Dumars v. City of Denver

• Decision Date: 28 June 1901
• Citation: 65 P. 580,16 Colo.App. 375
• Parties: DUMARS et al. v. CITY OF DENVER et al.
• Court: Colorado Court of Appeals

65 P. 580

16 Colo.App. 375

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

Court of Appeals of Colorado

June 28, 1901

Error to district court, Arapahoe county.

Suit by Florus P. Dumars and others against the city of Denver and others to vacate a special assessment for the construction of a sewer, and to remove a cloud from the title of plaintiffs' property, and to perpetually enjoin the enforcement of such assessment. From a decree in favor of defendants, plaintiffs bring error. Reversed.

Joshua Grozier, T.J. O'Donnell, and A.C Phelps, for plaintiffs in error.

J.M Ellis, N.B. Bachtell, H.M. Orahood, H.L. Ritter, and Guy LeR. Stevick, for defendants in error.

John S Macbeth, F.A. Williams, and Charles J. Hughes, Jr., amici curiae.

THOMSON J.

This proceeding was instituted by Florus P. Dumars and a number of others, suing in behalf of themselves and all other persons similarly situated and interested, against the city of Denver and its treasurer and ex officio collector, to obtain a decree annulling an assessment ordered by the authorities of the city against the real estate of the plaintiffs and the others for the construction of a storm sewer, removing from the title of the plaintiffs the cloud occasioned by the assessment, and perpetually enjoining the defendants from enforcing it. The complaint alleged that the plaintiffs were all taxpayers and real-estate owners in the sewer district; that the proceedings creating the district were had in pursuance of the charter of the city of Denver, enacted in 1893; that the enactment was void, as being in violation of the constitution of the state of Colorado and the constitution of the United States; but that, conceding the validity of the charter, the board of public works and the city council failed of compliance with its provisions in the following respects: (1) The ordinance creating the sewer district was not published in book or pamphlet form, and was not published at all, except once in the Denver Republican, on Sunday. (2) The bill authorized the expenditure of more than $5,000, and no advertisement stating the general nature of the proposed expenditure was ever made. (3) The board of public works did not, by advertisement for 20 days, in two daily newspapers of general circulation, published in the city of Denver, or otherwise, or at all, give notice to the owners of the real estate in the district of the kind of improvements proposed; the number of installments and time in which the cost would be payable; the rate of interest on unpaid installments; the extent of the district to be assessed; the probable cost, as shown by the estimate of the engineer; the time, not less than 30 days after the first publication, when a resolution ordering the improvements would be considered by the board; showing that the map and estimates, and all resolutions and proceedings of the board were on file, to be seen and examined at the office of the board during business hours; and stating that all complaints and objections that might be made in writing, concerning the proposed improvements, by the owner of any real estate to be assessed, would be heard and determined by the board before its final action. The complaint also stated that the defendants were proceeding to the collection of the assessment against the plaintiffs by sale of the land belonging to them, and upon which the defendants alleged the assessment to be a lien. The defendants demurred to the complaint upon the sole ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and the complaint dismissed. The plaintiffs bring error.

An objection now taken to the complaint by the defendants is that it is crowded with irrelevant and immaterial allegations. The ground of their demurrer was not that the complaint stated too many facts, but that it did not state enough; and, if sufficient can be found in it to constitute a cause of action, that it contains, in addition, a mass of unnecessary matter, is inconsequential. Baum v. Holton, 4 Colo.App. 406, 36 P. 154. But the principal reasons urged for the defendants in support of the judgment are thus stated in the printed argument of their counsel: "We think it very clearly appears from the foregoing synopsis of the complaint that, if the allegations made are true,--and certainly it does not lie in the mouth of the plaintiffs to deny the truth of any of them,--then the proceedings complained of, and all laws purporting to authorize the same, are, on their face, unconstitutional, and null and void, and are not sufficient even to create a cloud upon the title of the plaintiffs. For this reason the plaintiffs are not entitled to the interposition of a court of equity." Counsel neglect to distinguish between the two separate and independent grounds upon which relief is sought, namely, the unconstitutionality of the law under which the proceedings were had rendering them void upon their face, and, on the hypothesis of the constitutionality of the law, the failure of the city to comply with its provisions. Yet both of these grounds are relied upon by the plaintiffs, and each shall be subjected to examination.

