Hill v. Mayhoffer

139 Colo. 505

• Court: Supreme Court of Colorado
• Decided: April 15, 1959
• Docket: No. 18,396; No. 18,398
• Status: Published

Opinions

Mr. Justice Moore

delivered the opinion of the Court.

Three cases pending in this court have been consolidated for disposition. They involve the legality of a water conservancy district allegedly created under the provisions of chapter 149, article VI, C.R.S. 1953.

The statutory procedure for the creation of such a district'involves the filing of originating petitions. These must contain a fixed number of signatures of owners of lands of certain types, a description of the boundaries of the intended district, and a statement of the objects and purposes of the proposed district. The proponents have the right to select the district court of any county having land within the boundaries described in the original petitions as the forum for the proceedings. The court thus selected sets a hearing date in accordance with the statute, and publication of notice is made. These original petitions may be opposed by the filing with the court of protesting petitions which must be signed by a certain number of owners of lands of certain types, and by the filing of “objections” which are by statute confined to a denial of the truth of the allegations set forth in the original petitions. The time for the filing of protests and objections is fixed by the statute, which also sets the time for filing supplemental originating petitions.

The three cases which are here consolidated arose in the following manner:

First. Petitions seeking the creation of the water conservancy district here in question were filed; protesting petitions were filed in due time; a hearing on the sufficiency of the protesting petitions began June 19, 1956, and ended April 25j 1957; the trial court adjudged said protesting petitions to be insufficient and ordered the same dismissed. Certain protestants thereupon caused writ of error to issue directed to said judgment of dismissal. This action is No. 18,396 in this court.

Second. Other interested parties filed “objections” traversing the truth of the allegations of the originating petitions. The hearing thereon commenced June 18, 1957, and ended August 15, 1957, on which date the lower court dismissed said objections. Certain of these objecting parties who were not represented by counsel in the trial court thereafter initiated writ of error proceedings in this court in cause No. 18,398.

Upon the dismissal of the “objections” on the date last above mentioned, the trial court forthwith conducted a hearing concerning the sufficiency of the originating petitions, and immediately upon the opening of this hearing, and before any evidence was taken, counsel for the proponents filed a written motion to amend the originating petition. This motion contained the following:

“Come now the petitioners herein by their attorneys and subsequent to the dismissal of the protesting petitions as by order of Court’ dated April 25, 1957, provided, and subsequent to the presentation by the objectors of testimony in support of the objections and denials of allegations of the petition generally, all as provided by the Court’s order of January 22, 1957, as amended February 5, 1957, and the objectors herein having put on evidence on their main case, the petitioners having put on their testimony, and the objectors having put on their rebuttal, and the Court having called for the appearance of all counsel and all present in Court who were objecting to the creation of the proposed district, and the Court having entered all appearances of counsel and the objectors having been dismissed as by order herein provided, the petitioners now rise and file herewith the following motion:

“1. The petitioners call up all motions for amendments to the petitions heretofore filed herein.

“2. The petitioners herein move to amend the name of the proposed district and the caption in this case to read, ‘South Platte Water Conservancy District’ by striking in the petition and in all subsequent pleadings the words, ‘Blue River.’

“3. The petitioners herein further move that the petition herein be amended by adding after the description of the boundaries of the district following the paragraph designated Weld County, the following exceptions: * *

At this point the motion identified all property within the boundaries of the cities of Aurora, Englewood, Golden, Littleton and the Town of Cherry Hills Village, together with all the property owned by each individual objector represented by counsel, except Adee, et al. The motion requested exclusion of all of this property solely on the ground as stated therein, “that it is to the interest of the petitioners that the above-described property be omitted from the district.”

Counsel for proponents made the following statement to the court:

“MR. MILLER: If the Court please, these motions are substantially in accordance with the written pleadings of the Objectors whose names and whose descriptions we have read. They grant the complete relief requested by those persons. It is our position that we, under the powers of the Water Conservancy Act and under the authority of the cases construing it and under the general law with which your Honor is familiar and which has been cited in previous briefs before this Court, have the right to amend the petition. The Court has a right to grant the amendment and the Objectors named, being all those who have resisted in any manner the creation of the district to this time, having been by the motion excluded, upon allowance of the motion their interest in the matter terminates.”

Attorneys for some of the objectors protested the granting of the motion and asked for a continuance, stating to the court that the motion took them by surprise and that they were not prepared to respond thereto; whereupon counsel for proponents stated:

“On the basis of the record we respectfully submit, Your Honor, that it is to the interests of the petitioners that the expense and continued delay in litigation be terminated by giving those who have properly appeared all relief which they ask, and that they then be requested to depart hence, having won their victory.”

