*1 No. 13,523. Manager Baptist First Church
McGlone, Revenue v.
of Denver.
(50 547) [2d] P.
Decided October 1935. Mr. James D. Parriott, Mr. L. Hays, for plain- Frank tiff in error. Henry B. for de- Mr. R.
Mr. William Babb, Eaton, in error. fendant
En Banc. *2 Young the court. of opinion delivered the
Mr. Justice against religious organization hy an action a This tax rolls from the tax officialsto remove certain from taxation under and existing it declared have Judgment of Colorado. Constitution and laws brings plaintiff, defendant for review which below was to desig- parties herein will be here on error. The the case plaintiff in the trial court. nated and defendant as as existing corporation organized plaintiff and The is a day May, of 22nd since the under the laws of Colorado objects purposes articles forth in its and set 1873. Its gospel support incorporation of and “The be, of to worship with the in accordance of maintenance Baptist usages of the Church of the form and faith, United States keep in and maintain, of to hold America; ** worship corpora- repair public of a house building located between owner of a church tion is the city of Den- street in the 18th on Stout 17th streets and using bringing it was of the action, at the time ver, which, place worship, then inade- which it deemed a of but as carry objects quate For this its to out acquired property lo- of had reason the board trustees avenue and Grant corner 14th the southwest cated at purchase price city for a of Denver street fully paid the view church had $25,000 —with —which adequate erecting church a build- thereon suitable large acquired ing. residence was When building a number of thereon, small was located plaintiff garages with which the rented were constructed paying long the same were reve- So the residence. exemption objection was or claim to taxation nue, improve- paid plaintiff on the lots and made and early part thereon. xnents In the church duly passed, expressed determined, resolutions its proceed building campaign intention to at once in a building. the erection of a new church Pursuant to this plaintiff determination approximately fund of accumulated May into
$16,000, entered shortly a contract which thereafter was carried out, garages raze the residence on the lots on which it proposed prepare to build, to them for the immediate proposed construction of its church edifice. At about this pastor time the church, due health conditions in family, pastorate his forced retire from the together church it and was left without a leader. This, generally depressed prevented conditions, business being further immediate action taken toward the erection of a spring church and in the when the plaintiff taxes of property, 1933became a lien on its filed *3 praying property that the be action, removed from City County the assessment roll and tax of the list and of Denver, that all taxes theretofore assessed and levied n property be set aside and that the be declared to be exempt year from taxation for the and forever 1933, praying taxing after, and further that the re- officialsbe collecting any against property. strained from taxes such improvements The trial court found that the lots with the proceeds thereon the and entire therefrom had been used exclusively carrying conducting plaintiff’s for on and religious activities, and that the demolishment of said buildings on said the commencement of the plaintiff’s public of worship, construction new house of and that, “Since the commencement of said of use said purposes, plaintiff for said said has, faith, contemplation following in the continued intention and by out said use thereof further construction of its new Worship, prop- House of Public and said described erty improvements wholly all and thereon are were and exempt impositions from all assessments, levies and imposed, taxes assessed, levied and and to be assessed, pro- imposed with the accordance thereon, levied the and statutes and decisions Constitution visions Supreme ref- of Colorado with State Court years 1935; 1933,1934 for the matters, erence such imposition taxes assessments, levies and that said hereby year null be, and is declared for said is The trial force or effect whatever.” and void taxing be re- officials court further ordered collecting any levying on said or from strained years 1935. 1933,1934 for the assignments may consid of error be All of defendant’s prop proposition or not of whether ered under the erty exempt X of the Colo of article under section “Lots, with which as follows: Constitution, rado solely buildings buildings if are used said thereon, exclusively worship, or for schools, for for * * * purposes strictly shall be general provided law. otherwise taxation, unless pursuant to fore- L. enacted Section C. going in almost Constitution, and section of the Colorado ‘‘Second. of that is as follows: section, words the identical buildings buildings are used if thereon, Lots with the said * * * religious worship. Fourth. Lots buildings used said thereon, strictly purposes.” charitable There are two distinct lines on the
of authorities exemption provisions constitutions construction and tax strictly, construing other them statutes; one line giving In a recent case this them a construction. liberal interpret states “The courts of some of the court said: strictly liberally. provisions *4 Our own and others such * ** (Citing unquestionably are liberal. decisions cases). argument in for the defendants counsel adoption by plea for the error, which, substance, ap construction, which, rule of this court of strict contrary previous proved, to decisions on would our be subject, approval, important our not meet with this does disposed depart from such and we are not to decisions
431 upon question controlling El in this case. involved (2d) 26 Jebel Ass’n 93 Colo. P. 108. McGlone, v. again approved rule of This liberal construction was Kemp (2d) Pillar 94 1036. Fire, v. Colo. 27 P. very following In a recent lan- case, this court used the guage: provisions or “With wisdom unwisdom of establishing exemptions, tax course, this court has, nothing to do. It must deal constitutional and statu- tory provisions as it them.” Com- finds Colorado Tax (2d) mission v. Denver Institute, Bible Colo. P. dealing statutory 870. In with such constitutional and provisions, court must take into consideration its construing long former decisions them, and so as such pronouncements decisions stand as the cases arising quoted under the above sections of our Constitu- tion and statutes should be determined accordance principles with the rules and of law laid down those cases. provi-
It will be observed that under the constitutional exemptions, expressly pro- sion with reference to it is exempted, vided that the therein be ex- “shall empt provided by general from taxation, unless otherwise leaving absolutely power law,” legislature it thus within the modify exemptions or limit, abolish the provided by the Constitution. The statute with reference exemptions practically in the same words as the con- provision. materially changed stitutional It not been many years, over a course from which fact it seems logical people ap- conclude that the of the state have proved adopted by the liberal rule of construction they through courts; otherwise would have taken action legislature to further limit the conditions under which religious, charitable and educational institu- may exempt. tions be
In the El supra, case of Jebel Ass’n v. McGlone, to which reference will be made as the Shrine case, was on the lots involved a foundation that had cost $50,000, which we held was sufficient, under our Consti- *5 building.
