Milheim v. Moffat Tunnel Improvement District

Mr. Justice Allen

concurring specially:

I concur in the affirmance of the judgment. Since many of the questions raised in this case are of far reaching importance, and the writer of the opinion of the court has not expressed all of my views, I feel inclined to review this cause in a specially concurring opinion.

This is a suit for an injunction to restrain the Moffat Tunnel Commission from proceeding to enforce, or attempting to enforce, the provisions of chapter 2 of the Session Laws of 1922, Extraordinary Session, the same being an Act commonly known as the Moffat Tunnel Law, which was approved by the Governor on May 12, 1922. Several parties intervened, asking the same relief as that prayed for in the complaint of plaintiffs. In effect, this is a suit to determine the constitutionality of the Moffat Tunnel Law. The trial court held the statute to be constitutional and valid, and accordingly entered judgment for the defendants who consist of the Moffat Tunnel Improvement District, a body corporate, and the individuals who, as a board, constitute the Moffat Tunnel Commission. The plaintiffs and interveners below bring the cause here for review.

The object and purpose, and, in substance, the nature, of the Moffat Tunnel Act, is indicated by its title, which is as follows:

“An Act to provide for the creation of an improvement district to be called ‘The Moffat Tunnel Improvement District/ for the construction of a tunnel through the Continental Divide between Grand County and Gilpin County, said tunnel to be used for transportation and other purposes ; to provide for officers of said district, defining their powers, duties and compensation; to provide for the levying and collecting of assessments upon real estate within said district, and for the issuance of bonds for the payment of the cost of construction of such tunnel.”

*285The improvement district is provided for in section 2 of the act, reading, in part, as follows:

“Section 2. There is hereby created an Improvement District to be known and designated as ‘The Moffat Tunnel Improvement District.’ Said District is hereby declared to be a body corporate under the laws of Colorado, and by said name may sue and defend in all actions, suits and proceedings.”

The territory comprised in the district is described in the same section, and it is provided that the District shall be comprised of the City and County of Denver, county of Grand, county of Moffat, county of Routt, and certain described portions of Eagle, Gilpin, Boulder, Adams and Jefferson counties.

In section 4 it is provided that “said district shall be-managed and controlled by a board of five members to be known as the ‘Moffat Tunnel Commission.’ ”

The improvement contemplated and authorized by the Act is provided for and described in section 6, which reads as follows:

“Section 6. It shall be the duty of said Board, on behalf of said District, to provide for the construction of and to construct a transportation tunnel, its equipment and approaches thereto; said tunnel to be constructed at an elevation of approximately Nine Thousand Two Hundred (9,200) feet above sea level, the eastern portal of said tunnel to be located at the most practicable site on the eastern slope of the Continental Divide and near the head-waters of South Boulder Creek, the western portal of said Tunnel to be located at the most practicable point on the western slope of the Continental Divide, near the head-waters of the Fraser River. Said tunnel and its approaches shall be so constructed that the same may be used for standard gauge railroads, for the transmission of power and for the use of telephone and telegraph lines, for the transportation of water and for the transportation of automobiles and other vehicles.”

In the absence of any constitutional provision to the con*286trary, a Legislature may create, as it has by the Moffat Tunnel Law, an improvement district. The formation of such districts is a function pertaining purely to the legislative branch of the government. Drainage districts have, accordingly, been created. 19 C. J. 614. No provision of the state or federal Constitutions has been pointed out, and none exists, which prohibits our Legislature from creating such a district as is created and provided for by the statute now under consideration. The constitutional questions presented by the record do not pertain to the right of the Legislature to create any improvement district. They concern certain features and provisions of the Act, apart from this.

In the consideration of the constitutional questions presented to us, we are to proceed in the light of two principles. The first is as indicated in Alexander v. People, 7 Colo. 155, 2 Pac. 894, where this court said:

“The legislature being invested with complete power for all the purposes of civil government, and the state constitution being merely a limitation upon that power, we look into it (the statute), not to see if the enactment in question is authorized, but only to see if it is prohibited.”

The second rule, above referred to, is stated in C. B. & Q. R. Co. v. School Dist., 63 Colo. 159, 165 Pac. 260, as follows:

“We are required to uphold legislation, unless its unconstitutionality appears beyond all reasonable doubt. (citing cases) An act is to be overthrown only when it is clear and unquestioned that it violates the fundamental law. (citing cases).”

