City of Denver v. Kennedy

• Decision Date: 14 April 1905
• Citation: 33 Colo. 80,80 P. 467
• Parties: CITY OF DENVER et al. v. KENNEDY et al.
• Court: Colorado Supreme Court

80 P. 467

33 Colo. 80

CITY OF DENVER et al. v. KENNEDY et al.

Supreme Court of Colorado

April 14, 1905

For majority opinion, see 80 P. 122.

STEELE, J. (dissenting).

I am of opinion that the action of municipal officers in the exercise of discretionary power and judgment within the scope of their authority should not be disturbed except in case of fraud or its equivalent. The test of reasonableness is objectionable in this: that it permits the court to substitute its judgment for that of the legislative department, and requires the levy for special assessments to pass the scruting of judges, officers who cannot, from printed records, as justly determine whether the assessments are reasonable or unreasonable as the officers upon whom is devolved the duty of making them. Protesting that my judgment is not, in the nature of things, as reliable as that of the local authorities making the assessment involved in this case, as I am required to say whether the assessment is reasonable or unreasonable, I must say that the assessment is clearly unreasonable, for the reason that the viaduct in question is, in my judgment, a public, and not a local, improvement, and that the expense of building the same should be borne by the entire city.