
    No. 19,008.
    City and County of Denver, et al. v. Board of County Commissioners of the County of Arapahoe, et al.
    (359 P. [2d] 1031)
    Decided February 14, 1961.
    Rehearing denied March 20, 1961.
    Mr. Donald E. Kelley, Mr. Robert S. Wham, Mr. James H. Snyder, Messrs. Donaldson, Hoffman and Goldstein, for plaintiffs in error.
    Messrs. Creamer and Creamer, for defendants in error Eugene Charles Investment Co., et al.
    Mr. Richard H. Simon, for defendant in error Board of County Commissioners and Arthur A. Fisher.
    Mr. William Pehr, Mr. Ronald J. Hardesty, Messrs. Henry and Adams, Mr. Victor Quinn, Mr. William B. Naugle, Mr. George H. Tilton, Jr., Mr. Edward J. McHugh, Mr. Fred W. Mattson, Jr., Mr. Robert G. Hoghaug, Mr. James T. Bayer, Mr. Richard B. Harvey, Mr. George J. Francis, Messrs. Dawson, Nagel, Sherman and Howard, Mr. Raymond J. Turner, Mr. Michael A. Williams, Amici Curiae.
    
      En Banc.
    
   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.

On Petition for Rehearing:

On this date petition of the City and County of Denver for rehearing in the above entitled matter was considered by the Court, sitting en banc, and on vote taken Justices Moore, Day and Doyle voted to grant the petition. Justices Hall, Sutton and Frantz voted to deny the petition. Justice McWilliams adhered to his previously announced determination not to participate in the matter, and he did not do so.

The vote of the Justices participating being evenly divided, the petition for rehearing is denied.

BY THE COURT. En Banc. March 20, 1961.  