Pomroy v. Board of Public Waterworks, Dist. No. 2, of City of Pueblo

• Decision Date: 03 November 1913
• Citation: 55 Colo. 476,136 P. 78
• Parties: POMROY et al. v. BOARD OF PUBLIC WATERWORKS, DIST. NO. 2, OF CITY OF PUEBLO et al.
• Court: Colorado Supreme Court

136 P. 78

55 Colo. 476

POMROY et al. v. BOARD OF PUBLIC WATERWORKS, DIST. NO. 2, OF CITY OF PUEBLO et al.

Supreme Court of Colorado, En Banc.

November 3, 1913

Error to District Court, Pueblo County; J. E. Rizer, Judge.

Action by Henry K. Pomroy and others against the Board of Public Waterworks, District No. 2, of the City of Pueblo, and others. Judgment for the defendants, and plaintiffs bring error. Reversed and remanded.

Hartman & Ballreich, of Pueblo, Chas. L. Avery, of Denver, and Chas. W. O'Donnell, of Pueblo, for plaintiffs in error.

M. J Galligan, M. G. Saunders, and E. F. Chambers, all of Pueblo for defendants in error.

GABBERT J.

Under the provisions of an act found in the Session Laws of 1905 at page 361 et seq., Waterworks District No. 2, of the city of Pueblo, was created. The territory embraced in that district included all that portion of the city lying south of the Arkansas river. The purpose of creating the district was to enable the city to purchase a waterworks system for the use and benefit of the inhabitants of the territory included in the water district. After it was created, the city, for the object indicated, purchased the waterworks plant, priorities, and all appliances of the Pueblo Water Company by the issuance and delivery of interest-bearing bonds which were made a lien upon all the taxable real property of the district, and in effect an obligation of the district only. The company from which the purchase was made had been in existence about 25 years, and had laid water mains in certain of the streets, alleys, and other public places of the territory embraced in the water district. There are a great many lots and tracts in the district fronting on streets in which water mains are not laid. After the purchase the constituted authorities levied a frontage tax on certain lots fronting upon streets where the water mains were laid. These mains had been laid and maintained and water distributed through them by the company from which the purchase was made. Plaintiffs, as owners of these lots, brought suit to restrain the collection of this tax. The authority to levy the tax is based upon section 9 of the act, which provides, in substance, that it shall be lawful to levy, annually, an assessment upon each lot or parcel of ground which shall abut on any street in the water district through which the distributing pipes of the waterworks are or may be laid so as to conveniently supply such lots with water, whether water be used upon such lots or not, which assessment shall be levied at a uniform rate, according to frontage. The proceeds of this tax can be applied in payment of the operating expense and maintenance of the system and the discharge of the bonded indebtedness. The trial resulted in a judgment in favor of the defendants. Plaintiffs have brought the case here for review on error.

Counsel for plaintiffs contend the tax is invalid for several reasons, all of which, however, go to the constitutionality of the act. Their first point is that section 9, in so far as it authorizes a frontage tax to be levied upon lots on streets where the mains had been laid and maintained and water distributed through such mains by the company, is invalid for the reason that it authorizes the levy of a special assessment for the purchase of or to pay for an already existing water plant. In other words, they contend the tax is invalid for the reason that any special benefit which accrued to the lots in question by reason of the water mains being in the streets upon which the lots involved abut had attached prior to the time the system was purchased by the city, and that it affirmatively appears none of the objects to which the frontage tax may be applied confers any special benefits upon these lots. The section of the act referred to provides that the frontage tax may be applied to defray the operating expense and maintenance of the system, to the payment of interest upon bonds issued to purchase it, and to provide a fund to discharge such bonds at maturity.

A special or local assessment is a burden imposed upon real property for a local public improvement; the extent of the burden being determined by the special benefits which inure to the assessed property as the result of the improvement. 25 Ency. 1168. Assessments of this character are upheld upon the theory that the special benefits inuring to the property assessed are equal to the burden thereby imposed; that is to say, that an improvement to defray the expense of which the proceeds of the special assessments are applied must benefit the property on which the special assessment is levied in a manner local in its nature, and which does not attach to other property of a like character, and in order to be valid must specially enhance the value of the property against which such assessment is levied at least equal to the amount so assessed. City of Denver v. Kennedy, 33 Colo. 80, 80 P. 122, 467.

One test, then, to apply in order to ascertain the validity of a special assessment is whether or not the property upon which it is levied is specially...