Colorado § 32-8-101 - Purpose of tunnel.

§ 32-8-101. Purpose of tunnel.

The purpose of this article is to facilitate transportation and communication between the eastern and western portions of the state through the efficient operation and maintenance of the existing Moffat tunnel under the continental divide and to promote the health, comfort, safety, convenience, and welfare of the people of the state, with special benefit to the property within the boundaries of the improvement district created in this article.

Source: L. 22: p. 88, § 1. C.L. § 9590. CSA: C. 138, § 200. CRS 53: § 93-1-1. C.R.S. 1963: § 93-1-1. L. 94: Entire section amended, p. 729, § 2, effective April 19. L. 96: Entire section R&RE, p. 1048, § 2, effective May 23.

ANNOTATION

Law reviews. For article, "Legal Classification of Special District Corporate Forms in Colorado", see 45 Den. L.J. 347 (1968).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

For the constitutionality of article, see Milheim v. Moffat Tunnel Imp. Dist., 72 Colo. 268, 211 P. 649 (1922).

The purpose of this article is to benefit the people of the district created and to promote the public welfare, not to lend credit of the district to the Denver & S. L. Ry. Moffat Tunnel Imp. Dist. v. Denver & S. L. Ry., 45 F.2d 715 (10th Cir. 1930). See Milheim v. Moffat Tunnel Imp. Dist., 72 Colo. 268, 211 P. 649 (1922); Milheim v. Moffat Tunnel Imp. Dist., 262 U.S. 710 (1923).

And the article cannot be construed as a mere lending of public credit to a private enterprise, for the Colorado constitution expressly forbids such, and the effort to construct the tunnel in 1913 was abortive for that particular reason. Moffat Tunnel Imp. Dist. v. Denver & S. L. Ry., 45 F.2d 715 (10th Cir. 1930).

Although it appears that the main purpose of this article was to construct the tunnel for transportation and communication, a fair reading of the entire article supports the assertion that the general assembly intended the tunnel and its approaches to be put to the largest number of possible uses. Denver & Rio Grande W. R. Co. v. Winter Park, 708 P.2d 1376 (Colo. App. 1985).

Similarity of Denver housing authority. Some of the points of similarity between the Moffat tunnel district and the Denver housing authority are: (a) Both districts include the city and county of Denver as a home-rule city; (b) both are by the express terms of the acts creating them bodies corporate and politic; (c) both were created for the purpose of constructing improvements; (d) there is no express provision for either in the charter of the city and county of Denver; (e) both were created by acts of the general assembly. People ex rel. Stokes v. Newton, 106 Colo. 61, 101 P.2d 21 (1940).

A municipal improvement will be considered for public use where it is open to use by all persons who have need of it. The use may be public though not many persons may enjoy it. The fact that persons using the improvement must pay for the privilege does not render it any the less a public use, providing all can use it on substantially the same terms. Milheim v. Moffat Tunnel Imp. Dist., 72 Colo. 268, 211 P. 649 (1922).

Therefore, even if this law specifically directed that the tunnel be leased to the Moffat road for railroad purposes (a just rental based on the cost of constructing and maintaining the tunnel being provided), as the tunnel would be operated by the railroad as a public highway for the carriage of passengers and freight, it would be a public improvement for public use. The test of the public character of an improvement is the use to which it is to be put, not the person by whom it is operated. Milheim v. Moffat Tunnel Imp. Dist., 262 U.S. 710 (1923).

Any right that a lessee for use of the Moffat tunnel might have to condemn an easement or right-of-way pursuant to this section is inoperative and noneffective, as it would interfere with the independent judgment of the Moffat tunnel commission regarding the use of its property. Denver & Rio Grande W. R. Co. v. Winter Park, 708 P.2d 1376 (Colo. App. 1985).