The latter rule has been carefully observed by the courts when passing upon the validity of statutes or ordinances authorizing the construction of public improvements, the special assessments connected therewith, and the creation of improvement districts. See Cook v. Port of Portland, 20 Or. 580, 27 Pac. 263, 13 L. R. A. 533 (where the legislature created an improvement district, provided for the enlargement of the channel of Willamette River, and for *287the taxation of property in the district to pay for the improvement) ; Admiral Realty Co. v. New York, infra. It is, of course, the rule in any case involving the constitutionality of a statute. 8 Cyc. 801.

I. The first proposition asserted by plaintiffs in error as a ground for holding the act unconstitutional and void is that “this improvement (the tunnel) is not a public use.”

This proposition, if established, is material for the reason that the Legislature has no rightful power to impose taxes on the people for any other than a public purpose. 37 Cyc. 719. This limitation upon the taxing power is based upon and derived from the inherent purposes of the state as a social organization. Gray, Limitations of Taxing Power, §§ 169, 170.

The Moffat Tunnel Law provides for the levy and collection of special assessments upon real estate situated within the district. Special assessments are not taxes, as the term is used in some parts of the Constitution, but nevertheless they are imposed in the exercise of the power of taxation. Denver v. Knowles, 17 Colo. 204, 30 Pac. 1041, 17 L. R. A. 135. They can be imposed only for a public purpose. In other words, the improvement which may be paid for by special assessments must be a public improvement. 25 R. C. L. 97, section 12.

The presumption is that the improvement provided for by the Moffat Tunnel Law is for a public purpose. The burden of showing that it is not, is upon the plaintiffs in error, since they seek to overthrow the statute on that ground. Denver v. Knowles, supra.

The trial court, after hearing the evidence, held that the proposed improvement is or will be, when constructed, of a public nature. The question of public use is one of law, after the facts bearing thereon are established. There is no reason, from anything appearing in the record, or in the act itself, ior holding that the proposed improvement will not be a public use.

The question of public use arose in Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610, and it was *288there held that the construction of a subway in Boston was for a public use, and it was a public use notwithstanding the fact that the Transit Commission was empowered to lease the subway, when completed, to a street car company. In Sun Printing & Pub. Assn. v. Mayor, 8 App. Div. (N. Y.) 230, 40 N. Y. Supp. 607, the court, with reference to a subway, capable of being used by a street railroad, said: “That it is a public purpose does not seem to admit of question.” To the same effect is Admiral Realty Co. v. City of New York, 206 N. Y. 110, 99 N. E. 241, Ann. Cas. 1914A, 1054, dealing with the construction and leasing of subways in New York City. A public,use is a use which concerns the whole community, as distinguished from a particular individual or a particular number of individuals. 32 Cyc. 1255. In another part of this opinion, is stated the conclusion and the grounds therefor, that neither the act nor anything that may be done .under it is an aid to a private person or corporation. From that conclusion it follows that the proposed improvement will be of public benefit and advantage. It will serve the public in a manner similar to that in which the subways served the public, in the cases above cited, and they were held to be a public use. It will serve the public in more ways than did the improvements in those cases, as appears from section 6 of the act, already quoted, which describes the proposed tunnel.

The improvement will be a public use, under the accepted definitions of that term, under the authorities cited, and under the considerations mentioned and the test laid down in Tanner v. Treasury T. M. & R. Co., 35 Colo. 593, 83 Pac. 464, 4 L. R, A. (N. S.) 106.

II. A local improvement, to be chargeable upon private property as such, must possess the element of public use, above discussed, and also “must confer a special benefit on the property sought to be specially charged with its creation and maintenance, over and above that conferred generally upon property within the municipality (or district).” 25 R. C. L. 97, section 12. To the same effect is Denver v. *289Kennedy, 33 Colo. 80, 80 Pac. 122, 467; Pomroy v. Pueblo, 55 Colo. 476, 136 Pac. 78.

The plaintiffs in error contend' that the proposed improvement lacks the element of special benefit.

That the element of special benefit exists, with reference to the Moffat Tunnel, has been declared by the legislature in the Act in question. Section 1 thereof reads as follows:

“It is hereby declared that to provide for an avenue of communication by means of a transportation tunnel through the Continental Divide at or near James Peak will reduce the barrier which now separates the western portions of this state from commercial intercourse with the eastern portion thereof, will facilitate communication all seasons of the year, will promote the health, comfort, safety, convenience and welfare of the people of the State of Colorado, and will be of especial benefit to the property within the boundaries of the improvement district hereinafter created.”

