47 Colo. 79 | Colo. | 1909
delivered the opinion of the court:
The city of Longmont took steps to construct a district sanitary sewer. After the contract was let, some of the plaintiffs in error in cause No. 5583 com
It was further charged that the sum proposed to be assessed against the property of plaintiffs, upon the area plan, will be more than the entire value of their property; that on many of their lots the assessment will be $84.26 per lot, whereas the actual value of such lots does not exceed the sum of $50.00; that the greater proportion of their property consists of vacant lots in the suburban portion of the town, which will receive no benefit from the construction of the sewer system; that included within the sewer district is the business section of the city, where the value of the lots is from three to ten thousand dollars each; that upon such lots the sewer tax will be only about $17.00 per lot; and that there never was any hearing, consideration or determination by the city authorities of the question of benefits and advantages, or any determination of the cost in relation fi> such benefits, as to the several lots embraced within the sewer district, but that the same was arbitrarily made upon the area plan.
It is further alleged that a contract has been let for the construction of the system at a cost of more than sixty thousand dollars, and that the work thereby contemplated will be performed, and the proportionate cost thereby made an unlawful charge upon
It is also charged that the proceedings of the city authorities are in violation of the principle of uniformity in taxation, and will result in taxing the property of the plaintiffs for public use without just compensation, and without due process of law, in violation of §§15 and 25 of art. II, and § 3 of art. X of the constitution of the state.
For answer the city authorities and others made defendants denied that there,was no ordinance, nor provision, nor resolution providing a place and time of meeting where property owners should be heard upon the question of benefits, and denied that the council did not hear the citizens upon these questions, or that the council declined to receive or hear or permit the citizens to present or discuss written protests; alleged that the drainage system was necessary for the preservation and protection of the sewer system in carrying off water which would otherwise find entrance into the-main and lateral sewers, by which means sand and other foreign matter would gain admittance, and obstruct the flow of sewage through the pipes; alleges that the subdrains were necessary appurtenances to the sewer system, and embraced in the notice, ordinance and specifications under the term “Necessary Appurtenances”; and also alleged that the subdrains would not increase the cost more than $8,100.00; and denied they would cause the sewer system to become unsafe or useless; denied that the sewer district was created with the view of virtually including the entire city; and denied that the assessments upon the property of plaintiffs to defray their proportionate share of the cost of the system is in excess of the value thereof, or of the benefits accruing thereto by reason of its con
The answer then alleges that under and by virtue of the act of the general assembly, approved April 8, 1899, the city authorities passed a resolution declaring a sanitary .sewer a sanitary necessity, and avers facts from which it is made to appear that in all respects the authorities complied with the law relative to the creation of a sewer district, and other details which the law. prescribes, including an averment that, according to the plans, map and specifications, the system was connected with a tract of land in close proximity to the St. Yrain river, the only natural drainage for the system; that on January 27, 1904, an ordinance was introduced, creating the sewer district contemplated by the resolution of December 23rd preceding; that thereupon the complaints and objections made in writing by property owners were taken up and heard and considered, and decision thereon reserved until the publication of the ordinance; that the ordinance was published for the legal period, and afterwards the complaints and objections were overruled, and the ordinance duly passed.
To this answer replication was filed, denying that the subdrains were necessary for the preservation or protection of the sanitary sewer; alleged that the resolution of intention by the council did not definitely designate the materials to be used in the construction of the sewer; denied that at any meeting of the council full details and specifications were presented or adopted, designating the materials to be used in the construction of the sewer, or showing any connection of the system with any natural drainage or district sewer; alleges that the sewer system as planned will not connect with any district sewer, or natural drainage; admits that the council designated
Shortly after the first cause was commenced, a second action was instituted by some of the same plaintiffs and others, .the object of which was to secure practically the same relief demanded in the first case. The causes were consolidated for trial. The findings of fact were in favor of the city, and judgment rendered dismissing the actions.
Thereafter, and after the completion of the work, a third cause was commenced by some of those who instituted the first two cases, and others, the object of which was to obtain substantially the same relief sought in the other cases. To the complaint in the last case, a demurrer was filed, which was sustained and the action dismissed. The judgment rendered in the first two eases was taken by plaintiffs to the court of appeals for review on error. The plaintiffs in the last case appealed to this court. The cases were here consolidated for hearing, and, as many of the questions presented in it are similar, they will be disposed of in one opinion. We will first consider case No. 5583.
