Milheim v. Moffat Tunnel Improvement Dist.

• Decision Date: 22 November 1922
• Docket Number: 10477.
• Parties: MILHEIM et al. (WOLFE BROS. LAND CO. et al., Interveners) v. MOFFAT TUNNEL IMPROVEMENT DIST. et al.
• Court: Colorado Supreme Court

211 P. 649

72 Colo. 268

MILHEIM et al. (WOLFE BROS. LAND CO. et al., Interveners) v. MOFFAT TUNNEL IMPROVEMENT DIST. et al.

No. 10477.

Supreme Court of Colorado, En Banc.

November 22, 1922

Rehearing Denied Dec. 18, 1922.

Error to District Court, Jefferson County; Samuel W. Johnson Judge.

Suit by Mary L. Milheim and another, suing on behalf of themselves and all other taxpayers and real estate owners of the Moffat Tunnel Improvement District similarly situated and interested, against the Moffat Tunnel Improvement District and others, constituting the Moffat Tunnel Commission of the State, in which the Wolfe Brothers Land Company and others intervene as plaintiffs. Judgment for defendants, and plaintiffs bring error.

Affirmed.

A use may be public, though not many persons may enjoy it; the requirement being that the improvement be open to use by all persons who have need of it.

John R. Smith, of Denver, for plaintiffs in error Wolfe Bros. and smith.

Barnwell S. Stuart, of Denver, for plaintiffs in error White and others.

Edwin H. Park, of Denver, for other plaintiffs in error.

Norton Montgomery and Erskine R. Myer, both of Denver, for defendants in error.

TELLER J.

Plaintiffs in error, Milheim and Metcalf, were plaintiffs in a suit to enjoin the defendants in error from proceeding under the recently enacted statute creating the Moffat tunnel improvement district (Laws 1922 [Ex. Sess.] p. 88), the ground of action being that the said statute is unconstitutional, and that, if enforced, it will burden plaintiffs' property by an illegal tax.

The other plaintiffs in error are taxpayers who were permitted to intervene as plaintiffs. Answers were filed which presented issues of law as to the alleged violations of the Constitution, and of fact as to the benefits to the property subject to assessment. The district court of Jefferson county heard evidence upon the question of benefits, and found for the defendants. It held also that the act did not violate the Constitution, and entered judgment accordingly. The cause is now before us on error.

The act recites that it will be in the interest of the people of the state generally, and of special benefit to property within the proposed district, to provide, by means of a transportation tunnel through the Continental Divide, for communication between the western portion of the state and the eastern portion. It creates an improvement district for the construction of said tunnel, including therein the city of Denver, and the counties of Grand, Moffat, and Routt, and certain portions of the counties of Eagle, Gilpin, Boulder Adams, and Jefferson. It provides that within 60 days from the going into effect of the act, written remonstrances against the making of the improvement may be filed with the board created by the act, and that, if remonstrances be filed representing in value at least 50 per cent. of the real estate in the district, the proposed improvement shall not be made.

It provides for a board of five members, the first board to be appointed by the Governor, to hold office until August 31 1923, the members thereafter to be elected. It is made the duty of the board to construct or contract for the construction, operation, and maintenance of said tunnel, its approaches, and all necessary works incidental thereto. The board is authorized to contract with persons or corporations, for the use of the tunnel, upon such rental as the board may fix; said rental in each case to be a fair and just proportion of the amount required to pay interest on the cost of the tunnel, and create a sinking fund to retire the bonds authorized by the act to be issued. The board is prohibited from permitting a monopoly in the use of the tunnel, and is required to allow it to be used by all parties applying, up to its capacity for use.

The act further provides for the use of the tunnel for the transportation of automobiles, transmission of electric power, and the conveyance of water.

It gives the board authority to levy assessments as needed; provides for the appraising of the benefits, for notice to the parties whose property is assessed, and for a hearing on said assessments.

It is claimed that the act is unconstitutional in numerous particulars, and the questions thus raised have been argued by all the parties fully and ably.

