17 Colo. 204 | Colo. | 1892
Lead Opinion
delivered the opinion of the court.
The provision invoked to defeat the statute under which the city was attempting to proceed in this case, is found in § 8 of art. 10 of our constitution and reads 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 of all property, real and personal. * * * ”
The next succeeding section is as follows :
“ Sec. 7. 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.
The questions raised are two in number and may be stated as follows:
II. Has the legislature authority to provide that the cost of such improvements shall be apportioned according to frontage ?
These questions have been the fruitful source of litigation for many years, and the course of judicial decisions thereon has not always been uniform. It is claimed that the decision of the district court against the validity of the ordinance is in harmony with the views expressed by this court in the early ease of Palmer v. Way, 6 Colo. 106, (1881,) and followed upon the principle of stare decisis, in the late case of Wilson v. Chilcott, 12 Colo. 600.
Turning to the case of Palmer v. Way, we find the contention there to have been with reference to an assessment for the cost of a sidewalk in front of certain lots. The assess- - ment was upheld as properly within the police power of the city. This was the only determination necessary to support the judgment there the subject of attack. The court did, however, go beyond this in the opinion filed and say that special assessments against the abutting lots for street improvements were in violation of the constitutional rule requiring uniformity of taxation, and could not be upheld under the taxing power.
This decision was followed in Wilson v. Chilcott, supra, without question and without the examination that would otherwise have been given to it. And thus an opinion upon a matter not necessary to the determination of the ease under consideration at the time has been accepted as the law in this state for ten years, upon the principle of stare decisis. During this time, however, except in the case of Wilson v. Chilcott, supra, the doctrine lias not been expressly indorsed in any case.
The view announced in the opinion referred to is supported by strong considerations of expediency; it operates to protect small property holders against extravagant and unwise
In neither of these cases is the distinction between local assessments and taxes levied for the general purposes of revenue pointed out. That such distinction, in fact exists, is now recognized by an almost unbroken line of decisions and by the consensus of opinion of all text writers upon the subject : Local assessments are upheld upon the theory that the property against which the assessment is made is specially benefited by the improvement, vhile taxes refer more particularly to those burdens imposed for revenue. 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. While, therefore, the power to make such assessments is referable to the taxing power, it is held not to be an infringement upon the rule requiring all taxes to be uniform. In support of these views we cannot do better than quote from the text writers of acknowledged standing and ability, who may well be presumed to have given the subject that consideration which its importance demands.
Mr. Desty in his work on Taxation says:
“The law makes a plain-distinction between the taxes which are burdens or cbaiges imposed upon persons or property to raise money for public purposes and assessments for city and village improvements, which are not regarded as burdens, but as an equivalent or compensation for the en*209 hanced value which the property of the. person assessed has derived from the improvement.” 1 Desty, Taxation, § 3.
Judge Cooley notes the same difference:
“Special assessments are a peculiar species of taxation, standing apart from the general burdens imposed for state and municipal purposes, and governed by principles that do not apply universally. The general levy of taxes is understood to exact contributions in return for the general benefits of government, and it promises nothing to the persons taxed, beyond what may be anticipated from an administration of the laws for individual protection' and the general public good. Special assessments, on the other hand, are made upon the assumption that a portion of the community is to be specially and peculiarly benefited in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds; and in addition to the general levy, they demand that special contributions, in consideration of the special benefit, shall be made by the persons receiving it.” Cooley on Taxation, p. 606.
And it is recognized by Judge Elliott in his work entitled, “ Roads and Streets.”
■ “ A distinction is made between local assessments and taxes levied for general revenue purposes. The question has been -before the courts time and time again, and the almost unruffled current of judicial opinion is that an assessment for a local improvement is not -a tax within the meaning of the constitutional provision requiring uniformity of taxation.” Elliott, Roads and Streets, p. 370.
