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ADVANCE SHEET HEADNOTE

September 26, 2016

2016 CO 62

No. 16SA75, Department of Transportation, State of Colorado v. Amerco Real Estate 

Company—Administrative Law and Procedure—Delegation of Authority—

Condemnation Proceedings.

Amerco and U-Haul petitioned for relief pursuant to C.A.R. 21 from an order of 

the district court, denying their request to dismiss the transportation department’s 

Petition in Condemnation and instead granting the department’s motion for immediate 

possession of the subject property, which is owned by Amerco and occupied by 

U-Haul. The district court rejected U-Haul’s assertion that the transportation 

commission’s authorization for the department to condemn property for highway 

purposes, in the absence of any resolution by the commission approving the acquisition 

of the particular property to be taken, at a public meeting, amounted to an unlawful 

delegation of quasi-legislative power.

The supreme court issued its rule to show cause and now makes the rule 

absolute, remanding to the district court with orders to dismiss the department’s 

Petition in Condemnation. The supreme court holds that because the commission’s 

enabling legislation contemplates that it alone must decide whether the public interest 

or convenience will be served by a proposed alteration of a state highway, and that 
decision must be made in consideration of, among other things, the portions of land of 

each landowner to be taken for that purpose and an estimate of the damages and 

benefits accruing to each landowner whose land may be affected thereby, commission’s 

general authorization, to the extent it purports to delegate to the department the choice 

of particular properties to be taken for such a highway project and the manner of their 

taking, constituted an unlawful delegation of the commission’s statutorily imposed 

obligation.
The Supreme Court of the State of Colorado

2 East 14th Avenue • Denver, Colorado 80203

2016 CO 62

Supreme Court Case No. 16SA75

Original Proceeding Pursuant to C.A.R. 21

Jefferson County District Court Case No. 15CV31797

Honorable Christopher J. Munch, Judge

In Re

Petitioner:

Department of Transportation, State of Colorado,

v.

Respondents:

Amerco Real Estate Company, a Nevada corporation; Wells Fargo Foothill, Inc., a California 

corporation; Wells Fargo Bank, National Association, a United States bank; U-Haul Co. of 

Colorado; Merrill Lynch Commercial Finance Corporation, a Delaware corporation; Public 

Service Company of Colorado, a Colorado corporation; Margaret Chapman, Public Trustee 

of Jefferson County; and Tim Kaufman, Treasurer of Jefferson County.

Rule Made Absolute

en banc

September 26, 2016

Attorneys for Petitioner:

Cynthia H. Coffman, Attorney General

Gregg E. Carson, Senior Assistant Attorney General

Lauren M. Curran, Assistant Attorney General

Denver, Colorado

Attorneys for Respondents Amerco Real Estate Company and U-Haul Co. of 

Colorado:

Bryan Cave LLP

Stephen D. Gurr

Cynthia Lowery-Graber

Denver, Colorado
2

No appearance on behalf of: Wells Fargo Foothill, Inc., a California Corporation; Wells 

Fargo Bank, National Association, a United States Bank; Merrill Lynch Commercial 

Finance Corporation, a Delaware Corporation; Public Service Company of Colorado, a 

Colorado Corporation; Margaret Chapman, Public Trustee of Jefferson County; and Tim 

Kaufman, Treasurer of Jefferson County.

JUSTICE COATS delivered the Opinion of the Court.

JUSTICE GABRIEL concurs in the judgment, and CHIEF JUSTICE RICE and JUSTICE 

HOOD join in the concurrence in the judgment.
3

¶1 Amerco and U-Haul petitioned for relief pursuant to C.A.R. 21 from an order of 

the district court denying their request to dismiss the transportation department’s 

Petition in Condemnation and instead granting the department’s motion for immediate 

possession of the subject property, which is owned by Amerco and occupied by 

U-Haul. The district court rejected U-Haul’s assertion that the transportation 

commission’s authorization for the department to condemn property for highway 

purposes, in the absence of any resolution by the commission approving the acquisition 

of the particular property to be taken, at a public meeting, amounted to an unlawful 

delegation of quasi-legislative power.

¶2 We issued our rule to show cause. Because the commission’s enabling legislation 

contemplates that it alone must decide whether the public interest or convenience will 

be served by a proposed alteration of a state highway, and that decision must be made 

in consideration of, among other things, the portions of land of each landowner to be 

taken for that purpose and an estimate of the damages and benefits accruing to each 

landowner whose land may be affected thereby, the commission’s general 

authorization, to the extent it purports to delegate to the department the choice of 

particular properties to be taken for such a highway project and the manner of their 

taking, constitutes an unlawful delegation of the commission’s statutorily imposed 

obligation. The rule is therefore made absolute and the matter is remanded to the 

district court with orders to dismiss the department’s Petition in Condemnation.
4

I.

