Londoner v. City & County of Denver

Mr. Justice White

delivered the opinion of the court :

The city and county of Denver is a municipal corporation created by and under the provisions of article XX of the state constitution. March 29, 1904, it adopted a charter which divides its territory into four park districts, and places them under the control of a park commission composed of five commissioners. It authorizes the park commission, with the appfoval of the mayor, upon certain conditions hereinafter stated, to select and acquire by purchase or condemnation proceedings, in the name of the city and county, for the use of .any such park district, lands therein, for parks and park-ways,' to be paid for, either in whole or in part, by special assessments upon the real estate, except parks, park-ways and streets, comprising such district. Sections 92, 324, 325; 326, 327 and 328. • •

By section 327 of the charter the park commission, before acquiring any such real estate or issuing bonds for park purposes, is required to prepare a map of the district, and apportion the estimated cost of the proposed improvement on the assessable real, estate situate therein, in proportion to the benefits accruing thereto in consequence of the establishment of such parks or park-ways in such district, in accordance with rules therefor adopted by the park commission, as to it may seem just and reasonable; and to give published notice for ten days “to the owners of the real estate to be assessed, of the proposed purchase or condemnation, with a description of the lands to be acquired, the estimated cost, the number of installments, and time in which the assessments will be payable, the rate of interest on unpaid installments, the rules adopted by the commission for apportioning the benefits, as aforesaid, and the time, not less than ninety days after the first publication, when the question of the proposed purchase or condemnation will be considered by the commission; that said map and all ' proceedings of the commission are on file and can be keen and examined by any person interested during business hours, within said period of ninety days, at the "office of the secretary of said commission, and that all cbinplaints ■ and objections that may be made in writing 'by Owners of any real estate to be assessed will be heard and determined by the commission before final action of the commission in the premises.”

The section further provides, that “The commission shall, at the time specified, 1 or thereafter, consider ,. all such''complaints and objections, and may modify or confirm 'their apportionments, and shall finally determine whether said lands shall be acquired for said 'purpose;, , but if, within the time above specified, a remonstrance shall be filed with the secretary of said commission, subscribed by owners of twenty-five per cent, in area of the real estate which is to be assessed, then the proposed purchase or condemnation shall not be made, and the proceedings shall not be renewed for one year thereafter.”

The section also provides, that “the finding of the council by ordinance that such notice was duly given, or that such remonstrance was or was not filed, or was or was not subscribed by the required number of owners aforesaid, shall be conclusive in every court or other tribunal.”

Certain sections of the charter make it incumbent upon the park' commission, when the cost of any park-site or park-way is definitely determined, to file with the city clerk a certified statement showing- the cost of the improvements, the apportionment thereof upon each lot 01-tract of land to be assessed; and requires the clerk thereupon,' by advertisement for ten days in some newspaper of general circulation published in the municipality, to'notify the owners of the real estate to be assessed, that the improvements have been, or are about to' be completed and accepted, specifying- the whole cost of the improvements and the share apportioned to each lot or tract of land; and'that any complaints or objections that may be made in writing by such owners and filed with the clerk within sixty dáys from the first publication of such notice, will be heard and determined by the proper municipal authorities at á time designated in the notice and before' thé passage by the city council of any ordinance assessing the cost of such improvements. Sections 298, 299, 300 and 328.

Under these provisions of the charter, proceedings were initiated to acquire lands for parks and'park-ways, in that portion of the municipality known' as' the “East Denver Park District.” The park commission complied Avith section 327 and published the preliminary notice required thereby. Thereupon certain protests against the improvements from property OAvners Avithin the district Avere filed, including- one by plaintiff in error. The pai'k commission, on the day designated in the notice therefor, heard and considered the protests and complaints filed, and found, among other things, that sufficient remonstrances had not been made and filed as provided by the charter, to defeat the park improvements proposed, and thereupon finalty determined to acquire the lands described in the notice for the purposes designated. The park commission thereafter certified to the council of the municipality the protests and complaints aforesaid, and the proceedings and findings relating thereto for such action as might be incumbent upon the council to do and perform ‘in the premises. Thereupon plaintiff in error, for himself and all others similarly situated, brought an action to restrain the city council from passing an ordinance, which it Avas alleged it was about to do, making findings that the notice to the property OAvners as required by section 327 of the charter, had been duly given; that remonstrances subscribed by the OAvners of twenty-five per cent, in area of the real estate proposed to be assessed for the cost of acquiring the designated lands for parks and park-Avays, had not been filed with the secretary of the park commission Avithin the time specified in the notice, or at all. Plaintiff also sought in the action to restrain all the defendants in error from proceeding further in the premises.

