City of Denver v. Knowles

• Decision Date: 06 April 1892
• Citation: City of Denver v. Knowles, 17 Colo. 204, 30 P. 1041 (Colo. 1892)
• Parties: CITY OF DENVER et al. v. KNOWLES.
• Court: Colorado Supreme Court

30 P. 1041

17 Colo. 204

CITY OF DENVER et al. v. KNOWLES.

Supreme Court of Colorado

April 6, 1892^[1]

Error to district court, Arapahoe county.

Action by John M. Knowles against the city of Denver and others to restrain the collection of an assessment levied by the city on certain lots. A demurrer to the answer was sustained, and defendants bring error. Reversed.

The other facts fully appear in the following statement by HAYT C.J.:

This action was brought in the court below by John M. Knowles defendant in error, to restrain plaintiffs in error, the city of Denver et al., from collecting an assessment levied by the city upon certain lots owned by the defendant in error. The assessment was levied in proportion to the frontage of the lots upon the improvement. It is for the cost of paving constructing gutters, etc., on Sixteenth street, in said city. Plaintiffs in error by their answers sought to justify the assessment under the following provisions of the charter of the city of Denver: 'Whenever the owners of the majority of the lots abutting on a street or alley, or a section thereof, shall petition the city council for the paving or grading, either or both, or whenever the board of public works shall order the same, and shall notify the city council, such paving or grading, either or both, shall be ordered by ordinance, and two-thirds of the total expenses thereof, excluding intersection of streets and alleys, shall be assessed upon the property abutting upon the same, and one-third of such expense on such frontage, and all the expenses at street and alley intersection shall be borne by the city. After the passage of such ordinance the board of public works shall advertise for thirty consecutive days in some newspaper published in the city of Denver for bids for the grading or paving, either or both, which may include curbing and storm sewers, with their necessary manholes inlets, and appurtenances specified in the ordinance, under specifications to be prescribed by the board of public works. After receiving such bids, the city council may award a contract or contracts for such grading, paving, curbing etc., or all, to the lowest responsible bidder. Every contract shall contain a clause to the effect that it is subject to the provisions of the city charter and the ordinance ordering such grading or paving, either or both; and that on ten days' notice the work under said contract may, without cost or claim against the city, be suspended by the board of public works for substantial cause. Warrants in payment of two thirds of the total cost, including the incidentals and interest of the grading or paving, or both, along any property frontage, which may include curbing, storm sewers, as above indicated, so ordered, shall be issued in the manner provided by ordinance, and shall be payable out of the moneys collected from the assessments upon the lots abutting upon such improvement: provided, that such warrants may be made payable in equal annual installments of not less than three, nor more than five, years, with interest thereon. The amount in payment of the one-third of the total cost of such improvement to be borne by the city shall be in cash, and shall be payable as provided by ordinance. As soon as any paving or grading, or both, which may include curbing, storm sewers, etc., so ordered, is fully completed, the board of public works shall compute the whole cost thereof, and report the same to the city council, and the city council shall assess two thirds of the total cost of such work as a special tax against all the lots so improved, and in proportion as the respective frontage of each lot bears to the frontage of all the lots so improved, under such ordinance. * * *' Sess. Laws 1889, p. 141. In the answer the proceedings taken on the part of the city authorities were also set forth with much particularity. To this answer a demurrer was interposed. It stands admitted that the petition upon which the city council ordered the improvement conforms to the requirements of the statute in every particular, and that it is signed by the requisite number of lot owners; in fact, it is not claimed that the city did not regularly proceed under the statute; the contention being that the statute itself is unconstitutional and void. The district court, being of this opinion, sustained the demurrer to the answer, and entered judgment in favor of defendant in error, and against the city.

2. The power to make such local assessments is not an infringement upon the constitutional rule requiring all taxes to be uniform. Elliott, J., dissenting.

3. A fundamental principle of construction requires those who seek to overthrow a statute, on account of its repugnance to a constitutional provision, to show the unconstitutionality of the act beyond all reasonable doubt.

4. Assessments for local improvements upon the basis of frontage, where the lots abutting upon the improvement are of substantially equal depth, will be upheld where the same is not shown to be unfair.

F. A. Williams, J. H. Brown, C. B. Whitford, and John F. Shafroth, for plaintiffs in error.

Joseph N. Baxter and Wm. C. Wrigley, for defendant in error.

HAYT, C.J., ( after stating the facts.)

The provision invoked to defeat the statute under which the city was attempting to proceed in this case is found in section 3 of article 10 of our constitution, and reads as follows: 'All taxes shall be uniform upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws, which shall prescribe such regulations as shall secure a just valuation of all property, real and personal. * * *' The next succeeding section is as follows: 'Sec. 7. The general assembly shall not impose taxes for the purposes of any county, city, town, or other municipal corporation, but may by law vest in the corporate authorities thereof, respectively, the power to assess and collect taxes for all purposes of such corporation.'

The questions raised are two in number, and may be stated as follows: (1) Does the uniformity clause of the constitution prohibit local assessments upon the abutting property for street improvements? (2) Has the legislature authority to provide that the cost of such improvements shall be apportioned according to frontage?

These questions have been the fruitful source of litigation for many years, and the course of judicial decisions thereon has not always been uniform. It is claimed that the decision of the district court against the validity of the ordinance is in harmony with the views expressed by this court in the early case of Palmer v. Way, 6 Colo. 106, (1881,) and followed, upon the principle of stare decisis, in the late case of Wilson v. Chilcott, 12 Colo. 600, 21 P. 901. Turning to the case of Palmer v. Way, we find the contention there to have been with reference to an assessment for the cost of a sidewalk in front of certain lots. The assessment was upheld as properly within the police power of the city. This was the only determination necessary to support the judgment there the subject of attack. The court did, however, go beyond this in the opinion filed, and say that special assessments against the abutting lots for street improvements were in violation of the constitutional rule requiring uniformity of taxation, and could not be upheld under the taxing power. This decision was followed in Wilson v. Chilcott, supra, without question, and without the examination that would otherwise have been given to it; and thus an opinion upon a matter not necessary to the determination of the case under consideration at the time has been accepted as the law in this state for 10 years, upon the principle of stare decisis. During this time, however, except in the case of Wilson v. Chilcott, supra, the doctrine has not been expressly indorsed in any case.

The view announced in the opinion referred to is supported by strong considerations of expediency. It operates to protect small property holders against extravagant and unwise action in the premises by municipal authorities. But such considerations cannot control the judicial construction of constitutional provisions where the meaning is plain; and we feel constrained by strong logical reasons as well as by the overwhelming weight of authority, to say that the uniformity of taxation enjoined by the constitution does not prohibit the legislation from authorizing the levy of special assessments in cities and towns, for local improvements in the nature of benefits to the abutting property. All matters of hardship and expediency must be left for legislative cognizance and action. In neither of these cases is the distinction between local assessments and taxes levied for the general purposes of revenue pointed out. That such distinction in fact exists is now recognized by an almost unbroken line of decisions, and by the consensus of opinion of all text writers upon the subject. Local assessments are upheld upon the theory that the property against which the assessment is made is specially benefited by the improvement, while taxes refer more particularly to those burdens imposed for revenue. There is certainly reason for saying that the word 'tax,' when used in the constitution, refers to the ordinary public taxes, and not to the assessments for benefits in the nature of local improvements. While, therefore, the power to make such assessments is referable to the taxing power, it is held not to be an infringement upon the rule requiring all taxes to be uniform. In support of these views we cannot do better than quote from the text writers of acknowledged standing and ability, who may well be presumed to have given the subject that consideration which...