This section is also, in effect, a legislative declaration that the proposed improvement is and will be a public use. If the declaration on that point is not conclusive upon us, it is at least entitled to great weight. Tanner v. Treasury T. M. & R. Co., supra. 25 R. C. L. 99, section 14. Irrespective of this, however, we have already disposed of this question in an earlier part of this opinion.

In addition to section 1 of the act, the legislature made a still more positive and clear declaration with reference to special benefits. The first clause of section 11 reads as follows:

“It is hereby expressly declared that the special benefits accruing to the real estate in said District to be assessed are in excess of the cost of the improvements herein provided for and in excess of the assessments herein provided for against said real estate.”

There is nothing in the record to show that this legislative declaration was arbitrary or unfounded in reason. The evidence and the record support the truth of the declaration and the good faith of the legislature in making it.

*290The inclusion of property in an assessment district is prima facie evidence that it will be benefited by the improvement. 28 Cyc. 1129. The usual test of benefit is the increase of value of the land. 28 Cyc. 1129. The record in this case shows testimony to the effect that the value of the land in the Moffat Tunnel Improvement District would be increased because of the increased transportation facilities. In Denver v. Kennedy, supra, this court saw no reason for finding that the property in a viaduct district was not specially benefited. In Larsen v. San Francisco, 182 Cal. 1, 186 Pac. 757, the court was concerned with a case where there was constructed, or intended to be constructed, a tunnel piercing a high ridge which separates the more densely populated portion of San Francisco from the large and comparatively level region lying west of the ridge. In the course of the opinion the court said:

“We are satisfied that the construction of the tunnel here involved is specially beneficial to the property upon which the assessment is levied, to the extent necessary to justify the assessment.”

In Cook v. Port of Portland, supra, the improvement district was held to be specially benefited by the enlargement of the channel of a river so as to connect the city of Portland with the Pacific Ocean.

In the case at bar an examination of the facts set forth in the record will show that the particular localities comprising the Moffat Tunnel Improvement District are peculiar in their topography. The area of the district is one which is cut off from intercourse with the rest of the world for many weeks in the year. The boundaries of the district upon the south and the east, with the exception of that small part of the district lying east of the Continental Divide, follow precisely the mountain ranges which form the barrier isolating this part of the state. The lack of easy communication, and for some periods during the year, of any communication at all, with other parts of the state, interrupts and jeopardizes commercial intercourse of all kinds. Products from this vast and fertile territory cannot *291be marketed with any degree of assurance. The proposed improvement is one needed, and will benefit the district in a peculiar and local way above any possible benefit to the state at large. The land lying east of the divide will also be specially benefited, and that portion of the district which is covered by the City and County of Denver will be specially benefited in a way similar to that in which the City of Portland was benefited by the creation of the Port of Portland, as explained in Cook v. Port of Portland, supra.

The record not showing that the legislative declaration, heretofore quoted, is unreasonable, this court need go no further, in overruling the contention as to special benefits, than to apply the rule laid down in several cases decided by the Supreme Court of the United States, namely, that the legislative declaration is conclusive upon the owners of the lands and upon the courts. Branson v. Bush, 251 U. S. 182, 40 Sup. Ct. 113, 64 L. ed. 215; Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921, 31 L. ed. 763; Houck v. Little River Drainage Dist., 239 U. S. 254, 36 Sup. Ct. 58, 60 L. ed. 266.

Since the act creates a special district, and contemplates a particular improvement, we are also bound by the legislative declaration to the effect that the assessments will not exceed the benefits. 25 R. C. L. 139, section 57.

The principle of the foregoing authorities has received approval by this court in Denver v. Kennedy, supra, where it was stated, in effect, that if a law designates the city authorities as the body to determine what property was and what was not specially benefited by the construction of a local improvement, the action of such authorities, in such matter, “is conclusive, unless it clearly appears that their action was fraudulent or unreasonable.”

Consistent with the authorities above cited, is also the case of Van Kleeck v. Ramer, 62 Colo. 4, 156 Pac. 1108, where this court held that a declaration by the Legislature that an enactment is necessary for the immediate preservation of the public peace, health and safety, is conclusive, *292and not subject to review by the courts. Among' other things, we there said:

“Except as limited by the Federal or State Constitutions, the authority of the General Assembly is plenary. * * *
“During the process of the enactment of a law the legislature is required to pass upon all questions of necessity and expediency connected therewith. The existence of such necessity is a question of fact, which the general assembly in the exercise of its legislative functions must determine ; and * * * that fact cannot be reviewed, called in question, nor be determined by the courts; It is a question of which the legislature alone is the judge, and when it determines the fact to exist, its action is final.”

