dissenting.
I cannot agree with the conclusion in the opinion by Mr. Justice White, to the effect that the trial court was without jurisdiction to inquire into the averments of the complaint that, as a matter of fact, a remonstrance against the proposed improvement was filed with-the park commission by the owners of twenty-five per cent, in area of the real estate in the district.
At the outset, it should be borne in mind that the case is essentially different from the Dumars and Londoner cases, in that in those cases the preliminary steps which the city, council by ordinance had determined had been . complied with were attempted to be questioned in actions to annul assessments, while in the case at bar the action *52of the parle commission, in finding that the required .remonstrance was not filed is challenged at the very first opportunity which those remonstrating could take advantage of. The main purpose in providing that a finding by a designated municipal authority, that certain preliminary steps necessary to initiate proceedings to construct municipal improvements should be conclusive- upon the courts, was to prevent the validity of such proceedings being attacked, upon the ground that such steps had not been taken, after the improvements had been ordered and completed;'but it by no means follows that these preliminary steps which are intended to afford property owners pro•tection and insure wise and just action on the part of the municipal authorities are meaningless and can be entirely ignored if the failure to observe them is raised in apt time.
It is; true, that the provision in the charter permitting a remonstranceto be filed could have been dispensed with and the constitutional rights of property owners would not have been invaded, but as the charter has made such provision, the rights thus given must be protected. It is unnecessary to -cite authorities to support the assertion ■that i'f the Required remonstrance was filed it was the express duty'of the park commission to proceed no further, arid that 'such remonstrance proprio vigore ousted ! the commission of all authority in the premises, except to drop the proceedings, since-tlie charter provisions on the subject, in effect, so declare. Having assumed a jurisdiction which, ■ according to the allegations of . the com'-plaint',' -they' do' riot possess,: can a-court of equity grant relief ..... ' ' ' •• ••'• • ■'
With the provisions in the charter under considera•-•tiori, is it; riot -cléar that if they 'have- not been observed, ’theré rinist bé á remedy and a'tribunal where relief from *53a failure to observe them can be obtained, provided, of course, that parties aggrieved by their non-observance move in apt time?
In the opinion of Mr. Justice Wi-iiTE it is held that a court of equity cannot grant relief in such circumstances for the reason that by the charter the city council is made the exclusive tribunal to determine whether or not the required remonstrance was filed and that its finding oil this question is conclusive upon the courts. If the charter is .susceptible of the construction that the city council is made the exclusive tribunal for this purpose, then it must be conceded that the holding to the effect that the courts cannot be resorted to by aggrieved parties is undoubtedly correct; but I cannot give the charter the construction which leads to this result. The charter does provide for notice to property owners by the commission, and that all complaints and objections made in writing and filed within a specified time touching apportionments on the property to be assessed will be heard and determined by that body before final action in the premises. If the requisite remonstrances have been filed, the proceedings shall be dropped. If not, the commission shall modify or confirm the apportionment and shall then determine whether the land for the proposed improvement shall be acquired-. It is true that as remonstrances are to be- filed with- the commission, the latter passes upon them in the first instance, but that judgment is in no sense final, as the city council appears to be vested with some functions and authority in the premises.
What steps shall next be taken by the commission if it determines to proceed with the- improvement- do not appear to be designated; at least, no provision on that subject-has been cited. It appears to be conceded that a recommendation is then made to the council by the coni*54mission, and that the council may pass an ordinance, which completes the preliminary steps, or at least an ordinance finding that the notice required to be given was duly given, and that the required remonstrance was not filed. Authority for this action is found in the latter part of the section defining the duties of the commission with respect to complaints, objections and remonstrances, and reads as follows:
“And 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.”
It is upon this provision that Mr. Justice White bases the conclusion that the council is the exclusive tribunal to pass upon the facts there mentioned after the com.mission has passed upon them. If that was the object, would there not have been provisions requiring notice to ■parties filing remonstrances with the commission, or provision made, if dissatisfied with the action of that bod3'' on remonstrances, to appeal to the council, and in apt terms an opportunity been afforded them to appear before the council and be heard ? ' In brief, would there not have been provisions clothing it with the dignity and attributes of a tribunal -to hear those who had filed remonstrances with the commission before passing judgment? ' None exist. In my opinion, this provision was' intended to set at rest the facts therein specified, when parties, after the action of the commission, had hot taken steps to-'annul its action before final action by the' municipal authorities in the way of ordering and completing the improvements. Otherwise,'provision would have been'made for a hearing before the council of those claiming to have been aggrieved by the action of the commission,'if it-had been *55the purpose to make it the exclusive tribunal for the determination of these questions when raised by persons dissatisfied with the judgment of the commission. So the conclusion is inevitable, that if the park commission acts without jurisdiction, the only remedy is for the aggrieved parties to resort to .the courts. Certainly, the latter should not refuse to assume jurisdiction and give relief if those whose rights have been infringed by the action of the commission act in apt time.
