specially concurring:
I concur in that 'portion of the opinion wherein it sustains the power of the city and county of Denver to acquire parks and park-ways and to make the necessary assessments therefor, conditional that the provisions of the charter are complied with in so doing. But I cannot agree with the conclusion that the charter has designated the city council as the exclusive body, at all times, to-finally determine whether a proper remonstrance has been filed with the park board and that its right to pass upon-that question, after the findings of the park board, is at *41.all times exclusive, as well as conclusive after having been made. The language of section 327 of the charter does not so state. It appears to me that to so hold is to read into the charter, by judicial legislation, a state of facts not placed there by its framers and never intended to be in there, by them or the people when they adopted it. This, it seems to me we cannot and ought not to do; we ■ought not to give it a construction not supported expressly or by necessary implication by the instrument Itself. It is not incumbent upon us to amend the charter; that privilege belongs to the people.
In placing a construction upon an act (and especially so when it is silent upon matters which it is urged should be presumed dr inferred) it is elementary that there should be taken into consideration the purposes and objects sought to be accomplished, the law as it existed prior to the adoption of the act, and the evils, inconveniences or uncertainties, if any theretofore existing, which it is sought to remedy. In considering the laws pertaining to -this line of improvements prior to the adoption of this and other similar charters, we find, as a general rule, where the act provides that a petition shall be signed by a certain number in order to initiate the proceedings, or that a remonstrance signed by a certain number shall defeat further proceedings, that both have been held -jurisdictional and that a taxpayer could raise the question concerning either at any time thereafter when his rights were involved.—Zeigler v. Hopkins; 117 U. S. 683; Armstrong v. Ogden City, 12 Utah, 476; Mulligan v. Smith, 59 Calif. 206; Collins v. Township of Grand Rapids, 108 Mich. 675; Fruin Bambrick Construction Co. v. Geist, 37 Mo. App. 509; Knopfi v: Roofing & Paving Co., 92 Mo. App. 279; Keifer v. Bridgeport, 68 Conn. 401; Miller v. City of Amsterdam, 149 N. Y. App. 288.
*42Viewed in this light, when the charter is considered as a whole, it appears to me it was intended in order to have these matters conclusively set at rest, after the findings of the park board had been made, that the council could approve its actions and thus make a finding on these matters which, when made, should thereafter be conclusive. The object being if the council so desired that they could have those questions set at rest once for all and not leave them open to further attack. Many reasons exist why it is wise to do so. The purchaser of the bonds always clesires to know that the question has been settled and is not thereafter open to attack; by having it settled, a better price can be secured for the bonds, and it is thus to the advantage of the district in disposing of them; contractors in making their arrangements and all others connected therewith want to know that these questions are settled. This will avoid such supposed proceedings as suggested where suits might be instituted to condemn property, etc., after the matter has been passed upon by the council; so that as I view it, this language was used to accomplish this result; the context so indicates. .That portion of section 327 involved reads:
“The commission shall, at the time specified or thereafter, consider all such complaints and objections, and may modify of confirm their apportionments, and shall finally determine whether said lands shall be acquired for said purposes; but if, within the time above specified, a remonstrance shall be filed with the secretary of said commission, subscribed by the 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; and the finding of the council by ordinance that such notice was duly given, or that such- remon*43strance 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.”
In my opinion, this portion referring to the council was intended more in the way of a statute of limitations, .and means that after the findings of the park board have been confirmed and approved by the council and nothing has intervened, that the-result of the findings of the council shall then be conclusive, rather than to assume that it ■was the intention to make the city council at all times the exclusive judge of these matters.
This position is further strengthened when we come .to consider section 332 in this same article of the charter, (this entire article No. 11 pertains to public improvements). Section 332, as I read it, seeks to place a limitation within which actions shall be brought concerning certain matters, or proceedings had, done or performed un•der all other sections of this article. It reads in part as follows :
“No action or proceeding, at law or in equity, to-review any acts or proceedings, or to question the validity ’.or enjoin the performance of any act, or the issue or -collection of any bonds, or the levy or collection of any •assessments, authorized by this article, or for any other relief against any acts or proceedings done or had under this article- * * * whether based upon irregularities -or jurisdictional defects, shall be maintained, unless commenced within ninety 'days after the performance of the act or the passage of the resolution or ordinance complained of, or else be thereafter perpetually barred.”
To my mind, it is just as consistent to argue that ■section 332 (when -a suit is brought within the time therein named) makes nugatory the provisions of section 327 which says that the actions of the council are conclu*44sive, as it is to contend that section 327 nullifies the provisions of section 332. Neither position is tenable. The sections should be construed together, each as qualifying the other, and when so done the apparent conflict between them ceases to exist.
