Hildreth v. City of Longmont

Decision Date01 November 1909
Docket Number6,201.
PartiesHILDRETH et al. v. CITY OF LONGMONT et al. No. 5,583. ADAMS et al. v. SAME.
CourtColorado Supreme Court

Error to District Court, City and County of Denver; John I Mullins, Judge.

Appeal from District Court, Boulder County; Christian A. Bennett Judge.

Actions by J. H. Hildreth and others and by J. B. Adams and others against the City of Longmont and others. There were judgments dismissing the actions, and the plaintiffs in the first action bring error, and in the second action appeal. Affirmed.

John A. Rush and H. M. Minor, for plaintiffs in error and appellants.

Louis P. McGwire, for defendants in error.

F. A Williams and Grant E. Halderman, for appellees.

GABBERT J.

The city of Longmont took steps to construct a district sanitary sewer. After the contract was let, some of the plaintiffs in error in cause No. 5,583 commenced suit, the purpose of which was to have the proceedings taken by the city authorities to construct the sewer system adjudged null and void, to enjoin the city and contractors from further proceeding with its construction, and from assessing or levying upon the property of plaintiffs any taxes as their proportionate share of the expense of constructing the sewer system, and also to enjoin the issuance of any improvement bonds on account of such construction. In their complaint they based their right to the relief demanded upon the following averments: That the city consisted of about 110 blocks. That an ordinance, known as 'No. 104,' was first passed, providing for a system of sanitary sewers for the entire territory embraced within the city, to be paid for by general taxation. That later ordinance No. 107 was introduced and passed, whereby a sanitary sewer district, comprising 90 of the 110 blocks, was created. That the latter ordinance provided for an assessment of cost on the area plan, regardless of benefits, and excluded from assessment certain public parks and blocks used for public school purposes, which would be benefited by the construction of the system. That the creation of the sewer district was an evasion of the terms of the act under which the proceedings were had, in that practically the entire city was made a sewer district, thus subjecting the property therein to assessment on the area plan, to meet the expense of construction, instead of the expense being paid by general assessment on the property within the limits of the city, which would have been the case had the system been designed to cover all the territory in the city. That the city authorities never fixed any time or place, and did not give notice required by law, for the presentation of written protests or complaints before the passage of the ordinance. That complaints and protests were filed prior to its passage; but the same were refused consideration, and were never acted upon. That ordinance No. 107 and the contract thereunder made no provision whatever for connecting the sewer system with some district sewer or natural drainage. That, although no provision was made by ordinance, the city has attempted to establish a drainage system in connection with the sanitary sewer at an additional cost of $15,000 or $20,000. And that the construction of the drainage system underneath the sanitary sewer is a detriment and damage to it.

It was further charged: That the sum proposed to be assessed against the property of plaintiffs upon the area plan will be more than the entire value of their property. That on many of their lots the assessment will be $84.26 per lot; whereas, the actual value of such lots does not exceed the sum of $50. That the greater proportion of their property consists of vacant lots in the suburban portion of the town, which will receive no benefit from the construction of the sewer system. That included within the sewer district is the business section of the city, where the value of the lots is from $3,000 to $10,000 each. That upon such lots the sewer tax will be only about $17 per lot. And that there never was any hearing, consideration, or determination by the city authorities of the question of benefits and advantages, or any determination of the cost in relation to such benefits as to the several lots embraced within the sewer district; but that the same was arbitrarily made upon the area plan. It is further alleged that a contract has been let for the construction of the system at a cost of more than $60,000, and that the work thereby contemplated will be performed and the proportionate cost thereby made an unlawful charge upon the property of plaintiffs, whereby their title will be clouded. It is also charged that the proceedings of the city authorities are in violation of the principle of uniformity in taxation and will result in taxing the property of the plaintiffs for public use without just compensation and without due process of law, in violation of sections 15 and 25, art. 2, and section 3, art. 10, of the Constitution of the state.

For answer the city authorities and others made defendants denied that there was no ordinance, nor provision, nor resolution providing a place and time of meeting where property owners should be heard upon the question of benefits; and denied that the council did not hear the citizens upon these questions, or that the council declined to receive or hear or permit the citizens to present or discuss written protests; alleged that the drainage system was necessary for the preservation and protection of the sewer system in carrying off water which would otherwise find entrance into the main and lateral sewers, by which means sand and other foreign matter would gain admittance and obstruct the flow of sewage through the pipes; alleges that the subdrains were necessary appurtenances to the sewer system, and embraced in the notice, ordinance, and specifications under the term 'Necessary Appurtenances'; and also alleged that the subdrains would not increase the cost more than $8,100; and denied they would cause the sewer system to become unsafe or useless; denied that the sewer district was created with the view of virtually including the entire city; and denied that the assessments upon the property of plaintiffs to defray their proportionate share of the cost of the system is in excess of the value thereof, or of the benefits accruing thereto by reason of its construction; and admits the making of a contract to construct the system. The answer then alleges that under and by virtue of the act of the General Assembly approved April 8, 1899 (Laws 1899, p. 393, c. 151), the city authorities passed a resolution declaring a sanitary sewer a sanitary necessity, and avers facts from which it is made to appear that in all respects the authorities complied with the law relative to the creation of a sewer district, and other details which the law prescribes, including an averment that according to the plans, map, and specifications, the system was connected with a tract of land in close proximity to the St. Vrain river, the only natural drainage for the system; that on January 27, 1904, an ordinance was introduced, creating the sewer district contemplated by the resolution of December 23d preceding; that thereupon the complaints and objections made in writing by property owners were taken up and heard and considered, and decision thereon reserved until the publication of the ordinance; that the ordinance was published for the legal period, and afterwards the complaints and objections were overruled and the ordinance duly passed.

To this answer replication was filed, denying that the subdrains were necessary for the preservation or protection of the sanitary sewer; alleged that the resolution of intention by the council did not definitely designate the materials to be used in the construction of the sewer; denied that at any meeting of the council full details and specifications were presented or adopted, designating the materials to be used in the construction of the sewer or showing any connection of the system with any natural drainage or district sewer; alleges that the sewer system as planned will not connect with any district sewer or natural drainage; admits that the council designated a specific hour and day as a time for hearing complaints and objections made in writing; but alleges that the notice given was not such as is required by statute; admits the passage of the ordinance ordering the improvements; but denies that prior to such action all complaints and objections made in writing were heard and considered, or that any hearing or consideration thereof was had at all; and denies generally that the city authorities have complied with the law relating to the construction of district sanitary sewers.

Shortly after the first cause was commenced, a second action was instituted by some of the same plaintiffs and others, the object of which was to secure practically the same relief demanded in the first case. The causes were consolidated for trial. The findings of fact were in favor of the city, and judgment rendered dismissing the actions. Thereafter, and after the completion of the work, a third cause was commenced by some of those who instituted the first two cases, and others, the object of which was to obtain substantially the same relief sought in the other cases. To the complaint in the last case, a demurrer was filed, which was sustained and the action dismissed. The judgment rendered in the first two cases was taken by plaintiffs to the Court of Appeals for review on error. The plaintiffs in the last case appealed to this court. The cases were here consolidated for hearing and, as many of the questions presented in it are similar, they will be disposed of in one opinion. We will first...

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