In the Londoner case, and in City of Denver v. Campbell, 33 Colo. 162, and City of Denver v. Spalding, ibid, 172, it was said, in substance, that the provision permitting the council to make ex parte findings to the effect that preliminary steps necessary to follow in initiating public improvements, or where certain steps had been taken by the board of public works which the law did not justify, were intended to prevent parties who had the required notice of the proposed improvements from remaining- silent, and then, although their property was benefited, defeat the levy of an assessment because of such irregularities, and that if they intended to take advantage of such conditions, they must do so in apt time. In these cases it is intimated that if they did, they would be heard. Perhaps this statement was obiter dictum, but-from the facts alleged in the complaint in the case at bar, it appears to be necessary to so hold, otherwise the provisions of.the charter which the park commission are required to observe are rendered a nullity, and aggrieved parties are deprived of all opportunity to be heard on questions touching the regularity and validity of the action of the commission after that body has passed upon them.
Without a forum having been designated by the charter, where parties dissatisfied with the action of the-*56park commission can be heard, the action of the latter, not being final, it must necessarily follow that such parties, where the jurisdiction and judgment of the commission is challenged, may resort to the courts if they do 'So before the proceedings by action of the municipal authorities are conclusive upon them. The writer can not take any-other view, and be consistent with what was said in the public improvement cases above referred to.
Neither do I agree with the conclusion of the majority, that the plea in bar should be sustained. It should be borne in mind that the action of the council upon which this plea is based was taken after the case was brought here for review on error. This fact presents an entirely different case from one where the council might have acted after judgment of the lower court and before -the case was brought here for review. The suit below was to annul the action of the park commission in overruling the remonstrances. There is no question but that the council had notice of the proceedings here, the purpose of which was to review the judgment of the lower court. With this notice, it acted at its peril in assuming to act upon the judgment of the commission which might be declared a nullity, the very purpose of the action instituted below. In such circumstances the action of the council which is made the basis of the plea was wrongful. I cannot subscribe to the doctrine that when an action is brought -the purpose of which is to restrain a defendant from committing a specified act, that with notice of the pendency of such an action, he can commit the act sought to be restrained, and then plead that because of- such action, there is nothing for the court to pass upon.
But there is an additional and more potent reason why the plea in bar should not be sustained. -It is true the charter provides that the finding of the council, that *57the required notice was given and the required remonstrance was not filed, shall'be conclusive upon the courts; but the reason for this provision, as previously suggested, was to prevent the validity of proceedings to- construct public improvements being attacked after the expense of the improvement had been incurred, upon the ground that the requisite preliminary steps had not been taken. When, however, the reason for the enforcement of the charter provision under consideration does not exist, it is not applicable. In the case at bar the owners have acted promptly, before rights have attached, so that, in my opinion, in the circumstances of this case, even the action of the city council in making the finding upon which the plea in-bar is predicated, is open to question in the courts. If this is not the .rule which should be applied to the facts before us, then the provisions of the charter which are intended to give property owners a voice in the construe1 tion of public improvements are rendered absolutely nugar tory, for the very obvious reason that the park commission could arbitrarily overrule remonstrances, and immediately, and before an action could be instituted by owners remonstrating, the council could act, and owners would thus be deprived of the right to have the charter provisions enforced which are intended to' afford them protection against the action of the municipal authorities in making public improvements.
In my opinion, the plea in bar should be overruled) and the judgment of the district court reversed and the cause remanded with directions to overrule the demurrer, for the reason that a remonstrance by the owners of twenty-five per cent, in area of real estate in the district which the complaint charges was filed, by the very terms of the charter compelled the commission to drop the proceedings. Should the city authorities take issue on this *58question of fact, it should be determined by the court. If determined in favor of those remonstrating- the action of the commission and council should be annulled. The prime object of permitting a remonstrance to be filed was to give those whose property would be affected by a proposed public improvement an opportunity to express their disapproval of the action of the commission in taking- the preliminary steps to make it. If the requisite remonstrance is filed and those remonstrating seek in apt time to review the action overruling it, as in the case at bar, the courts are open to hear their grievances. Sustaining the plea in bar, in the circumstances of this case, erroneously deprives those who filed remonstrances of this right.
In brief, on the facts presented, my views are, that, in as much as the charter provides (section 327) that the park commission, before acquiring- real estate for park purposes, shall give notice by publication to the owners of the real estate to be assessed for the expense thus incurred, of specified matters which notice shall infori such owners that, not less than ninety days after its first publication, the question of the proposed purchase or condemnation of the land to be used for the proposed park will be considered by the commission, and that all complaints and objections that may be made in writing by owners of' real estate to be assessed for such proposed park will be heard and determined by the commission before final action, and further provides that “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 reál 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,” that, if the requisite *59remonstrance is filed within the time specified, which the complaint in this case alleges was the fact, then the action of the commission in overruling such remonstrance, or the finding of the council to the effect that the requisite remonstrance was not filed, may be determined in the courts in an action instituted by any one or more of those remonstrating if commenced before the expense for the proposed park is incurred. In such circumstances, if the court should find that the requisite remonstrance was filed, the proceedings should be annulled.
I am authorized to state that Mr. Justice Musser concurs in this opinion.