Rhodes v. Board of Public Works of City of Denver

• Decision Date: 28 June 1897
• Citation: 49 P. 430,10 Colo.App. 99
• Parties: RHODES et al. v. BOARD OF PUBLIC WORKS OF CITY OF DENVER.
• Court: Colorado Court of Appeals

49 P. 430

10 Colo.App. 99

RHODES et al. v. BOARD OF PUBLIC WORKS OF CITY OF DENVER.

Court of Appeals of Colorado

June 28, 1897

Appeal from district court, Arapahoe county.

Mandamus by James E. Rhodes and others against the board of public works of the city of Denver. From an order sustaining a demurrer, one of the petitioners appeals. Reversed.

James H. Brown, for appellants.

F.A Williams and G.Q. Richmond, for appellee.

Thomas Bryant & Lee, amici curiae.

THOMSON P.J.

On the 16th day of March, 1896, the following petition was presented to the board of public works of the city of Denver "Petition for Paving on Pennsylvania Avenue. To the Honorable Board of Public Works and City Council of the City of Denver: The undersigned, your petitioners, owners of the frontage of lots and tracts of land described opposite their respective names, hereby, in pursuance of the charter of the city of Denver, passed by the Ninth general assembly of the state of Colorado, respectfully petition your honorable bodies for the grading, paving, and curbing of Pennsylvania avenue, including intersections, from the north line of Eighth avenue to the south line of Twelfth avenue, in the city of Denver; the wearing surface of the pavement to be that known as 'Trinidad Lake Asphalt,' and equal in quality to that laid on California, Stout, Glenarn, and Nineteenth streets. We request that the wearing surface be one and one-half inches in thickness, laid upon a bituminous binder not less than one inch in thickness, and that a hydraulic cement concrete foundation four inches deep be required; that you require a five-year guaranty; order the work on the five installment plan; and we further request that, if the lowest reliable and responsible bidder shall bid exceeding two dollars and twenty-one cents per square yard for the above paving, that all bids be rejected. We further request that the distance between the curbs be established at not more than forty feet, nor less than thirty feet, leaving the balance for parking and sidewalk. And we will ever pray." This petition purported to be signed by the owners of a majority of the frontage on Pennsylvania avenue, between the north line of Eighth avenue and the south line of Twelfth avenue. Upon the presentation of the petition, the board of public works, at a meeting duly called and held, acted upon the petition, and made and entered the following order in respect thereto: "First. That the right of petition of the owners of a majority of the frontage to be assessed for any particular material for the wearing surface is not paramount to, but subject to, the charter provisions of the same clause requiring genuine competition between contractors, so that there can be at least two or more bids by individuals or companies in no manner connected with each other; and this petition is so specific as to render compliance with that part of the charter doubtful, in the mind of the board (although as to that matter this board has had no hearing or evidence), so that it does not feel warranted in putting the city to the expense of making preliminary surveys, and preparing specifications, which would necessitate a fruitless expenditure of the city's money in case it turned out that, in specifying said Trinidad Lake asphalt as a wearing surface, there could not be genuine competition between contractors by at least two or more bids, as required by the charter. Second. That, in the opinion of the board, it would be establishing a bad precedent to recognize a petition so specific as this one, since the board might hereafter be compelled to accept a petition for a wearing surface which would be a detriment, instead of an improvement, to the street. Therefore it is resolved, that while said petition is sufficient in all other respects, and the public necessity requires that said street should be paved, nevertheless, for said reasons, and no other, that, until this question be otherwise determined by some binding judicial decision of the courts of this state, the petition be denied." Thereupon the appellant, one of the petitioners, for himself and on behalf of the others, instituted this proceeding, praying for a writ of mandamus commanding the board to accept and entertain the petition, and to proceed with the improvement of the portion of Pennsylvania avenue which it described, in manner and form, as by the charter of the city of Denver provided. The respondent demurred to the petition for a mandamus, on the ground that it did not state facts sufficient to constitute a cause of action against it, or to warrant the court in granting the relief prayed for. The demurrer was sustained, and judgment rendered in favor of the respondent, from which error is prosecuted to this court.

The argument has taken a wide range, but we do not deem it necessary for us to follow it in all its ramifications. Upon the record before us, we think that the determination of a few questions will dispose of the case in this court. The general authority of the board of public works in the matter of public improvements, in so far as any question concerning it is involved in this record, is conferred by section 35 of article 3 of the charter of the city of Denver, and is expressed as follows: "The board of public works shall have exclusive management and control of the construction, reconstruction and maintenance of all public and local improvements, including the grading, paving, curbing or otherwise improving of the streets, alleys and other public places, except parks, of the city." Sess.Laws 1893, p. 167.

The sections specifically defining their duties in relation to the improvement of streets, in so far as they affect any question before us, are as follows:

"Article VII. Public Improvements.

"Section 1. The city shall have power to contract for and make local improvements, and to assess the cost thereof wholly or in part upon the property specially benefited, as hereinafter provided. All contracts for public improvements shall be awarded by the mayor, upon the recommendation of the board of public works, and the improvements shall be constructed by and under the direction of said board, in accordance with specifications prescribed by said board. In all cases when the cost of local improvements is to be assessed wholly or in part upon the property benefited, the same shall be constructed by independent contract or contracts; but other public improvements may be constructed by day's labor under the direction of the board.

"Sec. 2. Whenever the board of public works shall by resolution, order any of the local improvements herein mentioned, the same shall be authorized by ordinance; which ordinance shall be in form recommended by the board of public works by endorsement thereon, and shall not be subject to amendment by the city council.

"Sec 3. The board of public works may order the grading, curbing and paving, or otherwise improving, of the whole or any part or parts of any street or streets, alley or alleys or streets and alleys in the city of Denver, or any one or more of the said improvements. In case of grading only, or of grading and curbing only, the improvements may include the necessary cross walks; and the board may thereafter, under the conditions herein prescribed, do such further grading as may be necessary in paving or otherwise improving the same area: Provided, First. Before ordering the improvements mentioned in this section, or any of them, the board of public works shall adopt full details and specifications for the same, permitting and encouraging competition, determine the number of installments and time in which the cost shall be payable, the rate of interest on unpaid installments, and the district of lands to be assessed for the same, as in this act provided; and shall cause the engineer of said board to make a map of the district and an estimate of the total cost of said improvements, showing the approximate amounts that will be assessed upon each piece of real estate in the district; and no contracts shall be let for any amounts exceeding the estimates of the engineer. Second. The board shall by advertisement for twenty days in two daily newspapers of general circulation, published in the city of Denver, give notice to the owners of the real estate in the district, of the kind of improvements proposed, the number of installments and time in which the costs will be payable, the rate of interest on unpaid installments, the extent of the district to be assessed, the probable cost as shown by the estimates of the engineer, and the time, not less than thirty days after the first publication, when a resolution ordering the improvements will be considered by said board; that said map and estimates and all resolutions and proceedings of the board in the premises are on file, and can be seen and examined at the office of the board during business hours, at any time within said period of thirty days, by any person interested; and that all complaints and objections that may be made in writing concerning the proposed improvements, by the owners of any real estate to be assessed, will be heard and determined by the board before final action of the board thereon. Third. If owners of a majority of the frontage to be assessed, shall petition for paving, and for any particular materials for the wearing surface, then the improvements shall be ordered, and the material so designated shall be used; but no paving shall be ordered unless a petition for the same is first presented, subscribed by the owner of a majority of the frontage to be assessed for the same; and in every instance the material shall be so described in the specifications, either by standard or quality, as will admit of genuine competition between...