Breternitz v. City of Arvada

Mr. Justice Groves

dissenting:

I respectfully dissent from the portion of the majority opinion contained in Article II thereof.

As stated in the majority opinion, 1965 Perm. Supp., C.R.S. 1963, 139-21-6(1) (d) (iv) provides among other things that the petition shall contain “ [a] n allegation that the signers of the petition comprise the landowners of more than fifty percent of the territory included in the area proposed to be annexed, exclusive of streets and *69alleys.” Section 6(2), providing for an annexation election provides as follows:

“ (d) (i) The petition for annexation election shall comply with the provisions of subsection (1) (d) of this section, except that:
“ (ii) It shall contain an allegation that the signers of the petition are qualified electors resident in and landowners of the area proposed to be annexed, and “(iii) The petition shall request the annexing municipality to commence proceedings for the holding of an annexation election.”

This is not a case of ambiguous wording or of language susceptible to more than one interpretation, in which events courts determine the legislative intent. Kirschwing v. O’Donnell, 120 Colo. 125, 207 P.2d 819 (1949). Rather, here we have an instance of plain, unambiguous language. To construe the term “except that” as Arvada urges amounts to an unwarranted judicial amendment of a legislative act. I grant that the wording of the statute is strange. Furthermore, I will not argue with those who say it is absurd. Two venerable English cases illustrate that it has long been the law that courts do not in such a situation amend legislation when it is apparent that the legislature did not act as it intended, and has given no clue as to how it intended to write the act. In one case is found the following:

“It was contended, for the plaintiff,.. . that, adopting, to the full extent, the rule so frequently referred to as the golden rule by which judges are to be guided in the construction of acts of parliament, we ought ‘to look at the precise words of the statute, and construe them in their ordinary sense only, if such construction would not lead to any absurdity or manifest injustice; but, if it would, then we ought so to vary and modify the words used, as to avoid that which it certainly could not have been the intention of the legislature should be done.’ * * *

“If the precise words used are plain and unambiguous, *70in our judgment, we are bound to construe them in their ordinary sense, even though it do lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied, where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see , or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning.” Jervis, C.J., in Abley v. Dale, 138 Eng. Rep. 519 (C.P. 1851)

Crompton, J., in Woodward v. Watts, 118 Eng. Rep. 836 (Q.B. 1853), made similar remarks.

Adverting to more recent and direct authority, I refer to Montrose v. Niles, 124 Colo. 535, 238 P.2d 875 (1951), and Chicago Co. v. Patterson, 65 Colo. 534, 178 P. 13 (1918). In the first cited case it was said:

“We must construe the statute as we find it, and, where the meaning is clear, we connot amend it by construction to conform to what we might believe to be an improvement. The general accepted meaning of the words used can lead to no other conclusion...”

In Patterson it was stated:

“The policy of the law may or may not be a wise one, but it is for the court to construe its language as it finds it. The statute being explicit does not admit of interpretation beyond its express letter, and must be administered as we find it, and as we said in Clayton v. People, 53 Colo. 124, 123 Pac. 664, ‘it would be an act of judicial legislation to give to it any construction other than the plain meaning which the language indicates.’
“If the law requires to be remedied, that is a question for the legislature.”

See Isaak v. Perry, 118 Colo. 93, 193 P.2d 269 (1948).

Section 6(3), “Procedures Alternative,” quoted in the majority opinion does not in my view justify the amendment which this court is making of the statute. It does not require a legislative statement to see that these are alternative procedures. A legislature properly may in*71corporate by reference in one procedure some of the provisions in another procedure.

Section 6(d) contains ten items, one of which is the requirement of an allegation that the signers of the petition comprise the landowners of more than fifty per cent of the territory. The effect of the majority opinion is to say that the term “except that” means something like “in lieu of” as to this one item, but it still means “except that” with respect to the other nine items.

I would declare the annexation invalid for the reason that the petition was not signed by the owners of the Jones-Witkin tract, which comprises more than two-thirds of the area annexed.