III. It is provided in section 2 of the Act that there is created an improvement district to be known and designated as “The Moffat Tunnel Improvement District,” and it is further provided that the district be a body corporate under the laws of Colorado and may sue and defend in its corporate name. Two preliminary constitutional questions may here be disposed of. First. The act does not violate section 2, article XV of the Constitution, prohibiting the creation of corporations by special law. That section applies only to private corporations. Carpenter v. People, 8 Colo. 125, 5 Pac. 828. The Moffat Tunnel Improvement District is not a private corporation. Second. The Act does not violate section 13, article XIV of the Constitution which forbids, by implication, the creation of cities and towns otherwise than by general law. The improvement district in question is not a city or town, nor even a municipal corporation. It resembles a levee district, in the matter of the nature of the corporate entity. In People v. Reclamation Dist., 117 Cal. 114, 48 Pac. 1016, it was said that such districts are neither private nor municipal corporations, but are special organizations, formed to perform certain work, which the policy of the state requires or permits to be done, and may, therefore, be created by special' law, without there being a violation of constitutional provisions such as above referred to. See also 25 Cyc. 194.

*293IV. As before stated, the Moffat Tunnel Improvement District is not a city or town. Therefore the act does not violate section 8 of article XI of the Constitution, which places limitations upon cities and towns in the matter of contracting debts by loans, and provides for the submission of certain questions relating to indebtedness to the qualified electors. That section applies to cities and towns only. The case of Denver v. Hallett, 34 Colo. 393, 83 Pac. 1066, involved Denver, a city, and is not applicable in the instant case. Section 6, article XI, is similar to section 8, but applies to counties only, and section 7 applies to school districts. None of these sections apply to a quasi corporation such as this improvement district.

Y. It is contended that the Moffat Tunnel law violates section 7, article X, of the Constitution. That section reads as follows:

“The general assembly shall not. impose taxes for the purposes of any county, city, town, or other municipal corporation, but may by law vest in the corporate authorities thereof respectively the power to assess and collect taxes for all purposes of such corporation.”

There are several answers to this contention, any one of which is sufficient to overrule the objection raised.

First. The word “taxes” as used in the section above quoted does not comprehend within its meaning special assessments. Lainhart v. Catts, 73 Fla. 735, 75 So. 47. While this precise point was not directly decided in Denver v. Knowles, supra, yet the court there said:

“There is certainly reason for saying that the word ‘tax,’ when used in the constitution, refers to the ordinary public taxes, and not to the assessments for benefits in the nature of local improvements.”

The court there applied its reasoning to section 3, of article X, which relates to uniformity of taxation, but the reasons apply as well to section 7.

Second. Another answer to the contention of plaintiffs in error is that the Legislature is not imposing any taxes, by the act, even if the special assessments provided for are *294taxes. The Legislature vests in the Moffat Tunnel Commission the authority to- levy the special assessments.

Third. It was stated in Stermer v. Board, 5 Colo. App. 379, 38 Pac. 839, that the words, “municipal corporation,” as used in this section (sec. 7, art. X), apply only to cities and towns. The district here involved is neither a city nor town.

Fourth. Assuming that the district is a municipal corporation within the meaning of section 7, article X, the Legislature, as permitted by that section, vested in the corporate authorities of such corporation the power to assess and collect the special assessments. The Moffat Tunnel Commission is the corporate authority of the district. It has power to act in all matters relevant to the purposes for which the district was created. It is a “corporate authority” within the meaning of the constitutional provision cited, for the reason that it is vested with authority in regard to the particular matters spoken of in the Constitution. This is in accord with the definition of “corporate authorities” as given in Black’s Law Dictionary, 272, as follows:

“The title given in statutes * * * to the aggregate body of officers of a municipal corporation * * * who are vested with authority in regard to the particular matter spoken of in the statute, as taxation, bonded debt, * * * etc.”
VI. Since it has just been stated, in effect, that the legislature vested in the Moffat Tunnel Commission the power to levy special assessments, it is convenient to take up next the question whether the act is in violation of section 35, article V, of the Constitution, which prohibits the Legislature from vesting in any special commission the power to tax. The section reads as follows:
“The general assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in *295trust or otherwise, or to levy taxes, or perform any municipal function whatever.”

In this connection, the question really is: Is the Moffat Tunnel Commission a “special commission” within the meaning of the constitutional provision above quoted? It has been already stated that the commission is the governing body of the district, and it follows, therefore, that it is not more “special” than is any other governing body of a corporation. The commission is to the district what the board of county commissioners is to a county. Neither is a special commission.