Of like effect are the following adjudicated cases selected from the many that have been cited by counsel: Farrar v. St. Louis, 80 Mo. 379; Adams v. Lindell, 5 Mo. Ap. 197; Hammett v. Philadelphia, 65 Pa. St. 146 ; Commonwealth v. Woods, 44 Pa. St. 113; Emery v. San Francisco Gas Co., 28 Cala. 345; Speer v. The Mayor, 85 Ga. 49; Hoyt v. Fast Saginaw, 19 Mich. 45; Cain v. Conn, 85 N. C. 8; State v. Warren Co., 17 Ohio St. 558 ; Allen v. Galveston, 51 Tex. 302; Hale v. Kenosha, 29 Wis. 599.
“ 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.” Penna. Const. 1873.
“ Taxes may be levied and collected for public purposes 02ily. They shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and all taxes shall be levied and collected by general law.” Const, of Mo. 1875.
These constitutional provisions are substantially the same as ours in respect to the requirement of uniformity, and the same is true of the constitution of the state of Georgia, adopted the year subsequent to the time of meeting of the constitutional convention in this state. The court of last resort in each of these states has decided that the provision has no reference to the assessments for local improvements. See cases cited ante.
Of the same tenor are many cases in which it has been held that provisions exempting certain property, such as cemeteries, churches and schools, from taxation, do not relieve such property from assessments for local improvements. These decisions proceed upon the theory that assessments for benefits are not included.in the word “ taxation ” as used in the statutes, and are, therefore, directly in point in the present controversy. Lima v. Cemetery Ass'n, 42 Ohio St. 128; First Presbyterian Church v. Ft. Wayne, 36 Ind. 338; Second Universalist Church v. Providence, 6 R. I. 235; State v. Newark, 36 N. J. L. 478; Cooley on Taxation, 207.
Even at the time our constitution was framed the provision relied upon to .defeat the present assessment had, by the strong current of legal decision, been declared to have
To the argument that the power is liable to abuse, it may be answered that such objection exists against the exercise of all power, but this is no reason why authority should not be lodged somewhere. We must presume that the local authorities will exercise the power for the advancement of the public good and with moderation. Should this not be done the legislature has full power to correct abuses and this body is in turn answerable to the people.
Although- cases may be found to support the views announced in Palmer v. Way, supra, such cases, neither by force of the reasoning advanced nor by reason of their number can be said to unsettle the strong current- 'of authority to the contrary. A fundamental principle of -construction requires those who seek to-overthrow a statute on account of its repugnance to a constitutional provision to show the unconstitutionality of the act beyond all reasonable doubt. This has not been done in this case, and we must, therefore, hold' the statute valid as to the objections raised against it. In so -far as the former opinions of this court are in conflict with'the views-herein expressed, such opinions are modified.
In regard to the second proposition but little need be said, as-assessments upon the basis of frontage, where the lots abutting for the improvement were of substantially equal depth; was recently upheld by this court. See opinion of Mr. Justice Elliott in Pueblo v. Robinson, 12 Colo. 598. No facts are pleaded showing or tending to show that the mode adopted in the present instance is unfair to appellant.
Different principles of apportionment have been adopted in different states and sometimes in the same states at different times. See Emery v. San Francisco Co., supra. In
By the act questioned, whenever paving or grading is ordered by the city authorities, one third of the entire expense of the improvement in front of the lots must be borne by the city, together with all the expenses at street and alley intersections, the adjacent property being charged with only two thirds (f) of the cost of grading or paving in front of the same, thus in- proportion as the benefit was deemed a public one, the whole city is required to pay. The balance of the expense being made a charge upon the abutting property, receiving, as it does, a special benefit from the improvement. Probably no rule of apportionment that has yet been devised is fairer than the one provided by this statute, when the assessment is against urban property.
