FARNCOMB v. CITY AND COUNTY OF DENVER(1920)
Mr. T. J. O'Donnell, of Denver, Colo., for plaintiffs in error.
Mr. James A. Marsh, of Denver, Colo., for defendants in error. [252 U.S. 7, 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. City and County of Denver, 210 U.S. 373 , 28 Sup. Ct. 708. 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:
Section 328 of the charter provides:
The federal question, brought before us by the writ of error, concerns the constitutionality of section 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 [252 U.S. 7, 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. 171 Pac. 66.
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 , 28 Sup. Ct. 708, supra. In Londoner v. Denver the section of the charter now involved was before this court, being then section 31 of the charter. Section 300 to all intents is the same in terms as section 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, 427 , 36 S. Sup. Ct. 647
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, 80 Pac. 117. In the opinion in that case, after discussing the steps required in making improvements of the character involve here, the court, in dealing with section 31, said (33 Colo. 117, 80 Pac. 121):
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 [252 U.S. 7, 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, 210 U.S. 373 , 28 Sup. Ct. 708, supra. As the plaintiffs in error had an opportunity to be heard before the board duly constituted by section 300, they cannot be heard to complain now. It follows that the judgment of the Supreme Court of Colorado must be