The trial court granted the motion made by proponents. The effect of this action by the court was to reduce the assessed valuation of the area included within the district from 441 million dollars to approximately 323 million dollars. Following the granting of the written motion counsel for proponents agreed that the lands owned by Adee, et al. should likewise be withdrawn from the district, and the court so ordered. (Adee, et al. are eighty-two individuals owning lands within the district who, at the beginning of the proceedings, requested exclusion of their lands. The request then made was denied.) The exclusion of the lands of all individuals and municipalities then represented by counsel who opposed the creation of the district, resulted in the last phase of the proceeding in the trial court being heard ex parte. The trial court found the originating petitions to be sufficient, and on August 16, 1957, entered a decree forming the district. The following day the directors of the district were appointed.

Third. On November 13, 1957, the attorney general, pursuant to C.R.S. 1953, 149-6-7, initiated quo warranto proceedings in this court, cause No. 18,471, the purpose of which was to test the legality of the formation of the district and the right of its directors to hold office.

It is argued on behalf of the district that cause No. 18,396 should be dismissed for the reason that the named plaintiffs in error are no longer in court; that all of their property was omitted from the district, as requested by them, and they were dismissed from the action*;-1 ■ that there is no appearance anywhere in the record for''anyone other than those individually and specifically named; that there was no appearance for a class in the trial court and a new party “the class” may not be introduced into the record on writ of error. We deem it unnecessary to do other than to say that these arguments directed to cause No. 18,396 are well founded, and the writ of error in that action is dismissed.

With reference to cause No. 18,398, it is argued that the writ of error should be dismissed for the reason that all plaintiffs in error were in default in the trial court; that none of them appeared in the trial court; that a final judgment was entered on April 25, 1957, and no motion for a new trial was filed and no order dispensing with the filing thereof was entered, and that the requirements of rules 59, 111 and 112, R.C.P. Colo., relating to writs of error were not complied with. There is merit in each of these contentions and the writ of error in cause No. 18,398 is accordingly dismissed.

We now direct our attention to the action in quo warranto. Counsel for the district argue that the relator’s petition in quo warranto fails to state a claim upon which relief may be granted. It is contended that the decree of the trial court creating the district can only be attacked upon the grounds of lack of jurisdiction, fraud, or invalidity appearing on the face of the decree, and that quo warranto does not serve as a writ of error in that alleged errors committed by the court during the trial will not be inquired into. The Water Conservancy Act, C.R.S. 1953, 149-6-7, provides in pertinent part:

“If an order be entered establishing the district, such order shall be deemed final and no appeal or writ of error shall lie therefrom, and the entry of such order shall finally and conclusively establish the regular organization of the district against all persons except the state of Colorado, in an action in the nature of a writ of quo warranto, commenced by the attorney general within three months after said decree declaring such district organized as herein provided, and not otherwise. The organization of such district shall not be directly nor collaterally questioned in any suit, action or proceeding except as herein expressly authorized.”

It is argued by counsel for the district that the opinions in People ex rel. v. Letford, 102 Colo. 284, 79 P. (2d) 274, and People ex rel. Dunbar v. San Luis Water Conservancy District, et al., 128 Colo. 193, 261 P. (2d) 704, support the proposition that the findings and conclusions of the trial court cannot be reviewed in quo warranto proceedings. An examination of the records and briefs filed in these cases leads us to a contrary conclusion. In each of these cases the testimony before the trial court was considered. The opinion in the Let-ford case stated that, “This action is permissible under section 3, article VI of the Constitution, is of the nature of a common law proceeding searching the entire record, and is not limited by sections 321 to 330 of the Code of Civil Procedure.” We hold that the “record” thus to be searched in matters of this kind includes the testimony, and all matters considered by the trial court.

Numerous grounds are urged by the attorney general in support of his position that the decree of the trial court should be nullified. The issues have been very ably presented by counsel on both sides, and the court has had the benefit of briefs supplied by friends of the court. The conclusion which we reach with reference to two questions only, makes it unnecessary to consider other intricate and most interesting arguments.

Questions to be Determined.

First: Did the trial court commit error in granting the motion for the exclusion from the proposed district of lands within certain objecting municipalities and those of individuals opposing the formation of the district, which motion was made by attorneys for the proponents of the district?

This question is answered in the affirmative. The motion to which reference is made in the above question was made at the opening of the third phase of the hearings conducted by the trial court. The first phase involved questions bearing upon the sufficiency of protesting petitions, and resulted in a finding that the protests were insufficient to prevent formation of the district. The second phase of the hearings involved many questions concerning the truth of the allegations of the petitions and resulted in (1) a finding by the trial court that the allegations thereof were true, and (2) a dismissal of the objections which raised those issues. The third phase of the hearings conducted by the trial court involved consideration of questions testing the sufficiency of the originating petitions.