In 7 Words & Phrases, 6572, citing In re Senate Bill, 12 Colo. 188, 21 Pac. 481, the following definition is given of “Special Commission

“The board of public works of a city, the members of which are appointed by the Governor, with the consent of the Senate, charged with duties relating to the expenditures of city funds and the making of public improvements, is not a ‘special commission,’ within the provision of the Constitution forbidding the delegation to any special commission of any power to make, supervise, or interfere with any muncipal improvement, but is a permanent department of the city government.”

The Moffat Tunnel Commission has the management of the improvement district. It is created for that purpose. It is a permanent board, and not one created for a limited object not connected with the management of the district. It is not a special commission within the meaning of section 35, article V, and, therefore, that section is not violated by the Moffat Tunnel law.

VII. The fact that the Moffat Tunnel Act is a special law gives rise to the contention that it is in violation of section 25, article V, of the Constitution, which provides, among other things, that the General Assembly shall not pass local or special laws in reference to “laying out, open-: ing, altering or working roads or highways.” As a foundation for this contention, it is claimed that the contemplated Moffat Tunnel is a highway.

*296Section 6 of the act provides:

“Said tunnel and its approaches shall be so constructed that the same may be used for standard gauge railroads, for the transmission of power and for the use of telephone and telegraph lines, for the transportation of water and for the transportation of automobiles and other vehicles.”

From this it is readily apparent that the tunnel will not be a highway in the ordinary sense of the term, but will be, as indicated in section 1 of the act, “an aveune of communication” which will “reduce the barrier which now separates the western portions of this state from commercial intercourse with the eastern portion thereof.”

In In re Burns, 155 N. Y. 23, 49 N. E. 246, the court construed a constitutional provision like the one now under consideration, and said:

“The framers of the Constitution evidently used the term (highway) in its ordinary and popular sense, comprehending only the ordinary roads and highways under the care of local authorities.”

We give our unqualified approval of that interpretation. The same has been followed in Grice v. Clearwater Timber Co., 20 Idaho, 70, 117 Pac. 112.

Reference is made in one of the briefs to section 4, article XV of the Constitution, which provides that railroads shall be public highways. The nearest the tunnel will come to being a railroad is that one of the uses to which it will be put, not the only use, is that of a right of way for a railroad. Even if it can be said that the tunnel, when completed, will be a road, highway, or railroad, it will not be such a “road or highway” as is contemplated by the constitutional provisions referred to. It will be neither laid out, opened, altered, nor worked. In connection with the words “roads or highways” the constitutional provision uses the words “Laying out, opening, altering or working.” A like situation was observed in Manigault v. Springs, 199 U. S. 473, 26 Sup. Ct. 127, 50 L. Ed. 274, where the court said:

“We think that, in connection with the words ‘to lay out, *297open, alter or work roads,’ the word ‘highway’ is used in its ordinary sense, and as an equivalent to a public road.”

It was accordingly held, in that case, that the constitutional provision was not, therefore, applicable to water highways. The same reasoning would make it inapplicable, of course, to such a tunnel as is provided for by the Moffat Tunnel law. Therefore the proposed tunnel is not a road or highway within the meaning of the constitutional provision above cited, and the act does not violate this section.

VIII. It is claimed by plaintiffs in error that the Moffat Tunnel statute violates sections 1 and 2 of article XI of the state Constitution. Section 1 prohibits the state from lending or pledging its credit, directly or indirectly, to or in aid of any private person or corporation. Section 2 prohibits the state from becoming a joint owner with any private person or corporation.

These sections are set out in full, and their purpose stated,in Lord v. Denver, 58 Colo. 1,143 Pac. 284, L. R. A. 1916B, 306, Ann. Cas. 1916C, 893, where this court considered an amendment to the charter of the City and County of Denver, providing for the creation of a Tunnel Commission and the construction of the Moffat Tunnel. In that case the court was concerned chiefly with a proposed bond issue and a contract made in pursuance of the Moffat Tunnel charter amendment, but the reasoning and the conclusions were applicable, of course, to the amendment as well as to the contract. The court held that “the proposed bond issue” was “clearly both in letter and spirit, within the inhibition of sections 1 and 2 of art. XI, of the constitution,” and void.

