City and County of Denver v. Denver Land Co.

• Citation: 85 Colo. 198,274 P. 743
• Decision Date: 28 January 1929
• Docket Number: 12238.
• Parties: CITY AND COUNTY OF DENVER v. DENVER LAND CO.
• Court: Colorado Supreme Court

274 P. 743

85 Colo. 198

CITY AND COUNTY OF DENVER v. DENVER LAND CO.

No. 12238.

Supreme Court of Colorado, En Banc.

January 28, 1929

Rehearing Denied Feb. 18, 1929.

Error to District Court, City and County of Denver; Charles C Sackmann, Judge.

Action by the Denver Land Company, for itself and all others similarly situated, against the City and County of Denver. Judgment for plaintiff, and defendant brings error.

Reversed and remanded, with instructions.

Thomas H. Gibson and Charles H. Haines, both of Denver, for plaintiff in error.

Grant Ellis, Shafroth & Toll, Morrison Shafroth, and Warwick M Downing, all of Denver, for defendant in error.

CAMPBELL, J.

We are asked to review a decree of the district court, rendered in an action or proceeding brought under our so-called Declaratory Judgment Statute. S. L. 1923, c. 98, p. 268. The controversy grows out of a contemplated plan of the defendant city to create a storm sewer district, within its boundaries and to assess the cost of its construction upon all the real estate situate therein by levying a tax thereon strictly in proportion to 'area,' which means that each piece or lot of real estate in the district is to be assessed in proportion as the area thereof is to the total area of the proposed district, exclusive of its streets and alleys; and not on the so-called 'benefit' plan, which is an assessment on any particular lot or parcel of land within the district in a sum not in excess of the benefit thereto, or the enhanced value thereof, by reason of the improvement.

The proposed plan has long been, and still is, under consideration by the city, and is now only in a preliminary stage of development. Because of doubts and uncertainties which have arisen as to the meaning and effect of the pertinent provisions of the city charter and ordinances, the city hesitates to consummate the proposed plan by the enactment of an appropriate ordinance--by which only may any plan be adopted--and the doing of certain other things which its organic law and ordinances require in such cases. Therefore, probably by a common understanding, or in pursuit of some definite arrangement between these parties, the plaintiffs, owners of real estate situate in the district, and who claim and assert in their complaint that the proper plan to be adopted in assessing the costs of a public improvement in the city of Denver is the 'benefit' plan, and not the 'area' plan, have brought this action, under our declaratory judgment act--to which the city offers no objection, but acquiesces therein--wherein they seek to have this court issue its declaration determining whether or not an ordinance of the city, which is merely in contemplation, and which has not been adopted, would be, if enacted, valid. This statute has been before this court in the case of Gabriel v. Board of Regents of University of Colorado, 83 Colo. 582, 267 P. 407, wherein was sought a declaration whether an agreement, which had been entered into by the board of regents of the University with a private individual, was, or was not, valid. In that case, which is analogous to the case in hand, we affirmed a judgment of the district court which refused to give an answer to the proposed inquiry. Section 2 of the Declaratory...