unconstitutional special legislation on its face. The statement of the Chair of the Senate Finance Committee that the bill had been drafted to "meet constitutional muster," while at the same time to "take advantage of United Airlines and their effort to come here," does nothing more than indicate the General Assembly's efforts to enact a constitutional bill. Further, in terrorem comments made by the opponents of a bill are of dubious and limited value in the judicial interpretation and construction of the bill. See Shell Oil Co. v. Iowa Dep't of Revenue, 488 U.S. 19, 29 (1988) ("This Court does not usually accord much weight to the statements of a bill's opponents. '"[T]he fears and doubts of the opposition are no authoritative guide to the construction of legislation."' Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 483 (1981) (quoting Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394 (1951))."). Justice Quinn, in his dissent, goes beyond a facial analysis of H.B. 1005 for evidence that the bill is limited to United Airlines. This misperceives our analysis of article V, section 25. Only after we have concluded that the class of beneficiaries created in H.B. 1005 is not necessarily limited to United Airlines, do we examine the reasonableness of the classifications. All legislative classifications are to a greater or lesser extent "artificial." The relevant inquiry, however, is whether the classifications are rational. The requirement that a subsection (1) entity be aviation related is derived from article X, section 18's, limitation on the use of aviation fuel taxes, which are the source of subsection (1) funding. The second major classification — size — is a legislative determination that incentives such as these are not to be extended except in extraordinary circumstances when the potential economic benefits to the state are great.
D. Article XI, Section 3
The final constitutional provision we examine is Colorado Constitution article XI, section 3, which provides, in part:
" Section 3. Public debt of state — limitations. The state shall not contract any debt by loan in any form, except to provide for casual deficiencies of revenue, erect public buildings for the use of the state, suppress insurrection, defend the state, or, in time of war, assist in defending the United States . . . ."
In In re Interrogatories Concerning House Bill No. 1247, 193 Colo. at 305, 566 P.2d at 355, we held that a bill providing appropriations to secure obligations issued by the Colorado Housing Finance Authority did not violate the constitutional prohibition against contracting debt by loan. The purpose of the constitutional provision is to prevent the pledging of state revenues of future years. Id. Because the appropriations bill did not "create an obligation 'that requires revenue from a tax otherwise available for general purposes to meet it,'" it was not a "debt" within the meaning of section 3 of article XI. Id. (quoting Johnson v. McDonald, 97 Colo. 324, 340-41, 49 P.2d 1017, 1025 (1935)).
In Johnson v. McDonald, we upheld two statutes that authorized the state to enter into a contract with the federal government for the United States to advance Colorado $25 million in funds for the construction, supervision, and maintenance of public highways in the state. Revenue anticipation warrants were to be issued to the federal government and paid from a highway anticipation fund. The highway anticipation fund was a sinking fund created by the highway department for the payment of the anticipation warrants and interest out of the highway fund. The highway fund consisted of excise taxes derived from the imposition of license, registration fees, and other charges with respect to the operation of motor vehicles upon the state highways, and the imposition of any excise tax on gasoline or other liquid motor fuel. Id. at 335, 49 P.2d at 1023.
These statutes did not constitute constitutional debt. "The payment of the anticipation warrants out of the fund provided by the act can never place any burden on the revenues available for appropriation for general state purposes." Id. at 341, 49 P.2d at 1025. See also Watrous v. Golden Chamber of Commerce, 121 Colo. 521, 218 P.2d 498 (1950) (bonds authorized for turnpike construction did not constitute constitutional indebtedness because they were to be repaid from: (1) fares and tolls from turnpike project; and (2) state highway fund consisting of proceeds from motor vehicle license fees and motor fuel taxes that were not general revenue subject to legislative appropriation because of article X, section 18).
An appropriation by the General Assembly is not a payment on a constitutional debt if it is "purely discretionary and nonobligatory . . ." In re Interrogatories Concerning House Bill No. 1247, 193 Colo. at 305, 566 P.2d at 355. Financing devices that have been upheld by this court in other cases are: (1) special fund cases such as Johnson v. McDonald in which the borrowed funds are repaid from the revenue generated by the improvement; (2) cases in which the entity borrowing the money is a public entity independent of the state; and (3) cases in which the state enters into lease/purchase agreements for a building or other improvement and in which the parties are not bound to renew the lease at the end of each year. Colorado Ass'n of Public Employees v. Board of Regents, 804 P.2d 138, 147 (Colo. 1990). But see In re Senate Resolution No. 2, 94 Colo. 101, 31 P.2d 325 (1933) (bill to borrow money to relieve unemployment by providing work on highways and providing that taxes already imposed should be used for repayment contracted "debt by loan" prohibited by article XI, section 3).
We conclude that H.B. 1005 does not, on its face, violate the constitutional prohibition against state debt. It contains no provisions either pledging future state revenues or imposing obligations that would require future revenues from a tax otherwise available for general purposes.
IV
Accordingly, with our review limited to the wording of H.B. 1005 and H.B. 1009, and the interrogatory propounded by the governor, we conclude that H.B. 1005, on its face, in conjunction with H.B. 1009, does not violate the sections of the Colorado Constitution that were the subject of the interrogatory.
JUSTICE KIRSHBAUM concurs in part, specially concurs in part, and dissents in part.
JUSTICE QUINN dissents, and CHIEF JUSTICE ROVIRA joins in the dissent.