The complaint sets forth some of the provisions of the charter, the notice given by the park commission as proAÚded by section 327, and charges that the rules therein adopted by the park commission, for apportioning the benefits to the real estate within the district, and the apportionment made, under said rules, of the estimated cost of the proposed improvements, are inequitable and unjust; and that irregularities and inaccuracies exist in the notice given,, and in connection with the giving of the same. Alleges the filing of protests and remonstrances by property owners sufficient, if rightly counted, to defeat the improvements; the wrongful permission by the park commission to property owners to withdraw therefrom, and the inclusion of certain alleged non-assessable lands within the district in determining the area of the real estate included in the protests to the area to be assessed for the improvements, and other irregularities in the proceedings of the park commission upon its determination of the matters raised by the notice, the protests, remonstrances and withdrawals filed thereunder; and that the city and county of Denver has no power to acquire lauds for parks or park-ways by condemnation proceedings; or to acquire the same by purchase, except by a vote of the taxpaying electors first approving and ordering a bond issue therefor; and that the charter provisions apparently vesting such power in the municipality are in violation of the constitution.

A demurrer was interposed to the complaint, sustained by the court, and the cause dismissed. The plaintiff brings the case here on error, and seeks a reversal of the judgment. The important propositions presented, the only ones we deem necessary to consider, will bé disposed of in the order we deem most convenient.

i. Plaintiff’s contention, as to the lack of power in the municipality to acquire lands for parks or parkways by condemnation proceedings; or by purchase, except upon a vote of the taxpaying electors therein approving and ordering a bond issue therefor, is based upon the assumption that section 1 of article XX of the constitution measures the extent and limitation of. the power of the city and county of Denver in acquiring lands for parks and park-ways.

We are of the opinion that the assumption is not well based. In Denver v. Hallett, 34 Colo. 393, 416, we expressly held, that the limited grant of power contained in section 1 of article XX of the constitution is not the only, power possessed by the municipality. We therein, on pages 398 and 399, said:

“The statement contained in the first section was not intended to be an enumeration of powers conferred, but simply the expression of a few of the more prominent powers which municipal corporations are frequently granted. The purpose of the twentieth article was to grant home rule to Denver and the other municipalities of the state, and it was intended to enlarge the powers beyond those usually granted by the legislature; and so it was declared in the article that until the adoption of the new charter by the people that the charter as it then existed should be the charter of the municipality, and further that the people of Denver shall always have the exclusive power of making, altering, revising or amending- their charter; and further that the charter, when adopted by the people, should be the organic law of the municipality and should supersede all other charters.

It was intended to confer not only the powers specially mentioned, but to bestow upon the people of Denver every power possessed by the legislature in the making of a charter for Denver.”

By that decision we determined that the powers enumerated in section 1 of article XX of the constitution do not constitute a limitation of the powers conferred on the municipality; and, moreover, the article conferred upon such people “every power possessed by the legislature in the making of a charter for Denver.” It is ecprally certain the article neither enumerates nor withholds the power to purchase land, or to exercise the right of eminent domain by the municipality in acquiring the same, for parks and park-ways, and the payment therefor by collections based upon assessments upon the lands specially benefited by the public improvement.

There being no constitutional limitation on the exercise of these powers by the municipality, it necessarily follows, that the people of the city and county of Denver, on whom was “conferred every power possessed by the legislature in the making of a charter for Denver,” could therein grant or withhold such powers.