¶3 In October 2015, the Colorado Department of Transportation filed a Petition in 

Condemnation to acquire land owned by Amerco Real Estate Co. and occupied by 

U-Haul Co., asserting that acquisition of the property in question was necessary for a 

highway expansion project at the US6 and Wadsworth Boulevard Interchange. The 

petition specified, “This is an eminent domain proceeding brought pursuant to the 

procedures set forth in Colorado Revised Statutes (‘C.R.S.’) §§ 38-1-101 et seq.” The 

petition further alleged that “[p]ursuant to §§ 43-1-208, 43-1-209, and 43-1-210, C.R.S., 

CDOT is vested with the power of eminent domain,” and that “[t]his statutory 

authority permits CDOT to acquire and condemn property, including the property 

subject to this action.” Shortly after filing its petition, the department moved for 

immediate possession, and a hearing was set for February 2016.

¶4 U-Haul filed a brief in opposition to the motion for immediate possession, asking 

that the district court, in addition to denying the motion, also dismiss the department’s 

entire petition for want of authority to condemn its land. U-Haul asserted that the 

department lacked the legal authority to condemn its particular property, on the 

grounds that the transportation commission, the entity statutorily authorized to acquire 

land by condemnation for such highway purposes, had failed to comply with the 

applicable statutory prerequisites, including resolving in the minutes of a public 

meeting, on the basis of a statutorily required report by the chief engineer, not only that 

the project in general, but also the acquisition of any properties required for its 

completion, would serve the public interest or convenience. U-Haul attached, and 
5

directly disputed the adequacy of, various documents upon which the department 

based its claim of authority, most notably a 1994 resolution of the transportation 

commission directing the executive director of the department to handle, on behalf of 

the commission, the approval of land acquisitions, and a specific document entitled 

“Land Acquisition Approval,” signed by the chief engineer of the department, which 

included for acquisition by the department the properties of U-Haul and some twenty 

other landowners, having a total estimated value of over $3 million. The “Land 

Acquisition Approval” itself specified that the transportation commission had, by 

resolution, previously directed “the Executive Director of the Department of 

Transportation, or his delegatee” to handle approval for land acquisitions relating to 

previously approved state highway projects, and that the executive director had, in 

turn, delegated such authority to the chief engineer. This “Land Acquisition Approval” 

by the chief engineer also included a reference to a 2009 resolution of the commission, 

approving the US6/Wadsworth project at issue.

¶5 After hearing the department’s motion, the district court declined to dismiss the 

petition and instead granted the motion for immediate possession. Noting that neither 

side presented witnesses, but also that neither side disputed the admission of exhibits at 

the hearing or challenged the attached excerpts from commission minutes as failing to 

represent as accurate the record of the commission’s actions, the court made written 

findings of fact and conclusions of law. The court largely reasoned that the 

commission’s enabling statutes permitted it to conduct an eminent domain proceeding 

itself but also permitted it to acquire property by the procedure dictated by the eminent 
6

domain provisions of title 38; that its 1994 resolution did not purport to delegate the 

commission’s power to condemn property, but merely directed the chief engineer to 

exercise that power to acquire certain specific properties according to the procedures 

dictated by the eminent domain statutes; and that U-Haul’s right to due process was not 

adversely affected by this choice of the commission.

¶6 Amerco and U-Haul petitioned for relief pursuant to C.A.R. 21 from the district 

court’s order, and this court issued its rule to show cause.

II.

¶7 Exercise of this court’s original jurisdiction is entirely within its discretion. We 

have often deemed relief pursuant to C.A.R. 21 appropriate to correct an abuse of 

discretion or an excess of jurisdiction where no other adequate remedy exists. Because 

the order at issue is one for immediate possession by the transportation department for 

a highway expansion project, although U-Haul would nevertheless be entitled to 

compensation, in the absence of intervention by this court, its property would be taken 

and destroyed. In addition, and of particular importance to our decision in this 

instance, the dispute involves the lawfulness of a broad delegation of authority to 

condemn that has been relied on by the department for its regular practice for more 

than twenty years and will undoubtedly create uncertainty with regard to the 

department’s future practice until ultimately resolved. Finally, the absence of any 

factual dispute and the purely legal nature of the statutory interpretation at issue 

renders the development of any additional record unnecessary.
7

III.