As stated, the findings of fact were in favor of the city, but counsel for plaintiffs contend that the court erred in excluding and receiving testimony; that the evidence is not sufficient to sustain the findings made; that in many respects the law was so
During" the. initial proceedings by the city authorities, and before the adoption of the sewer ordinance-, á public meeting was held, which, it is claimed, was called by the city council, and presided over by the mayor, for the purpose of ascertaining public sentiment regarding the construction of the sewer system. It is -asserted that after a full discussion of the question, a vote was taken, which was unanimous against the proposition. It is also claimed that prior to this meeting there had been a canvass of the district, which showed that seventy or eighty per cent, of the- people were opposed to the construction of the sewer. At the trial plaintiffs offered to show the action of this meeting, and the result of the canvass, which was refused. There was no error in this refusal. The act under which, the city authorities were proceeding— Sess. Laws 1899, p. 393, et seq., at p. 396 — provides that complaints and objections concerning proposed public improvements shall be made in writing. Statutory provisions respecting the manner in which protests against public improvements shall be made must be substantially followed in order to avail the protestant.
It is next urged that the court erred in admitting incompetent, irrelevant and immaterial evidence upon cross-examination on the part of defendants in relation to subdrains laid in connection with the sewer system. The- abstract does not show that any objection was interposed to this testimony, but counsel in their brief assert that it was objected to upon
It is also urged that the proceedings are void because it appears the city authorities conferred upon the city engineer the power to direct the mode, manner and extent of laying the Subdrains; that it was incumbent upon the municipal authorities to adopt full details with respect to this work, and that they had no power to delegate any of their functions to the judgment of the engineer. We are not advised
It is contended on behalf of. counsel for plaintiffs that the expense of constructing the subdrains is illegal, for the reason that the general law on the subject of the cost of drains provides that such cost shall be assessed upon the lots thereby benefited in proportion to the frontage upon the street, or alley, wherein the drain is laid. This statute has no application. The subdrains were merely for the purpose of protecting the system during construction, and we know of no reason why the city authorities may not make a provision for the expense of so protecting it. Had a special arrangement to protect the system from injury by water during the construction not been made, it would have been necessary for the contractors to keep the water out of the trenches while the pipes were being laid. This would have been an expense which they would have added to their bid. There is testimony to the effect that it was less expensive to get rid of the water by drains than by pumping, It was within the province of the city authorities to determine in advance the method to be followed in protecting the system from injury by water during the course of construction.
In this connection we also notice the assignment of error based upon the court’s ruling in admitting in evidence the specifications as a part of the contract made with the parties who contracted to put in the system. In support of this assignment it is urged that the plans and specifications were incomplete in that they failed to fix the location of the several manholes. The map of the system shows the location of these manholes was fixed. The engineer who had charge of the work so testifies, and his testimony is not disputed.
It is also claimed that the court erred in admit
Plaintiffs offered in evidence the assessment roll as returned by the assessor, which was refused. This offer, it is urged, was for the purpose of showing a comparison of the value of the lots with the
Error is also assigned upon the refusal of the court to allow plaintiffs to offer certain testimony concerning the benefits to their lots by the construction of the sewer system. It is sufficient in answer to- this objection to say, that the testimony refused was not competent for the purpose for which it was offered.
The city embraces one hundred and ten blocks, ninety of which were included in the sewer district. This, it is asserted, on behalf of counsel for plaintiffs, was an evasion of the law, and for the purpose of charging the property in the district with the expense of the construction of the sewer system, which could not have been done had the entire city been included in the system, as in that instance the cost thereof would have been .paid by the city by taxation based upon values. The city authorities were authorized by the law under which they were acting to create a sanitary sewer district. The authority thus vested was discretionary. The judgment of municipal officers, when acting within the general scope of their authority, is conclusive, unless it clearly appears their action was fraudulent or- unreasonable.—City of Denver v. Kennedy, 33 Colo. 80; City of Denver v. Campbell, ibid., 162.
No testimony is called to our attention from which it is made to appear that the action of the city council in excluding twenty blocks was done in bad faith, or that their action was fraudulent or unrea
Considerable of the property of plaintiffs consists of vacant lots in the suburbs of the city, and it is claimed that the benefits to their property resulting from the construction of the sewer system are not equal to the amount they are required to pay therefor. This was one of the issues of fact in the case. The testimony on the subject was conflicting, and the issue determined in favor of the defendants. Generally speaking, only such benefits are to be assessed as it is reasonably apparent the property will receive, other than the general benefit to the community, and nothing is to be considered a benefit which does not enhance the value of the property. Vacant lots may have no present upe for a sewerage system, but it adds to their value by giving them a sanitary advantage which renders them salable at a price which otherwise they could not command, because of their desirability as compared with lots not having such advantage. In our judgment the evidence is amply sufficient to sustain the finding of the court, to the effect, that the special benefits accruing to the property of plaintiffs by reason of the construction of the sewer equal the assessments to be made against it.