It is elementar)' that, except 'as limited by the federal or state constitution, the legislative authority over municipal corporations is supreme or plenary. It is “a legislative function to determine what power shall be granted, what withheld, and what restrictions shall be imposed in the exercise of the powers granted.”—Denver v. Hallett, supra, Dillon on Munc. Corp., secs. 9, 44.

It is equally certain that “the right to appropriate private property to public uses lies dormant in the state, until legislative action is had, pointing out the occasions, the modes, condition's, and agencies for its appropriations. Private property can only be taken pursuant to law; but a legislative act declaring the necessity, being the customary mode in which that fact is determined, must be held for this purpose, ‘the law of the land/ and no further finding or adjudication can be essential, unless the constitution of the state has expressly required it.”—Cooley’s Const. Lim., pp. 759, 760.

The acquisition of lands, for parks is unquestionably for a public purpose and is so conceded. Likewise, “It is now the generally accepted rule that a public park is a special benefit to the locality or part of the city in which it is established; and its cost, to the extent of such special benefits, may be assessed against the property specially benefited. * * * The propriety of apportioning the tax according to the special benefits received is unquestionable.”—Hamilton on the Law of Spec. Assess., sections 256, 257; Page & Jones on Tax. by Assess., sections 307, 356 and 357.

We, therefore, conclude that the people of the.city and county of Denver, when making a charter for. the municipality, had the power to write therein provisions for the purchase of lands, or for the exercise of the. pqwer of eminent domain in acquiring lands for parks and park-ways, and the payment therefor, in whole or i.11 part, by collections ai'ising from assessments made upon the property within the districts specially benefited by the improvements, and that the charter provisions in that respect are constitutional.

2. The charter provisions authorize the board-of park commissioners to initiate the public improvements in question, and to finally, determine whether the lands, necessary therefor, shall be acquired, subject, however, to the will of the owners of a certain percentage in area of the real estate to be assessed for-the cost thereof,,.to annul that authority by expressing- their disapproval of the proposed improvements within a designated time. It, therefore, follows, that until the property owners have, by their non-action approved, or by their action disapproved the proposed improvements, the power to. proceed lies in abeyance.

However, as the matters upon which the findings, here sought to be restrained, pertain to questions preliminary in their nature, they do not affect the constitutional rights of any party in interest. They might have been dispensed with by the lawmaking ’ power, and full authority vested in the park commission, or other city authorities; to acquire the lands and make the proposed improvement without any preliminary proceedings whatever. As said in Londoner v. Denver, 210 U. S., 373, 379; “The legislature might have authorized the making of improvements' by the city council without any petition.”

It is ordinarily a legislative function to create special taxing districts and to charge the cost of a local improvement therein, in whole or in part, on the property benefited in proportion to the benefits thereto. Webster v. Fargo, 181 U. S., 394. And the charter of the city and county of Denver, adopted in obedience to an express mandate of the constitution of the state, with respect to municipal, matters, including the creation of taxing districts for local improvements and special assessments for the cost of the latter, has all the force and effect of an act of the legislature. The east Denver park district was so created and the proposed improvement authorized. Under these circumstances, the only constitutional right possessed by the property owner, as to the making of the proposed improvement, is to a hearing upon the question of what is termed, the apportionment of the tax; i. e., the amount of the tax which he is to pay.—Voigt v. Detroit, 184 U. S., 115; Goodrich v. Detroit, idem, 432.

This constitutional right is fully protected by the notice which the charter, sections 299 and 328, “requires shall be given by the city clerk and the proceedings in accordance therewith, afford the owners full opportunity to be heard on the question of assessments against their property.”—Denver v. Dumars, 33 Colo. 94, 101.

Therefore, since the right to a preliminary notice of the intention of the municipal authorities to acquire the lands necessary for, and to make the public improvement, and likewise the right of the property owners to stop the proposed improvement by remonstrances filed Iwithin. a designated time, is purely statutory, and could have been dispensed with by the lawmaking power, authority existed in the latter to designate, in the charter adopted, the sole body or tribunal authorized to conclusively determine whether the required notice “was duly given, or that such a remonstrance was or was not filed, or was or was not subscribed by the required number of own-e.rs.”^-Page & Jones on Tax. by Assess., sections 779 and 811; Olds v. Erie City, 79 Pa. St. 380, 383.