¶8 A department of transportation is created at title 43, article 1, part 1, of the 

revised statutes, to be headed by an executive director, appointed by the governor with 

the consent of the senate, to serve at the pleasure of the governor. § 43-1-103, C.R.S. 

(2016). In the same part is created the office of the chief engineer. § 43-1-109, C.R.S. 

(2016). The chief engineer is to be appointed by the executive director, id., and is to 

function as the director of the engineering, design, and construction division of the 

department, § 43-1-110, C.R.S. (2016). On behalf of the department of transportation, 

the chief engineer has the authority to take and hold and to contract to take and hold 

title to real property, or any interest therein, in the name of the department of 

transportation, whether such real property or interest is used, or intended to be used, 

for right-of-way or maintenance purposes or for any other purpose authorized by law. 

§ 43-1-111, C.R.S. (2016).

¶9 A separate corporate body, to be known as “the transportation commission of 

Colorado,” is also created at title 43, article 1, part 1, to consist of eleven members, one 

each from eleven statutorily designated districts throughout the state. § 43-1-106, C.R.S. 

(2016). Although these members are similarly appointed by the governor with the 

consent of the senate, they do not serve at the pleasure of the governor, but rather serve 

statutorily prescribed, four-year terms. Id. The powers and duties of the commission, 

which are distinct from those of the department, are delineated in some detail by 

statute, see id., which includes a provision that “[t]he commission shall act only by 

resolution adopted at a duly called meeting of the commission, and no individual 
8

member of the commission shall exercise individually any administrative authority 

with respect to the department,” § 43-1-106(11) (emphasis added).

¶10 As we have often noted in the past, the right to condemn private property is a 

creature of statute and exists to the extent, and only to the extent, permitted by the 

General Assembly. See, e.g., Dep’t of Transp. v. Gypsum Ranch Co., 244 P.3d 127, 129 

(Colo. 2010). The power of eminent domain, including the procedures by which that 

power may be exercised and authorization to exercise it under various specific 

circumstances, is governed by title 38, articles 1 to 7, of the revised statutes. Title 38 

expressly recognizes the authority of both the department and the commission to 

exercise the power of eminent domain, but only as specifically granted, under distinctly 

different circumstances, by other expressly enumerated statutory provisions, including 

those of title 43. See § 38-2-101, C.R.S. (2016).

¶11 Central to the issue before this court today, section 43-1-208, C.R.S. (2016),1

provides for the commission’s approval of any proposed changes to state highways. 

 

1 In its entirety, this section says:

(1) The chief engineer, when he deems it desirable to establish, open, 

relocate, widen, add mass transit to, or otherwise alter a portion of a state 

highway or when so required by the commission, shall make a written 

report to the commission describing the portion of the highway to be 

established, opened, added to, or changed and the portions of land of each 

landowner to be taken for the purpose and shall accompany his report 

with a map showing the present and proposed boundaries of the portion 

of the highway to be established, opened, added to, or changed, together 

with an estimate of the damages and benefits accruing to each landowner 

whose land may be affected thereby.

(2) If, upon receipt of such report, the commission decides that public 

interest or convenience will be served by the proposed change, it shall 
9

Section 208(1) specifies that when the chief engineer “deems it desirable to establish, 

open, relocate, widen, add mass transit to, or otherwise alter a portion of a state 

highway,” or when the commission requires him to do so, he is to “make a written 

report to the commission” containing specifically delineated information. Id. That 

report is to describe the portion of the highway to be established, opened, added to, or 

changed, as well as the portions of land of each landowner to be taken for that purpose; 

and it is to be accompanied by a map showing the present and proposed boundaries of 

the portion of the highway to be established, opened, added to, or changed, together 

 

enter a resolution upon its minutes approving the same and authorizing 

the chief engineer to tender each landowner the amount of damages, as 

estimated by him and approved by the commission. In estimating the 

amount of damages to be tendered a landowner, due account shall be 

taken of any benefits which will accrue to such landowner by the 

proposed action. The amount of benefit shall not in any case exceed the 

amount of damages awarded.

