Four-County Metropolitan Capital Improvement District v. Board of County Commissioners , 149 Colo. 284 ( 1962 )

Mr. Justice Moore

delivered the opinion of the Court.

In this proceeding we are required to determine whether the Four-County Metropolitan Capital Improvement District, the creation of which was authorized by S.L. 1961, chapter 179, can constitutionally exercise the powers purportedly bestowed on it by the terms of said Act. Numerous grounds of alleged invalidity of the Act have been presented in extended oral argument and in the written briefs of counsel who have appeared on behalf of those whose interests are involved. A substantial number of the asserted grounds of invalidity raise questions of substance involving fundamental concepts of constitutional law affecting the basic foundations of our system of government.

There exists a state of emergency in that the public embraced within the district is presently required to pay a tax, with reference to which little or no practicable means are available to secure a refund if it be determined that the imposition thereof cannot lawfully be made. For this reason we resolve the issue of validity of the statute solely upon the single proposition hereinafter discussed. By so doing we do not pass upon any of the numerous arguments which have been made on other points. Although a general knowledge of the provisions of the act of the legislature is essential to a thorough understanding of our conclusion, we incorporate herein only those sections which bear directly upon the issue on which the controversy is decided.

The Act of the legislature involved will be referred to as the “statute.” Section 1 consists of a declaration by the General Assembly relating to the purposes to be served and the objectives to be achieved under the statute. We quote the section in full:

“Legislative declaration. —• The general assembly hereby finds, determines and declares that local governmental units within the metropolitan areas of this state have common problems and needs which transcend the boundaries of such local governmental units; that as metropolitan areas become urbanized the need for capital improvements increases at an accelerated rate; that modern means of communication and transportation and the attendant mobility of population have transformed metropolitan areas into homogeneous areas in which ease of movement is an absolute necessity and in which capital improvements must be geared to the needs of the entire area; that capital improvements in any part of a metropolitan area inure to the benefit of the entire area, as well as to the people of the state; and that there is need for coordination of overall planning, financing and construction of capital improvements and for the acquisition of capital equipment in order to enable local governmental units to cope with the problems of urbanization and to provide benefits to the entire metropolitan area.

“It is also found, determined and declared to be in the interest of the people of the state to enable towns, cities, counties and cities and counties in metropolitan areas to acquire capital equipment which will enhance their ability to provide emergency services for the benefit of the entire metropolitan area and to enable them to meet the problems arising in the event of disaster in any part of such area.

“It is therefore declared to be the purpose of this act to provide a method through which the capital improvement and equipment needs of a metropolitan area may be determined, coordinated and resolved through an overall approach, and to provide the means by which the planning, acquisition, construction and financing thereof may be accomplished. To these ends the provisions of this act shall be liberally construed.”

We readily agree that problems in urban areas exist and we observe that they always have and will continue to exist; that “financing and construction of capital improvements” and the acquisition of “capital equipment in order to enable local government units to cope with the problems of urbanization” raise problems for which solutions are desirable. We have no hesitancy, however, in asserting that any act of the legislature which is adopted as a means to bring about a solution of these local problems must not involve the exercise of legislative power which the people, by constitutional provision, have very clearly stated the General Assembly shall not have.

Constitutional limitations upon the exercise of power cannot be swept aside or ignored to aid in the solution of problems in a manner pleasing to those officials who have the burden of finding solutions. Ours is a government by law, not a government by men. That which cannot be done because of constitutional limitations upon the power of officeholders, simply cannot be done, either directly or indirectly, notwithstanding that desirable, social or economic ends might be achieved by ignoring the limitations, and despite the unquestioned good intentions of those seeking to exercise the powers thus forbidden.

