Town of Lyons v. City of Longmont

54 Colo. 112

• Court: Supreme Court of Colorado
• Decided: September 15, 1912
• Docket: No. 7426
• Status: Published

Opinion

Mr. Justice Gabbert

delivered the opinion of the court:

The sole question involved is, whether the city of Longmont has the right to condemn a right of way for its pipeline through the streets and alleys of the town of Lyons. Independent of statutory provisions cited by counsel for plaintiff in error, we think this right is conferred by the constitutional provision above quoted. It declares thát all persons and corporations shall, have the right of way across public, private and corporate lands, for the purpose of conveying water for domestic purposes. The intent of a constitutional provision is the law. Manifestly, the intent of the provision under consideration was to confer upon all persons and corporations the right of way across lands, either public or private, by whomsoever owned, through which to' carry water for domestic purpose's, and necessarily, embraces a municipal corporation seeking a right of way for such purposes. It covers every form in which water is used, domestic, irrigation, mining and manufacturing, and its object is to be ascertained from its language and not from the title or heading the compiler of the constitution has given the article in which it is found. It" does not mention a pipeline, but its evident object was to permit a right of way for a conduit through which to convey water for the purposes designated, and hence, the kind of conduit'employed and utilized is of no material moment, so far as any question in the case at bar is involved. It does not merely declare principles. On the contrary, it is complete in itself, and by its own terms, confers a right and prescribes the rules and conditions by means of which such right may be enforced. It employes no language to indicate that the subject with which it deals is to be referred to the legislature for action. A constitutional provision is a higher form of statutory law, which the people may provide shall be self-executing, the object being to put it beyond the power of the legislature to render it nugatory by refusing to pass laws to carry it into effect. Constitutional provisions are self-executing when it appears that that they shall take immediate effect, and ancillary legislation is not necessary to the enjoyment of the right thus given, or the enforcement of the duty this imposed. In short, if a constitutional provision is complete in itself, it executes itself.-— Davis v. Burke, 179 U. S. 399; Cooley on Const. Lim., 6th Ed., 99; 6 Am. & Eng. Ency., 912; Kitchin v. Wood, 70 S. E. (N. C.) 995; Willis v. Mabon, 48 Minn. 140.

To summarize: The constitutional provision under consideration confers a right and prescribes the rule by means of which, in an appropriate action in a court of competent jurisdiction, that right may be enforced without further legislation, and is, therefore, self-executing.

In so far as the statutory provisions cited by counsel for plaintiff in error are in any sense applicable, the rights thereby conferred upon cities and towns are subject to- this: constitutional provision. The judgment in no sense deprives the town of Lyons of jurisdiction over its streets and alleys, as it retains authority to prescribe all reasonable and necessary- rules and regulations, which the city of Longmont must observe in maintaining its pipeline through such streets and alleys, and all rights which it may exercise over its line within the. corporate limits of L3?ons are, therefore, subject to such control.- It affirmatively appears that the judgment of the district court does not deprive the town of Lyons of the use of its streets for any purpose whatever, either present or future, and it is, therefore, unnecessary to consider whether a right of way for -the purposes mentioned in the constitution would be granted when the effect would be to deprive a municipality of all use of its streets through which such right of way was sought.

The judgment of the district court is affirmed.

Judgment affirmed.

Decision en banc.

Chief Justice Campbell and Mr. Justice Garrigues not participating.