Wolfe Londoner v. City and County of Denver

• Citation: 52 L.Ed. 1103,210 U.S. 373,28 S.Ct. 708
• Decision Date: 01 June 1908
• Docket Number: No. 157,157
• Parties: WOLFE LONDONER and Dennis Sheedy, Plffs. in Err., v. CITY AND COUNTY OF DENVER as Successor to the City of Denver, et al
• Court: United States Supreme Court

210 U.S. 373

28 S.Ct. 708

52 L.Ed. 1103

WOLFE LONDONER and Dennis Sheedy, Plffs. in Err.,

v CITY AND COUNTY OF DENVER as Successor to the City of Denver, et al.

No. 157.

Argued March 6, 9, 1908.

Decided June 1, 1908.

Mr. Joshua F. Grozier for plaintiffs in error.

Messrs. F. W. Sanborn, Halsted L. Ritter, and Henry A. Lindsley for defendants in error.

Mr. Justice Moody delivered the opinion of the court:

The plaintiffs in error began this proceeding in a state court of Colorado to relieve lands owned by them from an assessment of a tax for the cost of paving a street upon which the lands abutted. The relief sought was granted by the trial court, but its action was reversed by the supreme court of the state, which ordered judgment for the defendants. 33 Colo. 104, 80 Pac. 117. The case is here on writ of error. The supreme court held that the tax was assessed in conformity with the Constitution and laws of the state, and its decision of that question is conclusive.

The assignments of error relied upon are as follows:

'First. The supreme court of Colorado erred in holding and deciding that the portion of proviso 'eighth' of § 3 of article 7 of 'An Act to Revise and Amend the Charter of the City of Denver, Colorado, Signed and Approved by the Governor of Colorado, April 3, 1893' (commonly called the Denver city charter of 1893), which provided, 'And the finding of the city council by ordinance that any improvements provided for in this article were duly ordered after notice duly given, or that a petition or remonstrance was or was not filed as above provided, or was or was not subscribed by the required number of owners aforesaid, shall be conclusive in every court or other tribunal,' as construed by the supreme court of Colorado, was valid and conclusive as against these appellees. The validity of so much of said section as is above quoted was drawn in question and denied by appellees in said cause, on the ground of its being repugnant to the due process of law clause of the 14th Amendment of the Constitution of the United States, and in contravention thereof.

'Second. The supreme court of Colorado further erred in assuming that said city council ever made a finding by ordinance in accordance with said proviso 'eighth.'

* * * * *

'Fifth. The supreme court of Colorado more particularly erred in holding and deciding that the city authorities, in following the procedure in this Eighth avenue paving district, No. 1, of the city of Denver, Colorado, in the manner in which the record, evidence, and decree of the trial court affirmatively shows that they did, constituted due process of law as to these several appellees (now plaintiffs in error) as guaranteed by the 14th Amendment of the Constitution of the United States.

'Ninth. The supreme court of Colorado erred in upholding §§ 29, 30, and 31, and each thereof, of article 7 of 'An Act to Revise and Amend the Charter of the City of Denver, Colorado, Signed and Approved by the Governor of Colorado April 3d, 1893' (commonly called the Denver city charter of 1893), and not holding it special legislation and a denial of the equal protection of the laws and taking of liberty and property of these several plaintiffs in error without due process of law, in violation of both the state and Federal Constitution and the 14th Amendment thereof.

'Tenth. The supreme court of Colorado erred in upholding each of the several assessments against the corner lots, and particularly those lots belonging to said Wolfe Londoner and Dennis Sheedy, because each thereof was assessed for the paving and other improvements in this district alone for more than the several lots so assessed were ever actually worth, and far in excess of any special benefits received from the alleged improvements.'

These assignments will be passed upon in the order in which they seem to arise in the consideration of the whole case.

