Opinion
William Albion Carlson, Greeley, for plaintiff in error.
William E. Bohlender Greeley, for defendants in error.
DWYER, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
James R. Housel, in this action against the City of Greeley and certain of its officials, questioned the validity of a transfer, pursuant to ordinance, of funds from the city's 'Water Fund' to the 'City Complex Building Fund.' From an adverse judgment in the trial court, Housel prosecutes this writ of error.
A preliminary statement of the background of this litigation is appropriate. The City of Greeley is a Home Rule City organized and existing under the Constitution and laws of the State of Colorado. The city charter creates a water department by Section 17--1 and a water board by Section 17--3. The powers and duties of the water board are enumerated in Section 17--4 of the charter. The water board is given general authority to operate and maintain the water system and is specifically authorized to establish 'minimum water rates.' The use of funds received from such minimum water rates is limited by Section 17--5 of the city charter which provides:
'All funds received from the minimum water rates as described in Section 17--4, shall be used only for the Water Department. The City Council is hereby prohibited from lowering the minimum water rates established by the Water Board.'
Other than this restriction in Section 17--5, the charter does not limit the power of the city council to appropriate funds in the 'Water Fund' for municipal purposes.
The City of Greeley planned to build a new city complex. At the time the water department had funds on deposit and on April 5, 1966, the Greeley City Council, in order to finance the city complex project, passed an ordinance which authorized the director of finance to borrow not more than $405,000 from the water and sewer funds. Housel filed a declaratory judgment action (Civil Action No. 17305) against the city attacking the validity of the ordinance of April 5, 1966, on the grounds that the ordinance would violate Section 17--5 of the city charter, which restricted the use of funds received by the water department for minimum water rates.
In order to resolve and dispose of the case, the city council adopted a resolution which recited that by repealing the ordinance of April 5, 1966, and adopting a new plan for financing the new city complex, the legal action then pending could be settled. The resolution instructed the city attorney to prepare an ordinance repealing the ordinance of April 5, 1966, and to prepare an ordinance authorizing the transfer of $395,000 from the water fund 'that is money other than derived from minimum water rates' to the City Complex Building Fund.
This resolution was presented to the court with a stipulation signed by the respective attorneys for the parties approving the resolution and stipulating that if the city council enacted the ordinance proposed in the resolution, the action would be dismissed with prejudice.
Thereafter, the ordinances contemplated by the resolution were enacted. On August 23, 1966, the parties filed a stipulation reciting that Ordinance No. 25,1966 complied with the prior stipulation, the Constitution and laws of the state, and the city charter. Pursuant to this stipulation Civil Action No. 17305 was dismissed with prejudice.
Ordinance No. 25,1966, which the city council adopted in accordance with the stipulation and resolution provides:
'* * * Whereas, there is now available for the construction of the City Complex, the following funds: $395,000.00 in the water department from receipts other than minimum water rates * * * (other funds mentioned that are not applicable) * * * all of which have not been herefore appropriated * * *.
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'Section 3. That there is hereby appropriated * * * from the water fund, from receipts other than minimum water rates, $395,000.00 * * * to be placed in the City Complex Building Fund to be used for the construction expenses of said Complex.'
The director of finance transferred the $395,000 in accordance with Ordinance No. 25,1966 and the city manager approved the transfer.
Thereafter, on October 19, 1966, plaintiff filed this declaratory judgment action, asserting that the transfer of funds was in violation of Sections 17--4 and 17--5 of the city charter and in violation of the provisions of Ordinance No. 25,1966.
Upon trial of the action, Housel attempted to prove that the funds, or a substantial portion thereof, transferred pursuant to the ordinance were, in fact, 'receipts from minimum water rates' and not, as recited in the ordinance and as designated by the city officials, 'receipts other than minimum water rates.'
The trial of this issue required four days and testimony was given by the plaintiff, by the director of finance, and by the city manager. Exhibits received in evidence analyzed the records in the office of the director of finance for the period beginning January 1, 1959, when minimum water rates became effective, and ending December 31, 1965. According to these records, the sum of $451,151 was received from sources other than minimum water rates. Further, according to these records, the sum of $395,151, included in the cash balance of the water department as of December 31, 1965, had been received by the water department from sources other than minimum water rates. These sources included, among others, tap fees, license fees, refunds of sales taxes, and interest on idle water funds.
Upon the basis of the evidence presented, the trial court resolved the factual issue in favor of the city. The evidence supports the trial court's findings and its judgment will not be disturbed on review. Brighton Ditch Co. v. City of Englewood, 124 Colo. 366, 237 P.2d 116.
Judgment affirmed.
ENOCH and PIERCE, JJ., concur.