It has not only received the sanction of many law writers, but has been expressly upheld in the following, among other cases, in addition to those cited in Pueblo v. Robinson, supra. Emery v. San Francisco Gas Co., supra; Sheley v. Detroit, 45 Mich. 431; Speer v. The Mayor, supra; Farrar v. St. Louis, supra; People ex rel. Crowell v. Lawrence, 41 N. Y. 137; Palmer v. Stumph, 29 Ind. 329; Baltimore v. Hopkins, 56 Md. 1; Cooley on Taxation (2d ed.), 624, et seq.; 2 Desty, Taxation, 1263.
The judgment of the district court will be reversed and the cause remanded for further proceedings in accordance with the views herein expressed.
Reversed.
Dissenting Opinion
(dissenting) :
The principles announced in the foregoing opinion are so broad and sweeping in their character, so far-reaching in their
Section 3 of article 10 of our state constitution provides: “ 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 for all property, real and personal.”
In the opinion announced by the majority of the court it is held that the words, “all taxes,” as used in section 3, “ refer more particularly to those burdens imposed for revenue,” and not to “ assessments for benefits in the nature of-public improvements” — that the taxing power may provide for local assessments ad libitum, thus overruling the former-opinions of this court upon that subject.
It must be admitted that this departure is apparently sustained by many judicial decisions, as is shown in the learned opinion of our present Chief Justice. Nevertheless, I am impressed with the conviction that the words, “ all taxes,” at the beginning of section 3, were at the time of the adoption of the constitution intended by the framers of that instrument, and understood by the people who adopted it, to be broad.and comprehensive enough to include any and all kinds of taxes and burdens which the taxing power of the state might levy or assess upon their property. This view is supported by many cogent reasons.
Unquestionably, the word “tax,” when used without qualification, is a generic term, broad enough to include every
“ In the first place, then, every word employed in the constitution is to be expounded-in its plain, obvious and common sense meaning, unless the context furnished some ground to control, qualify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties ; for niceties of expression; for critical propriety; for elaborate shades of meaning; or for the exercise of philosophical acuteness, or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them; the people adopt them; the people must be supposed to read them with the help of common sense; and cannot be presumed to admit in them any recondite meaning, or any extraordinary gloss.” Story on the Constitution, see. 451.
The framers of our constitution having completed their labors, appointed a committee of ten of their number-to prepare and publish an address to the people explaining the main features of the instrument and recommending its adoption. Among other prominent persons upon that committee were three distinguished gentlemen, learned in the law, Ebenezer T. Wells, William E. Beck and Wilbur F. Stone; the first named had for man}'- years been a member of our territorial supreme court, and all three afterwards became member’s of the supreme court of the new state. In their address to the people this committee particularly commended the constitution on the ground that it carefully guarded the rights of the people against excessive taxation, public in-debt
In that address the committee called especial attention to the fact that they had bestowed much labor with the view of securing sufficient revenue to defray the expenses of the government without imposing onerous taxation upon any class of property or industry of the state; that they had established a uniform system of taxation upon the same class of subjects; that they had adopted stringent provisions to prevent those speculations in public moneys which so often result in defalcations and loss to the people ; that they had provided for a state board of equalization consisting of the highest officers of the state whose duties were to equalize and adjust the values of real and personal property for purposes of taxation, and that they had also provided for a county board of equalization for a like purpose within their respective counties; that they had prohibited the legislature from lending the credit of the state and from assuming debts or liabilities; that they had required appropriations to be kept within the limits of our resources, and had applied the same principles to counties, cities, towns and school districts, as far as possible, with the additional safeguard that to increase indebtedness in excess' of the rates fixed in the constitution a vote of the people must be had thereon.
