Colorado § 31-2-102 - Incorporation election.

§ 31-2-102. Incorporation election.

(1) If the district court finds and determines that the territory described in the petition and the petition itself meet the requirements of this part 1, it shall appoint not less than five nor more than nine commissioners, who shall be registered electors residing within the territory described in the petition. Each commissioner, within ten days after his appointment, shall signify by affidavit to the court his intent to serve as commissioner. The commissioners shall hold a meeting within ten days after their acceptance and shall elect a chairman and such other officers as they may determine advisable to assist them in the performance of their duties. A majority of the commissioners appointed shall constitute a quorum at any meeting for the purpose of carrying out their legal duties. Such commissioners, within ten days following their acceptance, by resolution setting the date and time therefor, shall call an election of all the registered electors residing within the territory embraced within said territory, such election to be held not later than ninety days after the date of the call thereof, except as provided in this section. The chairman or other officer of the commissioners shall promptly report to the court, by affidavit, the provisions of the call for election.

(1.5) At any election for the incorporation of a new municipality, the commissioners shall also place upon the ballot any local government matters arising under section 20 of article X of the state constitution, as defined in section 1-41-103 (4), C.R.S., as applied to the new municipality, if the petition filed pursuant to section 31-2-101 requests that such matters be submitted at the incorporation election. Notwithstanding the provisions of subsection (5) of this section, any incorporation election at which a local government matter arising under section 20 of article X of the state constitution is submitted shall be conducted at the time and in the manner required by section 20 of article X of the state constitution.

(2) The commissioners shall establish one or more precincts within said limits and shall designate one polling place for each precinct. The precincts shall consist of one or more whole general election precincts wherever practicable. The chairman shall forthwith certify the precinct boundaries to the county clerk and recorder of the county in which such territory is located. The county clerk and recorder shall prepare a registration list for each precinct in the manner provided in the "Colorado Municipal Election Code of 1965".

(3) Registration and changes of address may be made with the county clerk and recorder. The county clerk and recorder, in his or her discretion, may conduct registration from time to time within the proposed municipal boundaries.

(4) The notice of such an election shall be given by the commissioners in the manner prescribed by the "Colorado Municipal Election Code of 1965". Such notice shall include a description of the limits of the proposed town or city and shall state that the description and plat thereof are on file in the office of the clerk of the district court.

(5) The commissioners shall conduct the election in conformity with the provisions of the "Colorado Municipal Election Code of 1965" insofar as applicable. The commissioners shall act as judges and clerks of the election, and the chairman may appoint such additional judges and clerks of election as he deems necessary. The commissioners shall report the results of the election to the court within three days following the election. The ballots or voting machine tabs used at said election shall be "For Incorporation" and "Against Incorporation".

(6) If more than one proposal is to be voted upon at the election and no proposal receives a majority of favorable votes, all the submitted proposals shall fail; and, if there is a tie in the number of favorable votes cast for any proposals, such proposals shall be voted upon in a runoff election.

Source: L. 75: Entire title R&RE, p. 1009, § 1, effective July 1. L. 87: (3) amended, p. 326, § 74, effective July 1. L. 94: (1.5) added, p. 1190, § 87, effective July 1; (3) amended, p. 1772, § 35, effective January 1, 1995. L. 95: (3) amended, p. 856, § 95, effective July 1. L. 2014: (3) amended, (HB 14-1164), ch. 2, p. 58, § 10, effective February 18.

Editor's note: This section is similar to former § 31-1-104 as it existed prior to 1975.

Cross references: (1) For the "Colorado Municipal Election Code of 1965", see article 10 of this title.

(2) For the legislative declaration in HB 14-1164, see section 1 of chapter 2, Session Laws of Colorado 2014.

ANNOTATION

Annotator's note. Since § 31-2-102 is similar to former § 31-1-104 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 petition is fatally defective on its face, the district court does not have jurisdiction to order an election and should dismiss the petition. In re Incorporation of North Boulder v. Sisson, 167 Colo. 549, 448 P.2d 308 (1969).

It is within the power of the district court to issue an order staying an originally scheduled election, and the district court had the power to order a new election on a date agreeable to the commissioners. Wiltgen v. Berg, 164 Colo. 139, 435 P.2d 378 (1967).

That a petition to a district court for the appointment of commissioners to call the election is obtained secretly is immaterial, since under this section there is no requirement for publicity, in view of the fact that the question of incorporating is required to be submitted to a public vote of the citizens interested. Guebelle v. Epley, 1 Colo. App. 199, 28 P. 89 (1891).

Proceedings challenged by quo warranto. Under this section contest of validity of proceedings incorporating a town cannot be inaugurated by filing objections thereto in the district court in which the incorporation proceedings were had, as such contest has to be made by quo warranto. Velasquez v. Zimmerman, 30 Colo. 355, 70 P. 419 (1902).

Enjoining of properly filed election improper. After the inhabitants of a part of a county sought to be incorporated into a town have complied with all the requirements of this section, and the commissioners appointed by the district court have called an election to determine the question of so incorporating by the votes of all the qualified electors residing within the territory embraced in the proposed town, a court has no jurisdiction to enjoin such election, and disobedience of such an injunction is not punishable as contempt. Guebelle v. Epley, 1 Colo. App. 199, 28 P. 89 (1891).

Proceeding first filed has priority over second proceeding. Incorporation proceedings are judicial in nature, the usual rules apply concerning the duties of a court with respect to dual actions involving the same subject matter and substantially the same parties, the action first filed has a "priority of jurisdiction", and the second action must be stayed until the first is finally determined. Wiltgen v. Berg, 164 Colo. 139, 435 P.2d 378 (1967).