(3) Any person owning land or having an interest in any land over which 

any proposed state highway extends who is of the opinion that the tender 

made to him by the transportation commission is inadequate, personally 

or by agent or attorney on or before ten days from the date of such tender, 

may file a written request addressed to the transportation commission for 

a jury to ascertain the compensation which he may be entitled to by reason 

of damages sustained by altering, widening, changing, or laying out such 

state highway. Thereupon the transportation commission shall proceed in 

the acquisition of such premises, under articles 1 to 7 of title 38, C.R.S. The 

transportation commission also has the power and is authorized to 

proceed in the acquisition of the lands of private persons for state 

highway purposes, according to said articles 1 to 7 of title 38, C.R.S., 

without tender or other proceedings under this part 2.

(4) Notwithstanding any other provision of this section, the commission 

may not acquire through condemnation any interest in oil, natural gas, or 

other mineral resources beneath land acquired as authorized by this 

section except to the extent required for subsurface support.

§ 43-1-208, C.R.S. (2016).
10

with an estimate of the damages and benefits accruing to each landowner whose land 

may be affected thereby. Id. If, upon receipt of this report, the commission decides that 

the public interest or convenience will be served by the proposed change, it is directed 

to enter a resolution in its minutes approving the project. § 43-1-208(2). Similarly, to 

acquire the portions of land to be taken for this purpose, the statute prescribes a 

procedure whereby the commission is to enter a resolution in its minutes authorizing 

the chief engineer to tender each landowner the amount of damages approved by the 

commission; and in the event the landowner declines that tender, in the manner and 

within the time permitted by statute, the commission is directed to acquire the property 

in question according to the condemnation provisions of title 38. § 43-1-208(2), (3). 

Alternatively, the transportation commission is authorized to proceed “in the 

acquisition of lands of private persons for state highway purposes” directly, according 

to the provisions of title 38, “without tender or other proceedings under this part 2.” 

§ 43-1-208(3).

¶12 Statutes have meaning according to the legislative intent expressed in the 

language of those statutes themselves. People v. Jones, 2015 CO 20, ¶ 10, 346 P.3d 44, 

48; Pham v. State Farm, 2013 CO 17, ¶ 13, 296 P.3d 1038, 1043; Gypsum Ranch Co., 244 

P.3d at 131; Frank M. Hall & Co. v. Newsom, 125 P.3d 444, 448 (Colo. 2005). Although

interpretive aids are available to assist in determining which one of various reasonable 

interpretations of ambiguous statutory language actually embodies the legislative 

intent, People v. Owens, 228 P.3d 969, 972 (Colo. 2010), if the language of a statute is 

clear and unambiguous, and is not in conflict with other statutes, it must be applied as 
11

written. Holcomb v. Jan-Pro Cleaning Sys., 172 P.3d 888, 890 (Colo. 2007). While there 

will often be room for debate about the breadth of surrounding text to be considered in 

assessing whether particular language can have more than one reasonable 

understanding, and is therefore considered ambiguous, there can be little question that 

the meaning of words or phrases cannot be separated from the broader context in which 

they are used and the function they serve, according to accepted rules of grammar and 

syntax, in the very sentence in which they appear. See Robinson v. Shell Oil Co., 519 

U.S. 337, 341 (1997).

¶13 Although much has been made by the parties of the phrase, “without . . . other 

proceedings under this part 2,” this arguably broad exemption is greatly circumscribed 

by the sentence in which it appears. Read as a whole, that sentence merely provides an 

alternative method for the commission “to proceed in the acquisition of the lands of 

private persons for state highway purposes.” It in no way purports, and cannot be 

reasonably understood, to relieve the commission of its statutory obligation to assess, 

prior to acquiring property for that purpose, whether and under what circumstances 

the costs and benefits of a proposed highway change would be in the public interest or 

convenience. The statute places squarely in the hands of this geographically

representative and comparatively independent corporate body the responsibility for 

determining not only which of the enumerated kinds of highway projects should be 

approved, but also which properties need be taken for that purpose and the amount, or 

the method for calculating the amount, that may be paid for each of them. With regard, 

in particular, to the acquisition of lands for the kinds of highway projects specified in 
12

section 208, the commission is therefore assigned the choice whether to cause to be 

tendered specific amounts to the landowners in question or to submit to the evaluation 

of their properties by the statutory eminent domain mechanism; and if the commission 

decides on any particular tender that turns out to be insufficient, it is given the choice 

whether to subject the state fisc to the uncertainty of condemnation proceedings or 

(unless it is equitably estopped by its prior conduct from doing so, see Piz v. Hous. 

Auth. of the City & Cty. of Denver, 289 P.2d 905, 913 (Colo. 1955); see also Wheat Ridge 

Urban Renewal Auth. v. Cornerstone Grp. XXII, L.L.C., 176 P.3d 737, 742 (Colo. 2007)) 

to abandon its pursuit of that particular property altogether.

