16 Colo. App. 375 | Colo. Ct. App. | 1901
Lead Opinion
This proceeding was instituted by Floras P. Dumars and a number of others, suing in behalf of themselves and all other persons similarly situated and interested, against the city of Denver, and its treasurer and ex officio collector, to obtain a decree annulling an assessment ordered by the authorities of the city against the real estate of the plaintiffs and the others, for the construction of a storm sewer; removing from the title of the plaintiffs the cloud occasioned by the assessment, and perpetually enjoining the defendants from enforcing it.
I. The ordinance creating the sewer district was not published in book or pamphlet form, and was not published at all, except once in the Denver Republican, on Sunday.
II. The bill authorized the expenditure of more than $5,000, and no advertisement, stating the general nature of the proposed expenditure, was ever made.
III. The board of public works did not, by advertisement for twenty days, in two daily newspapers of general circulation, published in the city of Denver, or otherwise, or at all, 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 cost would be payable ; the rate of interest on unpaid installments; the extent of the district to be assessed; the probable cost as shown by the estimate of the engineer ; the time, not less than thirty days after the first publication, when a resolution ordering the improvements would be considered by the board, showing that the map and estimates, and all resolutions and proceedings of the hoard, were on file, to be seen and examined at the office of the board during business hours, and stating that all complaints and objections that might be made in writing, concerning the proposed improvements, by the owner of any real estate to be assessed, would be heard and determined by the board before its final action.
The complaint also stated that the defendants were proceeding to the collection of the assessment against the plaintiffs by sale of the land belonging to them, and upon which the defendants alleged the assessment to be a lien.
An objection now taken 'to the complaint by the defendants, is that it is crowded with irrelevant and immaterial allegations. The ground of their demurrer was not that the complaint stated too many facts, but that it did not state enough; and if sufficient can be found in it to constitute a cause of action, that it contains, in addition, a mass of unnecessary matter, is inconsequential. Baum v. Holton, 4 Colo. App. 406. But the principal reasons urged for the defendants in support of the judgment, are thus stated in the printed argument of their counsel: “We think it very clearly appears from the foregoing synopsis of the complaint that if the allegations made are true, and certainly it does not lie in the mouth of the plaintiffs to deny the truth of any of them, then the proceedings complained of, and all laws purporting to authorize the same, are on their face unconstitutional and null and void, and are not sufficient even to create a cloud upon the title of the plaintiffs. For this reason the plaintiffs are not entitled to the interposition of a court of equity.” Counsel neglect to distinguish between the two separate and independent grounds upon which relief is sought, namely, the unconstitutionality of the law under which the proceedings were had, rendering them void upon their face; and, on the hypothesis of the constitutionality of the law, the failure of the city to comply with its provisions. Yet both of these grounds are relied upon by the plaintiffs, and each shall be subjected to examination.
Respecting the question of the effect upon title, of proceedings void upon their face, the authorities are not agreed; some affirming, and others denying, that such proceedings create a cloud, the removal of which is within the jurisdiction of a court of equity. But the distinctive features of this case render it unnecessary for us to be parties to that controversy; and, proceeding on the hypothesis that void
While void proceedings cast no cloud upon title to real estate, and a single individual, moving only in his own behalf, and for his own purposes, to restrain such proceedings, will be remitted to his remedy at law, yet where a number of persons are similarly affected, and the rights of all may be adjusted in one proceeding, a court of equity will assume jurisdiction, notwithstanding there is no cloud to remove, and the ground of its jurisdiction is the prevention of a multiplicity of suits. Dows v. Chicago, 11 Wall. 108; Railway Co. v. Cheyenne, 113 U. S. 516 ; Heywood v. Buffalo, 14 N. Y. 534; Keese v. Denver, 10 Colo. 112; 1 Pomeroy’s Equity, §§ 260, 273.