The charter amendment under consideration in the Lord case, authorized the Tunnel Commission so to contract, with reference to the construction of the Moffat Tunnel, that a portion of the funds needed therefor might be furnished by individuals or corporations interested in the tunnel. Pursuant to such authorization, the Tunnel Commission entered into a contract with the Denver and Salt Lake Railroad Company, a corporation, for the construction of *298the tunnel. The contract was, in effect, that the City and County of Denver, for whom the Tunnel Commission was acting, issue and sell its bonds in payment of two-thirds of the expense of the construction of the tunnel, and the railroad company to contribute the remaining one-third of such expense. In the course of the opinion, the court said:

“Indeed, it would seem that language could not make plainer the intent of the framers of the constitution, to utterly prohibit the mingling of public moneys with those of private persons, either directly or indirectly, or in any manner whatsoever.”

The situation, above described, existing in the Lord case, is absent here. In the instant case, the statute does not authorize the use of any funds obtained from any private person or corporation under contractual relations. The only funds of such persons or corporations which may be used are funds voluntarily donated. There can be no contract whereby a part of the moneys necessary for the construction of the tunnel are to be furnished by a private person or corporation. The statute does not authorize, neither is the present Tunnel Commission attempting, the construction of the Moffat Tunnel as a joint enterprise carried on between the district and a private person or corporation.

Again, the charter amendment involved in the Lord case authorized the Tunnel Commission to enter into contracts with individuals or corporations whereby the latter might purchase the tunnel on reimbursing the city the amount it expended or invested, and in case of such sale the city would reserve an easement in the tunnel for the purpose of using the same for the conveyance of water and for the transmission of electricity. The contract, made in pursuance to the charter amendment, also provided that the railroad company may purchase the tunnel for railroad transportation purposes, and this was, in effect, providing for an out and out purchase of the tunnel, since there was nothing left for the city outside of the easements above mentioned. Such a situation does not exist in the instant *299case. There is and will be neither a joint ownership of the tunnel by the district and some private person or corporation, nor an ownership now or hereafter by any private person or corporation, but the Moffat Tunnel Improvement District will itself forever remain the sole owner of the tunnel. The reasons which prompted the court in the Lord case to hold the bond issue and contract there involved void, are not applicable in the instant case. It seems that the bill for the Moffat Tunnel law was drafted in the light of the opinion and decision in the Lord case, and so framed as not to be amenable to the constitutional obj ections which were well founded in that case.

The Moffat Tunnel law provides for the leasing of the tunnel to private persons or corporations, but such a provision does not render the law objectionable as extending aid to such person or corporation as may lease the tunnel, or to any other person or corporation. In this connection the facts are analogous to those appearing in Sun Printing & Pub. Ass’n. v. Mayor, etc., of New York, 8 App. Div. 230, 40 N. Y. Supp. 607, affirmed in 152 N. Y. 257, 46 N. E. 499, 37 L. R. A. 788. There, as here, the public improvement was constructed, or would be constructed, entirely at the expense of the city or district, and the ownership of the improvement would forever remain in the municipality or district. There, as in the instant case, the statute provided for the leasing of the improvement for a limited term. It was there held, as it must be and is held here, that the leasing of the public work is not such an aid to a private person or corporation as is prohibited by the Constitution; neither does the leasing result in joint ownership of the improvement by the district and its lessee. As said in the case last above cited, as reported in 8 App. Div. 230, 249, the relation of lessor and lessee does not create a joint interest.

The case of Walker v. City of Cincinnati, 21 Ohio St. 14, 8 Am. Rep. 24, involved the validity of an act authorizing certain cities to provide for the construction of á line of railway over terminals, of which one should be within the *300city. With reference to this case and to the leasing of the railroad, the court in Taylor v. Ross County, 23 Ohio St. 22, 77, said, among other things:

“The proprietary interest in the road when completed, is as fully in the municipality as that of any other of its public works. It is the road ‘owned’ by the municipality that is authorized to be leased. The public use for which the road was built, is to be preserved, and the power of leasing the right to use and operate it, is designed only as a mode of making such use available to the public.”

In Haeussler v. City of St. Louis, 205 Mo. 656, 103 S. W. 1034, the city was authorized to grant to railroad and street car corporations the right to use the bridge, constructed and owned by the city. It was held, citing the Cincinnati case among others, that the ordinance permitting such leasing in no wise violated the constitutional provisions prohibiting the giving of aid to private corporations.

In Admiral Realty Co. v. City of New York, supra, it was held that the making of a lease of a subway to a private corporation, where the lease is not in perpetuity, is not loaning money or credit, or giving aid, to such corporation, within the meaning of a constitutional provision like that involved in the instant case.

The cases above cited were referred to, apparently with approval, by this court in the Lord case.