As hereinabove pointed out, the effect of granting the motion was to prevent opposition at the important hearing on questions bearing upon the sufficiency of the originating petitions. As stated by counsel for proponents in open court, protestants and objectors were removed from the case and “ * * * that they then be requested to depart hence, having won their victory.” Following the removal of opposition to the proceedings upon the third phase of the case, it took but one day to present the evidence in support of the sufficiency of the originating petitions and the decree establishing the district was entered forthwith.

We have hereinabove mentioned the fact that the district created by the decree was in a very substantial way different as to size and valuation than the district which the originating petitions proposed to create. The substantial reduction in size and valuation was brought about, as hereinabove described, without the consent of any of the approximately 4,500 originating petitioners (except some ten or twelve directors and officers of a water association sponsoring the district).

It is contended by counsel for the district that the statute under which the district was created authorized the exclusions brought about by the motion and the court’s action thereon. The pertinent language of the act, C.R.S. 1953, 149-6-4, is as follows:

“No petition with the requisite signatures shall be declared void on account of alleged defects, but the court may permit the petition to be amended at any time to conform to the facts by correcting any errors in the description of the territory, or in any other particular. * * * ” (Emphasis supplied.)

We think it sufficient to say that the motion of proponents’ counsel was not for the purpose of correcting any “errors in the description of the territory” to be included in the district, nor was the motion intended to correct any “errors” of the petition “in any other particular.” It is also clear that the motion was not for an amendment “to conform to the facts.”

A desire to foreclose opposition is not a correction of an “error in description” nor a correction of an error “in any other particular” in the originating petitions. We are fully satisfied that under the provisions of this statute the legislature did not intend to authorize counsel for the proponents of a conservancy district, after petitions have been signed for the creation of a particular district, to exclude land therefrom so that the valuation of property to be included therein is reduced by more than twenty-five per cent, and the size of the district reduced by fifty square miles.

The result of the exclusions is that the signatures of all persons on originating petitions become a nullity. After the exclusions, the petitions no longer describe the “territory to be included in the proposed district.” (149-6-4.) The signers of such petitions contemplated and intended a district very different from the one resulting from such exclusions. The ultimate tax burden upon those remaining in the district would be definitely affected and it cannot be assumed that any one of the petitioners would have affixed his signature to the originating petitions had he known that the district to be created would be substantially different from that made known to him by the instrument which he signed as an originating petitioner.

Similar problems have arisen in improvement districts where, after signing the petition, lands within the district were excluded. In Smith v. Improvement District No. 14, 108 Ark. 141, 156 S.W. 455 (1913), the court stated:

“ * * * It will be seen our statutes require as a prerequisite to the exercise of authority conferred upon the city council that a petition be first filed designating the boundaries of the district, so that it may be easily distinguished. This is for the benefit of the property owners. A property owner might be willing to sign for an improvement district as designated in the first petition, and might be unwilling to sign if a part of the property included within the boundaries of the district should be omitted; for this might have the effect of imposing upon the property owners additional and enlarged burdens which they did not contemplate when they signed the petition. A special limited jurisdiction is conferred upon the city council to lay off the district as designated by the property owners in the first petition, and the council must conform strictly to the authority conferred upon it. For the same reason the chancery court had no power to change or alter the boundaries of the district, and it follows that in making up the valuation of the property of the district all the property situated in the district as it was created must be considered.” (Emphasis supplied.) The altered district was held to be a nullity.

Again, in Riddle v. Ballew, 120 Ark. 161, 197 S.W. 27 (1917), the same court said under similar facts:

“ * * * It would seem from the doctrine of these cases that, as the petition for the establishment of the district is jurisdictional, the city council has no authority to establish a district, the boundaries of which are not in conformity with the territory as described and set up in the petition. It is not within the power of the council to amend the petition of the property owners. This the property owners could do themselves, and conform their petition by way of description to such property as they might ascertain would meet with the approval of the council and insure the creation of the district in accordance with their wishes. But here this was not done, and the ordinance creating the district and all proceedings thereunder are therefore void.

:j« * *

“It was for the property owners, and not the council, to determine what property they desired to have included within their improvement district, and the council could not determine that question for them without their consent as expressed in a petition in conformity with the statute. Neither had the chancery court any jurisdiction to determine that question for the property owners. * * * ” (Emphasis supplied.)

The same issue was presented in City of Lewistown v. Warren, 52 Mont. 356, 157 Pac. 954, where the court stated:

“ * * * By reference the petition is made a part of the complaint. It discloses that this defendant did join in the petition for the creation of a special improvement district to include all of the property mentioned in the petition. In creating the district, however, the city excluded a very considerable portion of the property, and cannot now be heard to say that the defendant should be estopped by her conduct. She may have been desirous that a district he created with a large area and a correspondingly low tax, and justly opposed to the creation of a district with a less area and a higher tax. 2 Page & Jones on Taxation by Assessment, §1013.” (Emphasis supplied.)