It is urged that if the public parks had been included in the assessments made for the construction of the sewer system some three thousand dollars of the assessment would have been made against these parks. The omission of property which should have been
The act of 1899 provides, at page 400, that the cost' of a district sanitary sewer shall be assessed upon all the real estate in the district in such proportion as the area of each piece of real estate is to the area of the real estate in the district. It is claimed that this method of assessing the cost of a sewer is unjust, because property in the business section of the town worth many times more than the lots of plaintiffs is not assessed for any greater sum than their property. Special assessments are not imposed upon the basis of value, but upon the basis of special benefits accruing from their construction, so that the question of value cuts no figure. In this connection we notice the claim advanced on behalf of plaintiffs, that their lots are assessed for a greater sum than lots in the business section. We find, from an examination of the record, that this results from the fact
Plaintiffs also complain that no notice was given fixing the time for bearing objections. the act requires a notice to be given by the city clerk of the proposed improvements, their cost, etc., and that all complaints and objections tbat may be made in writing concerning the proposed improvements by the owner of any real estate to be assessed will be beard and determined by the city council before final action. This notice appears to have been given. Incorporated therein was a statement to the effect tbat on a specified date, and at a designated hour, the city council would take up for consideration an ordinance ordering the improvements in accordance with the details, specifications, estimates made, and schedule referred to in the notice. If tbis was not a sufficient notice to the plaintiffs who bad theretofore filed objections with respect to the date their protests would be beard, they cannot complain. the record discloses tbat they did appear, before the ordinance was passed, at the time designated in the notice, and presented their objections. No objection to the notice-was made. Having appeared and presented their objections without raising any question as to the sufficiency of the notice requiring them to do so, they cannot complain tbat the requisite notice was not given.—Rich v. City of Chicago, 38 N. E. 255.
It is urged tbat tbe objections of plaintiffs were never acted upon, or tbat they were refused permis-' sion to file them. It appears from tbe evidence tbat tbe objections to tbe plan of tbe system were beard and overruled. Later there appears to bave been presented a petition, asking tbe council to submit tbe sewer proposition to a vote of tbe taxpayers, which was laid on tbe table. Tbis action was right. Such a petition was in no sense an objection or complaint
The final question urged is, that the act is unconstitutional, for the reason that it provides for an assessment for a public improvement according to area, without regard to benefits. When the legislature directs that the cost of any improvement be assessed to the abutting property by some designated rule, it will be presumed that the cost so assessed will not exceed the benefits unless the contrary affirmatively appears.—City of Pueblo v. Robinson, 12 Colo. 593. Building lots abutting a sanitary sewer system are prima facie presumed to be benefited as the result of its construction. The rule of apportionment' according to area is, therefore, prima facie valid, but whore any general method employed, though, prima facie, legal, would work an injustice, relief in proper circumstances may be granted. — City of Denver v. Dumars, 33 Colo. 94.
The law, then, is not unconstitutional because a general method has been prescribed by which to apportion upon the property of a district the expense of constructing a sanitary sewer. Parties whose, property is thus assessed may still question the benefits accruing as the result of its construction.
