Rifken v. Arnold

No. 8086 | Colo. | Jan 15, 1915

Mr. Justice White

delivered the opinion of the court.

This controversy grows out of, and is dependent upon, the case of “The Fifteenth Street Investment Company et al. v. The City and County of Denver,” which has just been determined. The cases were .argued together and so submitted for consideration. The instant case seeks to compel the City and County of Denver, through its proper officers, to enact an ordinance and therein make the necessary appropriation for the payment of compensation to one Rifken for certain property of his condemned in the Fifteenth Street Investment Company case, to be taken in making the improvement described in the final decree therein. After that cáse was lodged in this court an ordinance was introduced in the city council of the City and County of Denver,, to make an appropriation and provision for the payment of the property taken in the construction of the improvement, and for the assessment of special benefits adjudged therein against the city. The ordinance passed both branches of the city council, but was vetoed by the mayor. An attempt to pass the proposed ordinance over the mayor’s veto failed, and thereupon Rifken brought the mandamus proceeding here involved. Upon hearing, the alternative writ which had been issued was discharged, and the petition dismissed at the cost of the relator therein, who brings the cause here for review. The pendency in this court of the case of The Fifteenth Street Investment Company et al. v. The City and County of Denver, supra, coupled with the clause in the ordinance authorizing the improvement that the proceedings be dismissed, if-upon final action of the court the benefits assessed • against the city for the improvement exceeded $115,000., constituted, in the exercise of a sound judicial discretion, sufficient reason for the trial court to deny the writ of mandamus. Its judgment in -the premises is, therefore, affirmed.

Judgment affirmed.

Decision en banc.