Colorado § 31-16-105 - Record and publication of ordinances.

§ 31-16-105. Record and publication of ordinances.

All ordinances, as soon as may be after their adoption, shall be recorded in a book kept for that purpose and shall be authenticated by the signature of the presiding officer of the governing body and the clerk. All ordinances of a general or permanent nature and those imposing any fine, penalty, or forfeiture, following adoption and, if required by ordinance adopted pursuant to section 31-4-102 (3) or 31-4-302, compliance with the provisions of section 31-16-104, shall be published in some newspaper published within the limits of the city or town or, if there are none, in some newspaper of general circulation in the city or town. It is a sufficient defense to any suit or prosecution for such fine, penalty, or forfeiture to show that no publication was made. If there is no newspaper published or having a general circulation within the limits of the city or town, then, upon a resolution being passed by the governing body to that effect, ordinances may be published by posting copies thereof in three public places within the limits of the city or town, to be designated by the governing body. Except for ordinances calling for special elections or necessary to the immediate preservation of the public health or safety and containing the reasons making the same necessary in a separate section, such ordinances shall not take effect and be in force before thirty days after they have been so published. The excepted ordinances shall take effect upon adoption and, if required by ordinance adopted pursuant to section 31-4-102 (3) or 31-4-302, compliance with the provisions of section 31-16-104 if they are adopted by an affirmative vote of three-fourths of the members of the governing body of the city or town. The book of ordinances provided for in this section shall be taken and considered in all courts of this state as prima facie evidence that such ordinances have been published as provided by law. Any municipality may determine at a regular or special election to meet the requirements of this section and section 31-16-106 by publishing ordinances by title only rather than by publishing the ordinance in full. No municipality shall call a special election for the sole purpose of determining the issue of whether the municipality should publish new ordinances in full or by title only.

Source: L. 75: Entire title R&RE, p. 1123, § 1, effective July 1. L. 81: Entire section amended, p. 1496, § 10, effective May 28. L. 92: Entire section amended, p. 1053, § 3, effective January 1, 1993.

Editor's note: This section is similar to former § 31-12-305 as it existed prior to 1975.

ANNOTATION

Law reviews. For article, "Adoption by Reference in Municipal Ordinances", see 22 Rocky Mt. L. Rev. 69 (1949). For article, "Publication of Legal Notices by Colorado Municipalities", see 22 Colo. Law. 59 (1993).

Annotator's note. Since 31-16-105 is similar to former § 31-12-305 prior to the 1975 repeal and reenactment of this title, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

If a party litigant raised the objection that the ordinance has been changed, the burden is upon him to prove it, and such proof requires more than merely casting a doubt or suspicion upon the validity of the ordinance. Handler v. City & County of Denver, 102 Colo. 53, 77 P.2d 132 (1938).

This section was intended to provide a convenient method of proving the fact that an ordinance had been published as required by law, and not for the purpose of making the book of ordinances the only and exclusive evidence of such fact. LaFitte v. City of Ft. Collins, 42 Colo. 293, 93 P. 1098 (1908).

This section does not require the signature of the mayor, or the attestation of the clerk, to give effect to the ordinance, but only requires that the ordinance, as soon as may be after its passage, shall be recorded in a book, etc., and be authenticated by the signature of the presiding officer, etc., thus clearly implying that the signature is not essential to the passing of the ordinance, but is merely for the purpose of evidencing its authentication, because apparently the signing is after the recording, and the recording is only to occur as soon as may be after the passage. Nat'l Bank of Commerce v. Town of Granada, 41 F. 87 (8th Cir. 1891).

All bylaws of a general or permanent nature had to be published as required by this section. Nat'l Bank of Commerce v. Town of Granada, 48 F. 278 (8th Cir. 1891).

This section is mandatory and an ordinance without the requisite publication is a nullity, and consequently of no force or validity. Nat'l Bank of Commerce v. Town of Granada, 48 F. 278 (8th Cir. 1891).

Publication or posting of ordinances is an essential condition precedent to their validity. People ex rel. Town of Wray v. Grant, 48 Colo. 156, 111 P. 69 (1910).

Conviction based on unpublished ordinance. Where an ordinance declared the keeping for sale of any intoxicating liquors a nuisance, and that the same "may be abated as any other nuisance", but the provision quoted was never published, it was held that such provision never became of force, and a judgment convicting the accused party of maintaining a nuisance, and directing the abatement of such nuisance, is no justification for acts done pursuant thereto. Wolfe v. Abbott, 54 Colo. 531, 131 P. 386 (1913).

This section is not mandatory as to the manner of proving the publication of an ordinance. LaFitte v. City of Ft. Collins, 42 Colo. 293, 93 P. 1098 (1908).

The recital in and certificate to bonds, stating full compliance with all preliminary requirements, estops the issuer of the bonds from subsequently denying that the ordinance authorizing the bond purchase was duly published. Hayden v. Town of Aurora, 57 Colo. 389 (1914).

Prima facie evidence of legal publication. This section makes the record of an ordinance in the "book of ordinances" to be kept for that purpose prima facie evidence of its lawful publication and in view of this fact, courts ought not to permit this salutary presumption of regularity to be overcome by anything less that substantial proof of irregularity. Town of Fletcher v. Hickman, 165 F. 403 (8th Cir. 1908).