¶14 Unlike those circumstances in which the department is statutorily vested with 

the authority to determine whether to acquire property by condemnation, such as 

whether to acquire the remainder of a parcel, some part of which has already been 

determined to be taken, see § 43-1-210(1), C.R.S. (2016), or whether to acquire “excess 

right-of-way,” see § 43-1-210(2), the decision to approve the acquisition of property for 

the kinds of highway alterations enumerated in section 208 in the first instance, and 

whether to limit the amount for which that property may be acquired, is a decision 

vested solely in the commission, see § 43-1-208(3). Although the department is 

therefore clearly an entity authorized to exercise the power of eminent domain under 

the statutorily specified circumstances, and the chief engineer may clearly act on behalf 

of the department in this regard, the question posed by U-Haul’s challenge to the 

district court’s order at issue here is whether the commission may delegate the choice of 

which properties are to be taken, how much the state is willing to tender for a particular 
13

parcel of property, and/or whether to acquire that property at whatever cost may be 

determined by the statutory condemnation process.

¶15 In this jurisdiction, we have long recognized the general rule that a municipal 

corporation, or quasi-municipal corporation, like the corporate body that is the 

transportation commission, may delegate to subordinate officers and boards powers 

and functions that are ministerial or administrative in nature, leaving little or nothing to 

the judgment or discretion of the subordinate; however, legislative or judicial powers 

involving judgment and discretion on the part of the municipal or quasi-municipal 

corporation may not be delegated unless such delegation has been expressly authorized 

by the legislature. Big Sandy Sch. Dist. No. 100-J, Elbert Cty. v. Carroll, 433 P.2d 325, 

328 (Colo. 1967), overruled on other grounds by Normandy Estates Metro. Recreation 

Dist. v. Normandy Estates, Ltd., 553 P.2d 386 (Colo. 1976). There would appear to be 

little question that the initiation and conduct of condemnation proceedings could and 

almost certainly would have to be delegated to the legal staff or representatives of the 

commission or department, but the decision whether, and if so precisely how and for 

how much, to take particular property, for a particular proposed highway alteration 

project, clearly involves the kind of judgment and discretion that is non-delegable in the 

absence of express statutory authorization. Not only is the statute lacking in any 

express authorization to do so, but virtually the entire statutory scheme, creating and 

assigning specific powers and duties separately to the transportation commission, 

militates against a legislative intent to sanction such a delegation.
14

¶16 The 1994 resolution upon which the department relies directs it or its delegatee 

to handle, on the commission’s behalf, “both the approval for land acquisition actions 

and the tendering of payment to landowners for damages in connection with 

previously approved highway projects.” Whether this language is better understood to 

delegate to the department the choice to acquire land for an approved project either by 

first tendering an amount to the landowner or by proceeding directly by condemnation, 

or to simply delegate the choice of which properties to take by condemnation and 

thereafter tender payment to each such landowner in the amount determined by that 

process, it nevertheless amounts to an abdication of the commission’s statutory duty to 

decide which parcels it will serve the public interest or convenience to take and whether 

the public interest or convenience will be served only if those parcels, or any of them, 

can be acquired for a specific, preapproved amount. Although the 1994 resolution 

recounts that the commission considers the land acquisition costs on a project-byproject basis in approving its fiscal year budget, and that the commission simply seeks 

to avoid duplication of effort, neither the 2009 resolution approving this highway 

project nor a record of any budgetary proceedings presented to the district court or this 

court suggests a parcel-by-parcel determination by the commission. Quite the contrary, 

the department expressly asserts, and the district court clearly found, that by 

proceeding directly by condemnation, as permitted by section 43-1-208(3), the 

commission is relieved of any obligation to make judgments concerning the public 

interest or convenience required at subsections 208(1) and (2). 
15

¶17 Because we understand section 43-1-208 to plainly require the transportation 

commission to assess the public interest or convenience with regard to the particular 

properties to be taken for a proposed highway change and any limitations on the 

damages to be paid for those properties; and because we understand the last sentence of 

subsection 208(3), by its own terms, as merely providing an option for the commission 

to acquire the particular properties to be taken for any such project directly by 

condemnation, in lieu of tendering a preapproved amount of damages for them and 

submitting to the proceedings potentially attendant upon such a tender; we find the 

commission’s 1994 resolution ineffective to delegate to the department the choice of the 

particular properties to be taken, whether by specific tender or petition in 

condemnation.