Now, if it was the understanding of the members of the convention and of their committee who thus commended their work to the people that the words “ all taxes ” at the beginning of section 3 of article 10 did not include assessments for benefits as well as taxes for revenue, and that there was no 2'estriction upon the taxing power to make such assessments, then the committee should Í21 all fairness to the people whom they addressed as well as to the convention
Five years after the adoption of the constitution the ease of Palmer v. Way came before this court. Two of the committee who prepared and signed the address, Justices Beck and Stone, rvere then upon this bench presided over by Chief Justice Elbert, an able lawj'er and jurist, who had been identified with Colorado, its history, its laws and public interests-, from its earliest organization. The court thus composed being called upon to pass upon the question of the legality of local assessments for the construction of sidewalks in the-city of Denver, decided that the same could not be upheld as a valid exercise of the taxing power, because contrary to the-uniformity rule prescribed by section 3 of article 10 of the constitution. It seems to me that the question of the restric-. tionupon the taxing power by express constitutional provision could scarcely have been more directly presented for determination than in the Parmer-Way Case. It was not until after the validity of the assessment under the taxing power had been carefully examined, considered and expressly disapproved, tha.t the court finally held the assessment valid as to sidewalks under the police power. The court as then constituted was not averse to sustaining public improvements; but local assessments for that purpose were considered a species of taxation, and so inhibited by the uniformity rule of the constitution, and only sustainable by the extraor
Though the majority opinion in this case is sustained by the decisions of several other states, yet it seems to me that the earlier decisions in this state are more strictly in accordance with the terms of the constitution as understood by its framers and by our people at the time of its adoption. The constitution is strongly against excessive taxation, and strongly in favor of uniformity of taxation; it restricts legislation upon the subject of revenue appropriations and indebtedness in every direction. The whole tone and policy of the instrument is so conservative upon the subject of finance, that it seems strange, indeed, almost impossible, that it could have been the intention of its framers to place no restriction whatever upon the taxing power in the matter of levying local assessments upon the property of our people.' See constitution, particularly articles 10 and 11.
Entertaining these views I cannot accept the unqualified rule laid down by the majority of the court. Much as I favor public improvements so far as the same can be promoted within constitutional limits and without illegal or unreasonable encroachment upon private rights, I cannot believe it was intended to place such matters within the arbitrary and unlimited power of the legislative and municipal authorities, and beyond all judicial control. It is not to be overlooked that the former decisions of this court are supported by several well considered decisions in other states. See Palmer v. Way, 6 Colo. 106, and cases there cited; Brown v. The City of Denver, 7 Colo. 305 ; Keese v. The City of Denver, 10 Colo. 112; Wilson v. Chilcott, 12 Colo. 600 ; City of Chicago v. Larned, 34 Ills. 203; Taylor v. Chandler, 9 Heisk, 349; Peay v. City of Little Rock, 32 Ark. 31; Stinson v. Smith, 8 Minn. 326; Mayor of Mobile v. Dargan, 45 Ala. 310.
The foregoing quotation is from the case of The City of Pueblo v. Robinson, 12 Colo. 599. In that case the validity of an assessment for sewers was maintained as an exercise of the police power, according to the doctrine of Palmer v. Way and Keese v. The Citg of Denver, supra. The assessment was apportioned according- to frontage, in pursuance of certain ordinances of the city providing for the construction of certain sewers in a limited section of the city. The case was tried upon an agreed statement of facts; and the rule of apportionment in that particular case was sustained on the ground that the agreed statement showed no facts from which it could be inferred that the assessment was not in proportion to the benefits received by the complaining parties. An examination of the case, however, will show that the court was careful not to announce an unqualified or general rule upholding assessments in proportion to frontage.
In the heart of the city of Denver, particularly the business portion of it, where a single lot 25 feet front by 125 feet in depth is worth from .$25,000 to $50,000, and where the property is, or may be made still more valuable and highly productive by suitable buildings, the cost of pavements, curbings and sidewalks is trifling in comparison with the value of the property, and in .comparison with the increased value which such street improvements give to such property. But in the remoter parts of the city where perhaps the property has not a tenth or a hundredth part the frontgage value, and where expensive street improvements add but little to the actual value of the property, the cost of street improvements may be as great in proportion to the frontage as in the business center. In fact, it is not extravagant to say.that while the cost of street improvements to inside property may not
There are, no doubt,’many people living in their own small homes in the humbler residence portions of this city for which they are somewhat indebted, but which they are struggling to pay for. If to the already existing encumbrances upon these homes the assessments necessary to build costly street improvements be added, the owners are likely to be discouraged and overwhelmed by the debt, and thus their homes are sacrificed.