The purpose of the action to be reviewed in case No. 6201 was to annul the assessments, and with two exceptions, raised practically the same questions we have just considered and determined. Summarized, it is, in effect, except in two particulars, a reiteration of the allegations contained in the complaints filed in
By paragraph eleven it is alleged, in substance, that on February 28,1905, the council passed an ordinance by which the sum of $87,967.57 was assessed against all the real estate in the district at a specified rate per square foot; that prior to its passage, and within thirty days after the publication of notice of the proposed assessment, there was filed in the office of the city cleric, by plaintiffs and other property owners in the city, written complaints and objections against the- passage of the assessing ordinance, in which it was set forth that the law under which the proceedings were had and the ordinance ordering the improvements, were without authority and were unconstitutional ; that the sewer system was not a district sanitary sewer but a general sewer; that the system had no- connection with any other sewer system and no outlet or connection with any natural stream or drainage; that the amount proposed to be assessed against the lots owned by the protestants was greatly in excess of the benefits; that the- assessment was not made on the basis of benefits; that they were not uniform; that the sewer was constructed against the objections and protests of the inhabitants of the district and especially of the complainants; that the aggregate amount proposed to be assessed against the real estate in the district was larg-ely in excess of the cost of the sewer system, under the contract made between the city and the contractors; and that the amount included assessments for sand, gravel, subdrains, and other miscellaneous charges outside the contract largely in excess of the actual cost of the same; that the sewer system was not constructed according to the plans and specifications, or in the manner and with the kind of materials provided in the contract; that the system as so con
Plaintiffs then state, with particularity as to amount and details, items which they allege were unlawfully and fraudulently included by the city authorities in making up the aggregate amount assessed against the property of the district for the expense of constructing the sewer, which, they say, approximated the sum of thirty-one thousand dollars. They then allege that on July 11, 1905, the newly elected city council appointed an investigating committee, to investigate and make report upon the matters relating to overcharges, fraudulent items, and increase in the cost of the system, set out in their complaint; and allege that until such report was made, which was January 11, 1906, they had no knowledge of the alleged wrongful and fraudulent acts and conduct of the city authorities with respect to the overcharges and items disclosed by the report; and further allege that they are unable to determine what, if any, amount should be tendered or paid by them as a lawful charge against their property, and for that reason are unable to make tender of any amount that might be due and payable thereon in case any lawful assessment is charged against their property, and aver that in case it should be determined that any assessment against their property is lawful, they stand ready to pay such amount as may be so found due and payable.
Counsel for plaintiffs contend the demurrer should not have been sustained because the law is unconstitutional, that the proceedings are void for the reason it appears from the coinplaint that steps prescribed by the statute under which the city authorities acted were not taken, that no authority existed to order the construction of a sewer without an outlet, that it was in violation of the constitution and of the statutes to create a sanitary sewer district which embraced practically all the city, and that charges amounting; to thirty thousand dollars and upwards allowed by the city authorities were unjust and illegal because they embraced items which could not properly be included in such assessment.
The unconstitutionality of the law is again urged upon the ground that it prescribes an arbitrary rule by which to assess the property in a district for the expense of constructing a sanitary sewer. We have held that such a law is not invalid, but that where it appears the assessments made by the method prescribed amount to more than the benefits conferred by the construction of the improvement, relief may be granted; that is to say, the assessment in such circumstances on a proper showing may be reduced
The rule is, that in constructing local public improvements and levying special assessments against the property therefor, the statute must be substantially followed; but the legislature has the power to prescribe the time within which actions to annul assessments made against property for the cost of public improvements shall be commenced.—City of Denver v. Campbell, 33 Colo. 162; Jackson v. City of Denver, 41 Colo. 362;
Sec. 45 of the act of 1899 provides: “All actions, legal or equitable, for’ relief against any proceedings had under this law, whether based upon irregularities or jurisdictional defects, shall be commenced within thirty days after the wrongful act complained of, or else be thereafter perpetually barred.” The assessing ordinance was passed on February 28,1905, as appears from the allegations of the complaint, and the suit was not commenced until April 26, 1906, or almost thirteen months after the time when, according to the provisions of the section above quoted, plaintiffs should have instituted the action which they now seek to maintain. Under our decisions to which we have referred, the statute constitutes a bar to the maintenance of their action. Cases from other jurisdictions upholding similar statutes are: Kansas City v. Gibson, 72 Pac. 222; Holmquist v. Anderson, 74 Pac. 227; City of Leavenworth v. Jones, 77 Pac. 273; U. P. Ry. Co. v. Kansas City, 85 Pac. 603; Loomis v. City of Little Falls, 68 N. E. 105; Blackqell v. Village of Coeur d’Alene, 90 Pac. 353.
See, also, State v. Smith, 75 S. W. 625, in which it was held that a provision in a city charter requiring the owner of any land charged with the payment of a special assessment for a public improvement to
Reasonable limitations regarding the time within which actions can be commenced attacking the validity of special assessments for public improvements are necessary. To meet the expenses of such improvements bonds must be negotiated, and unless there is some reasonable limit within which actions may be commenced to attack assessments levied for the purpose of liquidating such bonds when they mature, they could not be disposed of advantageously, because parties purchasing would never know when an action might be commenced by some dissatisfied taxpayer; and on the other hand, after the lapse of the statutory period they would have the right' to presume no such actions could be maintained, and their rights ought to be protected by a statute which fixes a time within which suits must be commenced, unless .it is apparent that thereby some constitutional right of the taxpayer has been denied or invaded.
