33 Colo. 162 | Colo. | 1905
delivered tlie opinion of the court.
After the publication of the notice by the board of public works of intention to create the grading district, and before the ordinance creating the district was passed by the city council, the board changed the plans and specifications for grading, and recalled the ordinance recommended to the council. The board changed the plans and specifications without further notice to the property owners, and recommended another ordinance to the city council in conformity .therewith, which was passed. According to the minutes of the proceedings of the boárd, it appears that the. specifications were so changed by leaving out certain matters incorporated therein originally, that the expense was reduced something like thirty per cent. This reduction was the result of eliminating certain work originally contemplated. After the passage of the ordinance a contract was let for the work as specified in the changed specifications. This work was completed and the cost assessed upon the real property in the district. The notice given by the board to contractors inviting bids specified, among other things, the amount of the bond which the contractors would be required to give, and the time within which the work was to be completed. There was but one bid, which was accepted. Shortly after this acceptance the board, before the execution of the contract, reduced the amount of the bond from that specified in the notice, and extended the period within which the work was to be completed four months beyond that named in the notice. The trial court held that the change in the specifications, the reduction of the bond, and the extension of the time within which the work should be completed invalidated the proceedings and rendered the assessments thereunder void.
On first reading these sections, there is an apparent conflict, but in construing statutes the rule is, to so construe them, if possible, that they will be harmonious, and effect given to every clause and section.
Section 62 does not deal with presumptions. It provides that suits must be brought within a certain period. These, however, cannot be actions involving questions which the owner is precluded from raising after the lapse of the period prescribed by the provisions of section 34, but, on the contrary, only relate to such as are not embraced'in that section. In short, all eases involving questions relative to steps prescribed which the legislature might have dispensed with in the first instance are- barred if, within thirty days after the passage of the assessing ordinance, the owners do not in some appropriate manner object to the assessments within that period; because, after the lapse of that time, presumptions attach as to these matters which cannot be rebutted, while section 62 embraces those cases in which questions are still open, after the lapse of thirty days from the date the assessing ordinance was passed, but provides that actions to litigate them must be commenced within a specified period. Thus construed, the two sections are rendered harmonious, and full force and effect given to the provisions of each. Section 34 is not objectionable because of the inhibition of the constitution against special legislation. The charter of the city of Denver is-special, and its provisions as to when suits may be brought to annul special assessments are not subject to the constitutional inhibition against-special legislation. Nor does the construction given violate section 6 of the bill of rights. We do not hold that a party seeking to be relieved, from an alleged invalid assessment
The city authorities created a grading district. There is no express provision of the charter either for or against this action. In the absence of statutory regulations the municipal authorities are vested with discretion in laying out a district within which a specific improvement is to be made. For the purpose of properly grading any street it may often be necessary to include others, so as to secure a uniformity of grade; and hence, the creation of a grading district cannot be disturbed unless it should appear clearly that the action of the municipal authorities was so unreasonable as to make it appear that they had acted in excess of their authority. An examination of the plat of the district does not disclose that the board acted either unjustly or unreasonably in creating the boundaries of the district.
The charter prescribes that the cost of grading-streets, except at the intersection of streets and alleys, shall be assessed upon all the lots abutting on the streets graded in the proportion that the frontage of each lot is to the frontage of all the lots in the graded district. This rule, though arbitrary, does not contravene the law that assessments for local public improvements shall be in proportion to the benefits, because it appears to be a fair one. Where the rule works an injustice, relief may be granted. A distribution of the cost of grading under this rule cannot be set aside, because it majr appear that in a few instances the assessment was in excess of the benefits accruing to particular lots. In other words, such a condition would not
In conclusion, it is perhaps not amiss to add, although not deciding the point, that the trend of the decisions of recent years ■ involving questions affecting the validity of municipal improvements, is to be less technical than formerly, and to require owners whose property may be assessed for such improvements to he at least reasonably diligent in protecting their rights before, the improvements are completed. — Lord v. Bayonne, 46 Atl. (N. J.), 701; Lewis v. Albertson, 53 N. E. (Ind.), 1071; Arnold v. City of Ft. Dodge, 82 N. W. (Iowa), 495; Clinton v. City of Portland, 38 Pac. 407.
Elliott, in his work on Eoads and Streets (2d ed.), 590, says:
“There is sound reason for extending, rather than abridging, the principle of estoppel in street’ assessment cases.”
Owners ought not to be permitted, by their silence, to mislead contractors, municipal authorities, and those supplying the money to pay for improvements by the’purchase of bonds, respecting matters which could have been corrected had the attention of the municipal authorities been called thereto in apt time..
The judgment of the district court is reversed, and the cause remanded with directions to enter judgment for the defendants.
Reversed and remanded.