The statute in question purports to authorize the formation of Metropolitan Capital Improvement Districts. It is quite evident that the only area in which such a district would be formed is the Denver urban area, and that the City and County of Denver and all three surrounding counties must be incorporated within the district. The statute provides that an election shall be held throughout the proposed district (following preliminary organization proceedings which are not in any way material to the issues in this case). We take notice of the fact that in the instant case an election was held to determine whether a district as authorized by the statute should be formed, and that each of the counties surrounding Denver rejected the proposed district. A sufficient number of voters in Denver to overcome the adverse vote in the adjoining counties approved the district and thus the Four-County Metropolitan Capital Improvement District was created and a Board of Directors selected as provided by the statute. Perhaps the most significant power of the district to be exercised by its directors, as provided by the statute, was as follows:

“Section 14. — Power to Levy Tax — exemptions. (1) To provide revenue to finance the operations of the district and to defray the cost of construction of capital improvements and acquisition of capital equipment, the board of directors, for and on behalf of the district, shall have power to levy and provide for the collection of a sales and use tax at the rate of two per cent upon every transaction or other incident with respect to which a sales and use tax is now levied by the state pursuant to the provisions of article 6 of chapter 138, Colorado Revised Statutes 1953, as amended; provided, however, that no such tax shall be levied and collected upon: * * *”

(Then follows a list of items exempted from the tax.)

Among other powers conferred upon the district, to be exercised by its Board of Directors who are selected from the several counties and municipalities as provided by the statute, we find the following:

“Section 13 — (5) To acquire and dispose of real and personal property, in accordance with the declared purposes of the district; including, without limitation, rights and interest in property, leases and easements necessary to the construction of capital improvements and acquisition of capital equipment, provided, that the district shall not construct any capital improvement or acquire any item of capital equipment, other than for the administrative needs of the district, unless the same has been requested by one or more local units [counties or municipalities within the district] as hereinafter provided, nor unless such request has been approved by the board of directors; and provided further, that the district in the exercise of its powers and authority and in the performance of its functions shall be subject to the planning, zoning, sanitation and building laws, or ordinances and regulations, applicable to the locality in which such powers and authority are exercised and such functions are performed.

“ (6) To have management, supervision and control of the construction of capital improvements and acquisition and installation of capital equipment requested by local units and undertaking in accordance with the terms of this act.

“(7) To employ and retain such employees, agents, engineers and attorneys as may be necessary to carry out the functions of the district, and to determine and fix the compensation thereof.

“(8) To have and exercise the power of eminent domain, both within and without the boundaries of the district.”

Section 15 contains, inter alia, the following:

“Allocation of collections to local units. The board of directors of the district shall establish a fund for each local unit within the district to which shall be credited that part of the total proceeds of the revenue from any district sales and use tax which is available for construction of capital improvements or acquisition of capital equipment requested by such local unit, which shall be determined by the board as follows:

“(1) All net revenue derived from district sales and use taxes collected within a county or city and county, less an amount not to exceed one-half of one per cent thereof for necessary district administrative expenses, and less such amount as is necessary for costs of collection of the tax, shall be available for capital improvements or capital equipment requested by local units within or partly within the boundaries of such county or city and county.”

Section 19, in pertinent part reads as follows:

“Title vests in local units- — ■ joint project requests. Upon completion or acquisition of any project or item by the district, the capital improvement or equipment shall be conveyed to the local unit or units at the request of which such project or item was constructed or acquired, and such local unit or units shall accept the title thereto and shall thereafter maintain and operate the same. * * *”

It is indisputably clear that the district is a conduit through which to channel taxes earmarked for local “capital improvement” or “capital equipment” in the county or city areas where collected. It is also clear that this “conduit” district after exercising the powers of “management, supervision, and control of the construction of capital improvements and acquisition and installation of capital equipment requested by local units” must forthwith thereafter convey the completed “capital improvement” or the “capital equipment” to the county or the city which made the request for its construction or purchase, and which supplied the money to pay for it. Indisputably the district becomes a conduit, created by statute, through which activity is channelled to accomplish objectives which for generations have been achieved by local officers directly responsible to the people, and upon whom the duty of discharging such local responsibilities has heretofore been placed by constitutional provision or municipal home rule charter provision, or both.