The case at bar presents a striking exampié of the wisdom of sec. 45. According to the averments of the complaint, the plaintiffs at all times had notice of the steps being taken by the city authorities, of their refusal to consider their protests and objections against the levy of any assessment upon their property, the action of the city authorities in levying such assessments; and of all other acts of which they complain except those we shall notice later; and yet. with
It is urged that the section of the statute prescribing the time within which actions may be commenced by taxpayers is unconstitutional, because only thirty days is allowed for that purpose. Clearly, plaintiffs are not in a position to urge that question. They had notice at all times of the proceedings, appeared and filed protests in the preliminary stages, knew that they were overruled, and before the assessing ordinance was passed again filed their objections, which were also overruled, and of which they had knowledge, so that they cannot successfully complain that the period prescribed by the statute did not give them time and opportunity to institute proceedings to modify or annul the assessments against their property. — Blackwell v. Village of Coeur d’Alene, supra.
Counsel for plaintiffs contend that the section limiting the time within which an action must be commenced does not apply, for the reason it appears from the averments of the complaint that a part of the taxes which they now seek to.annul is fraudulent, and that the frauds perpetrated in the construction of the sewer were only unearthed by an investigating committee of the council a short time prior to the bringing of this action. The alleged frauds did not excuse the plaintiffs from beginning their action to annul the assessments against their property based upon the other allegations of the complaint. Besides, the averments with respect to the alleged frauds and the time they were discovered cannot avail plaintiffs, for a reason which will appear in discussing and determining the final ground of demurrer, which challenges the right of plaintiffs to maintain their action in the absence of a tender of the taxes which it appears are legal, or which they cannot question. "Where the alleged illegal part of an assessment is susceptible of reasonable ascertainment, the property owner will not be permitted to maintain an action to annul the alleged illegal part unless he first pays or tenders so much of the tax which is valid, or cannot be questioned, as is due and payable.—Hallett v. U. S. Security & Bond Co., 40 Colo. 281; City of Denver v. Kennedy, supra.
The proper authorities cannot be prevented from collecting taxes regarding which there is or can be no contest by lumping them, with those which are contested; and in such circumstances it is not sufficient
In State Railroad Tax Cases, 92 U. S. 575, which were actions brought to restrain the collection of taxes, for the reason that they were excessive, Mr. Justice Miller,, in the course .of the opinion, at page 616, said:
“But there is another principle of equitable jurisprudence which forbids in these cases the interference by a court of chancery in favor of complainants. It is that universal rule which requires that he who seeks equity at the hands of the court must first do equity * * *. Before complainants seek the aid of the court to be relieved of the excessive tax, they should pay what is due. Before they ask equitable relief, they should do that justice which is necessary to enable the court to hear them. It is a profitable thing for corporations or individuals whose taxes are very large to obtain a preliminary injunction as to all their taxes, contest the case through several years’ litigation, and when in the end it is found that but a small part of the taxes should be permanently enjoined, submit to pay the balance. This is not equity. It is in direct violation of the first principles of equity jurisdiction. It is not sufficient to say in the bill that they are ready and willing to pay whatever may be found due. They must first pay what is conceded to be due, or what can be seen to be due on the face of the bill, or be shown by affidavits, whether conceded or not, before the preliminary injunction should be granted. The state is not to be thus tied up as to that of which there is no contest by lumping it with that which is really contested. ’ ’
The paragraph of the syllabus to this case touch
A further authority on this subject is People’s National Bank v. Marye, 191 U. S. 272.
Counsel for plaintiffs urge that they are excused from pleading any tender for two reasons: (1) That the frauds alleged invalidate the entire assessment; and (2) that they cannot ascertain what part of the taxes assessed against their property they may be required to pay. The alleged illegal acts of the city authorities in including items in the assessment which they had no authority to include did not render the entire assessment void, when it appears that the alleged illegal charges can be segregated from those that are legal, or which the plaintiffs, by reason of their failure to commence an action within the statutory period, are now precluded from contesting.—City and County of Denver v. Hallett, supra. The alleged illegal items are set forth with great particularity as to amounts and details by the plaintiffs in their complaint, and hence they could have ascertained with reasonable certainty what part they claimed to be fraudulent. In other words, according to the averments of their complaint, the total amount of the alleged illegal items charged in the assessment of which they say they had no knowledge until a short time before their action was commenced, can be ascertained with reasonable certainty. It follows, therefore, under our previous decisions, that in order to state a cause of action to test the validity of the items which -they say are illegal and fraudulent, they must allege a payment or tender to the proper authorities of so much of the taxes assessed against them, due
The judgment of the district court in each case is affirmed. Affirmed'.
Decision en banc.