It is well established that as to all statutory proceedings or acts essential fe> the validity of local improvements, excepting those that are necessary to constitute due process, of law or to' comply with other constitutional prerequisites, “the same power (legislative) which prescribes them is competent to declare that their nonobservance shall not be fatal to the validity of the tax and that no inquiry may be made concerning them.”— Chase v. Trout, 146 Calif. 350, 359; In the matter of Kiernan, 62 N. Y. 457.

In Scranton v. Jermyn, 156 Pa. St. 107, no, in, the .law under, consideration authorized city councils by ordinance to direct the paving of streets, etc., but if the cost thereof was to be paid by the abutting property owners, certain conditions were attached to the manner of the exercise of the municipal authority, one of which was, that the paving, etc., shall be petitioned for by a majority of the owners, or the owners of the majority of the feet front on the street. A section of the same law provided, that where the paving had been petitioned for, “the passage by councils of any ordinance directing the paving, * * * shall be held to be conclusive of the fact” that the necessary majority of owners have petitioned for it. It was said: “Under these provisions of the statute the only defense upon this point open to a property holder against a municipal claim for paving is that there was no petition. The affidavit of appellant does not set up any such defense. On the contrary it expressly avers that there was a petition, but it was not signed by a majority. That fact was not open to dispute. The argument of appellant on this branch of the case is really an argument against the policy of such a provision. With that we have nothing to do. The language of'the act is perfectly plain and can have but one interpretation.”

“The legislature, (in this instance the people of the municipality), has the authority, so long as constitutional rights are not invaded, to provide in special proceedings what questions may be tried by the courts, and what not.” —Denver v. Dumars, supra.

To the same effect is Page and Jones on Taxation by Assessment, section 795. Analogous in principle, and announcing the like doctrine is Denver v. Londoner, 33 Colo. 104, which was carried to the supreme court of the United States, where, in Londoner v. Denver, supra, it is said: “The legislature might have authorized the making of improvements by the* city council without any petition.' If it chose to exact a petition as a security for wise and just action it could, * * * accompany that petition with a provision that the council, with or without notice, should determine finally whether it had been performed.” ■

In the same opinion we find the following: “It is contended, however, that there was wanting an essential' condition of the jurisdiction of the board, namely, such a petition from the owners as the law requires. The trial court found this contention to be true. But, as has. been seen, the charter gave the city council authority to determine conclusively that the improvements were duly ordered by the board after due notice and a proper petition. In the exercise of this authority the city council, in the ordinance directing the improvement to be made, adjudged, in effect, that a proper petition had been filed.”

The rule stated in Willcox v. Engebretsen, el al., a recent decision of the supreme court of California, 116 Pac. 750, 751, is as follows:

“Where a statute requires such a petition to be filed as a condition precedent to the making of such order, (for a public improvement), the board or council has no power to make .the order until a sufficient petition has been filed. This is settled by the cases of Turrill v. Grattan, 52 Calif. 97; Dyer v. Miller, supra, (58 Calif. 585) ; Mulligan v. Smith, supra, (59 Calif. 206), and Kahn v. Board, supra, (79 Calif. 388, 396), and as to that point there is no dispute. But the necessity for such petition is the creature of the statute. It is not required by any constitutional guaranty. From this it follows that the statute may dispense with such requirement, or it may provide that the decision of the board or council as to its sufficiency, or any subsequent act depending upon it, such as the issuance of the bonds, shall be conclusive evidence of the- fact that a sufficient petition has been filed. Such provisions will be upheld as valid,” citing Chase v. Trout, supra.

3. Plaintiff however, contends, that the charter, though declaring the effect of the findings of the city council, does not make it the duty of that body to pass upon the matters of which complaint is made, and that, therefore, the council is not the tribunal designated to ascertain the facts involved. We are unable to ascribe such meaning to the charter provisions. The declaration therein as to the effect the findings of the council by ordinance shall have, necessarily implies that the council is invested with the power to determine, and that the duty so to do rests upon that body. That which is implied in the statute is as much a part thereof as what is expressed therein.—Paulsen v. Portland, 149 U. S. 30, 39.