Many other reasons lead to. the conclusion that it was never intended that the council should at all times be the exclusive body to pass upon this question. First, the charter does not state that the council shall pass upon it at all. Second, it. does not state that it shall be the exclusive tribunal to enter into this question. Third, it makes no provision ■ for any mo.de of procedure or the manner as to when, or how it shall determine these facts. Fourth, it does not provide that the park board shall transmit to the council the remonstrances or'any other papers in connection therewith, or any data upon which the council may act. And fifth, it makes no arrangement for notice, or protest or for a hearing in any manner before the council by the taxpayers. True, it is stated that the charter could have provided that these improvements could be ordered by the park, board without any of these preliminary matters; all could have been dispensed with. Authorities are cited so holding, but I cannot see where they are applicable. The question here is not what could have been done, but what was done in the adoption of this charter, and I cannot lead myself to believe that the citizens of the city of Denver ever adopted or intended to •adopt a charter wherein it provided that a remonstrance signed by twenty-five per cent, of the taxpayers should defeat the improvement, wisely I think as a check or safeguard upon that ■ question, and then provide that the actions of a park board should become final pertaining to that important question upon its approval by the council', without .any right of-protest, hearing.or trial, or-data, *45being presented to the council, upon which it is to act.
The actions or non-actions of the taxpayers are made a part of these proceedings covering public improvements, and when complied with are entitled to the same force and effect as that of the park board; no discretion is-vested in its members if the necessary remonstrance is filed.
This provision providing for a remonstrance being for the protection of the taxpayers must be strictly followed. —Hopkins v. Mason, 42 Howard's Practice 115 Merritt v. Portchestcr, 71 N. Y. App. 309; Michigan Cent. R. Co. v. Huehn, 59 Fed. 335.
It is said that inasmuch as the charter - makes no provisions for a hearing before the council the taxpayer is entitled-to none. That is true, but to-my mind that is one of the strongest points why it was intended that the taxpáyer should have the right, prior to the time the council pass upon it, to have it passed upon in the courts, and if he was correct in his contention that the remonstrance had been filed by the proper number for that • reason he could prevent the park board from further act- . ing-, as the charter states, thereby leaving nothing for the council to pass upon, just the same as if nothing had been certified to them at all.
The conclusion stated in the opinion for all practical purposes makes the findings of the park board conclusive, but' I cannot believe that it was the intention of the framers of this charter to clothe the park board with this high governmental prerogative thereby placing the right to issue bonds for millions of dollars in their hands and in a manner so that the property owner who acts in time, regardless of that fact, is forever and in every forum shut out from ■ the right of contesting the • regularity of such proceedings',-or that such a charter would have ever been *46.adopted, if it was understood that the question of whether the check or safeguard provided for-'by a twenty-five per .cent, protest had been filed, could not be judicially ascertained if steps were taken in apt time to have the result . so determined, and especially so where facts of fraud are . alleged against the park board, and I have been unable to find any case (concerning any charter similar to this) so .holding, where the action was brought to set aside these proceedings prior to the findings by the council.
The cases relied upon to sustain the contrary view, .as I read them, were all instituted long after the passage of the ordinance by the council, and were for the purpose •usually to restrain the collection of the tax, or to chal- ' lenge its validity as a lien against the property, or as conveying title through tax sales thereon, etc., in which cases •it was properly held, I think, that they were precluded from at that time raising the question. This court has so held, but in the casé of city of Denver v. Londoner, 33 Colo. 104, we expressed the views, in substance, when the act did not exist essential to give a public board jurisdic- ■ tion, that no doubt in such cases up to the time when the city council acts upon its recommendation as to the crea-tion of a paving district, and determines that the necessary petition subscribed by the owners has been presented • to the board, that it could be enjoined from presenting ■any recommendation to the city council, but that there was a stage in the proceedings when the question of the sufficiency of the petition and the number of owners subscribing it is no longer open, and while.it may be true, as •stated, that this statement was unnecessary in the deter- • mination of that case, it appears to have had the sanction - of the entire membership of this court as then constituted, and, in my opinion, is not only sound, but is applicable - to the facts under consideration, and especially so where, *47as I- view it, in this action charges of fraud are alleged pertaining to the action of the board of park commissioners.
This statement in the Londoner case, supra; does not stand alone upon this question. In the case of Mansfield v. City of Lockport et al., 52 N. Y. Sup. 571, where the Lockport city charter section 203 provided that the determination of the city council whether or not a petition for a street-improvement is signed by the number of persons required b}' the charter as a condition to authorize the same shall be final and conclusive. It was held that the council’s determination that the required number had signed, if made in good faith, could not, after an improvement had been made and paid for by the city, be attacked collaterally in a suit in equity to vacate the assessment. But in that case it was further stated that such a determination could be reviewed in a direct proceeding where any error or mistake could be corrected, the determination reversed, and the council placed at liberty to proceed anew. It -was further said that even the action of the city council in ordering the assessment for a street improvement may be annulled by a suit in equity for fraud on the part of its members. It will be noted that the section of the Lockport charter is quite similar to that of the city of Denver. The part pertinent reads as follows:
“The decision of the common council as to whether any petition or petitions for a local improvement is or are signed by persons owning at least one-third of the frontage-of the lands to be assessed for such improvement shall be final and conclusive, and not subject to question or appeal, but it shall not base its action on signatures on more than one petition if such petitions ask for different improvements; said decision shall be by resolution wherein the vote shall be taken by yeas and nays, and *48■entered in the minutes, and it shall require an affirmative vote of two-thirds of the aldermen in office to make such decision, or to pass any ordinance for a local improvement, except .as herein otherwise provided.”