The complaint in this case shows that a number of persons are affected by the same assessment, and that to determine their rights at law would require as many suits as there are individuals; and it also shows that while they have no common ownership in the property affected by the assessment, they have a community of interest in the questions of law and fact involved in the controversy; and upon authority so overwhelming as to he practically unanimous, the case is one peculiarity of equitable cognizance. See also Pomeroy’s Equity, § 269.
Defendants’ counsel refer us to Highlands v. Johnson, 24 Colo. 371, as announcing a contrary doctrine. Johnson brought an action against the city of Highlands to restrain the collection of an assessment against his land for the construction of a sewer, on the ground, among others, of a violation of the federal and state constitutions. The only allusion to this ground in the opinion, which was delivered by Mr. Justice Campbell, was the following: “ That a tax, or assessment, is void is not sufficient to justify the interposition of a court of equity to restrain its collection.” We have nowhere said that it is; and according to the view of the law which we have taken, it is not. The idea
But the position of our supreme court upon the questions under consideration is not equivocal, and the law applicable to them may be regarded as settled in this state. In Keese v. The City of Denver, 10 Colo. 112, where a number of parties united in a proceeding against the city of Denver, and certain of its officers, to enjoin a sale of their land in virtue of an assessment for the building of a sewer, and asking the same relief for all persons similarly situated, the decision was that upon the facts shown, the city council was not authorized to cause the sewer to be constructed, and was, hence, not authorized to levy an assessment to pay for its construction ; that the assessment was, therefore, void; and that, to the end that the rights of all persons interested might be determined in one suit, it was proper for the plaintiffs to sue for all others similarly situated and interested. The judgment of the court below dismissing the plaintiff’s bill of complaint was reversed. In 1893, the general assembly passed an act which, in terms, provided that when, by final decree of the court of appeals or the supreme court, any assessments made by the city of Denver for the construction of district sewers have been declared invalid in a direct proceeding to determine their validity, the city might, nevertheless, upon the passage of a resolution by the city council declaring the sewers necessary for sanitary purposes, assess the reasonable value of that portion of the sewers adjoining all lots in the district,
The question of the constitutionality of the law is not before this court. The decision of that question belongs to another tribunal. What I mean is, simply, that under proper conditions, equity will relieve against proceedings had pursuant to a statute which is in contravention of the constitution. But this case presents another feature, and to that I shall now direct my attention. The first ground for relief set forth in the complaint, is the invalidity of the proceedings, appearing on their face." The next ground is their invalidity by reason of matters aliunde. If the allegations of fact be true, then, conceding the constitutionality of the law, the city officials failed in the performance of duties prescribed by the statute, and prerequisite to jurisdiction. The facts invalidating the proceedings do not appear on the face of the record, so that those proceedings ar e prima facie regular and valid, and to avoid them, resort must be had to outside evidence. In order to a clear understanding of the situation, I
ARTICLE 2, SECTION 8.
“No ordinance shall take effect until published in some newspaper of general circulation, published in the city of Denver, or in book or pamphlet form by authority of the city council.”
ARTICLE 2, SECTION 10.
“No bill granting any franchise or special privilege, and no bill or resolution authorizing the expenditure of more than five thousand dollars ($5,000) shall be passed until the expiration of at least one week from and after the introduction of the same ; nor until an advertisement has been made by the city clerk for at least five (5) days in some such newspaper, stating the general nature of the proposed franchise, privilege, contract or expenditure, as the case may be.”
ARTICLE 7, SECTION 3, PROVISO 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 cost 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 estimate 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 owner of any real estate to be assessed, will be heard and*383 determined by the board before final action of thé board thereon.”
ARTICLE 7, SECTION 23.
“ In ordering the construction of district sanitary sewers, and all storm sewers, the board shall proceed as required in the first, second and fifth provisos of section three (3) of this article.”
We shall now inquire into the nature of these charter requirements, and the effect of their disregard.