The rule is stated in 28 Cyc. 1023, as follows: “If the municipal authorities are empowered, either expressly or by fair implication, to determine- whether the requisite number of property-owners have assented to an improvement, their action in ordering the improvement is a conclusive determination of that question; but where this duty is not conferred, the courts may inquire whether the requisite number have so assented.”

In Spaulding v. North San Francisco Homestead, etc., 37 Calif. 40, 45, upon a matter involving a like question, the court said: “In exercising the jurisdiction thus obtained, and in granting the petition, the board of supervisors must necessarily have found that the petitioner was the owner of a majority of the frontage to be affected by the proposed improvement. Even if, as seemingly suggested by counsel for appellant, the act referred to does not provide, in express terms, for any determination of the matter of a petition, clearly, where a board is empowered to receive a petition, and is invested with discretion in regard to the subject-matter, it has the implied power to determine whether it shall be g-ranted or not.”

The charter provisions, by necessary implication, provide for two adjudications of the facts as to the sufficiency of the notice given and the remonstrances filed. One, a direct hearing before the board of park commissioners, upon written complaints and remonstrances after notice given. The other, in the nature of a review of that hearing by the city council. Under the rule announced, the two tribunals are necessarily exclusive, and the latter is in specific terms made conclusive. It is with the board of park commissioners alone that the property owner may file a remonstrance, and it is before that tribunal that he may have a full and completé hearing. It is likewise the duty of that body to consider all complaints and objections of the property owners, and to “finally determine whether said land shall be acquired for said purpose.” The general jurisdiction to- make the public improvement is vested in the board of park commissioners.- To'exercise the power, certain conditions are imposed. One, that a notice be given; another, that a certain percentage of the property owners, do' not object to the proposed improvement. It is, therefore, clear, that whether in any particular instance the park commission has the power to proceed depends on facts which are to be ascertained before the determination to proceed. The power being vested in the park commission to1 finally determine whether they will acquire the lands for the proposed improvement, and it being with that body the property owners may file remonstrances, it necessarily follows that it is that tribunal which must, in the first instance, ascertain and settle, by its decision, the existence or non-existence of such facts. The case is clearly within the rule announced in Cyc., supra. It would seem that the action of the board of park commissioners, in finally determining “that said land shall be acquired for said purpose” would, if it were not for other provisions of the charter, be a conclusive determination that the property owners assented to the improvement. But, be that as. it may, as the charter expressly declares that the finding of the council by ordinance as to' such facts “shall be conclusive in every court or other tribunal,” the duty to determine, as well as the conclusive effect of the determination of the city council, is fixed beyond doubt.—• Freeman on Judgments, sections'522, 523 and 524.

In section 331 of the last cited authority, it is said: “A large number of persons and of tribunals, not ordinarily spoken of as ‘judges,’ nor as ‘courts,’ are nevertheless authorized to investigate and determine certain questions. Their authority in this respect is judicial,” and the legislative pronouncement measures the extent and effect of their acts.

The people of the municipality, having full and unrestricted power over the matters" involved, vested in the city council the power to pass' upon and make conclusive findings as to the existence or non-existence of certain things which might have been dispensed with entirely by the legislative power. Nor did such people see fit to provide any mode of review of the acts of that tribunal, but declared that its findings thereon “shall be conclusive in every court or other tribunal.” We think the jurisdiction conferred upon the park commission, in the first instance, and in the city council finally, to pass-upon and determine the existence or non-existence of the alleged jurisdictional facts, is absolute'and exclusive.

• “The rule is well settled that where a statute upon a particular subject, has provided a special tribunal for the • determination of questions pertaining to that subject, the jurisdiction thus conferred is exclusive, unless otherwise expressed or clearly manifested.”—Hendreshke v. Harvard H. S. Dist., 35 Neb. 400, 401.