To illustrate: The record before us shows, that the assessment in controversy is about §7 per front foot. Add the cost of sidewalks and other like improvements, and the total assessment would likely amount to $10 per front foot. This rate upon a pair of lots having a frontage of fifty feet would amount to $500. - If the lots, being in the business center and well improved, are worth $100,000, the rate of taxation would be but five mills upon the dollar, or one half of one per cent of the full value of the property. A poor laboring man has a pair of lots of like frontage in the outskirts of the city with a little cottage ‘ thereon for himself and family where he dues a little gardening, keeps poultry and other domestic animals, and by industry and close economy is able to take care of his family, and yet the whole value of his property'does not exceed $1,000, and he may be in debt for half that amount. If it should suit the pleasure of the owners of a majority of the property on the street to extend costly pavements and other street improvements in front of this poor man’s home (a very few wealthy people or a single individual might own a majority of the property), or if the board of public works in their discretion were to order such improvements to be thus extended, the cost of the improvements to this poor man according to his frontage would be $500, or 50 per cent of the entire value of his premises. This burden added to the existing encumbrance would al
It is no answer to these views to say that outside or suburban property as well as inside property will be much improved in value by expensive street improvements so long as the assessments may cause the owner to lose all he has. Many a man may be able to purchase, and by industry and economy pay for and maintain, a home when the cost is only $1,000, "$2,000 or $8,000, who would be utterly unable to pay for or maintain for any length of time a home costing $5,000 or upwards. It should be the policy of our state to encourage every citizen to own his own home; and no statute authorizing street improvement to be paid for by local assessments should be so framed as to admit of the possibility of “improving ” poor people out of their homes.
The foregoing is no fancy picture — no fictitious scene. Other courts have encountered just such practical difficulties as I have tried to portray, and have treated them in the plainest terms. Chief Justice Beasly of the supreme court of New Jersey speaking of a rule of apportionment almost identical with the statute under consideration says, in effect, that such legislation is not the legitimate exercise of the power of taxation. It is confiscation.
Again, Chief Justice Agnewof Pennsylvania in a case of this kind felt impelled to use the following vigorous language : “We may now travel for miles in the rural districts of large cities where broad paved and curbed streets of the most costly kinds have been paid for at private expense, under arbitrary exactions. The power has become flagrant, even engulfing the entire value of the property of small landowners. * * * If the little all of men of moderate means can be taken to gratify a taste for expensive improvements, or the mere desires of the more wealthy, or to fill the ravenous maws of contractors and public jobbers, on the pretense of public right, such persons had better flee from large towns and cities to places of safety far away from these oppressions.”
Mr. Justice Carpenter speaking for the supreme court of
The question is frequently asked: How are we going to pave our streets and beautify the city by suitable public improvements without the power to make local assessments ? The question is not difficult to answer by any one who has the patience to investigate.and the courage to tell the truth. It is confidently believed by well informed citizens that if all the property throughout the central portion of- the city were assessed for taxation at the rate of fifty or sixty per cent of its actual cash value, instead of at fifteen or twen ty per cent of such value, the revenues of the city would be sufficient during the next five years to pay for all the street improvements that will be needed for the next quarter of a century. The rule is well settled as announced by Chief Justice Beck: “ Street improvements in a city are for the benefit of the public and may be paid for out of the city-treasury.” Such a mode of raising the revenue would cause the burden to fall upon our people according to,the value of their property and could not be grievously burdensome to any class; besides, it would require no refined. or strained