IV.

¶18 Because the commission could not delegate its statutory obligation to determine 

the specific properties it would serve the public interest or convenience to take for the 

US6 and Wadsworth Boulevard Interchange expansion project and did not itself 

approve the taking of U-Haul’s particular property by written resolution, in the manner 

required by statute, the rule is made absolute, and the matter is remanded to the district 

court with orders to dismiss the department’s Petition in Condemnation.

JUSTICE GABRIEL concurs in the judgment, and CHIEF JUSTICE RICE and 

JUSTICE HOOD join in the concurrence in the judgment.
1

JUSTICE GABRIEL, concurring in the judgment.

¶19 I agree with the majority’s ultimate conclusion that on the facts presented here, 

the Colorado Department of Transportation (the “Department”) did not have the 

authority to pursue the condemnation at issue. I do not, however, agree with the 

majority’s construction of section 43-1-208, C.R.S. (2016), and therefore, my analysis 

differs from that of the majority. Accordingly, I respectfully concur in the judgment 

only.

I. Analysis

¶20 Because the petition at issue was brought by the Department, I begin by 

addressing the Department’s condemnation authority and conclude that the 

Department did not have either statutory or properly delegated authority to condemn 

the property at issue. I then discuss why I disagree with the majority’s construction of 

section 43-1-208.

A. The Department’s Condemnation Authority

¶21 As the majority observes, the right to condemn private property in Colorado is a 

creature of statute and exists only to the extent permitted by our legislature. Maj. op. 

¶ 10. Accordingly, “[w]e have often held that narrow construction is the rule in 

determining the scope of the condemnation power delegated pursuant to legislative 

enactment.” Coquina Oil Corp. v. Harry Kourlis Ranch, 643 P.2d 519, 522 (Colo. 1982); 

see also Platte River Power Auth. v. Nelson, 775 P.2d 82, 83 (Colo. App. 1989) (“The 

constitutional protection against the taking of private property by government without 
2

due process imposes on the condemning governmental entity a requirement of strict 

compliance with and interpretation of the pertinent condemnation statutes.”).

¶22 Although the majority begins the pertinent part of its analysis with a discussion 

of section 43-1-208, that section concerns the eminent domain authority of the 

Transportation Commission (the “Commission”), an entity created in section 43-1-106, 

C.R.S. (2016). The petition at issue, however, was brought by the Department, a 

separate and distinct entity created in section 43-1-103, C.R.S. (2016). See also

§ 43-1-102(1)–(2), C.R.S. (2016) (separately defining the Commission and the 

Department). Accordingly, in my view, and notwithstanding the fact that the parties all 

seemed to presume that section 43-1-208 defines the Department’s condemnation 

authority, the analysis must begin with a discussion of the Department’s statutory 

authority to condemn private property.1

¶23 Pursuant to section 38-1-202(1)(b)(IV)(G), C.R.S. (2016), the Department may 

exercise the power of eminent domain in accordance with a number of enumerated 

statutes, including, as pertinent here, section 43-1-210(1)–(3), C.R.S. (2016), which 

provides for the Department’s acquisition of certain rights of way, as well as of property 

to be taken for state highway purposes under certain enumerated conditions. Notably, 

section 38-1-202(1)(b)(IV)(G) does not authorize the Department to exercise the power 

 

1 In fairness to the parties, I acknowledge that throughout our opinion in Department of 

Transportation v. Stapleton, 97 P.3d 938 (Colo. 2004), we spoke of the Department’s 

authority under section 43-1-208(3). That case, however, turned on a construction of the 

phrase “state highway purposes,” and the distinction between the Department’s 

condemnation authority and that of the Commission does not appear to have been at 

issue. In these circumstances, I am unwilling to read into Stapleton a statutory 

construction that would effectively expand the Department’s condemnation authority.
3

of eminent domain pursuant to section 43-1-208(3), the section about which the parties 

are arguing. To the contrary, section 38-1-202(1)(b)(IV)(I) makes clear that the 

condemnation authority under section 43-1-208(3) belongs to the Commission.

¶24 Accordingly, the first question to be answered is whether the General Assembly 

has given the Department the same authority that it gave the Commission under section 

43-1-208(3). The parties have not cited any such statutory authority (to the contrary, as 

noted above, they appear to have assumed that section 43-1-208(3) applies), nor have I 

seen such authority.2

¶25 Because the Department does not appear to have the authority granted by 

section 43-1-208(3), which is the authority at issue, the question becomes whether the 

Commission, which unquestionably has such authority, could properly delegate that 

authority to the Department. For two reasons, I do not believe that it could.