I. As will be seen hereafter, district sewers for storm drainage must be authorized, and storm sewer districts prescribed, by ordinance; and no ordinance takes effect until published in some newspaper of general circulation, published in the city of Denver, or in book or pamphlet form, by authority of the city council. Without publication- by one of those methods, there was no ordinance. The question is whether the publication in question here, having been made on Sunday, was legal, or sufficient to give effect, or impart validity to the ordinance. In Schwed v. Hartwitz, 23 Colo. 187, it was held that publication of a notice of a tax sale was in the nature of service of process, and that where the publication was made onty on Sunday, the sale which followed it was void. As the publication of a notice of a tax sale was the only publication in the case, the court went into no general discussion of the question what the character or purpose of a publication must be to make it equivalent to service of process ; but among the cases to which it referred were two which we shall examine in order to deduce from them, and from the use made of them in the opinion, what the judgment of the court upon the question now under consideration would have been, if the facts of the case before it had rendered such judgment necessary. Hastings v. Columbus, 42 Ohio St. 585 ; Ormsby v. Louisville, 79 Ky. 197.
In Hastings v. Columbus, the plaintiffs, as contractors, sought to recover the amount of an assessment for an asphalt pavement against the owners of abutting lots. The
It will be observed that the result reached by the Ohio court, and that reached by our own supreme court, differ. We find, however, that the seeming disagreement involves no principle. The conclusions are different, because the premises are different, but there is no conflict of opinion. Our court does not agree that the Ohio decision is contrary to its own, except apparently, and says that the entire reasoning of the opinion
In Ormsby v. Louisville, supra, the same question of the legality of a Sunday publication of an ordinance was considered. The charter of the city of Louisville provided that all ordinances of the city of Louisville should be published in at least two papers, having the largest bona fide circulation in the city. The court said: “ A publication of the levy ordinances on Sunday, and on no other day, before seeking to enforce them, is not such a publication as the charter requires, or the law of this state approves. It is not a judicial
In Schwed v. Hartwitz, our supreme court also cited in support of its decision the case of Scammon v. Chicago, 40 Ill. 146. The question in that case concerned the legality of the publication on Sunday, of a notice of assessment in condemnation proceedings. The court held that the notice stood in place of process, and that its publication on Sunday was invalid, because service of process on Sunday would be invalid. The court, of course, confined itself to the subject before it. It decided the case with reference to the particular notice involved, and went into no general discussion of classes of notices. It rested its decision upon the following statutory provision: “ Any person who shall knowingly disturb the peace and good order of society, by labor or amusement on the first day of the week, commonly called Sunday, works of necessity and charity excepted, shall be fined,” etc. It is evident that the mere publication of a notice in a newspaper on Sunday would not necessarily disturb the peace or good order of society, and so the court applied the statutory provision to the case before it as follows : “ A large and most respectable portion of the community consider it immoral to issue Sunday newspapers, and if these notices should be published in such newspapers only, property holders en
My apology for the space occupied in reviewing the foregoing authorities is the strong effort made in argument to avoid what I believe to be their effect. I can conceive of no publication required by law, the purpose of which is not to give notice of something to particular persons or to the public. The reason for the publication of an ordinance is that the public may receive notice of its provisions. Any notice which the law directs to be given is in the nature of process ; and its publication, when so required, is in the nature of service of process. The publication of the ordinance in question, being, in effect, the publication of a notice, was, according to the decision in Schwed v. Hartwitz, not such a publication as the law requires ; hence the ordinance never took effect, and all the proceedings which followed it were void.
II. I come now to a consideration of section 10 of article 2, and preface the discussion with the following further charter provisions:
ARTICLE 7, SECTION 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.”
*390 ARTICLE 7, SECTION 20.
“ The board of public works may order the construction of district sewers for storm drainage for districts to be known as storm districts, the same to be prescribed by ordinance.”
