Rice v. Colorado Smelting Co.

Mr. Justice Steele delivered the opinion of the court. The only question submitted to us is whether or not the owner of property within the limits of an incorporated town, or of a city, can by deed disconnect the property from the municipality. Section 2742 of the General Laws of 1877 is as follows: “2742. Sec- 101. When any tract of land may have been, or may hereafter be filed upon, platted and recorded as a town site in accordance with the provisions of any act of congress or law of Colorado, and no town organization under the laws of Colorado shall have been perfected by the inhabitants residing thereon, or the owners thereof, the same may be vacated by consent of all such inhabitants or owners, and be disposed of as the said inhabitants or owners' shall agree; provided, that a statement, signed and certified to by a majority of said inhabitants or voters, setting forth the fact of the vacation of such town site, be filed with the clerk of the county in which the same shall be situated.” This section was amended in 1879, by adding to it the following: “When any tract of land has been recorded as a town site, or has been annexed as an addition to a town site, any part or portion .thereof may be vacated upon the written consent of all the owners of that part or portion which it is proposed to vacate; provided, that no expenditures of money have been theretofore made or incurrred by said town for the improvement or benefit of said part or portion, and that the same is bounded in whole or in part by exterior town lines, and that when so vacated a statement, subscribed by such owners, setting forth the facts of such vacation, together with an accurate description map and plat of such part vacated, shall be filed in the office of the clerk and recorder of the county in which such town is situated.” (Laws [522] 1879, p. 197.) Counsel for the smelting company claims that section 2742 of the General Laws, as amended, authorizes the owners of land lying within the corporate limits of a town to withdraw the property from the town,.provided the location of the town is as designated in the statute and no money has been, expended by the town upon the property sought to be withdrawn. It is conceded by counsel that section 2742 is void for the reason that it is obnoxious to section 21, article 5, of the constitution. The title of the act in which section 2742 is contained is, “An Act in relation to Municipal Corporations.” The section referred to does not deal with municipal corporations, but with town sites in eases where “no town organization has been perfected under the laws of Colorado.” The title of the act of 1879 is, “An Act to amend an act entitled An Act in relation to Municipal Corporations: Approved April 4, 1877.” Under this title, any matter pertaining to municipal corporations may be included; and we are of opinion that the authorities which hold that a void section of a statute cannot be amended, and the authorities which hold that the amendment must be germane to the section amended, have no application. If the title of the amendatory act were, “An Act to amend Section 101 of An Act entitled, etc.,” then these authorities would be in point. The title to the amendatory act is, however, broader than the subject of section 101, which is amended, and contains the whole subject of municipal corporations. The title of the act being broad enough to include legislation on the subject of municipal corporations, it remains for us to consider the question raised as to whether or not the section by its terms deals with municipal corporations, or with town sites only. We are of opinion that the amendment proper deals with town sites, and additions to town sites under certain conditions; without regard to whether the town is incorporated or not; and that, in so far as the section applies to towns which have been incorporated, it is constitutional, and that, in its application to towns [523] which have not been incorporated, it is inoperative because the subject of unincorporated towns is not embraced in the title. In the statutes of Colorado, and in the states and territories of the west generally, the word “town-site” means, unless a different meaning is expressed, that portion of the public domain which is segregated from the great body of government land, by proper procedure and authority, as the site for a town. No law of this state has been cited by counsel which provides for town-sites on the land^of the state, and we know of no such statute. We do not understand the use in the statute in question of the words “or law of Colorado,” and there is no occasion to enter the realm of conjecture. The town of Bessemer was not entered as a town-site, nor was the land in controversy annexed as an addition to the town of Bessemer. The land of The Colorado Smelting Company was' included in the original incorporation of the town of Bessemer and became, upon the completion of the incorporation, a part of the town. The city of Pueblo was originally located as a town-site, but neither the land in controversy nor the town of Bessemer was annexed as an addition to the city of Pueblo, — the city and the town having been annexed as contiguous municipalities. We are of opinion that the law of 1891 providing for the disconnection of territory from cities and towns (Laws of 1891, p. 392), superseded the law of 1877, and repealed it in so far as it applied to incorporated cities and towns. The law of 1891 was expressly repealed by the statute of 1893 (Laws of 1893, p. 461). , The law of 1877 having been repealed by the law of 1891, and the law of 1891, by the law of 1893, there is no statute in the state authorizing the disconnection of territory, platted or unplatted, from a city or from an incorporated town. For the reason given, the judgment of the district court is reversed and the cause remanded. Reversed...