As construed by the Supreme Court of Colorado, §§ 300 and 328 of
the charter of the City and County of Denver gave property owners
an opportunity to be heard before the Board of Supervisors
respecting the justice and validity of local assessments for public
improvements proposed by the Park Commission, and empowered the
board itself to determine such complaints before the assessments
were made. P.
252 U. S. 9.
Parties who did not avail themselves of such opportunity cannot
be heard to complain of such assessments as unconstitutional. P.
252 U. S. 11.
64 Colo. 3 affirmed.
The case is stated in the opinion.
Page 252 U. S. 8
MR. JUSTICE DAY delivered the opinion of the Court.
Suit was brought in the District Court of the City and County of
Denver by the plaintiffs in error to enjoin the city from enforcing
an assessment ordinance passed to raise the necessary means to pay
for certain park improvements and the construction of boulevards
and streets in the City of Denver.
The charter of the City of Denver was before this Court in
Londoner v. Denver, 210 U. S. 373.
Sections 298 and 299 of the charter provided that the Board of
Local Improvements shall prepare a statement showing the costs of
improvements, interest, cost of collection, etc., and apportion the
same upon each lot or tract of land to be assessed, shall cause the
same to be certified by the president, and filed in the office of
the clerk. The clerk shall then, by advertisement in some newspaper
of general circulation published in the city and county. notify the
owners of the real estate to be assessed and all persons interested
that said improvements have been or will be completed, and shall
specify the whole cost of the improvement, and the share so
apportioned to each lot, or tract of land, or person, and any
complaint or objection that may be made in writing by such persons
or owners to the board of supervisors and filed with the clerk
within 60 days from the first publication of such notice shall be
heard and determined by the Board of Supervisors at its first
regular meeting after 60 days, and before the passage of any
ordinance assessing the cost of the improvements.
Section 300 provides:
"At the meeting specified in said notice, or any adjournment
thereof, the board of supervisors, sitting as a board of
equalization, shall hear and determine all such complaints and
objections, and may recommend to the board of public works any
modification of their apportionments; the board of public
Page 252 U. S. 9
works may thereupon make such modifications and changes as to
them may seem equitable and just, and may confirm the first
apportionment, and shall notify the council of their final
decision, and the council shall thereupon, by ordinance, assess the
costs of said improvements against all the real estate in said
district and against such persons, respectively, in the proportions
above mentioned."
Section 328 of the charter provides:
"When the cost of any such park site or parkway is definitely
determined, the park commission shall prepare, certify, and file
with the clerk a statement showing the cost thereof as required in
§ 298 hereof; the clerk shall thereupon give the notice required by
§ 299 hereof, and thereupon the same proceedings required in § 300
hereof shall be had, except that the proceedings therein provided
to be observed by the board shall be observed by the park
commission, and the council shall thereupon by ordinance assess the
cost against the other real estate as aforesaid, in the district,
in accordance with said apportionments."
The federal question, brought before us by the writ of error,
concerns the constitutionality of § 300, above set forth, the
contention being that it does not give interested property owners
the opportunity to be heard where the property is to be specially
assessed for making improvements of the character in question, as
the hearing provided is before a board which has no power to decide
any complaint which the property owner may have or make with
respect to the validity or falseness of such assessment, or to
correct any error in such assessment, but only has power to
recommend to the power or authority, originally making the
assessment, any modifications of portions of such assessment. That
is, that the Board of Supervisors has only the power to recommend
to the Board of Park Commissioners the apportionment to be made in
the assessment. It is the contention of the plaintiffs in error
that the hearing thus afforded does not
Page 252 U. S. 10
give due process of law within the meaning of the Fourteenth
Amendment to the Constitution. The Supreme Court of Colorado,
affirming the judgment of the district court, denied this
contention and affirmed the judgment of the district court
sustaining the validity of the assessment. 64 Colo. 3.
The Supreme Court of Colorado held that the question had already
been disposed of by its own previous decision, affirmed as to the
constitutional point by our decision in
Londoner v.
Denver, 210 U. S. 373,
supra. In
Londoner v. Denver, the section of the
charter now involved was before this Court, being then § 31 of the
charter. Section 300, to all intents, is the same in terms as § 31
except that the Board of Supervisors, sitting as a board of
equalization, is substituted for the City Council.
This Court, when dealing with the constitutionality of state
statutes challenged under the Fourteenth Amendment, accepts the
meaning thereof as construed by the highest court of the state.
St. Louis & Kansas City Land Co. v. Kansas City,
241 U. S. 419,
241 U. S.
427.
In
Londoner v. Denver, this Court accepted, as it was
bound to do, the construction of the charter made by the state
court, and upon that construction determined its constitutional
validity. The city charter was construed in the Supreme Court in 33
Colo. 104. In the opinion in that case, after discussing the steps
required in making improvements of the character involve here, the
court, in dealing with § 31, said (p. 117):
"Notwithstanding the apparently mandatory words used in § 31,
supra, we do not think that thereby the legislative power
and discretion of the city council is taken away and vested in the
board of public works, but that the former, in the exercise of its
functions, is empowered to pass an assessing ordinance charging
property with the cost of an improvement, which, according to its
judgment, would be just and equitable. "
Page 252 U. S. 11
Adopting this construction of the section and considering the
objection urged that it would not afford due process of law, this
Court, by Mr. Justice Moody, said (p.
210 U. S.
379):
"The ninth assignment questions the constitutionality of that
part of the law which authorizes the assessment of benefits. It
seems desirable for the proper disposition of this and the next
assignment to state the construction which the Supreme Court gave
to the charter. This may be found in the judgment under review and
two cases decided with it.
Denver v. Kennedy, 33 Colo. 80;
Denver v. Dumars, 33 Colo. 94. From these cases, it
appears that the lien upon the adjoining land arises out of the
assessment; after the cost of the work and the provisional
apportionment is certified to the city council the landowners
affected are afforded an opportunity to be heard upon the validity
and amount of the assessment by the council sitting as a board of
equalization; if any further notice than the notice to file
complaints and objections is required, the city authorities have
the implied power to give it; the hearing must be before the
assessment is made; this hearing, provided for by § 31, is one
where the board of equalization 'shall hear the parties complaining
and such testimony as they may offer in support of their complaints
and objections as would be competent and relevant,' 33 Colo. 97,
and that the full hearing before the board of equalization excludes
the courts from entertaining any objections which are cognizable by
this board. The statute itself therefore is clear of all
constitutional faults."
Plaintiffs in error did not avail themselves of the privilege of
a hearing as provided by this section, but, after the assessing
ordinance had been passed, began this proceeding in the district
court to test the constitutionality of the law. As we have said,
the question as to what should be a proper construction of the
charter provision was not for our decision; that matter was within
the
Page 252 U. S. 12
sole authority of the state court, and was disposed of, as the
Supreme Court of Colorado held, by the former cases reported in 33
Colorado, and by our decision based upon that construction in
Londoner v. Denver, supra. As the plaintiffs in error had
an opportunity to be heard before the board duly constituted by §
300, they cannot be heard to complain now. It follows that the
judgment of the Supreme Court of Colorado must be
Affirmed.