The question to be settled is whether the ordinance required by sections 2 and 20 of article 7, is an ordinance authorizing the expenditure of money within the meaning of section 10 of article 2. While the board of public works may order local improvements, the improvements must be authorized by an ordinance. The order is ineffective without the ordinance. While the ordinance cannot be amended by the council, but must be adopted, if it is adopted at all, in the form recommended by the board, it is still subject in other respects to the rules prescribed for the enactment of ordinances ; and as no distinction is made between an ordinance for one purpose and an ordinance for another purpose, andas the words “authorizing the expenditure of more than five thousand dollars,” are unqualified, if the ordinance in question authorized the expenditure of more than $5,000, the advertisement required by section 10 of article 2 was essential to its validity. It is said that the complaint describes the ordinance as an ordinance authorizing the expenditure of more than $5,000, and that, as the demurrer admits that the allegation is true, it must be so accepted by us ; but the nature of the ordinance and the power of the city council in respect to it, are defined by the charter; and a provision embraced in it which the charter does not warrant, is null. No right to relief could be based on such provision, and a party asserting it could derive no benefit from an admission of its existence.
From a careful examination of the provisions of the city charter relating to local improvements, and, in the matter of their construction, to the division of power between the board of public works and the city council, I have reached the conclusion that the ordinance required by sections 2 and 20 of article 7, is not, and cannot legally be, an ordinance for the expenditure of money. Sections 35 and 36 of article 3 vest in the board of public works the exclusive management and
While the provisions of section 10 of article 2 are not applicable to the ordinance required by sections 2 and 20 of article 7, and the averment of failure of compliance with its terms in the passage of the bill and the publication of the required advertisement, would not entitle the plaintiff to the relief sought, and, on motion, would have been stricken out, matters were alleged, which, if true, would avoid the assessment. These matters do not appear on the face of the record. Prima facie, the proceedings were regular and valid,
At the oral argument, it was maintained by counsel of the defendants that to entitle the plaintiffs to relief by injunction, it was incumbent upon them to pay or tender the amount assessed against them severally, and that the want of an allegation that they did so pay or tender, was fatal to the complaint. In answer to this contention, I quote the following from the opinion delivered by Mr. Justice Harlan, in Norwood v. Baker, 172 U. S. 269: “Mr. High, in his treatise on Injunctions, says that no principle is more firmly established than that requiring a taxpayer, who seeks the aid of an injunction against the enforcement or collection of a tax, first to pay or tender the amount which is conceded to be legally and properly due, or which is plainly seen to be due. But he also says : ‘It is held, however, that the general rule requiring payment or tender of the amount actually due as a-condition to equitable relief against the illegal portion of the tax, has no application to a case where the entire tax fails by reason of an illegal assessment. And in such case an injunction is proper without payment or tender of any portion of the tax, since it is impossible for the court to determine what portion is actually due, there being no valid or legal
The complaint is amply sufficient, and the demurrer should have been overruled.
The judgment should he reversed.
Reversed.
Concurrence Opinion
concurring specially.
Upon the ground that the complaint probably states a cause of action in its allegations that the board of public works failed to properly discharge certain material duties with respect to the matter in controversy,T agree with my brother Thomson that the judgment should be reversed. I agree also that this suit can be maintained upon the well-known ground of equity jurisdiction, — the prevention of a multiplicity of suits. I cannot concur with him, however, in his' opinion that the so-called ordinance of the city never became effective and was a nullity, because according to the complaint, it was never published in book or pamphlet form, and was published but once in a newspaper, and that upon Sunday.