Under the reasoning in the cases cited, the Moffat Tunnel law does not authorize the doing of any act which would be, or could be construed to be, an aid to a private person or corporation, within the meaning of the constitutional provisions cited. Neither the state nor the improvement district does, or can, lend or pledge its faith or credit to any person or corporation. The statute does not permit joint ownership of the tunnel by the district and any private person or corporation. The leasing of the tunnel would result neither in giving aid to a person or corporation nor in a joint ownership. ' For these reasons it must be held that the act does not violate sections 1 and 2, or either of them, of article XI of the state Constitution.

*301IX. The plaintiffs in error contend also that the Act is in violation of the uniformity clause of the Constitution, relating to taxation. This clause is section 3, article X, reading as follows:

“All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws, which shall prescribe such regulations as shall secure a just valuation for taxation of all property, real and personal. * * *”

The only taxation, or form of taxation, provided for by the Moffat Tunnel Act is that described in section 11 thereof, which, so far as material here reads as follows:

“The Board shall have power to levy special assessments upon all real estate within the District, except such real estate as is by this Act exempted, for the purpose provided in this Act, such special assessments to be made in proportion to the benefits to each piece of real estate accruing by reason of the improvements herein provided to be made and in accordance with the rules of apportionment to be adopted by the Board.”

The property exempt is such as belongs to the state, cities, towns, etc., and the question now under discussion does not concern these exemptions. Briefly stated, the contention simply is that special assessments, or special assessments on real estate alone, constitute the violation of the uniformity clause.

This question is free from difficulty. The rule is thus aptly stated in 25 R. C. L. 90, section 7.

“It is the well settled general' rule that special assessments for local improvements are not taxes within the meaning of the constitutional provision that taxation shall be equal and uniform throughout the state, county, or municipality laying the tax.”

The above quoted work cites, among other cases, Denver v. Knowles, 17 Colo. 204, 30 Pac. 1041, 17 L. R. A. 135, and it is not disputed, and cannot be, that the Knowles case is decisive in the instant case upon the proposition *302that assessments on property benefited are not within the constitutional inhibition referred to. However, the plaintiffs in error advance a further proposition and contend, in effect, that special assessments, to be valid under the rule stated in the Knowles case, must be levied on all the property benefited, both real and personal, and that since, as they claim, the proposed improvement involved in the instant case benefits personal property as well as real estate, the Act is invalid because it does not provide for assessments against personal property. We do not agree with this latter proposition. It is not clear from the record whether it should be assumed or held now that personal property will also be benefited by the tunnel, but the fact is immaterial. The Knowles case makes no such distinction as plaintiffs in error make in advancing the contention last mentioned. The ruling there was that special assessments are not taxes within the constitutional provision. If they are not taxes, then it is immaterial whether the assessments are confined only to real estate, or are levied on all property. It has frequently been held that the Legislature may include personal property in the assessments. 1 Page & Jones, Taxation by Assessment, section 548. If it has been held that' personal property must be included, we are not in accord with such rule. It was competent for the legislature to provide that the special assessments be levied on real estate only. The reason is that it is generally land only that is specially benefited by a local improvement, and even if personal property is also enhanced in value, which is doubtful, to assess real'estate alone is still in accord with the theory on which special assessments are upheld, namely, that the improvement, as said in Pomroy v. Pueblo, 55 Colo. 476, 136 Pac. 78, “must specially enhance the value of the property against which such assessment is levied at least equal to the amount so assessed.” It has never been held in this state that every kind of property specially benefited must be subjected to the assessment. It is regarded by the courts as a settled rule that the legislature may order or provide that special assessments be levied either *303“upon property generally, or only upon the lands benefited by the inprovement.” 25 R. C. L. 108, section 26; Spencer v. Merchant, supra.

X. The assignments of error include the question of due process of law, and it is claimed the court erred in not holding the Moffat Tunnel law void as being in conflict with the due process clause of the federal Constitution.

The objection that the proposed improvement is not for a public -purpose is relevant to the question of due process. That objection has been disposed of in an earlier part of this opinion.

While the point is not argued, yet it may be remarked in passing that the due process clause is not violated by the fact that the Legislature created the improvement district without the consent of the land owners of the district. This would be true even if the Legislature had not provided, in section 3 of the act, that the improvement shall not be constructed in the event that there is, within a certain time, a written remonstrance by the owners of property of the value of at least fifty per cent of the value of the property subject to assessment.

In Denver v. Kennedy, supra, this court said:

“The constitutional provision relative to ‘due process of law’ is fully complied with when the property owner is afforded an opportunity to be heard and test the validity of a special assessment and the proportion of the general cost of the improvements which shall be assessed against his property.”