In addition to the foregoing I think that the language used in some of the cases relied upon to sustain the contrary view is directly in harmony with the views herein ■expressed. The case of Scranton v. Jermyn, 156 Pa. St. 107, was an action to resist the payment of the tax brought after the improvement had been made. The ■ordinance there provided that the paving, etc., shall be petitioned for by a majority of the owners; by another section it provided that where the paving had been petitioned for the passage by council of any ordinance directing- the pavement shall be held to be conclusive of the fact that the necessary majority of owners had petitioned for it. It was held that under these provisions where an •owner let all this go by, that the only defense thereafter left open to him against a municipal claim for paving is, that there was no petition and that as he averred that there was a petition but it was not signed by a majority; that fact was not open to dispute. But we find nothing in that case which would lead one to believe that had the taxpayer made a sufficient attack upon that question prior to the findings by the council, it would not have received proper consideration. The court, in passing upon the ■question used the following language, “The legislature, wisely as it seems to us, has provided that the council shall determine this fact finally before the work is begun and the passage of the ordinance shall close the question for all parties.” I think that was the object sought to be accomplished here, that it was intended if the taxpayer let this time go by and allowed the council to determine the fact it should close the question for all parties and *49when section 327 is considered and construed in connection with section 332, it was intended that suits could be brought questioning the correctness of the findings of the park board, and especially so in a case where fraud is alleged .in the making of such findings, and that the city council could properly and justly be restrained from proceeding or making any findings concerning the question until the court had passed upon the actions of the park board in this respect, and in case the.court found differently, it could compel them to withdraw from the city council and have returned to them any matters which had theretofore been certified, and thus leave the . council without anything' to pass upon the same as though the park board had decided that a sufficient remonstrance had been filed and for that reason they would do nothing farther as the charter provides. I am of opinion that the demurrer should have been overruled and the defendants have been required to answer concerning the sufficiency of the remonstrance.
I concur in the conclusion that the writ of error should be dismissed for the reason that the plea in bar precludes the plaintiffs in error from having any further consideration of this matter. As stated, the original suit Avas dismissed in the trial court. Thereafter, a-Avrit of error was sued out of this court to review the judgment. This was the institution of a new suit. No application Avas made to this court for a restraining order or stay of any kind against the council or the other defendants herein, in order to prevent further action by them pending the determination of the writ of error. No fraud is alleged against the city council; it thereafter, in due season, proceeded to pass upon the question of whether a remonstrance in the proper number and form. had-, been filed with the park board and thereafter, by ordinance, *50duly enacted, found and declared to the contrary, and also to the effect that all essential facts necessary for the park board to continue in this matter had been complied with. Under this state of facts, I am of opinion that this precludes any further attack upon these questions. Were the rule otherwise it might work serious injuries, greatly retard, and in some cases practically prohibit, public improvements, as the result would be that dissatisfied taxpayers could file their suits asking for injunctions, allow them to lie dormant and in case the park board and city council did not make findings in harmony with their views, to thereafter press the matter in the courts in order to secure a decision to the contrary and thereby have the benefit of an adjudication by two tribunals instead of one.
According to my views the duty o'f the plaintiffs was to have had the council temporarily restrained from acting at all, until the action of the park board was passed upon by the court, and, if in their favor,' the council, by further action of the court, could have been prevented from passing upon the question at all. To hold that they are entitled to this relief without'having this done or attempting to have it doné by this court. Would be to entirely' ignore the provisions of the charter'; it- would also make the proceedings involving public improvements uncertain for an unreasonable length of time. A party has three years after the decision of the trial court, within which to sue out a writ of error, and in a casé of this kind where the council had not been restrained from acting at all, the result might be that at any time during this three years a writ of error would be-sued out; it might take a year or moré to have'the case disposed of in this court; if the resrilt of the action was in favor of the taxpáyer, it would then revert back to' and cover the matters acted upon by the park'board as well as the find*51ings of the council thereon. The result would be, during .this entire period, to make uncertain the validity of the proceedings pertaining to any public improvement. I cannot believe that this was contemplated by the framers of the charter, and for that reason I agree the council having acted at a time when there was nothing to prevent them from acting, that their actions, as stated in the charter, thereafter are conclusive upon all courts and are not subject to further attack. Otherwise, any taxpayer who felt aggrieved at the ruling of the park board could, by suit, even if unsuccessful in the lower court, have the matter placed in uncertainty for a long period of time by suing out a writ of error any time during the three years. If such were the law this might be done repeatedly ; as .common experience in such affairs leads to the conclusion that there are scarcely ever any public improvements of any magnitude promulgated and carried into effect vdthout dissatisfaction and opposition from some number of taxpayers whose properties are to be affected.