Hallett v. United States Security & Bond Co.

40 Colo. 281 | Colo. | 1907

Mr. Justice Gabbert

delivered the opinion of the court:

1. There is no provision of the charter with respect to the creation of a sidewalk district. In the absence of statutory regulations, the municipal authorities are vested with discretion in laying out a district within which local public improvements shall be made. — City of Denver v. Campbell, 33 Colo. 162.

2. In giving’ notice to property owners to construct, or in respect to, a local improvement, in so far as description of property is concerned, it is sufficient if, from such notice, it can be said the lot owners were advised that their property would be affected by the proceedings to which the notice referred. The notices in the case at bar were addressed to “The property owners in West Denver Sidewalk District No. 6.” Therein the district was described with reference to streets. This was sufficient to advise all persons owning lots within the territory thereby described of the proceedings involved.

3. The charter is not invalid because it does not specify the tribunal (we refer to the charter provision found in the Law of 1889), or the time or place for hearing objections before assessments for sidewalks constructed by the city become final. Power is thereby granted the city authorities to provide for such notice and such tribunal, and that is sufficient. — City of Denver v. Dumars, 33 Colo. 94; City of Denver v. Londoner, 33 Colo. 104; Paulsen v. Portland, 149 U. S. 30.

For similar reasons the charter provisions of 1893 are valid.

Neither is the ordinance invalid because it does not specify the time and place when objections filed will be heard and determined. It contemplates a hearing upon objections to assessments, and names the tribunal to hear them before such as are objected to become final. Perhaps owners filing objections to assessments in response to the notice by the clerk, which the ordinance says shall be given to therb., should have notice of the time and place when they would be considered and determined, but that right has not been denied in the case at bar, because no objections were filed, and the ordinance cannot be construed to inhibit or not to require such a notice to those who have filed objections.

The charter and ordinance are not invalid because neither specifies the character of objections which will be considered in fixing the amount of the sidewalk assessments. Having provided for a hearing with respect to such assessments, it logically follows that the tribunal designated shall hear and determine all questions which would be competent to present to that tribunal, attacking the validity or amount of such assessments. — City of Denver v. Dumars, supra; Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112.

Whether or not the charter of 1889 failed to provide a specific method for determining how the assessment against a lot to defray the expense of constructing a sidewalk in front thereof should be made, or left it with the city authorities to make such assessment according to benefits, is not presented by the record. It was the province of the city authorities to determine the rule to be followed in making, and the amount of the assessment in the first instance. Neither appellant nor his predecessor raised any question before the special forum provided by law to determine these questions. The owner must avail himself of the opportunity afforded to appear and mak'e objections to special assessments in the special forum which the law has designated for that purpose. Otherwise, he will not be heard to object in any other forum.- — City of Denver v. Dumars, supra.

4. The fact that the amendatory ordinance shortened the time within which objections to assessments might be filed is not a matter of which appellant can complain. The charter as it existed at the time when the proceedings were initiated did not specify the time within which such objections might be filed, but left that matter entirely to the discretion of the city authorities. The latter, by changing this time, only changed the procedure, and this-change did not divest the lot owner of any vested right.

5. . This amendatory ordinance is not illegal because published on Sunday. It was not process. —City of Denver v. Dumars, supra; City of Denver v. Londoner, supra; Dumars v. City of Denver, 16 Colo. App. 375.

6. There are two reasons why the question of assessing the corner lot with the expense of laying a walk from the lot line to the curb of the abutting street cannot be considered: (1) There was no application to the tribunal provided by law to correct this alleged error — Spalding v. City of Denver, 33 Colo. 172; and (2) it appears that the alleged excess is susceptible of mathematical calculation. The entire assessment, therefore, is not invalid, but only that which is excessive; but before a. property owner can take advantage of an excessive assessment in such circumstances, he must pay, or tender, the amount which is valid. — City of Denver v. Kennedy, 33 Colo. 8.

In City of Denver v. Londoner, supra, the law creating the board of public works of the city of Denver was declared constitutional. This was followed in City of Denver v. Iliff, 38 Colo. 357. No new questions are presented by counsel for appellant on that proposition.

The judgment of the district court will be affirmed. Decision en banc. Affirmed.