These cases are merely an application of the general rule that where the legislature prescribes a statutory procedure, it must be substantially adhered to, and any departure therefrom renders a resulting decree a nullity.

A water conservancy district is a quasi-municipal corporation. The formation of such districts is a legislative function. For this purpose, the statute has set up certain standards and requirements and has delegated to the district court the ministerial and judicial task of determining whether these standards have been met in a given case. The court does not have and could not constitutionally have been invested with a general discretion for the formation of whatever districts the court deemed to be in the public interest. 16 C.J.S., “Constitutional Law,” 637-40, sec. 139 (d) (1) and (2), and n. 86 under (d) (2). The court has jurisdiction only if the statutory requirements are met and it can act only in strict accordance with the powers delegated to it by the language of the statute. Cole v. City of Watertown, 34 S. D. 69, 147 N.W. 91. This is a statutory proceeding and the powers conferred may not be expanded by inference or construction beyond the language of the statute.

The statute controlling the formation of water conservancy districts embodies a procedure much like that involved in many states in incorporating villages and cities or annexing or detaching territory, or in establishing various kinds of special improvement districts, school districts, and other municipal or quasi-municipal corporations. The first step is the filing of a petition signed by a specified number of people. The obvious purpose of this is to establish that the project or district has sufficient popular support before the law will compel others to pay their share of the cost. To make this support meaningful, and to comply with the notice requirements of due process, the proposal in the petition must be specific; otherwise, a citizen cannot form an intelligent opinion as to whether to sign and has no way of knowing what he is petitioning for or what he is agreeing to pay and the effect of his signing upon others who also will be taxed.

In Colorado the petition must describe generally the territory involved with sufficient precision to enable a person to ascertain whether his land is included. Such a description, however, provides more than a notice to landowners; it furnishes a basis for estimating the quantities of water needed, the size of the tax base and population involved and the benefit which might be anticipated in terms of the cost per acre foot of water supplied. The Colorado statute also requires that the petition describe generally the “purpose of the contemplated improvement” (not the district).

Once these facts have been stated in the petition and people in the district have weighed the merits of the proposal and each has estimated the burden and benefit for himself, it would be grossly unfair to permit changes to be made, as has been done in this case, by eliminating property belonging to numerous individuals and municipalities, thus multiplying the cost per acre foot of water to the user. The signer’s original petition is materially and substantially amended without his authority, subjecting him to additional burdens. We cannot give approval to such procedure.

Among numerous cases dealing with comparable fact situations in which similar amendments were held illegal, we find the following: Watkins v. Griffith, 59 Ark. 344, 27 S.W. 234; Minor v. Board of Control of City of Hamilton, 20 Ohio Cir. Ct. 4; Hutchinson v. City of Omaha, 52 Nebr. 345, 72 N.W. 218; Whaples v. City of Waukegan, 179 Ill. 310, 53 N.E. 618; Marshall v. Williamson (Miss.), 47 So. (2d) 814; and Chitty v. Parker, 172 N. C. 126, 90 S.E. 17.

Second: Can the above described error of the trial court be cured by directing that it deny the motion to exclude the lands in question, and to re-draft the decree to include all such lands?

This question is answered in the negative. Counsel for the proponents argue that: “If the amendment is held to be improper by this court, such error does not make the decree creating the district void — it only makes the amendment improper and the court should merely direct the trial court to correct its decree by denying the amendment.” There are many reasons why this argument is without validity. We mention the following:

First. To order the amendment denied would result in placing the lands in question in the district notwithstanding the fact that for over a year the owners of the land, and the municipalities within which some of the land is located, had actively opposed formation of the district. These owners and municipalities would suddenly become a part of the district without having had their full day in court, in violation of due process.

Second. If the lands in question are now ruled to be included in the district, this court would have created discrimination between individuals and municipalities within the district by so holding. There is no way that an order of this court entered at this time, decreeing that these municipalities and the lands of these individuals are part of the district, can provide for the collection of a retroactive tax on these individual lands and the lands within these municipalities for the tax year of 1957. Other persons in the district have already paid the tax. Consequently the tax burden between those in the district as created by the lower court, and those replaced in the district by this court, would not be equal, uniform or equivalent one to the other.

Third. Replacing these excluded lands within the district at this late a date would not correct the departure from statute by the lower court in making such exclusions in the first instance. It is fundamental law that in statutory proceedings the statute must be strictly followed. If it is not strictly followed then any decree resulting from the variance is void and a nullity. An order finding a particular part of the proceedings improper and erroneous does not erase the invalidity of the decree.

For the foregoing reasons the decree creating the district is a nullity; hence the rule to show cause is made absolute and the trial court is directed to vacate the decree and dismiss the action.

Mr. Justice Doyle does not participate.