This is a well established principle. See 12 C. J. 1260, section 1061, et seq.

Section 11 of the Moffat Tunnel Act, among other things, provides:

“The Board shall have the power, if it deems it advisable, at any time, after this act goes into effect and before levying special assessments, to appraise the benefits to the several parcels of real estate, within the District which shall result from the organization of said District and the con*304struction of said tunnel, its approaches and equipment, and after such appraisal of benefits shall have the power to levy special assessments to the extent of such benefits upon all real estate as hereinbefore provided. And the Board may adopt rules for such purposes, which rules may provide, inter alia, for notice and hearing to all owners affected thereby.”

The record before us shows that the commission determined to appraise the benefits to the several parcels of real estate within the district before levying assessments and commencing the construction of the tunnel. For this purpose the commission heard evidence as to the special benefits which the several parcels of real estate within the district would receive by reason of the organization of the district and the construction of the tunnel. After hearing such evidence the commission made a preliminary finding to the effect that each piece of real estate within the district would be benefited at least to the extent of fifteen per cent of its actual cash value, and also found the actual cash value of each piece of property within the district. After this preliminary finding notice was given to the land owners of a time and place where the commission would hear objections to the appraisal of the benefits. Upon this hearing none of the plaintiffs or intervenors in this proceeding filed any objections. After this opportunity for hearing the commission gave further consideration to the appraisal of the benefits and finding that it had properly appraised such benefits in its preliminary order and resolution, confirmed said appraisals, thus fixing the amount of the benefits upon the real estate and thereby determining the extent to which special assessments could be levied for the purpose of carrying out the objects of the bill.

Objection is made that this appraisal of benefits is unjust, arbitrary and confiscatory. We find that such is not the case. The commission heard evidence upon this subject and, after hearing evidence, arrived at its conclusion. In the court below further evidence was heard upon this same subject and that court found this appraisal of benefits *305to be proper. We confirm this conclusion of the court below.

Section 15 of the act provides that when special assessments are levied the land owner shall again be given an opportunity to be heard before the commission as to the correctness or legality of the assessment, and if he is dissatisfied with this hearing, then an appeal may be taken to the district court. But by reason of the conclusive determination of the benefits each tract of land will receive by the construction of the tunnel, the only question that can be raised under the procedure provided in section 15 will relate to matters occurring subsequent to such appraisal of benefits heretofore made by the board under the provisions of section 11.

It is also claimed that the members of the commission are, or may be, land owners themselves, and that, on that account, they cannot be an impartial board.

The due process clause of the federal Constitution requires, chiefly, that there be an opportunity to be heard. The Moffat Tunnel law gives this and is not providing for a tribunal not impartial. The board is created in the ordinary way. No particular qualifications of the members are prescribed, and need not be. In further answer to the contention under consideration, the following language from Hibben v. Smith, 191 U. S. 310, 24 S. Ct. 88, 48 L. Ed. 195, is applicable:

“We have not the slightest doubt of the power of a legislature, * * * to create a tribunal in a city or town, * * * to make an assessment, and that such assessment would be valid, notwithstanding the fact that every member of the board was a taxpayer of the city or the town. It is a matter of legislative discretion as to how such a board shall be constituted, and we hazard nothing in saying that it is quite common throughout the country for the legislatures of the states to create a tribunal for levying assessments for local improvements in a manner precisely like the case in question.
“To say that no one who was a taxpayer in a city or *306town could act in imposing an assessment upon property therein is to say that the legislature is wholly without power, by reason of the Federal Constitution, to constitute a tribunal to make an assessment where such tribunal is composed of taxpayers in the city or town. This we do not believe. It must frequently happen that a board * * * to assess all property for general taxation, will be composed of men who themselves own property in the city and assess the same for purposes of such taxation.”

XI. The plaintiffs in error contend that the Act is in violation of article XX of the Constitution, the home rule amendment. A similar contention was made, and overruled, in Miami County v. Dayton, 92 Ohio St. 215, 235, 110 N. E. 726, where the state legislature established a conservancy district embracing within its area a home rule, city.

Article -XX governs local' and municipal improvements of the home rule city. The Moffat tunnel is not an improvement of the City and County of Denver, but is one of the Moffat Tunnel Improvement District, which is a district embracing territory, and a great deal of territory, outside of Denver. Section 6, of article XX, relates to assessments for local purposes. The assessments involved in the act under consideration do not relate to purposes local to Denver but to the district. The contention in question cannot be sustained.