Respecting the question of the effect upon title of proceedings void upon their face, the authorities are not agreed; some affirming, and others denying, that such proceedings create a cloud, the removal of which is within the jurisdiction of a court of equity. But the distinctive features of this case render it unnecessary for us to be parties to that controversy, and, proceeding on the hypothesis that void proceedings do not cloud title, we think a result can be reached concerning which all the cases are in perfect harmony. While void proceedings cast no cloud upon title to real estate, and a single individual, moving only in his own behalf, and for his own purposes, to restrain such proceedings, will be remitted to his remedy at law, yet where a number of persons are similarly affected, and the rights of all may be adjusted in one proceeding, a court of equity will assume jurisdiction, notwithstanding there is no cloud to remove, and the ground of its jurisdiction is the prevention of a multiplicity of suits. Dows v. City of Chicago, 11 Wall 108, 20 L.Ed. 65; Union P. Ry. Co. v. City of Cheyenne, 113 U.S. 516, 5 S.Ct. 601, 28 L.Ed. 1098; Heywood v. City of Buffalo, 14 N.Y. 534; Keese v. City of Denver, 10 Colo. 112, 15 P. 825; 1 Pom.Eq.Jur. §§ 260, 273. The complaint in this case shows that a number of persons are affected by the same assessment, and that to determine their rights at law would require as many suits as there are individuals; and it also shows that, while they have no common ownership in the property affected by the assessment, they have a community of interest in the questions of law and fact involved in the controversy; and upon authority so overwhelming as to be practically unanimous the case is one peculiarly of equitable cognizance. See, also, Pom.Eq.Jur. § 269. Defendants' counsel refer us to City of Highlands v. Johnson, 24 Colo. 371, 51 P. 1004, as announcing a contrary doctrine. Johnson brought an action against the city of Highlands to restrain the collection of an assessment against his land for the construction of a sewer, on the ground, among others, of a violation of the federal and state constitutions. The only allusion to this ground in the opinion, which was delivered by Mr. Justice Campbell, was the following: "That a tax or assessment is void is not sufficient to justify the interposition of a court of equity to restrain its collection." We have nowhere said that it is; and, according to the view of the law which we have taken, it is not. The idea which the learned judge intended to convey, is more fully expressed in another opinion delivered by him, and reported in the same volume: "That a tax is void is, of itself, not sufficient to justify the granting of a writ. The case must, in addition, be brought under the head of some of the well-recognized heads of equity jurisdiction." Insurance Co. v. Bonner, 24 Colo. 220, 49 P. 366. The prevention of a multiplicity of suits is one of those heads. Not more fortunate is another of the defendants' citations: Wason v. Major, 10 Colo.App. 181, 50 P. 741. Judge Wilson, delivering the opinion, specifically designated the prevention of a multiplicity of suits as one of the grounds of jurisdiction in equity. But the position of our supreme court upon the questions under consideration is not equivocal, and the law applicable to them may be regarded as settled in this state. In Keese v. City of Denver, 10 Colo. 112, 15 P. 825, where a number of parties united in a proceeding against the city of Denver and certain of its officers to enjoin a sale of their land in virtue of an assessment for the building of a sewer, and asking the same relief for all persons similarly situated, the decision was that, upon the facts shown, the city council was not authorized to cause the sewer to be constructed, and was, hence, not authorized to levy an assessment to pay for its construction; that the assessment was, therefore, void; and that, to the end that the rights of all persons interested might be determined in one suit, it was proper for the plaintiffs to sue for all others similarly situated and interested. The judgment of the court below dismissing the plaintiffs' bill of complaint was reversed. In 1893 the general assembly passed an act, which, in terms, provided that when, by final decree of the court of appeals or the supreme court, any assessments made by the city of Denver for the construction of district sewers have been declared invalid in a direct proceeding to determine their validity, the city might, nevertheless, upon the passage of a resolution by the city council...