Farncomb v. City and County of Denver

• Decision Date: 07 January 1918
• Docket Number: 8747.
• Citation: 64 Colo. 13,171 P. 66
• Parties: FARNCOMB et al. v. CITY AND COUNTY OF DENVER et al.
• Court: Colorado Supreme Court

171 P. 66

64 Colo. 13

FARNCOMB et al. v. CITY AND COUNTY OF DENVER et al.

No. 8747.

Supreme Court of Colorado, En Banc.

January 7, 1918

Rehearing Denied March 4, 1918.

Error to District Court, City and County of Denver; John H Denison, Judge.

Action by Henry Farncomb and others against the City and County of Denver and others. Judgment for defendants on demurrer, and plaintiffs bring error. Affirmed.

Omar E. Garwood, Bert Martin, T. J. O'Donnell J. W. Graham, and Canton O'Donnell, all of Denver, for plaintiffs in error.

James A. Marsh, City snd County Atty., Henry A. Linsley, and Walter E. Schwed, all of Denver, for defendants in error.

BAILEY J.

In this action plaintiffs in error here, plaintiffs below, for themselves and others similarly situated, sought to have certain assessments against their properties declared null and void, and the City and County of Denver restrained from enforcing payment. The assessment alleged to be unlawful is that established by Ordinance No. 3, Series of 1913, of the City and County of Denver, for providing parks and parkways in the East Denver Park District. The ordinance sets out as done all the acts requisite to be done before the ordinance could be legally passed, and prima facie shows compliance with all the charter provisions under which the land was secured. The property affected by the ordinance is that comprising the East Denver Park District, the purpose being to provide funds for what is known as the 'Civic Center,' within such district.

Plaintiffs contest the regularity of the preliminary steps leading to the passage of the assessing ordinance, and also contend that due process of law is not afforded by the hearing provided for before the board of supervisors, sitting as a board of equalization, since its action is not final, but advisory only.

A demurrer to the complaint was sustained and judgment of dismissal was entered accordingly, plaintiffs having elected to stand by their complaint and their cause as thereby made.

It is urged that section 300 of the Charter of the City and County of Denver does not provide due process of law for taxaction purposes. The section is as follows:

'At the meeting specified in said notice, or any adjournment thereof, the Board of Supervisors, sitting as a board of equalization, shall hear and determine all such complaints and objections and may recommend to the Board of Public Works any modification of their apportionments. The Board of Public Works may thereupon make such modifications or changes as to them may seem equitable and just, or may confirm the first apportionment, and shall notify the council of their final decision; and the council shall thereupon by ordinance assess the cost of said improvement against all the real estate in said district and against such persons, respectively, in the proportions above mentioned.'

It is argued that as the board of equalization thus established has power only to suggest or recommend alterations in the assessments, protestants are without remedy. This is set up as a question never before suggested, much less urged, in any of the several cases in which like Charter provisions have been construed, providing for the assessment and collection of funds for public improvements.

Section 300, supra, supersedes section 31 of the Charter of 1903, which makes similar provisions for hearing complaints, except that the City Council is designated as the equalization board to recommend changes in assessments to the board of public works. The constitutionality of section 31, was questioned in City of Denver v. Londoner, 33 Colo. 104, 80 P. 117, where plaintiffs contested the sufficiency of the petitions of the property owners of a paving district, the legality of the publication of the ordinance creating the district, the sufficiency of the published notice and the validity of the law creating the board of public works. It was further contended that due process of law was not provided by the Charter, and that certain specific tracts of land were not benefited, and that the assessments were arbitrary and excessive. In substance, the same questions were raised in that case as are before us in this one. This court upheld the position of the City, and while the Supreme Court of the United States reversed that decision, it did so wholly upon a point which in no way affects any question herein involved. This case is ruled, therefore, by that case, except upon the point upon which it was reversed.

In discussing the inquiry whether the City Council, as a board of equalization, sitting for the purpose of hearing complaints and with power only to recommend relief, is a competent and constitutional tribunal, this court in City of Denver v. Londoner, supra, after discussing Brown v. City of Denver, 7 Colo. 305, 3 P. 455, said:

'It is argued that because the judgment of the city council is not final, but its action is subject to revision by the board of public works, that therefore it is not a competent tribunal. The word 'competent,' as employed in the Brown Case, does not convey any such meaning, but, rather, that the tribunal which the law designates shall be suitable and legally qualified to act. It does not necessarily follow that the judgment of such tribunal must be final. The main purposes of affording an owner a hearing upon the question of assessing his land for special benefits, are to give him the opportunity to be heard upon the quantum of the tax which may be assessed upon his land, as well as its validity. If this hearing is afforded at some stage of the proceedings, he is given the opportunity to be heard which the fundamental law contemplates'--citing Bauman v. Ross, 167 U.S. 548, 17 S.Ct. 966, 42 L.Ed. 270.

Denver v. Kennedy, 33 Colo. 80, 80 P. 122, 467, and Denver v. Dumars, 33 Colo. 94, 80 P. 114, were decided with Denver v. Londoner, supra, and in them other provisions relative to special improvement taxes and matters pertaining to the construction of the Charter provisions were determined, in favor of the City. The Supreme Court of the United States, in passing upon the constitutionality of the Charter provisions, in Londoner v. Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103, decided that these provisions were sound and afforded due process of law. At page 380 of 210 U.S., at page 711 of 28 Sup.Ct. (52 L.Ed. 1103), that court said:

'The ninth assignment questions the constitutionality of that part of the law which authorizes the assessment of benefits. It seems desirable, for the proper disposition of this and the next assignment, to state the construction which the Supreme Court gave to the Charter. This may be found in the judgment under review and two cases decided with it. Denver v. Kennedy, 33 Colo. 80 ; Denver v. Dumars, 33 Colo. 90 . From these cases it appears that the lien upon the adjoining land arises out of the assessment; after the cost of the work and the provisional apportionment is certified to the city council, the land owners affected are afforded an opportunity to be heard upon the validity and amount of the assessment by the council sitting as a board of equalization; if any further notice than the notice to file complaints and objections is required, the city authorities have the implied power to give it; the hearing must be before the assessment is made. This hearing provided for by section 31 is one where the board of equalization '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' (33 Colo. 97 ), and that the full hearing before the board of equalization excludes the courts from entertaining any objections which are cognizable by this board. The statute itself, therefore, is clear of all constitutional faults.'

And at page 378 of 210 U.S., at page 711 of 28 Sup.Ct. (52 L.Ed. 1103):

'The State Supreme Court held that the determination of the city council was conclusive that a proper petition was filed, and that decision must be accepted by us as the law of the State. The only question for this court is whether the charter provision authorizing such a finding, without notice to the landowners, denies to them due process of law. We think it does not.'

And further, at page 380 of 210 U.S., at page 712 of 28 Sup.Ct. (52 L.Ed. 1103):

'The fifth assignment, though general, vague and obscure, fairly raises, we think, the question whether the assessment was made without notice and opportunity for hearing to those affected by it, thereby denying to them due process of law. The trial court found as a fact that no opportunity for hearing was afforded, and the Supreme Court did not disturb this finding. * * * Those interested, therefore, were informed that if they reduced their complaints and

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