In Dudley v. Mayhem, 3 Coms. 9, the question was, asito the jurisdiction of the state courts to restrain the infringement of a patent right, and it- was held, that when a person is confined to a statutory remedy on a statute right, the party must take it as conferred; that where the enforcing tribunal is specified, the designation forms a part of the remedy and all others are excluded.

In Reed v. Omnibus R. R. Co., 33 Calif. 212, 217, it is said: “When the statute creating the new right and prescribing the particular remedy for violation thereof, provides that the remedy must be' pursued in a particular court, the rule we are considering excludes all other jurisdictions. The forum named in the statute is an element in the method of redress, and that method is at once integral to the remedy and to the right.”

In Armstrong, et al., v. Mayer, et at., 60 Neb. 423, it is held, quoting from the syllabus: “Where a right is

given by statute and a specific remedy is provided, designating the tribunal for the enforcement thereof, the jurisdiction of such tribunal is exclusive, unless the law otherwise provides.”

Applying the rule as stated: We have here a statute, the charter, upon a particular subject, the acquiring of lands for, and - the making of certain kind of public improvements. That charter has provided special tribunals, to-wit: the board of park commissioners, in the first instance, and in the way of review, the city council, for the determination of questions pertaining to that subject. The jurisdiction thus conferred is exclusive for it is not “otherwise expressed or clearly manifested.” The same principle is announced and applied in Spaulding v. North San Francisco Homestead etc., supra, wherein and to the particular point,- Jennings v. Le Breton, 80 Calif. 9, is cited.

Moreover, if the jurisdiction conferred upon the board of park commissioners and the city council be not exclusive, as well as conclusive, an anomalous condition of things might arise. Suppose proceedings were instituted to acquire by condemnation, a particular lot, and therein the defendant pleaded, and the court found, that a sufficient remonstrance, to defeat the proposed improvement, had been filed with the board of park commissioners. It would necessarily follow that the condemnation suit would be dismissed. Then suppose that in other condemnation suits, seeking to acquire lands for the same-improvement, no such defense were interposed, or suppose that other lands for the improvement were acquired, by purchase, and subsequently, after the improvement was fully completed, or before, the city council should find that the alleged remonstrances were insufficient. The-legislative authority declared that the finding of the council should be conclusive “in every court or other tribunal,” whereas the court, in the supposed case, made that portion of the law a nullity.

While it may be true, as plaintiff contends, that the finding by the council upon the matters involved is not a necessary act to the validity of the proceedings, we think it quite probable that until such finding, condemnation and other proceedings of the park commission, for the acquirement of lands for the purposes proposed, could be stayed. It will' be observed that the charter, section 327, containing the conditions upon which the board of park commissioners may act, likewise embodies therein the clause relative to the conclusive nature of the findings of the council as to the notice, remonstrance and other preliminary proceedings, 'whereas it is, in another section of the charter, and after completion of the work, or, at least, ascertainment of- the full cost thereof, and after another report to the council, from the board of' park commissioners, covering all such matters, that the council is authorized to make the final assessment. Lrom this it would seem that the charter intended that all matters, not going to the constitutional rights of the parties interested, should be finally determined before the work shall in fact be commenced. Such a requirement would be reasonable and wise. The question, as to whether the required percentage of property owners, to defeat the proposed improvement, have subscribed a remonstrance, is necessarily one of fact not always easy of ascertainment. Property lines may be uncertain or undetermined, titles may be in dispute, corporations may assume to sign without authority from their respective boards of directors, lots may be in course of transfer, and the owner today, when one petitioner signs, may not be the owner tomorrow when the petition is presented.

4. Plaintiff concedes, and we have frequently held, that should a property owner defer action until the city council has, by ordinance, determined the matters committed to it, such findings are conclusive, and the property owner is precluded from questioning the same. He, however, insists that upon principle we have held, that prior to such finding by the city council, any person whose property is to be assessed for the cost of the improvement, may invoke the powers of a court of equity to inquire into the existence or non-existence of such facts.

