235 P. 777 | Colo. | 1925
THE object of this action by J. Henry Tihen, as Roman Catholic Bishop of the diocese of Denver, plaintiff, against the City and County of Denver, defendant, is to restrain the city from collecting an assessment for a local improvement which it levied upon a cemetery, not for profit, situate within, the city, legal title to which in fee is vested in the plaintiff. It is not, as the defendant claims, a suit to quiet title. The important and controlling question for decision is whether such a cemetery is exempt from the assessment. Section 5 of article X of our Constitution exempts from taxation cemeteries not used or held for private or corporate profit, unless otherwise provided by general law. As the General Assembly has not otherwise so provided, this cemetery, which is not, and never has been, used for corporate or private profit, is exempt from taxation. This constitutional exemption was reproduced in our general revenue act (R. S. 1908, § 5545, p. 1303), *214 and the section was amended in 1921 (S. L. 1921, p. 687; section 7198, C. L. 1921, p. 1840), by inserting the word "general" before the word "taxation"; the evident purpose being to show the legislative intention that "taxation" was used in the ordinary sense in which it is employed in our Constitution and statute generally, as in other states of the Union, as the general burden or charge imposed by the sovereign power upon all property for general public purposes of the state and its subordinate divisions and municipalities, as distinguished from "assessments" against property for local improvements which are usually levied by the subordinate municipalities in which the property is situate.
In 1887 our General Assembly (S. L. 1887, p. 70) passed an act, the fifth section of which exempts all property of cemetery corporations used or owned for burials, and all lots owned by the members thereof, from "taxation, assessment, lien, attachment and from levy and sale upon execution, except for the purchase price thereof." By section 3 of the same act the net proceeds arising from the sale of lots by such corporation, and all other income and revenue thereof, after paying for the grounds, shall be exclusively applied to the improvement and used for the necessary expenses of caring for the property, and no part thereof shall be appropriated for the profit of the corporation or its members. In 1891, S. L. 1891, p. 58, two sections, 6 and 7, were added to the 1887 act; section 6 specifically providing that the former act shall not apply to any corporation or association organized to maintain a cemetery for profit, and section 7 postponing exemption until the property is actually sold or disposed of for cemetery purposes.
In section 6 of the amendment of 1912 to article XX of the Constitution, commonly designated as the "Home Rule Amendment" (Denver Municipal Code 1917, pp. 23, 24), by which the present City and County of Denver was created and under which, with amendments thereto, it is operating, it is provided, among other things, that the charter *215 of Denver shall be the organic law and extend to all its local and municipal matters, and with respect to the same such charter and ordinances passed in pursuance thereof shall supersede state laws in conflict therewith. For the government and administration of its local and municipal matters the people of Denver are given the power to legislate to the same extent as the General Assembly of the state may with respect to statutory municipalities concerning their local and municipal matters.
Clause g of section 6 confers upon the city the power to assess property for municipal taxation, and to levy and collect taxes for municipal purposes, and special assessments for local improvements.
Clause h reads: "The statutes of the state of Colorado, so far as applicable, shall continue to apply to such cities and towns, except in so far as superseded by the charters of such cities and towns or by ordinance passed pursuant to such charters."
It is upon the foregoing constitutional and statutory provisions, in the light of recognized rules of construction, the declared public policy of the state and the general, if not universal, sentiment of civilized society with respect to the sacredness of the burial places of the dead, that this controversy is to be determined.