We now direct attention to pertinent provisions of Article XX of the Constitution of Colorado which severally, and in their cumulative effect, prohibit the far-flung activities proposed under the “Four-County” authority. The people of Colorado by Section 1, Article XX enumerated broad powers which they conferred upon the City and County of Denver. Included therein we find that the City and County of Denver:

“* * * ghjqj have the power, within or without its territorial limits, to construct, condemn and purchase, purchase, acquire, lease, add to, maintain, conduct and operate, waterworks, light plants, power plants, transportation systems, heating plants, and any other public utilities or works or ways local in use and extent, in whole or in part, and everything required therefor, for the use of said city and county and the inhabitants thereof, and any such systems, plants or works or ways, or any contracts in relation or connection with either, that may exist and which said city and county may desire to purchase, in whole or in part, the same or any part thereof may be purchased by said city and county which may enforce such purchase by proceedings at law as in taking land for public use by right of eminent domain * *

Thus the people by constitutional provision gave to the City and County of Denver full and adequate power to do everything necessary or essential to provide “capital improvements” for its inhabitants. By another portion of section 1, the people authorized the City and County of Denver to acquire all needed personal property or “capital equipment.”

To remove all doubt concerning the nature of the powers granted to the City and County of Denver, the people amended the original Article XX and provided that home rule cities “are hereby vested with, and they shall always have, power to make, amend, add to or replace the charter of said city or town, which shall be its organic law and extend to all its local and municipal matters ” (Emphasis supplied.) Section 6 continues as follows:

“Such charter and the ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict therewith.

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“It is the intention of this article to grant and confirm to the people of all municipalities coming within its provisions the full right of self-government in both local and municipal matters and the enumeration herein of certain powers shall not be construed to deny such cities and towns, and to the people thereof, any right or power essential or proper to the full exercise of such right.

“The statutes of the state of Colorado, so far as applicable, shall continue to apply to such cities and towns, except in so far as superseded by the charters of such cities and towns or by ordinance passed pursuant to such charters.”

In numerous opinions handed down by this court extending over a period of fifty years, it has been made perfectly clear that when the people adopted Article XX they conferred every power theretofore possessed by the legislature to authorize municipalities to function in local and municipal affairs. As stated by Mr. Justice Burke in Denver v. Henry, 95 Colo. 582, 38 P. (2d) 895:

“* * * what power is granted by it [Article XX] has however been fairly well settled by our decisions. It is ‘Every power possessed by the legislature in the making of a charter for Denver.’ Denver v. Hallett, 34 Colo. 393, 83 Pac. 1066. It is determined ‘by ascertaining whether the legislature in the absence of article XX could have conferred upon the municipality the power in question.’ Londoner v. Denver, 52 Colo. 15, 119 Pac. 156; Denver v. Mountain States T. & T. Co., 67 Colo. 225, 184 Pac. 604.”

After the adoption of Article XX all the home rule cities within the “Four-County District” (and there are several) had all the power that could be acquired by anyone to govern with relation to their local and munircipal affairs. Only by constitutional amendment could this allocation of power be changed. In the area of providing local “capital improvements” and “capital equipment” in the cities, the General Assembly had nothing to give in the way of power or authority to any new superstructure of government encompassing multiple counties and numerous towns and cities. By the Home Rule Amendment the General Assembly had been deprived of all the power it might otherwise have had to legislate concerning matters of local and municipal concern. Particularly is this true where a home rule city has adopted a charter or ordinances governing such matters. A few of the authorities which might be cited supporting this statement are Denver v. Hallett, 34 Colo. 393, 83 Pac. 1066; Londoner v. Denver, 52 Colo. 15, 119 Pac. 156; People v. Cassiday, 50 Colo. 503, 117 Pac; 357; City of Pueblo v. Kurtz, 66 Colo. 447, 182 Pac. 884; Denver v. Sweet, 138 Colo. 41, 329 P. (2d) 441; Davis et al. v. Denver, 140 Colo. 30, 342 P. (2d) 674.