The tax complained of was assessed under the provisions of the charter of the city of Denver, which confers upon the city the power to make local improvements and to assess the cost upon property specially benefited. It does not seem necessary to set forth fully the elaborate provisions of the charter regulating the exercise of this power, except where they call for special examination. The board of public works, upon the petition of a majority of the owners of the frontage to be assessed, may order the paving of a street. The board must, however, first) adopt specifications, mark out a district of assessment cause a map to be made and an estimate of the cost, with the approximate amount to be assessed upon each lot of land. Before action, notice by publication and an opportunity to be heard to any person interested must be given by the board.

The board may then order the improvement, but must recommend to the city council a form of ordinance authorizing it, and establishing an assessment district, which is not amendable by the council. The council may then, in its discretion, pass or refuse to pass the ordinance. If the ordinance is passed, the contract for the work is made by the mayor. The charter provides that 'the finding of the city council, by ordinance, that any improvements provided for in this article were duly ordered after notice duly given, or that a petition or remonstrance was or was not filed as above provided, or was or was not subscribed by the required number of owners aforesaid, shall be conclusive in every court or other tribunal.' The charter then provides for the assessment of the cost in the following sections:

'Sec. 29. Upon completion of any local improvement, or, in the case of sewers, upon completion from time to time of any part or parts thereof, affording complete drainage for any part or parts of the district, and acceptance thereof by the board of public works, or whenever the total cost of any such improvement, or of any such part or parts of any sewer, can be definitely ascertained, the board of public works shall prepare a statement therein, showing the whole cost of the improvement, or such parts thereof, including 6 per cent additional for costs of collection and other incidentals, and interest to the next succeeding date upon which general taxes, or the first instalment thereof, are, by the laws of this state, made payable; and apportioning the same upon each lot or tract of land to be assessed for the same, as hereinabove provided; and shall cause the same to be certified by the president and filed in the office of the city clerk.

'Sec. 30. The city clerk shall thereupon, by advertisement for ten days in some newspaper of general circulation, published in the city of Denver, notify the owners of the real estate to be assessed that said improvements have been, or are about to be, completed and accepted, therein specifying the whole cost of the improvements and the share so apportioned to each lot or tract of land; and that any complaints or objections that may be made in writing, by the owners, to the city council and filed with the city clerk within thirty days from the first publication of such notice, will be heard and determined by the city council before the passage of any ordinance assessing the cost of said improvements.

'Sec. 31. After the period specified in said notice the city council, sitting as a board of equalization, shall hear and determine all such complaints and objections, and may recommend to the board of public works any modification of the apportionments made by said board; the board may thereupon make such modifications and changes as to them may seem equitable and just, or may confirm the first apportionment, and shall notify the city council of their final decision; and the city council shall thereupon by ordinance assess the cost of said improvements against all the real estate in said district respectively in the proportions above mentioned.'

It appears from the charter that, in the execution of the power to make local improvements and assess the cost upon the property specially benefited, the main steps to be taken by the city authorities are plainly marked and separated: 1. The board of public works must transmit to the city council a resolution ordering the work to be done and the form of an ordinance authorizing it and creating an assessment district. This it can do only upon certain conditions, one of which is that there shall first be filed a petition asking the improvement, signed by the owners of the majority of the frontage to be assessed. 2. The passage of that ordinance by the city council, which is given authority to determine conclusively whether the action of the board was duly taken. 3. The assessment of the cost upon the landowners after due notice and opportunity for hearing.

In the case before us the board took the first step by transmitting to the council the resolution to do the work and the form of an ordinance authorizing it. It is contended, however, that there was wanting an essential condition of the jurisdiction of the board; namely, such a petition from the owners as the law requires. The trial court found this contention to be true. But, as has been seen, the charter gave the city council the authority to determine conclusively that the improvements were duly ordered by the board after due notice and a proper petition. In the exercise of this authority the city council, in the ordinance directing the improvement to be made, adjudged, in effect, that a proper petition had been filed. That ordinance, after reciting a compliance by the board with the charter in other respects, and that 'certain petitions for said improvements were first presented to the said board, subscribed by the owners of a majority of the frontage to be assessed for said improvements, as by the city charter required,' enacted 'That, upon consideration of the premises, by city council doth find that, in their action and proceedings in relation to said Eighth avenue paving district Number 1, the said board...