Londoner v. City and County of Denver

• Decision Date: 22 November 1911
• Parties: LONDONER v. CITY AND COUNTY OF DENVER et al.
• Court: Colorado Supreme Court

119 P. 156

52 Colo. 15

LONDONER v. CITY AND COUNTY OF DENVER et al.

Supreme Court of Colorado, En Banc

November 22, 1911

Error to District Court, City and County of Denver; Greeley W Whitford, Judge.

Action by Wolfe Londoner against the City and County of Denver and others. There was a judgment of dismissal, and plaintiff brings error. Plea in bar sustained, and writ of error dismissed.

O. N. Hilton and C. V. Mead, for plaintiff in error.

Henry A. Lindsley, G. Q. Richmond, and F. W. Sanborn, for defendants in error.

WHITE J.

The city and county of Denver is a municipal corporation created by and under the provisions of article 20 of the state Constitution. March 29, 1904, it adopted a charter which divides its territory into four park districts, and places them under the control of a park commission composed of five commissioners. It authorizes the park commission, with the approval of the mayor, upon certain conditions hereinafter stated, to select and acquire by purchase or condemnation proceedings, in the name of the city and county, for the use of any such park district, lands therein for parks and parkways, to be paid for, either in whole or in part, by special assessments upon the real estate, excepts parks parkways, and streets, comprising such district. Sections 92, 324, 325, 326, 327, and 328. By section 327 of the charter the park commission, before acquiring any such real estate or issuing bonds for park purposes, is required to prepare a map of the district, and apportion the estimated cost of the proposed improvement on the assessable real estate situate therein, in proportion to the benefits accruing thereto in consequence of the establishment of such parks or parkways in such district, in accordance with rules therefor adopted by the park commission, as it may seem just and reasonable; and to give published notice for 10 days 'to the owners of the real estate to be assessed of the proposed purchase or condemnation, with a description of the lands to be acquired, the estimated cost, the number of installments and time in which the assessments will be payable, the rate of interest on unpaid installments, the rules adopted by the commission for apportioning the benefits, as aforesaid, and the time, not less than ninety days after the first publication, when the question of the proposed purchase or condemnation will be considered by the commission; that said map and all proceedings of the commission are on file and can be seen and examined by any person interested during business hours, within said period of ninety days, at the office of the secretary of said commission, and that all complaints and objections that may be made in writing by owners of any real estate to be assessed will be heard and determined by the commission before final action of the commission in the premises.' The section further provides that 'the commission shall at the time specified or thereafter, consider all such complaints and objections, and may modify or confirm their apportionments, and shall finally determine whether said lands shall be acquired for said purpose; but if, within the time above specified, a remonstrance shall be filed with the secretary of said commission, subscribed by owners of twenty-five per cent. in area of the real estate which is to be assessed, then the proposed purchase or condemnation shall not be made, and the proceedings shall not be renewed for one year thereafter.' The section also provides that 'the finding of the council by ordinance that such notice was duly given, or that such remonstrance was or was not filed, or was or was not subscribed by the required number of owners aforesaid, shall be conclusive in every court or other tribunal.' Certain sections of the charter make it incumbent upon the park commission, when the cost of any park site or parkway is definitely determined, to file with the city clerk a certified statement showing the cost of the improvements, the apportionment thereof upon each lot or tract of land to be assessed; and requires the clerk thereupon, by advertisement for 10 days in some newspaper of general circulation published in the municipality, to notify the owners of the real estate to be assessed that the improvements have been or are about to be completed and accepted, specifying the whole cost of the improvements and the share apportioned to each lot or tract of land; and that any complaints or objections that may be made in writing by such owners and filed with the clerk within 60 days from the first publication of such notice will be heard and determined by the proper municipal authorities at a time designated in the notice and before the passage by the city council of any ordinance assessing the cost of such improvements. Sections 298, 299, 300, 328.

Under these provisions of the charter, proceedings were initiated to acquire lands for parks and parkways, in that portion of the municipality known as the 'East Denver Park District.' The park commission complied with section 327, and published the preliminary notice required thereby. Thereupon certain protests against the improvements from property owners within the district were filed, including one by plaintiff in error. The park commission on the day designated in the notice therefor heard and considered the protests and complaints filed, and found, among other things, that sufficient remonstrances had not been made and filed as provided by the charter to defeat the park improvements proposed, and thereupon finally determined to acquire the lands described in the notice for the purposes designated. The park commission thereafter certified to the council of the municipality the protests and complaints aforesaid and the proceedings and findings relating thereto for such action as might be incumbent upon the council to do and perform in the premises. Thereupon plaintiff in error, for himself and all others similarly situated, brought an action to restrain the city council from passing an ordinance, which it was alleged it was about to do, making finding that the notice to the property owners as required by section 327 of the charter had been duly given; that remonstrances subscribed by the owners of 25 per cent. in area of the real estate proposed to be assessed for the cost of acquiring the designated lands for parks and parkways had not been filed with the secretary of the park commission within the time specified in the notice, or at all. Plaintiff also sought in the action to restrain all the defendants in error from proceeding further in the premises.

The complaint sets forth some of the provisions of the charter, the notice given by the park commission as provided by section 327, and charges that the rules therein adopted by the park commission for apportioning the benefits to the real estate within the district, and the apportionment made under said rules of the estimated cost of the proposed improvements, are inequitable and unjust, and that irregularities and inaccuracies exist in the notice given, and in connection with the giving of the same, alleges the filing of protests and remonstrances by property owners sufficient, if rightly counted, to defeat the improvements, the wrongful permission by the park commission to property owners to withdraw therefrom, and the inclusion of certain alleged nonassessable lands within the district in determining the area of the real estate included in the protests to the area to be assessed for the improvements, and other irregularities in the proceedings of the park commission upon its determination of the matters raised by the notice, the protests, remonstrances, and withdrawals filed thereunder, and that the city and county of Denver has no power to acquire lands for parks or parkways by condemnation proceedings, or to acquire the same by purchase, except by a vote of the taxpaying electors first approving and ordering a bond issue therefor, and that the charter provisions apparently vesting such power in the municipality are in violation of the Constitution. A demurrer was interposed to the complaint, sustained by the court, and the cause dismissed. The plaintiff brings the case here on error, and seeks a reversal of the judgment. The important propositions presented, the only ones we deem necessary to consider, will be disposed of in the order we deem most convenient.

1. Plaintiff's contention, as to the lack of power in the municipality to acquire lands for parks or parkways by condemnation proceedings, or by purchase, except upon a vote of the taxpaying electors therein approving and ordering a bond issue therefor, is based upon the assumption that section 1 of article 20 of the Constitution measures the extent and limitation of the power of the city and county of Denver in acquiring lands for parks and parkways. We are of the opinion that the assumption is not well based. In Denver v. Hallett, 34 Colo. 393, 416, 83 P 1066, we expressly held that the limited grant of power contained in section 1 of article 20 of the Constitution is not the only power possessed by the municipality. We therein, on pages 398 and 399 of 34 Colo., on page 1068 of 83 Pac., said: 'The statement contained in the first section was not intended to be an enumeration of powers conferred, but simply the expression of a few of the more prominent powers which municipal corporations are frequently granted. The purpose of the twentieth article was to grant home rule to Denver and the other municipalities of the state, and it was intended to enlarge the powers beyond those usually granted by the Legislature; and so it was declared in the article that until the adoption of the new charter by the people that the charter as it then existed should be the charter of the municipality, and,...