PLAINTIFFS in error, as plaintiffs in the trial court, for themselves as citizens and taxpayers within "Street Improvement District No. 153" in the City and County of Denver, and for all others similarly situated, instituted this action November 13, 1937, to have all proceedings had by certain officials of the City and County of Denver, who are defendants in error, relative to the establishment of said improvement district, declared unconstitutional and void, and to enjoin any future action concerning the same by said officials. Defendants in error filed a general demurrer to plaintiffs' complaint which was sustained on January 20, 1938, and the complaint dismissed. Upon plaintiffs' election to stand upon their complaint, judgment of dismissal was entered, to reverse which this writ of error is prosecuted upon an agreed record. Reference will be made to the parties as plaintiffs and defendants.
[1, 2] Plaintiffs contend that the demurrer was erroneously sustained because their complaint stated a cause of action in this, that by its allegations it was shown that the manager of improvements was without jurisdiction to proceed with the establishment of the district, and further, that the complaint alleged that the plan of assessment would result in a tax levy in excess of the charter allowance and be confiscatory of plaintiffs' property. If these facts are well pleaded, they were admitted by the demurrer, and thus the question which is determinative of this action, is presented. Either the question of the lack of jurisdiction, or excessive and confiscatory assessment, provides a cause of action which may be presented and determined in equity, if an adequate remedy at law is not available.
The "Notice of a Proposition to establish Street Improvement District No. 153"; states that the *Page 510 improvements will consist of grading the streets, construction of a combination concrete curb and gutter, the placing of bituminous bound surfacing on the roadways, construction of necessary drains and the making of other incidental improvements. In the record, as Exhibit J, is an undated and unverified form of petition for the improvement district. Plaintiffs attack the sufficiency of this petition, which question will later be discussed. The petition states that the proposed improvement is to be by "grading, combination concrete curb and gutter, oil bound surfacing * * *." There is nothing on the photostat copy of the petition to indicate any date of its presentment or filing. However, it may be assumed that it was before the manager of improvements and parks at the time of his preparation and publishing of the notice of a proposition to establish the district. There is a wide divergence in the contentions of the parties hereto, as to the exact nature of a part of the improvement as to whether or not it is a "paving proposal." Plaintiffs contend that it is, while defendants insist that it is not, seeming to classify that part of the improvement as a "street surfacing project." Disposition of some of the questions raised by plaintiffs rests upon a determination of this disputed question which seems to be one of fact. This becomes necessary owing to the provisions of the charter of the City and County of Denver governing such matters which make a distinction as to the manner in which a proposal for a paving improvement is to be initiated. It is apparent that the contention between the parties on this question arises from the following to be found in section 272 of the Municipal Code, relating to charter provisions, "the term 'paving' wherever used in this charter shall include macadamizing."
There seems to be no dispute as to the size of the proposed district in that it includes more than 12 blocks of street. Plaintiffs claim that the district includes 70 blocks and such claim is not disputed. In view of the fact that the charter provides, "That except on petition, no paving *Page 511 district shall include more than twelve blocks of a street with intersections," if this is a paving district improvement, then the matter of the sufficiency of the petition which was before the manager of improvements and parks, becomes an important question. It also is made clear by a portion of paragraph 3, section 22 of the charter of the City and County of Denver relating to local and public improvements, that the manager of improvements cannot, unless petitioned, authorize the establishment of a "paving" district "if the amount to be assessed therefor, upon any piece of real estate, shall exceed one-half its valuation for assessment for general taxes for the year preceding the proposed order; * * *."
The contention of the city seems to be that, under the circumstances of this case, it not being a "paving district," no petition was necessary. This contention is in keeping with section 22 of the charter, supra, and seems to apply to which may be the procedure for establishing paving districts other than where the exceptions or provisos above mentioned prevail. The city further contends that if a petition was required, the one here in question and before the manager of improvements, must now be held to be sufficient because of the fact that its sufficiency had been determined by the findings of the city council in the passage of its ordinance, namely: That the proposed improvements were duly ordered after notice given; that a petition was filed; that the same was subscribed and acknowledged by the required number of property owners, and it argues that such finding is "conclusive in every court or other tribunal," under the provisions of paragraph 9 of article 22, supra, of the city charter.
Without attempting to determine whether or not the proposed district is a "paving district," and without determining other questions presented by the arguments or passing upon the sufficiency of the petition, Exhibit J, we are inclined to the view that these are largely questions of fact, and that they were sufficiently presented by *Page 512 the complaint, which states a cause of action. The demurrer to the complaint was erroneously sustained.
Judgment therefore is reversed and the cause remanded with instructions to overrule the demurrer, reinstate the complaint, and for such further proceedings as will be in harmony with the views herein expressed.
MR. JUSTICE KNOUS dissents.
MR. JUSTICE HILLIARD and MR. JUSTICE BOUCK not participating.