Colorado § 31-2-103 - Approval of incorporation election.

§ 31-2-103. Approval of incorporation election.

(1) Within three days after the election, the commissioners shall file a report thereof with the court, which report shall be verified upon the oath or affirmation of each commissioner and which shall contain the following:

(a) A certification that the election was held in accordance with the law;

(b) A copy of the notice of the election, as published;

(c) The names of the judges of the election;

(d) The whole number of votes cast in the election; and

(e) The result declared on the proposal submitted as reflected by the votes cast for and against such proposal.

(2) If it appears to the court that said election was substantially regular and fair and a majority of the ballots cast at such election were for incorporation, the court shall by order adjudge said petition and election to be valid. The clerk of the court shall thereupon give notice of the result by publication in a newspaper of general circulation in the county or, if no newspaper is published in the county, by posting in five public places within the limits of the proposed city or town. In such notice he shall designate to which classification of incorporation prescribed in section 31-1-203 the city or town belongs. Three certified copies of the notice, with proper proof of its publication, together with a certified copy of all papers and record entries relating to the matter on file in the clerk of the court's office, including a legal description and a map of the area concerned, shall be filed in the office of the county clerk and recorder of each of the counties in which the territory is situate. The county clerk and recorder shall file the second certified copy of such notice with the division of local government of the department of local affairs as provided in section 24-32-109, C.R.S., and file a third certified copy of said notice in the office of the secretary of state.

Source: L. 75: Entire title R&RE, p. 1010, § 1, effective July 1. L. 84: (2) amended, p. 829, § 1, effective March 22.

Editor's note: This section is similar to former § 31-1-105 as it existed prior to 1975.

ANNOTATION

Annotator's note. Since § 31-2-103 is similar to former § 31-1-105 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.

Court's purely judicial role. Since the enactment of this section, the function of a district court in incorporation proceedings is clearly judicial. People ex rel. Wilson v. Blake, 128 Colo. 111, 260 P.2d 592 (1953).

Incorporation order mandatory when procedure fair and regular. When it appeared to the district judge that the petition for incorporation was substantially conformable to law and that said election was substantially regular and fair, and a majority of the ballots cast at such election was in favor of incorporation, it was mandatory upon the judge to order and adjudge that the incorporation be complete. Fiant v. Town of Naturita, 127 Colo. 571, 259 P.2d 278 (1953).

An order entered by a county court declaring the incorporation of a town is a final judgment. People ex rel. Wilson v. Blake, 128 Colo. 111, 260 P.2d 592 (1953).

The particular grounds on which the incorporation, organization, or annexation may be attacked by a quo warranto proceeding include fraud in obtaining the charter or in the incorporation, organization, or annexation proceedings, lack of jurisdiction of such proceedings and the invalidity, on its face, of an order establishing a district; but, except on these grounds, a quo warranto proceeding cannot be maintained for the purpose of attacking the judicial action or determination of a court or judge in the incorporation, organization, or annexation proceedings, and, in some jurisdictions, a like rule obtains as to the findings of a board or officer in such proceedings. People ex rel. Wilson v. Blake, 128 Colo. 111, 260 P.2d 592 (1953).

Restricted availability. Quo warranto being an extraordinary and highly prerogative writ, its issuance may be attained only on behalf of the state or, under closely restricted circumstances, upon relation of individuals possessing a special interest. People ex rel. Wilson v. Blake, 128 Colo. 111, 260 P.2d 592 (1953).

Fraud, to form the basis of a quo warranto proceeding, must be extrinsic or collateral fraud, and reliance may not be had upon those matters intrinsically connected with the hearing or proceeding itself, or which could be, or should have been, determined therein. People ex rel. Wilson v. Blake, 128 Colo. 111, 260 P.2d 592 (1953).

The sufficiency of the original petition for incorporation cannot be attacked after an election has been held thereon and the qualified electors have spoken. Enos v. District Court, 124 Colo. 335, 238 P.2d 861 (1951).

Objectors must participate in court proceeding. There is no reason why those who object to the incorporation of a town should not enter appearance in the proceeding in the district court and there present their protests. A hearing thereon in regular manner would make for orderly proceedings on direct issues and forestall round-about attacks in an effort to accomplish indirectly that which could much better be pursued by direct method and having entered appearance and protest, in event of adverse judgment, review by writ of error would be in order. Neither is this the only avenue available where it is contended that the county court was without or exceeded its jurisdiction, or abused its discretion, since C.R.C.P. 106(a)(4) provides a "plain, speedy, and adequate remedy". People ex rel. Wilson v. Blake, 128 Colo. 111, 260 P.2d 592 (1953).

For history of section, see Enos v. District Court, 124 Colo. 335, 238 P.2d 861 (1951).