33 Colo. 80 | Colo. | 1905
Lead Opinion
delivered the opinion of the court.
1.. The power of the city authorities to create the viaduct district, and is the viaduct a local improvement?
2. Was the apportionment according to benefits?
3. The constitutionality of certain charter provisions ; and
4. Were there such irregularities on the part of the city authorities as would render the assessment void?
These several propositions will be considered in their order in connection with the particular facts bearing upon each.
1. The charter of the city of Denver provides that the board of public works may order the construction of viaducts, and unless otherwise directed by the city authorities, the cost of construction shall be assessed against the district benefited thereby. Such district may be created by ordinance on recommendation of the board. — Sec. 181 (Sec. 24, Art. 7), Charter. Under this provision the Fourteenth street viaduct district was created, and the cost of the viaduct in question assessed against the real property included within its boundaries. In the
The only limitation upon this authority,' or, perhaps, more accurately speaking, the rule which the municipal authorities must observe, is that the property assessed is specially benefited. Special assessments for a public improvement are upheld upon the theory that the burden thereby imposed is equivalent to the special benefits inuring to the property assessed to defray the expense of such improvement. — 25 Enc. Law, 2d ed.,. 1168. The essential element of a local improvement is, as. the term implies, that it shall benefit the property on which the cost thereof is assessed in a manner local in its nature, and which does not attach to other property of a like character. — Sperry v. Plygare (Minn.), 49 L. R. A. 757. The important question, then, is, Does the record justify the conclusion that the viaduct was not a local public improvement? Counsel for appellees contend that it does, because, they say, from its •very nature it could not be, for the reason that the benefits conferred, upon the real property within the viaduct district by the construction of the viaduct are no different from those inuring to the other real property within the limits of the city. To determine this matter,-it becomes necessary to refer briefly to the testimony and facts bearing on the question.
The viaduct extends over the Platte river and the railroad tracks on each side. It affords a convenient and direct means of travel between the territory north of the river embraced within the limits
There was testimony pro and con on the subject of the benefits conferred on the property embraced within the .district by the construction of the viaduct. The city extends for several miles along the' river, .and the other portions not embraced -within the district are separated thereby. It is not charged that
2. The city authorities divided the viaduct district into seventeen sub-districts, and in each sub-district assessed the several lots and parcels of land of the same size a uniform rate. The law provides no specific rule which shall be observed by the city authorities in apportioning the cost of the construction of a viaduct on the property included in the viaduct district, but directs that such cost shall be assessed upon the real property in such district in proportion to the benefits to each piece or parcel. The members of the board of public works testified that they endeavored to apportion the cost of the viaduct to .the different parcels of real estate in the district in proportion as they were benefited; that in fixing the assessments they took into consideration the relative position of the property to the viaduct, the line of travel which would be followed in reaching the respective terminals, and in all respects exercised their best judgment, after careful examination of the property in the district with a view to determine what the apportionment of the cost of construction thereon should be; that in considering this matter they examined plats, and interviewed citizens, and grouped the property into sub-districts which,
3. We shall next consider the questions raised below concerning the constitutionality of the charter provisions under which the district was created, and the proceedings adopted which finally culminated in the levy of the assessments of which plaintiffs complain. The charter provides that the cost of construction of viaducts shall, unless otherwise ordered,be assessed upon all the real estate in the.districts benefited. This means against the district specially benefited — 25 Enc.' Law, 2d ed., 1184 — and there is, therefore, no merit in the contention of counsel for appellees, that the law gives the city authorities unlimited power to assess the expense of a viaduct to particular property without regard to special benefits. The charter further provides that after the completion of the improvement, the city clerk, by advertisement for a time specified, shall notify the owners of real estate to be assessed that the improvement has been, or is about to be, completed and accepted, therein 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 properly made by the owners to
4. After some steps had been taken to construct the viaduct, it was found that the original estimate of the expense was not sufficient to complete the work. Thereupon a new estimate was made by the city engineer, and such proceedings had that notice was again given the owners of property in the district of the estimated cost, the boundaries of the district, and other details, as required by the charter provisions on the subject of notice. By these pro
It was contended in the court below that the cost of construction, as assessed against the property of the district, was increased by the addition of interest and cost of collection. Counsel for the city contend that there is, in fact, no excess, because the items referred to were properly taxable as part of the cost and expense which could be assessed against the property of the district. It is not necessary to undertake to determine the questions thus presented by the respective claims of counsel. If, as a fact, there has been assessed against the property of the district a sum in excess of that which was properly taxable, and which, according to the claim of counsel for appellees, is susceptible of exact mathematical calculation,' the entire assessment could not be voided, but only that which was excessive. Plaintiffs, however, in order to take advantage of this condition, if it, in fact, exists, must first pay or tender the amount which would represent the correct assessment against their property after deducting that which is alleged to be excessive. They have made no such offer or tender, nor do they plead an offer on their part to do equity. For these reasons the question of the alleged excess of the assessment over and above the
It is apparent, from the questions discussed and determined, that on the record the plaintiffs wholly failed to make a case entitling them to any relief. The judgment of the district court is reversed, and the cause remanded, with directions to enter judgment that plaintiffs take nothing by their action, and dismissing the same at their cost.
Reversed and remanded..
Dissenting Opinion
dissenting.
I am of opinion that thg action of municipal officers in the exercise of discretionary power and judgment within the scope of their authority should not be disturbed except in case of fraud or its equivalent. The test of reasonableness is objectionable in this, that it permits the court to substitute its judgment for that of the legislative department and requires the levy for special assessments to pass the scrutiny of judges — officers who cannot, from printed records, as justly determine whether the assessments are reasonable or unreasonable as the officers upon whom is devolved the duty of making them. Protesting that my judgment is not, in the nature of things, as reliable as that of the local authorities making the assessment involved in this case; as I am required to say whether the assessment is reasonable or unreasonable, I must say that the assessment is clearly unreasonable for the • reason that the viaduct in question is, in my judgment, a-public and not a local improvement, and that the expense of building the same should be borne by the-entire city.