¶26 First, any such delegation would effectively allow the Commission to expand the 

Department’s statutory condemnation authority, thereby undermining the long-settled 

principles that (1) we construe strictly statutory authorizations of condemnation powers 

and (2) governmental entities exercising their condemnation powers must strictly 

 

2 As noted above, section 43-1-210(1) authorizes the Department to condemn certain 

property for state highway purposes under enumerated circumstances. It is not clear to 

me that section 43-1-210(1) applies here, and I am unwilling to presume that it does, 

given that the Department itself did not so argue before this court. Nor am I persuaded 

by the Department’s arguments as to the inferences to be drawn from various statutes 

defining the Department’s condemnation authority, given that we construe strictly 

statutory authorizations to condemn private property. Coquina Oil Corp., 643 P.2d at

522; Platte River Power Auth., 775 P.2d at 83.
4

comply with the statutes granting such powers. See Coquina Oil Corp., 643 P.2d at 522; 

Platte River Power Auth., 775 P.2d at 83.

¶27 Second, any such delegation would arguably violate the nondelegation doctrine. 

The nondelegation doctrine is rooted in the constitutional separation of powers and 

prohibits the General Assembly from delegating legislative power to another 

department of government or person. See People v. Holmes, 959 P.2d 406, 409 (Colo. 

1998). The doctrine is limited, however, by the fact that regulation through 

administrative agencies is an accepted part of our legal system. Id. Thus, the General 

Assembly may properly delegate its legislative power “when it describes what job must 

be done, who must do it, and the scope of his authority.” Swisher v. Brown, 402 P.2d 

621, 626 (Colo. 1965).

¶28 Here, to the extent that the General Assembly can be said to have delegated to 

the Commission legislative authority to condemn private property pursuant to section 

43-1-208(3), I perceive no basis for allowing the Commission to take it upon itself to 

delegate that authority to another entity. 

¶29 I am not persuaded otherwise by the Department’s citations to sections 

43-1-106(8)(a), (d), and (f), C.R.S. (2016). The cited provisions authorize the Commission 

(1) to formulate policies with respect to the management, construction, and 

maintenance of public highways; (2) to prescribe administrative practices to be followed 

by the Commission’s executive director and the Department’s chief engineer; and (3) to 

require the executive director and the chief engineer to furnish whatever assistance the 

Commission may request with respect to the operation of the Department. Id. I 
5

perceive nothing in those sections that authorizes the Commission to delegate its 

condemnation authority (as opposed to administrative and ministerial functions) to the 

Department, and for the reasons set forth above, I believe that any such delegation 

would violate the principle of strict construction of statutory condemnation authority.

¶30 Because the Department does not appear to have either statutory or properly 

delegated authority to pursue the condemnation at issue, I agree with the majority’s 

determination to make our rule to show cause absolute, and thus, I concur in the 

judgment.

B. Section 43-1-208

¶31 Although the foregoing analysis would not require me to address the proper 

construction of section 43-1-208, I proceed to do so because both my disagreement with 

my colleagues and the issues raised in this case suggest a need for legislative action to 

clarify the General Assembly’s intent regarding the respective condemnation authorities 

of the Commission and the Department.

¶32 We review de novo questions of law concerning the application and construction 

of statutes. Hickerson v. Vessels, 2014 CO 2, ¶ 10, 316 P.3d 620, 623. In interpreting 

statutes, we must give effect to the General Assembly’s intent. Aetna Cas. & Sur. Co. v. 

McMichael, 906 P.2d 92, 97 (Colo. 1995). To do so, we interpret statutory terms in 

accordance with their plain and ordinary meanings. Id. In addition, “we examine the 

statutory language in the context of the statute as a whole and strive to give ‘consistent, 

harmonious, and sensible effect to all parts.’” Reno v. Marks, 2015 CO 33, ¶ 20, 349 P.3d 

248, 253 (quoting Denver Post Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011)). We will 
6

not add words to a statute, nor will we subtract words from it. Turbyne v. People, 

151 P.3d 563, 567 (Colo. 2007). In the absence of ambiguity, we apply the statute’s 

language as written. Id. If, however, a statute is ambiguous, then we may consider the 

statute’s purpose or policy, as well as its legislative history, to discern the General 

Assembly’s intent. McMichael, 906 P.2d at 97.

