The Delta independent., 1923-07-06
FULL TEXT OF DECISION HANDED
DOWN B. SUPREME COURT
Continues from Page one)

in advance of action by the city coun
Gil in assuming to establish the dis
trict. Ellis VS.. Town of LaSalle
Colo, 211 Pac. 104. and cases therein
cited. It is true that a property
provement district has no constitu
tional right to notice from the power
creating the district before the dis
trict is formed, and he has no right
to a particular remedy; but when
as in the statute of 1899, there is a
provision that he shall have notice
and hearing OF his objections and a
decision thereon, before the district is
formed, it is vested right which
the statute has given him, and it is
binding and must be strictly complied
with. He may not be divested of the
appropriate remedy to enforce his
rights. Indeed the defendant does not
claim that such was not the law be.
fore the 1928 act took effect. The
only question, therefore, really neces.
sary, at this time, to consider is, the
meaning and effect of Sections 80 and
Al which are here inserted:
Section 80. No action, legal or
equitable, shall be brought or main
tanned, except to enjoin the collection
of assessments levied hereunder upon
the grounds; first, that notice of a
hearing upon the amount of the as.
sessment was not given as required by
this act; providing any person pre-
senting objections to the ordering au-
thority at or before the hearing on
assessments shall be deemed to have
waived this ground; second, that the
hearing upon the amount of the
assessment as provided in this act,
was not held; third, that the improve
ment ordered was not one authorized
by this act; fourth, that the assess
ment levied exceeds the benefits re-
ceived by the property assessed No
action shall be brought on the third
or fourth grounds herein mentioned,
unless the objections on which such
action is based shall have been pre-
'sented to the ordering authority in
writing as in this act required. ANY
action brought hereunder shall be
commenced within thirty days after
the passage of the assessing ordin-
ance, or else be thereafter perpetuallv
barred"
Section Al. Except as in this act
re-enacted, Chapter 151 of the session
laws of Colorado, 1899, and the amend
ments thereto are hereby repealed.
except that any proceedings which
have been heretofore commenced un-
der said chapter, may be concluded
hereunder, or when possible, such
proceedings may be concluded under
this act"
1t should be repeated that the de.
fendant city has not challenged the
sufficiency Of the complaint as stating
cause of action under the 1899 act
The district court was not called up
on and did not assume to pass upon
the question. Defendants sole reli.
ance Is that the suit was prematurely
brought. Section 80 is not happiIy
worded. 1t might be that the actions
prohibited thereby are limited to those
whose object is an ascertaipment
as to whether the amount of
the assessment is valid. or hear.
ings thereon were held, or the i'm
provement ordered was contemplated
by the act, or that assessments ex-
ceed the benefits. II SO, none of these
questions are raised, or relied upon
by the plaintiffs in this action as
above summarized Color is lent to
such construction, made by the plain.
tiffs, by the fact that Section 3 of
the 1899 act, which this Court in the
Ellis case said entitled the property
owner to injunctive relief prior to the
passage OF the creating ordinance. was
substantially re-enaced in Section of
the act Of 1923. 1t is not to be pre-.
sumed that the General Assembly
would needlessly continue in the lat.
ter act. such provisions 1t would how
ever, be wholly useless to provide, as
the 1923 act does, that notice should
be given to property owners for a
hearing upon objections to the Great.
ing ordinance, which might provide
Tor an assessment contrary to the
statute, and might also violate rights
not safeguarded by Section 80. and
then take away from them, IL the de.
cision OF the city council was adverse,
the right to injunctive relief until af.
ter the assessing ordinance was pass.
ed. But we withhold final expression
OF opinion as to this meaning and
scope, except to say that 1t has no an.
piication, whatever, to the case before
US.
Section Al does not purport to mako
the later statute applicable to things
done and completed under proceed
ings begun under Chapter 151 of the
earlier act. 1t merely provides that
proceedings which have been thereto
iore commenced under the previous