City of Denver v. Dumars

• Decision Date: 07 November 1904
• Citation: 33 Colo. 94,80 P. 114
• Parties: CITY OF DENVER et al. v. DUMARS et al. SAME v. HALLETT.
• Court: Colorado Supreme Court

80 P. 114

33 Colo. 94

CITY OF DENVER et al. v. DUMARS et al.

SAME v. HALLETT.^[*]

Supreme Court of Colorado

November 7, 1904

Appeal from District Court, Arapahoe County; Booth M. Malone, Judge.

Action by Florus P. Dumars and others against the city of Denver and others, and action by Moses Hallett against the same defendants. From judgments in favor of plaintiffs, defendants appeal. Reversed.

See 65 P. 581.

H. M. Orahood, Henry A. Lindsley, and H. L. Ritter for appellants.

Joshua Grozier and W. C. Kingsley, for appellees.

GABBERT, C.J.

The questions presented by these two appeals are practically the same, and for this reason they will be disposed of in one opinion. The purpose of the actions brought by the respective appellees was to annul assessments levied against their property for the purpose of paying for the construction of a storm sewer in what is known as 'Broadway Storm Sewer District No. 1.' Plaintiffs obtained a judgment in their favor, from which the respective defendants appeal.

The questions presented are: (1) The constitutionality of charter provisions relating to the construction of storm sewers. (2) The sufficiency of the notice given by the board of public works. (3) The validity of the publication of the ordinance creating the district. (4) The rights of plaintiffs to litigate the question of special benefits. (5) The effect of the omission of certain property in the district. (6) The claim that the contract was not let to the lowest responsible bidder.

1. In discussing the constitutionality of the charter provisions the following propositions, not determined or referred to in City of Denver v. Kennedy, 80 P. 122, are presented: (1) Are owners afforded an opportunity to be heard and offer testimony on the question of assessments? (2) Is the rule prescribing the method of assessment valid? (3) Is the notice prescribed sufficient? Before an assessment against property can be made for the construction of a storm sewer, the city clerk is required by advertisement to notify the owners of real estate to be assessed, which notice, among other things, shall specify that any complaints made in writing by the owners and filed within a specified time will be heard and determined by the city council before the passage of any ordinance assessing the cost of the sewer against the property in the district. Section 30, art. 7 (section 187), Charter. The charter also makes it the duty of the city council, sitting as a board of equalization, to hear and determine all such complaints and objections before the assessment ordinance is passed. Section 31, art. 7 (section 188) Charter. Certainly, under such a provision as the latter, although it does not enter into details, the law contemplates that the tribunal designated to hear and determine such complaints and objections as may have been filed against the assessments shall hear the parties complaining, and such testimony as they may offer in support of their complaints and objections as would be competent and relevant. In apportioning special assessments the rule prescribed or adopted is not objectionable, though arbitrary if it appears that by the method prescribed or followed the special benefits accruing to the property by reason of the improvement for which it is assessed will secure an assessment in proportion to the benefits as nearly as practicable. City of Pueblo v. Robinson, 12 Colo. 593, 21 P 899. In assessments of this character, absolute euqality is not to be expected. A reasonable approximation is all that can be required, and when the proper body prescribes in good faith a method by which this end may be attained with reasonable certainty, it should not be disturbed. The charter provides that the cost of a storm district sewer shall be assessed upon all the real estate in the district in proportion as the area of each piece of real estate in the district is to the area of all the real estate in the district, exclusive of public highways. Section 21 art. 7 (section 178) Charter. The purpose of a storm sewer is to carry off flood waters. Each lot in the district is benefited by being relieved from the dangers and damages which may be occasioned from storm waters, more or less common to the district in which it is situate. Each tract ordinarily augments the aggregate volume of storm waters in a district in the proportion that its area bears to the entire area of lots in the district. The rule prescribed, therefore, appears to prima facie approximate the extent of the benefits accruing to each lot by the construction of a storm sewer. Such seems to be the view adopted generally by the courts to the effect that area is regarded as a just means of apportioning the special benefits in case of sewers. Elliott on Roads and Streets, § 560.

It is argued by counsel for appellees that the charter provisions are unconstitutional, because they do not provide for notice to owners of the time and place when they may be heard on such questions as it would by proper for the city authorities to consider before their property is assessed with the expense of a local public improvement. Section 30, art. 7, heretofore referred to, is certainly sufficient notice to owners to file their complaints and objections within a specified time. Whether or not the charter should further specifically provide for a notice to owners filing complaints and objections of the time and place when such complaints and objections would be heard and determined is the important question. If they are entitled to such notice (a point, however, which we do not decide), then the city authorities would unquestionably have the power to provide therefor, and the charter is not unconstitutional because it does not specifically make provision for such notice. Paulsen v. Portland, 149 U.S. 30, 13 S.Ct. 750, 37 L.Ed. 637; Gatch v. City of Des Moines, 63 Iowa 718, 18 N.W. 310; Gilmore v. Hentig, 33 Kan. 156, 5 P. 781. The contention that the charter provisions are unconstitutional because the action of the city council sitting as a board of equalization in hearing and determining complaints is not final will be determined in the case of City of Denver v. Londoner (Colo. Sup.) 80 P. 117, now under consideration. The constitutionality of the law creating the board of public works is also determined in that case.

2. The notice given by the board of public works was attacked because of the omission therefrom 'that all complaints and objections that may be made in writing concerning the proposed improvements by the owners of any real estate to be assessed will be heard and determined by the board before final action of the board thereon.' The charter provisions on the subject of what shall be contained in a preliminary notice given by the board designates that it shall contain that above quoted. It is claimed by counsel for appellants that in the creation of storm sewer districts this recitation in the notice is not required, and may be omitted. Whether or not this claim is correct, or whether, generally speaking, the notice should contain that which was omitted is immaterial. Subsection 8, § 3, art. 7. (section 160) Charter, provides: 'And the finding of the city council, by ordinance, that any improvements provided for in this article were duly ordered after notice duly given * * * shall be conclusive in every court or other tribunal.' In the ordinance creating the district in accordance with the recommendation of the board of public works after the publication of the preliminary notice, it is recited: 'That the city council finds that after notice duly given, the resolution of said board of public works of the city of Denver, creating said storm sewer district, and ordering the construction of storm sewers therein, was unanimously adopted by said board of public works.' There is no requirement of law other than the charter provision referred to, which renders it necessary for...