We start then with the premise that though our Constitution exempts this cemetery from general taxation it does not exempt it from local assessment for public improvements. Taxation and assessment are not synonymous terms. Each is a separate and distinct exercise of the sovereign power to tax but, as indicated above, taxation, as the word is employed in our Constitution and statutes generally, is that burden or charge upon all property laid for raising revenue for general public purposes in defraying the expense of government. Assessments are local and resorted to for making local improvements on the theory that the property affected is increased in value at least to the amount of the levy. The law is that, unless restrained by the Constitution, a state legislature has *216
plenary legislative power, and this includes the power of levying taxes and imposing assessments. In Colorado the General Assembly, being thus restrained as to general taxation, may not subject the class of cemeteries mentioned therein to general taxation, but as to assessments there are no constitutional restrictions on the General Assembly. The law-making body, therefore, possessing plenary legislative power over the subject of assessments may, if it chooses, and as it has done, exempt cemeteries like this one from local assessments. Other states by statutes have exempted cemeteries by a provision that they shall not be subject to "any tax or debt whatever." Seattlev. Mt. Pleasant Cemetery,
In this connection it is pertinent to say that there are economic, as well as sentimental, reasons why our states generally exempt from taxation and local assessments cemeteries not for profit, and this subject has been considered in Cave Hill Cem. Co. v. Gosnell,
It is said, however, by the city that this exemption is applicable only to a cemetery owned and maintained by a corporation, and that it was not intended that the benefit thereof should accrue to a private individual or voluntary association who owns or operates the cemetery. We think this is too rigid a construction of the statute. It should be noted that the provision of our Constitution, as to exemption of cemeteries from taxation, applies to such as are not used or held for private or corporate profit, and our 1887 act exempting from assessment reads: "All the property of such corporation, used or owned for such purpose, and all lots owned by the members thereof, shall be exempt", etc., that is, not the corporation but the property is exempt if it is owned or used for cemetery purposes. Our statute does not say "owned and used" but "used or owned". Use, not use and ownership, is the test, certainly one test, of the right of exemption under this statute. In 37 Cyc. p. 908, (D), it is said: "If the constitution or statute provides that property used for certain purposes shall be exempted it is the use and not the ownership which determines the right of the exemption." The identical question arose in the Wey Case, supra, and the decision there was that it is the use, not ownership, that determines the right. The only property in Colorado exempted from both general taxation and assessments are cemeteries not organized or maintained for profit. These local assessments are sustained on the theory that the property assessed is enhanced in money value at least to the amount of the levy. Pomroy v. Board,
We must presume that the General Assembly, with full knowledge of the sentiment of all the people, intended to, as it did, declare it to be the public policy of the state that cemeteries not organized or maintained for profit, shall not be liable to assessments. The legislature of a state has sole power to say what the public policy of the state shall be. That public policy must be applicable to all portions of the state, and where, as with us, there are home rule or charter cities and towns (as well as those created by general statute), though the former were created after the exemption act was passed, this policy, as no change has been made in the exemption act, still applies to all classes of municipalities. The people of the state, in adopting article XX and the amendments thereto, did not intend to confer upon municipalities organized thereunder the absolute and unrestricted power to tax, or to make assessments for local improvements regardless of public policy. They knew that by constitutional provision cemeteries, not organized or maintained for private or corporate profit, are exempt from general taxation. They also knew that there was in existence at the time of the adoption of the Home Rule Amendment a statute of the state which specifically exempts from local assessments the same class of cemeteries. In delegating to the municipality the power of general taxation for municipal purposes, and in conferring the power to make assessments for local improvements, we think the people intended thereby to confer such powers, subject to existing or future constitutional and statutory provisions relating to exemptions of cemeteries from taxation and local assessments. This conclusion may be reached wholly aside from the fact that cemeteries are almost universally regarded as a class of property by themselves, but as our people generally, as do people in all civilized states, regard the burying places of the dead as sacred or hallowed ground, this sentiment doubtless contributed largely to the declaration of the public policy. Our General Assembly by statute, in the exercise *220 of its unquestioned power, is the only body competent to say what the public policy of the state shall be, and in it resides the sovereign police power of the state, independent of constitutional or common law provisions. There was, as already stated, in existence at the time of the adoption of article XX, a constitutional exemption from general taxation of cemeteries not for profit, and a statutory exemption from local assessments. That public policy of the state applies to every portion of the state. It is just as applicable to the home rule cities now as it was and is to municipalities organized under general statutes.
The case chiefly relied upon by the city is County Commissionersof El Paso County v. City of Colorado Springs,
After the adoption of article XX this Court has decided that the state was not precluded thereby from unrestricted regulation of the liquor traffic. Walker v. People,
The objection of the city that the suit to restrain collection will not lie because the plaintiff did not seasonably and within the time provided by ordinance interpose its objection is not tenable. Decisions of this and other courts, that injunction to restrain collection will not lie if opportunity *224
by the city has been given to and ignored by the owner of the property unjustly assessed to have his objections considered by the city council, are not applicable to such a case as this where the property itself is nonassessable. OgdenCity v. Armstrong,
The point made by the city attorney that the plaintiff may not complain that failure to pay the amount of the assessment will necessarily result in a sale of the property, which, if not redeemed from, will convey a good title to the purchaser, is beside the point. It is not what steps the city will or will not take to enforce the collection, but what the city might do, under the provision of the charter and the ordinances giving to the city authority to cause the property to be sold and the plaintiff's title divested, that furnishes the test of the right of the plaintiff to complain. The city may refuse to foreclose, but the only provision made by the charter and ordinances for a failure to pay is a sale of the property, which, if not redeemed from, will in time ripen into a perfect title, which would give to the holder thereof the right to make such disposition of the cemetery and the monuments as he saw fit, and to remove the remains of the dead from the soil.
Other interesting questions are discussed by counsel with the same unusual fullness and fairness exhibited in all the briefs and oral arguments, but their resolution either way would not materially affect our decision on the main question involved.
Our conclusion is that this cemetery, whose legal title is in the plaintiff is not subject to the assessment levied; that the plaintiff is entitled to relief in this action, and that the *225 judgment of the district court awarding him relief by way of injunction restraining the assessment and collection of this tax is right, and it is affirmed.