In Schwed v. Hartwitz, 23 Colo. 188, it was held that the publication of a notice of a tax sale is. in the nature of serv
The meaning of the word, and its object and purpose, has been fixed however by judicial declaration and approval in Colorado. “It imports the writs which issue out of any court to bring the party to answer, or for doing execution. * * * A party is entitled to "notice and to a hearing under the constitution before he can be affected, but it is nowhere, declared or required that that notice shall be only a writ issuing out of a court.” Mining Co. v. Frost, 15 Colo. 313. It would seem, therefore, to be essential in order to constitute process, that the notice be of something proposed against which the party notified might have the opportunity to appear or to defend himself or his property. That the ordinance in question was not of such a character or nature,
The general rule is that an act, not judicial, performed on Sunday is valid, unless prohibited by some statute. Story v. Elliot, 8 Cowen, 27; 18 Am. Dec. 423. The only statute in this state which might be claimed to bear upon this question in the slightest degree, reads as follows:
“Any person who shall hereafter knowingly disturb the peace and good order of society by labor or amusement on the first day of the week, commonly called Sunday, works of necessity and charity excepted, shall be fined on conviction thereof in any sum not exceeding fifty- dollars.” That statute was taken from Illinois, and the courts of that state construe it to prohibit only labor or amusement that disturbs the peace and good order of society. It prohibits only labor or amusement of that character, and which has that effect. The offense, in other words, is the disturbance of the peace and
In my opinion, Hastings v. Columbus, 42 Ohio St. 586, supports my position. It is true that there was a statute in that state permitting the service o f summons on Sunday, and that the court held the .publication of a legal notice under consideration to be quite analogous to service of summons. But the court went further, and this too in the face of a statute different from ours, in that it prohibited “ common labor ” on Sunday, and said, “ A Sunday newspaper is not an unlawful publication, and the fact that persons engaged upon it may have violated the statute against common labor in preparing and circulating it, no more affects the legality of the notice, than the fact that a sheriff may have committed some offense at the time he serves a summons, would affect the legality of the service. In one case as well as the other the service is in fact effectual in giving actual notice, and we see nothing in the common law or our statutes which would
I am of the opinion that the publication on Sunday of the ordinance in question was legal, valid, and not repugnant to the requirements of the city charter.
Concurrence Opinion
concurring specially.
The trial judge sustained a general demurrer to the complaint. To review the judgment of dismissal consequent, plaintiffs are here. If the complaint states a cause of action, the judgment should be reversed. Defendants in error concede that the complaint states a cause of action, provided the equitable doctrine of a prevention of a multiplicity of suits is applicable to the facts herein. As allegations in the complaint other than those involved in the points presented by the petition for the rehearing are sufficient if true to invalidate the assessment, it was unnecessary in determining the application of such equitable doctrine to decide any one of the points urged in the petition for a rehearing; the main opinion determines that the facts are.within this equitable doctrine and such conclusion is not dependent upon a ruling of any one of such points upon which the rehearing is asked;
The points upon which further consideration is asked are:
, “ 1. That the proceedings are void because the ordinance prescribing the district was published on Sunday instead of on a week day.
“ 2.' That the proceedings are void because the ordinance prescribing the district authorized an expenditure of more than five thousand dollars (15,000) and was not published for five days before its passage.
“ 3. That the proceedings are void because no proper notice to property owners was given by publication before creating the district or ordering the construction of the sewer.”
I will consider these points in their charter order:
First. Point three presents the step prescribed by subdivision 2 of section 3 of article 7. This point the president judge has not ruled. I concur in the conclusion of the associate judge that if the notice required by this subsection was not published for twenty days in two daily newspapers of general circulation published in the city of Denver, that all subsequent proceedings in establishing the district were invalidated thereby unless cured by subsection 8 of said section 3, article 7. Neither of my associates speak as to the effect of such curative statute. A ruling thereon is not essential to this decision and may never be called for, hence I express no opinion thereon. What departure from the statute in making such publication other than a publication for
Second. I concur in the conclusion that section 10 of article 2 of the Denver charter does not apply to the ordinance herein creating the storm sewer district.
Third. Section 8 of article 2 provides, “ No ordinance shall take effect until published in some newspaper of general circulation published in the city of Denver, or in book or pamphlet form by authority of the city council.”