The contention is based upon certain language in Denver v. Londoner, supra, to the effect, that where a city charter authorizes the boa'rd of public works to order the grading, curbing and paving of streets, provided the owners of a majority of the frontage of the lots to be assessed for the cost thereof, shall petition therefor; and authorizes the city council to create a local improvement district and apportion and finally assess the cost of the improvement ag-ainst the property benefited, the presentation to the board of public works of the petition designated, is jurisdictional, and until the city council determines, as provided by ordinance, that the necessary petition subscribed by such owners has been presented to the board of public works, the latter could be enjoined from, presenting any recommendation to the city council.

A consideration of that case shows, that the question, under discussion, in which the language was used, was not necessary to a decision of the controversy. The point was not involved in the case. Moreover, in that opinion there is no holding, expression or intimation that the city council could be enjoined from acting in the premises, and especially after it had assumed jurisdiction of the matters involved. On the contrary, the holding to which that language applies, is confined to the right to enjoin the board of public'works from making any recommendation to the council. In that case the board of public works had ordered the improvement, had prepared specifications therefor, reported its acts in that respect to the city council, and the latter body had determined that certain preliminary steps, which the law required to be taken by the board of public works, had been performed, and thereupon, before the injunction suit was brought, created the improvement district. In the case at bar the charter itself created the improvement district, the board of park commissioners initiated the improvements proposed, - assumed to comply with all the provisions of the charter, and finally determined to make the improvements, and made report of its acts in that respect to the city council before the injunction suit was filed. Thus the board of park commissioners had already done the very thing which in that case it is said the board of public works might be enjoined from doing, to-wit: made its report to the city council. Moreover, the latter body had assumed jurisdiction of the matter and were about to do the very thing the charter authorized them to do.

However, were we to assume, that prior to the conclusive findings, which the city council are authorized to make, any person, whose property is to be assessed for the cost of the improvement, may invoke the powers of a court of equity to inquire into the existence or nonexistence of such facts, it would be of no avail to plaintiff. Since the filing of this suit, which is a writ of error, and, therefore, a new suit, an event has transpired that is conclusive upon us of all the facts involved: The facts

of that event have been brought to our attention by a plea in bar. After the injunction, sought to be obtained, had been denied by the court below, the ease dismissed, and the writ of error from this court sued out to review the judgment of the lower court, the city council duly, made the findings., and passed the ordinance sought to be restrained. The mayor approved the same, and it was duly published. No application was made to this court for a restraining order, or stay of any kind, and none was issued against the council or the defendants herein pending the determination of the writ of error. The city council, in the exercise of the power vested in it by the charter, and unrestrained by any authority, duly enacted an ordinance, declaring the existence of the essential facts. This ordinance has the effect of a statute; and the mandate of the people of the municipality, expressed through their charter, is, that such findings shall be conclusive upon every court or other tribunal. The city council, possessing the power to make such findings, assumed jurisdiction, before that of this court, or the court below, was sought to be invoked. Under these circumstances, we certainly do not have the power to nullify the legislative mandate, that the finding of the council shall be conclusive upon every court or other tribunal, and declare that it is not conclusive upon us.

Moreover, a reversal now would accomplish nothing, for that which was sought to be restrained has been done. The rule is, that where pending a review of the action of a lower court, an event occurs without fault of the successful party below, which of necessity renders any judgment that may be pronounced ineffectual, the proceedings on review will be dismissed. Plaintiff concedes the rule, but argues that matters that arise solely through the action of the successful party below, must necessarily arise and be brought about through his fault. - We do not think so. As we understand the words in the sense in which they are used, they imply some wrongful or illegal act which constitutes the fault. Bull, et al. v. Doss Bros. Const. Co., decided at this term. In the case at bar the city council did nothing, except that which the legislature authorized it to do, and in the manner prescribed thereby.

5. Assuming, but not deciding, -that in this character of suit we can inquire into the matter of fraud, one question remains which we will consider. The plaintiff contends, that the action of the- board of park commissioners to acquire the lands and make the public improvement, was based upon fraud, and should be set aside, and the council restrained from passing upon the matter, because of the alleged fraudulent acts of the park commission.

