City and County of Denver v. State Inv. Co.

• Decision Date: 03 January 1911
• Citation: 112 P. 789,49 Colo. 244
• Parties: CITY AND COUNTY OF DENVER et al. v. STATE INV. CO. et al.
• Court: Colorado Supreme Court

112 P. 789

49 Colo. 244

CITY AND COUNTY OF DENVER et al. v. STATE INV. CO. et al.

Supreme Court of Colorado, En Banc.

January 3, 1911

Error to District Court, City and County of Denver; F. T. Johnson Judge.

Action by the State Investment Company and others against the City and County of Denver and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

H. A. Lindsley, Charles R. Brock, and H. L. Ritter for plaintiffs in error.

Joshua Grozier (Arthur Ponsford, of counsel), for defendants in error.

WHITE J.

Defendants in error, as plaintiffs in the district court, prosecuted a suit against plaintiffs in error, as defendants, to relieve lands owned by the former from the assessment of a tax for the cost of paving a street upon which the lands abutted, in Colfax Avenue paving district No. 3 in the city of Denver. The tax or assessment was imposed, or the attempt thereto made, under the law known as the 1893 charter of the city of Denver. The provisions of the charter regulating the exercise of the power, and the procedure thereunder essential to a valid assessment, are sufficiently set forth in Londoner v City and County of Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103, and it is unnecessary to embody them herein.

Upon the trial of the cause it was admitted, or the undisputed evidence showed, each plaintiff to be the owner of a lot, or fractional part thereof, abutting upon the street paved; that the paving tax assessed on each of these lots was from two to five times the value of the lot, including the improvement, and from six to fourteen times the value of the special benefit. The court found and decreed that the assessment exceeded the special benefits to the respective lands or lots of plaintiffs, fixed the amount of the benefit as to each tract, and, after the same had been paid into court, canceled the balance of the assessment and relieved the lots of the lien. To reverse that judgment, the defendants have brought the controversy here.

The principal contention of plaintiffs as to the invalidity of the tax assessment was (1) that the charter under which the improvements were made contained no adequate provisions for hearing and determining the objections of property owners to the assessments for public improvements, before the board of public works or the city council; (2) that there was in fact no notice to the property owners of a time for hearing, or hearing had upon their objections in writing properly made to such assessments; (3) that the assessments made against the property of the respective plaintiffs exceeded the special benefits thereto accruing from the paving, and to the extent of such excess the assessments were invalid.

The defendants contend (1) that the hearings provided for by the charter, either expressly or by implication, were adequate and, if the procedure was followed, were in accordance with due process of law; (2) that plaintiffs had adequate notice and hearings in all matters of which complaint was made; (3) that the plaintiffs failed to make a tender, before the bringing of the suit, of an amount which, in their judgment, equaled the special benefits to their respective properties by reason of the pavement, and are therefore precluded from questioning the validity of any portion of such assessments.

1. That the charter under which the assessments were made contained, either expressly or by implication, adequate provisions for the hearing and determination of the objections interposed by the property owners to the proposed assessments, and in all respects complied with the constitutional requirements and the principles embodied in that is called 'due process of law,' has been heretofore determined by this court and approved by the Supreme Court of the United States, as appears from the authorities herein cited.

Under the charter the lien upon the abutting land for the cost of the improvement is initiated by, and finds its support in, the assessment. Before the assessment can be legally fixed, the cost of the work and its provisional apportionment must be certified to the city council, and the landowners affected be afforded an opportunity to be heard before the city council, sitting as a board of equalization, upon the validity and amount of the assessment. Not only must the property owners, as required by statute, be given a notice and have time in which to file complaints and objections to the proposed assessment, but, under the implied power vested in the city by the charter, the city authorities must fix the specific time for hearing and give notice thereof, or in some proper way afford the property owners the opportunity to be heard, and likewise 'hear the parties complaining, and such testimony as they may offer in support of their complaints and objections as would be competent and relevant.' City of Denver v. Kennedy, 33 Colo. 80, 80 P. 122, 467; City of Denver v. Dumars, 33 Colo. 94, 80 P. 114; City of Denver v. Londoner, 33 Colo. 104, 80 P. 117; Londoner v. City and County of Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103.

2. In the case at bar, after the paving was completed, a statement of the cost thereof and an apportionment of it to the lots or land abutting upon the street was certified to the city clerk, who thereupon, in compliance with the provisions of the charter, published a notice to the effect that the written complaints or objections of the owners, if any, should be filed within 30 days, and that before the passage of an ordinance assessing the costs of said improvements, 'the city council, sitting as a board of equalization, shall hear and determine all such complaints and objections.' This notice complied with the express statutory requirements, but it is not so certain that it fixed the time for hearing with any certainty, and therefore probably failed in one of the essential requirements without which, or a waiver thereof, no valid assessment could have been made. The city authorities, under the implied powers vested in them by the charter, should have given a notice of the time and place of hearing. The notice given seems to be no different in substance and effect from the notice under consideration in the Londoner Case, supra, and, as therein said, 'the notice purported only to fix the time for filing the complaints and objections, and to inform those who should file them that they would be heard before action,' and 'did not fix the time for hearing.'

However, should we be mistaken in our view of the effect of the notice given, and it could be held to properly mean that immediately after the expiration of the 30 days in which objections could be filed, the council, sitting as a board of equalization, would hear and determine such objections, yet the city authorities had no power to impose the lien for the assessment upon the lands benefited, unless the property owners by some act waived their right to have, or actually had, a hearing upon their objections to the assessment.

Defendants contend, in effect, that the property owners in fact had a hearing as contemplated by the charter; that, after filing their written complaints and objections to the assessment they appeared before the city council, sitting as a board of equalization, either in person or by attorney, and orally presented their testimony and views concerning the assessment. As declared by the Supreme Court of the United States in the Londoner Case, supra, 'Many requirements essential in strictly judicial proceedings may be dispensed with in proceedings of this nature.' If, after filing their complaints and objections to the assessment, the parties without further notice appeared before the tribunal, authorized to act, and assuming to exercise the power, and were permitted to present their testimony and other evidence competent and relevant to the matter under consideration, and to support their contentions by argument, it may be, though as to that we do not determine, such procedure was 'a hearing within the meaning of the law.' The very essence of a hearing, however, is the right, not simply the privilege, 'to support one's contention or position by argument, however brief, and, if need be, by proof, however informal,' before a tribunal authorized to act and willing and ready to do so. Stuart v. Palmer...