The Delta independent., 1923-07-06
FULL TEXT OF DECISION HANDED
DOWN BY SUPREME COURT

Court of Delta County. Colorado, Hon.
Thomas ]. Black, Judge.
George Deter ct al, plaintiffs in er-
ror. versus The City Of Delta, Colorado
a Municipal Corporation. defendant
in error.
July Q. 1928.
En- Banc.-Judgment Reversed.
w. H. Burnett, Fairlamb and Hotch-
kiss. for plaintiffs IN error.
John r. Charlesworth, Milton r.
Welch, C. H. Stewart. for defendants
in error.
Justice Campbell delivered the
opinion OF the Court:
Plaintiff in error, plaintiffs below,
frontage of lots in the city of Delta,
within an alleged improvement district
therein for paving its streets and al
leys. on April IA. 1923, brought this
action in their own behalf and in be-
half OF other property owners similar
ly situated, to enjoin the city council
from carrying out, or enforcing an
ordinance which 1t had enacted four
days before. whereby It purported to
create an improvement district in the
city for paving streets and alleys. and
from taking the various other subse-
quent steps as provided by statute In
such cases. and to declare such ordin-
ance void. AS grounds for the writ,
the complaint alleges. in substance.
among other things, that before the
petition was considered or passed up
on by the city council. a number OF
frontage owners who had signed 1t.
filed their written Withdrawals with
the city clerk and demanded that
their names be stricken from the petit
ton. and II the city council had grant
ed such request and stricken the sig
natures. as by law IL was required to
do. the petition would not have been
signed by n majority OF the frontage.
but the city council refused to act up
on this request and entirely disregard
ed the same in violation OF the rights
of the petitioners: no finding OF fact
was made by the city council to the
effect that such petition had. as sign
ers thereto. the required frontage;
that the proposed district includes a
number of lots outside the territorial
iAAaNS VI tuc city, WHICH
10 organized and operating as a special
charter city under Article Xxx OF the
Constitution OF the State: that with
out submitting such proposal to the
qualified taxpaying electors OF the dis
trict for their approval. which the
city charter makes imperative. the
city proposes to Issue series OF nego-
table local street improvement bonds
not to exceed $4,000 with which to
pay for the improvement. and to make
them n first lien on all the lots with
n the district, and to attach to or
make part OF the bonds. the guaranty
OF the city to pay the same in It's cor
porate capacity, and thus make the
bonds a contingent municipal liability
TO be paid out OF the general fund OF
the city: that In due course the de-
fendant city will thereafter. from a
schedule prepared by the city en-
gineer. determine the amount to be
assessed against every lot within the
improvement exceeds the value of the
accruing benefits. the city will be re.
quired to pay the excess out OF its
general fund. all OF which findings
and conclusions are to be included in
an assessing ordinance which the city
council will thereafter pass as provid-
ed by law in such cases.
The trial court sustained the defend
ants motion to dismiss the complaint,
and from the judgment Diminishing the
action. plaintiffs are prosecuting this
writ.
The motion to dismiss is solely upon
the ground that the suit 10 premature.
unauthorized and prohibited by the
law Of the state in effect at the time
the complaint was filed. The statu-
tory proceeding In question was COM
menced in February, 1923. At that
time the applicable improvement dis
trict law was Chapter 151. Session
Laws Of 1899 and amendments thereto
(Chap. ia. p. 2413. G. L. 1923) The
procedure prescribed by that act was
followed by the city council until
April ., 1923. On that day House Bill
No. 1866. Session Laws 1923, OF the
General Assembly. became law.
It is contended by the defendant
that by Sections 80 and II OF the 1898
act. which II is said the defendant has
adopted insofar as the same affects
the matters and things set forth in
the complaint, this action was pre-
maturely brought even though It was
authorized by the act OF 1899. The
foregoing summary OF the allegations
OF the complaint was made chiefly to
show that unless the latter statute
otherwise provides, and is applicable,
the plaintiffs were Justified in institut-
in1 tho acfion hefOre the City council