The complaint in no wise charges fraud against the city council, or that that body has been, or will be wrongfully influenced, or that it will proceed in any manner other than the law requires. The allegations of wrongdoing apply solely to the acts of the board of park commissioners. Moreover, the alleged wrongdoing upon the part of that tribunal, does not, as will presently be' seen, constitute fraud, or even bad faith, but mounts no higher than an allegation of an honest mistake in judgment. The allegations are, in substance, thát the rules which the park commission adopted for apportioning the special, benefits to the real estate, are unfairthat while the notice of intention to acquire the lands, stated that the total area liable for assessment for the improvement, was-65,720.41 lots of the dimensions of 25x125 feet, the park-commission, for the purpose of fixing a basis for calculating the sufficiency of the remonstrances, made a revised computation of the area within the district so-liable for assessment, and fixed and determined the area as equivalent to 72, 255.68 lots of the dimensions aforesaid; that the park commission, in order “to arrive at such, result included in its calculation property within said district belonging to the United States- of America, to> the state of Colorado, to the city and county of Denver, school property and church property and cemetery property not liable for any assessment for such purposes and that can not legally be subjected to the pajunent thereof,”' stating the designated number of non-assessable lots so-, included, but without a description of the lots or segregation of ownership thereof. The notice given is set forth in the complaint, and the exact number of lots included within the distinct is not stated therein. On the contrary, after each subdivision of the improvement district, arranged as the proposed plan of assessment, a statement follows that it contains “approximately” a designated number of lots.

The charter does not require the enumeration in the preliminary notice of the lot area to be assessed, except as it may be, and in this case was, included in the rules adopted for the proposed apportionment of the cost of the improvement. Neither the rules adopted, nor the proposed apportionment by the board of park commissioners, or the latter’s estimaté of the area within the district, or the inclusion or exclusion of alleged non-assessable lands, is binding upon the city council. That tribunal has the power to change or modify such rules; to ascertain the .area within the improvement district; to compare it with the area covered by the protests; to consider and pass xipon the validity of the signatures to remonstrances, the •ownership of the lots, and all other matters essential to a valid assessment.

Moreover, the claim is not made that there is not within the park district an area equivalent to that claimed, but only that certain lands within the district alleged to be non-assessable, were included in ascertaining that area) and in determining the sufficiency or non-sufficiency of the remonstrances.

Under these circumstances, and in view of the fact that the charter expressly requires that the special assessments for the cost of the improvement shall be levied upon <(the real estate, except parks, park-ways and streets, comprising such district,” and the further fact of the uncertainty of the law as to what public property may, or may not, be assessed for the cost of the improvement under the charter, we can not say that the inclusion of such lots by the board of park commissioners was, if error at all, more than an honest mistake. It is very certain that public property, other than that owned by the United States, may be taxed or exempted for local improvements, at the discretion of the legislature, and this may extend to and include lands belonging to the state itself.—Page & Jones on Tax. by Assess., sections 579, 580, 581, 582, 583, 584 and 586.

The allegation, as to the inclusion of non-assessable property, covers not only lands belonging to the United States, to the state, to the city and county, but school, church and cemetery as well. The exemption of property from general taxation does not exempt it from local assessments for public improvements.—City of Beatrice v. Brethren Church of Beatrice, 41 Neb. 358; Sheehan v. Good Samaritan Hosp., 50 Mo. 155; Roosevelt Hosp. v. Mayor, Aldermen, etc., 84 N. Y. 108.

We are fully persuaded that upon the record as here-presented, a court of equity can grant no relief to plaintiff in error.

In the views herein expressed, Mr. Justice Garri-GUES and Mr. Justice BaieEy fully concur. Mr. Justice. Hiee concurs therein as to the power of the city and county of Denver to acquire lands for parks and parkways by purchase or condemnation, as in the charter provided, and also' that the plea in bar to the writ of error should be sustained. Mr. Justice Musser and Mr. Justice GabberT likewise concur as to the power of the city and county of Denver to so acquire lands for parks and park-ways, but dissent as to all other matters. ChiEE' Justice Campbeee does not participate in the opinion.

The plea in bar is, accordingly, sustained, and the writ of error dismissed. Writ dismissed.

Decision en banc.