The ordinance passed in pursuance of the order of the board of public works establishing the storm sewer district was published in a newspaper of general circulation published in the city of Denver. It is contended, however, that its publication on Sunday was not a compliance with above section 8.
The charter contains provisions which, if observed, will well advise the real estate owner of the steps proposed and taken for the establishment of a storm sewer district. Subsection 2 of section 3, article 7, provides that at least thirty days’ notice by twenty days’ publication in two daily newspapers shall be given that the board of public works will on the day specified, consider making an order for the establishment of a storm sewer district. It is provided that upon the return day of the notice the owner can be heard concerning the proposed improvement. Let it be borne in mind that the board of public works, by resolution, orders the sewer district; that it drafts the ordinance establishing the district, and that the city council passes the ordinance without the power to change or amend it. After the system of sewers has been completed, has been accepted by the board of public works and the board has made a tentative apportionment of the cost thereof among the parcels of land to be assessed, such result is certified to the city council, it is then the duty of the city clerk by advertisement for ten days in some newspaper of general circulation published in the city of Denver to notify the owners of real estate to be assessed that the improvements have been completed and accepted, therein specifying the
The proceedings in the present case had passed through the preliminary stages and the permanent assessment roll was about to be certified to the county treasurer when this suit was instituted. The first publication was about October 2, 1897, under subsection 2 of section 8 of article 7, advising the real estate owners that on a certain day the board of public works would consider a resolution ordering the improvement. The last publication was that of the assessment ordinance January 26, 1899. The complaint was filed herein March, 1900. The procedure provided by article 7 in case of local improvements is elaborate and gives the owners of real estate ample notice and opportunity to be heard. Realizing the irregularities that so usually occur in such proceedings the legislature clearly manifested in article 7 that it intended so far as might lie in its power to prevent irregularities invalidating such proceedings. Subsection 8 of section 3, article 7, provides, “ The finding of the city council by ordinance that any improvements provided for in this article were duly ordered after notice duly given or that a petition or remonstrance was or was not filed as above provided, or was or was not subscribed by the required number of owners aforesaid shall be conclusive in every court or other tribunal.” Section 32 of said article provides, “No delays, mistakes, errors or irregularities in any act or proceeding authorized by this article shall prejudice or invalidate any final assessment. These quotations are suggestive of the spirit with which this act should be interpreted. Should this entire
I concur in the'conclusions of the president judge that the publication of this ordinance in this case was not in the nature of the service of process. Schwed v. Hartwitz, 23 Colo. 187, is cited in support-of the contention that the publication of this ordinance was in the nature of the service of process and that the publication was therefore illegal. The court held therein that a publication on Sunday of a notice of tax sale of real estate does not constitute legal
Ormsby v. City of Louisville, 79 Ky. 199. Here the ordinance levying taxes was required to be published once in at least two newspapers. The publication was made on Sunday. The court held such publication illegal basing the decision upon the statute of the state and saying, “ Sunday is not a judicial day, nor is it a day upon which any work, labor or calling can be legally pursued * * * and the publication is a violation of law.”
Blackwell on Tax Titles (5th ed.), § 440, in presenting the law on the subject of advertisement of a tax sale, says, “ A publication on Sunday is no notice; Sunday is not a judicial day; such publication is itself a violation of law and no
In Hastings v. Columbus, 42 Ohio St. 586, it was decided that a publication of an ordinance upon Sunday was not illegal because such publication was not prohibited at common law or by statute.
The publication assailed is not in the nature of the service of process; it is not a notice of sale of real estate for taxes, hence not within any one of the authorities cited.
Neither the common law nor the statute law was violated in publishing this ordinance on Sunday. Hastings v. Columbus, supra ; Richmond v. Moore, 107 Ill. 429.
I concur in the conclusion of the president judge that the Sunday publication questioned is legal.