Colorado § 31-16-108 - Majority of all members required - record.

§ 31-16-108. Majority of all members required - record.

On the adoption of an ordinance, resolution, or order for the appropriation of money or the entering into of a contract by the governing body of any city or town, the yeas and nays shall be called and recorded, and the concurrence of a majority of the governing body shall be required.

Source: L. 75: Entire title R&RE, p. 1124, § 1, effective July 1. L. 89: Entire section amended, p. 1293, § 16, effective April 6. L. 91: Entire section amended, p. 756, § 30, effective April 4.

Editor's note: This section is similar to former § 31-12-306 as it existed prior to 1975.

ANNOTATION

Annotator's note. Since § 31-16-108 is similar to former § 31-12-306 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.

The provisions of this section are mandatory in cases where they apply. People ex rel. Sanders v. Hendrick, 93 Colo. 512, 27 P.2d 493 (1933); City of Greeley v. Hamman, 17 Colo. 30, 28 P. 460 (1891); Kinzie v. Incorporated Town of Haxtun, 99 Colo. 588, 63 P.2d 511 (1937).

And this section cannot be effectually waived; every contract must be expressed. City of Colo. Springs v. Coray, 25 Colo. App. 460, 139 P. 1031 (1914).

The power conferred is limited and can only be exercised in the manner prescribed. Tracey v. People, 6 Colo. 151 (1882).

The object of this section is to fix the individual responsibility for municipal legislation, of each member voting, by a permanent record. Any mode by which the vote of each member is clearly and definitely ascertained for the purposes of the record is sufficient, and a call of the roll is not regarded as essential. Brophy v. Hyatt, 10 Colo. 223, 15 P. 399 (1887).

Thus, it contemplates that the vote must be taken in a certain way and a record thereof made and that the record shall be the only evidence. City of Denver v. Spencer, 34 Colo. 270, 82 P. 590 (1905).

This is the only section which contains general provisions prescribing the vote necessary to pass ordinances, and the manner of taking and recording the votes. Tracey v. People, 6 Colo. 151 (1882).

A member of the board of trustees of an incorporated town while presiding over the sessions of the board as mayor pro tem is entitled to vote upon all questions whether or not there is a tie. Harris v. People ex rel. Squires, 18 Colo. App. 160, 70 P. 699 (1902).

This section specifies no cases wherein contracts are required to be entered into. Town of Durango v. Pennington, 8 Colo. 257, 7 P. 14 (1885).

Minutes as evidence of contract execution. On the issue of whether or not a contract has been executed by a town, recorded minutes of the council meeting relating thereto constitute the only permissible evidence. Kinzie v. Incorporated Town of Haxtun, 99 Colo. 588, 63 P.2d 511 (1937).

Compliance shown. Where it appeared from the record of meeting of the town board with reasonable certainty that all the members were present and voted for the ordinance upon its passage and that it was passed unanimously, it was held, that it showed a compliance with the provision of this section. People v. Raims, 20 Colo. 489, 39 P. 341 (1895).

Applied in Cordilla v. City of Pueblo, 34 Colo. 293, 82 P. 594 (1905); La Fitte v. City of Ft. Collins, 42 Colo. 293, 93 P. 1098 (1908).