¶33 The majority quotes the entirety of section 43-1-208, see maj. op. ¶ 11 n.1, and I 

need not re-quote it here. The majority concludes that under section 43-1-208, the 

Commission must, in all circumstances, do two things. First, the Commission must 

receive from the Department’s chief engineer a written report describing the portion of 

the highway to be established or altered, the portions of the land to be taken for such 

purposes, and an estimate of the damages and benefits accruing to each landowner 

whose land may be affected. See maj. op. ¶ 13. Second, the Commission must decide 

whether the public interest or convenience will be served by the proposed change and if 

so, enter a resolution on its minutes approving the change and authorizing the chief 

engineer to tender the estimated amount of damages. See id. The majority further 

appears to conclude that only after both of these things have been accomplished may 

the Commission choose whether to tender to the landowners the determined amount 

or, alternatively, to proceed under title 38. See id. For several reasons, I disagree with 

this construction.

¶34 First, I believe that the majority’s construction is inconsistent with the plain and 

unambiguous language of section 43-1-208(3). That section provides, in pertinent part, 

“The transportation commission also has the power and is authorized to proceed in the 
7

acquisition of the lands of private persons for state highway purposes, according to said 

articles 1 to 7 of title 38, C.R.S., without tender or other proceedings under this part 2.”

¶35 In my view, this subsection means precisely what it says, namely, that in matters 

involving the acquisition of lands of private persons for state highway purposes, the 

Commission can proceed directly under title 38 (i.e., by filing a condemnation petition) 

without conducting any other proceedings under part 2 of title 38, which proceedings I 

take to include the processes set forth in subsections 43-1-208(1)–(2).

¶36 Unlike the majority, I think that such a construction makes perfect sense. In 

cases involving the property of private persons, the Commission has two choices. It can 

potentially avoid litigation by making findings that the public interest or convenience 

will be served by the acquisition and by then determining and tendering an amount of 

damages, which the landowner might accept. See § 43-1-208(1)–(3). Alternatively, the 

Commission can proceed directly to court, where (1) the Commission will be required 

to plead and prove, among other things, a public use and (2) the compensation to be 

paid to the owner will be assessed. See §§ 38-1-101(2), 38-1-102(1), 38-1-105 to -107, 

38-1-115 C.R.S. (2016). Either way, authorized decision-making bodies—the 

Commission or a court—will determine the public interest and the proper 

compensation to be paid to the landowner.

¶37 The majority’s interpretation of section 43-1-208, in contrast, would effectively 

construe section 43-1-208(3) to read, in pertinent part, “without tender or other 

proceedings under this part 2, except for the proceedings set forth in subsections (1) and 
8

(2) of this section.” As noted above, however, we may not add words to a statute. See

Turbyne, 151 P.3d at 567.

¶38 Second, although the majority and the parties appear to be moved by the 

structure of section 43-1-208, the history of that statute persuades me that the structure 

sheds no light on the legislature’s intent.

¶39 The statute traces back to the 1921 session laws. See ch. 136, sec. 20, 1921 Colo. 

Sess. Laws 370–71. Notably, in its initial iteration and until 1963, the language of what 

became section 43-1-208 was all contained in one section with no subsections. See

ch. 33, sec. 1404, 1921 Compiled Laws 533; ch. 143, sec. 111, 1935 Colo. Stat. Ann.; 

§ 120-3-8, C.R.S. (1953). In 1963, however, that provision was split into subsections, see

§ 120-3-8, C.R.S. (1963), and it appears that this was done by the revisor of statutes, as 

part of the 1963 decennial recodification. Because we have made clear that we will not 

attach any substantive significance to a statutory revisor’s bifurcation of a statute into 

separate subsections, see People v. N. Ave. Furniture & Appliance, Inc., 645 P.2d 1291, 

1298 (Colo. 1982), I assign no significance to the current structure of section 43-1-208, 

and particularly to the location of the language in section 43-1-208(3), which allows the 

Commission to proceed directly under title 38.

¶40 Accordingly, unlike the majority, I read section 43-1-208(3) to allow the 

Commission to choose to proceed directly under title 38 before undertaking the 

processes described in sections 43-1-208(1) and (2).
9

II. Conclusion

¶41 For these reasons, I would make the rule to show cause absolute based on the 

Department’s lack of statutory or properly delegated authority. In doing so, however, I 

cannot agree with the majority’s construction of section 43-1-208. Accordingly, I 

respectfully concur in the judgment only.

I am authorized to state that CHIEF JUSTICE RICE and JUSTICE HOOD join in 

this concurrence in the judgment.