City & County of Denver v. Board of County Commissioners , 145 Colo. 451 ( 1961 )

359 P.2d 1031 (1961)

CITY AND COUNTY OF DENVER, a municipal corporation, and Paul Hentzel, William Flor, Roland Mapelli, George Cavender, Joe Ciancio, Jr., Elvin R. Caldwell, Alex B. Holland, C. Paul Harrington, Ed Mapel, as the duly elected, qualified and acting members of the City Council of the City and County of Denver, a municipal corporation, Plaintiffs in Error,
v.
BOARD OF COUNTY COMMISSIONERS of the COUNTY OF ARAPAHOE, State of Colorado, and Arthur A. Fisher, and Eugene Charles Investment Co., a Colorado corporation; David Crane Investment Co., a Colorado corporation; A. & H. Investment Co., a Colorado corporation; Min Judd Investment Co., a Colorado corporation; and Rhoads-Perry, Inc., a Colorado corporation, Defendants in Error.

No. 19008.

Supreme Court of Colorado, En Banc.

February 14, 1961. Rehearing Denied March 20, 1961.

Donald E. Kelley, Robert S. Wham, James H. Snyder, Donaldson, Hoffman & Goldstein, Denver, for plaintiffs in error.

Creamer & Creamer, Denver, for defendants in error Eugene Charles Investment Co., and others.

Richard H. Simon, Englewood, for defendants in error Board of County Com'rs, and Arthur A. Fisher.

William Pehr, Westminster, Ronald J. Hardesty, Lakewood, Henry & Adams, Victor Quinn, William B. Naugle, George H. Tilton, Jr., Edward J. McHugh, Fred W. Mattson, Jr., Robert G. Hoghaug, James T. Bayer, Richard B. Harvey, George J. Francis, Dawson, Nagel, Sherman & Howard, Raymond J. Turner, Michael A. Williams, Denver, amici curiae.

PER CURIAM.

This cause has been heard and considered by the Court, Mr. Justice McWilliams not participating. Mr. Chief Justice Hall, Mr. Justice Sutton and Mr. Justice Frantz are in favor of affirmance of the judgment of the trial court. Mr. Justice Moore, Mr. Justice Day and Mr. Justice Doyle are in favor of reversal. The judgment therefore stands affirmed by operation of law because of an equally divided Court. Rule 118(f), R.C.P.

Statement of Mr. Justice McWilliams

I am not participating in this matter for several reasons. I did not become a member of this Court until January 10, 1961, and accordingly did not hear the several oral arguments held in connection with the case and similarly have not participated in the conferences of this Court concerning the same. Additionally, the disposition of this case requires judicial review of certain actions taken by the City Council of the City and County of Denver in May and June 1955, at a time when my father, Robert H. McWilliams, was a member of that body, participated in and in fact voted for the very councilmanic actions, the legality of which are here in issue.

The Canons of Judicial Ethics and indeed fundamental judicial propriety strongly suggest that under such circumstances I should not participate in any manner in the disposition of the case. It is for these reasons that I have not participated, and shall not.