When the people by constitutional provision have lodged exclusive power in a political subdivision of government such as a home rule city, that power may be exercised only by the entity to which it was granted, and the home rule city cannot delegate the power elsewhere. Neither can the General Assembly re-invest itself with any portion of the authority it lost to home rule cities upon the adoption of Article XX by the people. Only direct action of the people can restore to the General Assembly any portion of the exclusive right of home rule cities to govern themselves in matters of local and municipal concern.

We are not impressed with the “window dressing” with which the statute is heavily weighted, the manifest purpose of which is to give the statute an outward appearance clearly contrary to its true character. The district contemplated by the statute has no specific identifiable “district purpose” except to collect sales taxes at a specified rate; to impound the moneys thus raised and allocate the same to the geographical “unit” from which collected; to spend the money in constructing the projects and furnishing the equipment which the “local unit” deems advisable in connection with its local needs; and thereafter to deliver over title to that local unit.

The City and County of Denver has long since recognized that it alone has the power to function in the field of capital improvements within its boundaries. By specific charter provision it has accepted this exclusive grant of power from the people of Colorado. The charter provision (which fully covers the field contemplated by the statute) reads as follows, (Article 2, Section A 2.3 and A 2.3-1):

“The following duties and powers are hereby vested exclusively in the Department of Public Works:

“Management and control of the designing, planning, construction and reconstruction of all general public improvements, including such remodelling thereof as requires designing or structural change, for the City and County and for all departments, agencies, boards, commissions and authorities thereof except the Board of Water Commissioners.”

Article XX above quoted, and the said charter provisions adopted pursuant thereto, precludes any state law purporting to superimpose the functioning of a “Four-County District” Board of Directors on the activities of the City and County of Denver in supplying their “local and municipal” needs for “capital improvements” and “capital equipment.” There can be no doubt that the activities contemplated -by the district board of directors involve “local and municipal matters.”

The plans for the City and County of Denver alone (to be carried out by the district) are widely advertised and are well known to all who can hear or read. That which is of common knowledge to an interested public can be judicially noticed. The master “capital improvement” plan for the immediate future within the City and County of Denver, as widely publicized throughout the area, includes expenditures for additions to the city’s maintenance and equipment fleet, branch libraries, widening and surfacing of boulevards and streets, parks, swimming pools, boating facilities, a fire station, etc. Similar plans are proposed for other areas of the district. Thus it is apparent that the statute purports to empower the “Four-County District” to discharge the official functions of home rule cities with relation to local and municipal affairs. The constitution forbids such action.

Had the General Assembly itself undertaken to create by statute a super-municipal body politic, superimposed over the City and County of Denver and surrounding cities and counties, there can be little doubt that such enactment would clash headon with the provisions of Article XX of the constitution and be stillborn in the face of that fundamental ordinance. We have held that the General Assembly may not lawfully delegate its authority to enact laws. See Olinger v. People, 140 Colo. 397, 344 P. (2d) 689. It follows that it may not confer upon others power it does not have.

The impact of the statute upon the City and County of Denver, and all the home rule cities included within the area, is such that the affairs of such cities cannot be severed from the operation of the statute even though it might be upheld against numerous other challenges to its validity. The test of severability is stated by this court in Denver v. Lynch, 92 Colo. 102, 18 P. (2d) 907, as follows:

“An act or a statute may be constitutional in one part and unconstitutional in another, and, if severable, the invalid may be stricken and the valid left stand. 6 R.C.L., p. 121, §121. The power of the court to make such a decision rests primarly upon legislative intent. * * * If the invalid portion of an act was apparently an inducement to the passage of the valid, the statute is not severable. Id. p. 125, §123. Nor can an essential part of an act, which colors the whole, be stricken as invalid and the remainder sustained. Id. p. 127 §125.”

For the reasons above set forth we hold the statute in question to be unconstitutional, and direct that collection of the tax levied thereunder, and all other acts of the said Four-County District, terminate forthwith.

Mr. Justice Sutton specially concurs.

Mr. Justice McWilliams dissents.

Mr. Justice Pringle not participating.