In the consideration of this cause, we have been mindful of the court's duty in the premises as stated by the eminent Chief Justice Shaw, in Wellington, Petitioners, etc., 16 Pick. (Mass.) 87, 26 Am.Dec. 631, where he said:

'When called upon to pronounce the invalidity of an act of legislation passed with all the forms and solemnities requisite to give it the force of law, courts will approach the question with great caution, examine it in every possible aspect and ponder upon it is long as deliberation and patient attention can throw any new light on the subject, and never declare a statute void, unless the unllity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.'

It is contended, first, that the improvement is not for a public use.

Counsel for the plaintiffs in error appear to concede, by a quotation to that effect, that a use may be public though not many persons may enjoy it. This is well established, the requirement being that the improvement be open to use by all persons who have need of it. Talbot v. Hudson, 16 Gray (Mass.) 417.

In Tanner v. Treasury T. M. & R. Co., 35 Colo. 593, 83 P. 464, 4 L.R.A. (N. S.) 106, this court said that if the business for which the improvement was made is wholly for private benefit, then the use would be private; 'on the other hand, if the business proposed to be carried on * * * is essentially for public benefit and advantage, then the use would be public.'

The court then, after adverting to the fact that there is no strict definition of a public use, said:

'Consequently we find, in examining the authorities, that, in determining whether or not a use is public, the physical conditions of the country, the needs of a community, the character of the benefit which a projected improvement may confer upon a locality, and the necessities for such improvement in the development of the resources of a state, are to be taken into consideration.' It was then pointed out that the proposed tunnel would intersect numerous veins of ore at a great depth, and make possible their working; and that it would drain properties and furnish ventilation to mines, so that the owners of mining properties along and adjacent to the tunnel would secure a distinct benefit therefrom. It was further deemed worthy of notice that the statute recognized that such an improvement might benefit the public generally. The court added that, while the judgment of the Legislature is not conclusive upon the courts, 'it is entitled to careful consideration and great weight as the judgment of a co-ordinate branch of the government of the necessities of the state for the development of its resources, and the needs of the people in this respect.'

The United States Supreme Court has gone much farther than this. In Spencer v. Merchant, 125 U.S. 345, 8 S.Ct. 921, 31 L.Ed. 763, cited with approval in Branson v. Bush, 251 U.S. 182, 40 S.Ct. 113, 64 L.Ed. 215, the court said that a legislative determination that lands assessed were benefited by an improvement was not open to review, and added:

'The question of special benefit and the property to which it extends is of necessity a question of fact, and when the Legislature determines it in a case within its general power, its decision must of course be final.'

A later case, Wagner v. Baltimore, 239 U.S. 207, 36 S.Ct. 66, 60 L.Ed. 230, qualified the above statement to the extent that the legislative determination would not be final if its action was arbitrary and wholly unwarranted.

The above statement of this court that the circumstances surrounding an improvement are to considered in determining this question is in line with the holding of the Court of Appeals of New York in Sun Publishing Ass'n et al. v. Mayor of City of New York, 152 N.Y. 257, 46 N.E. 499, 37 L.R.A. 788. It was there held that the peculiar situation of the city, and the needs of the public, justified holding that a statute authorizing the construction of a subway by the city, to be leased to a private corporation, was not unconstitutional as providing for the use of public funds for private purposes. The case is somewhat similar, in one respect, to the case at bar, in that in both cases attempts were made to secure the construction of the improvement by private capital. The court said:

'The commissioners located the road and tried to induce private capital to construct and operate it. In this they have failed, and the situation is such that the city must itself construct the road or go without it. Here we have a demand for a great public highway, which private enterprise and capital will not construct. It is necessary for the welfare of the people and is required by them. It is public in character and is authorized by the Legislature.'

In Walker v. City of Cincinnati, 21 Ohio St. 14, 8 Am.Rep. 24, the court had under consideration a statute under the authority of which the city of Cincinnati proposed to build a railroad from that city to Chattanooga, Tenn. It was there held that the act was not in violation of the constitutional provision which prohibited the General Assembly from authorizing cities and towns to loan their credit to a private corporation, that it was for the Legislature to say whether the proposed road was for a public use, and that the act in question was not prohibited by any provision of the state Constitution. The court quotes from Cooley on Constitutional Limitations as follows:

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