tution a statutes, constitute It bewill noted that tbe Constitution tbe both and statute contain wording rendering same to the conditions namely, buildings “With the taxation, thereon” (that buildings lots), is, on the “if said solely are used * * * worship strictly purposes.” or for charitable unquestionably These two In conditions are coordinate. building. the Shrine we that case held a foundation is a There was no contention that case, and could be none reason, that which is all there on foundation, was strictly lot, was Indeed, used there was no contention that it used at all. was The rule applied of substantially that we construction in the Shrine case was admittedly When an this: charitable insti- plant tution undertakes in faith to extend its by facilities for charitable work and evidences this fact expenditure money doing part of and the of work as program looking building a toward the erection of a completed to be purposes, used when for charitable spirit statutory within the constitutional and tax exemption provisions, property acquired and real pursuance program held in of such so ex- evidenced is empt, program good process faith while the being require- In effect we held that the carried out. are met ments of the Constitution and statutes if there is continuing a bona intention to construct fide specified by to be uses, devoted to evidenced work expenditure money and the toward end. purchased In the a lot for $25,000 instant case was admittedly religious organization an could have property except expansion use for the for an reli- its gious formally adopted building program It activities. carrying pro- and gram. out $16,000 raised about toward such began by removing It work on the lots a nineteen- garages room nine or ten thereon house and located completed only had this work five months before the which, complaint was work that made, assessment part prerequisite a church and a *6 putting building program, just in a foundation as program. part That there was a bona fide of the Shrine building on the lot true in this intention to construct a is organiza- it in the Shrine case. The church case as was having objectives religious, tion other than applied, en- under the rule we have is educational, presumption when the the titled to benefit completed for reli- it will be used just gious purposes, the the Shrine is entitled to bene- as presumption prospective use of its fit of the its completed, building, will for charitable when be programs by depression stopped Both the were same supra, which in the “This case, this court Shrine said: may judicial many court take notice of the fact that simi- lar in coun- efforts towards the erection of try completed, have been but not because of undertaken, depression. question the purchased by in were world-wide The lots portion shrine association and a proposes which it to erect been done at purpose cost of to com- $50,000and the of the Shrine is plete the same for a as soon charitable use benevolent, improve. business conditions discretion, in
The trial the exercise of its enjoin levying permanently collection not did injunction question, on the but extended its taxes lots years only levying collecting for the to the by 1935. It leaves future determination 1933,1934 expira question plaintiff on the the courts the whether the inten tion of that time shall still faith have carry plan out whether it shall then be tion its making com a continuous and reasonable effort toward building program. rightly pleting The trial court its principles applied which we have heretofore law, holding exempt; announced, to instant case injunction against limitation of the time that the and its tax-collecting the years, three officials should remain in force to not
did exceed a reasonable discretion. judgment is affirmed. Chiee Me. Justice Butlee Me. J ustice Holland dissent. Justice Holland,
Mr. dissenting. any I am unable, view of the case, record majority opinion. According my to concur in the view opinion present in the case announces in effect the doctrine that all real estate owned cor- poration from taxation. provision clearly
No of our Constitution is more meaning worded, and the less in doubt than section *7 buildings article which N, is as “Lots, follows: with the buildings solely exclusively if thereon, for said are used and * ** religious worship, shall be provided by general taxation, unless otherwise law.” concerning exemptions, Section C. L. 7198, is ‘ equally buildings clear:' Second. with the Lots thereon, buildings exclusively religious said are used wor- ship.” improved property,
As classification as vacant or admittedly these lots are vacant. No actual construction work has ever been commenced. removal of the old buildings completed thereon was in November, building project the has been dormant since that time. razing Counsel for the church that the contends work of buildings beginning building opera- old was the majority opinion adopted tions that view. No doubt the church authorities faith contemplated planned building program, a but that plan any they may could be abandoned at time never building, on part build these lots. The erection of a or building, bring a such as would this within meaning exemption provision of the Constitu- tion and statute, as well rule announced only possibility. Exemptions from taxes are possibilities. neither nor on based, allowed, determining In we case, have no former decision notwithstanding approval follow, of former deci- majority opinion. sions cited There is clear dis- presented upon tinction between the facts here and those which our former decisions based. The here in- part volved are not a of a unit of lands or lots devoted religious purposes, partly neither is there a con- structed nor thereon; is there revenue received therefrom that could be said to be used in connection religious work or It is true, as counsel prior for the church insists and decisions this court exemption hold, that matters of tax a rule of institutions, liberal construction has adopted; been but there reason for an extension simple presented rule to embrace the facts in this go case. Can liberal bring construction so far as to into physical building, part existence a or some of a build- ing admittedly on a when lot, is none? The Con- clearly says, buildings solely stitution “If said are used religious worship, say and does not that the intention to construct a to be used for religious worship exempts upon the real estate which it is to be from taxation. The located, mandate of the subject exceptions, Constitution, to no is that designated purpose be used for exemption before the applies. present Counsel for the church a claim founded solely upon good expression intentions. An of intention *8 thing necessary place property to do the to in the only emphasizes that class, is, build thereon, the fact already performed. that the act not been If meaning was even a wording doubt to the as of the of the applicable Constitution and statute to this case and it necessary indulge presumption became to relative to meaning employed, presumption the words always taxing power. in favor of the 61 C. J. 391, sec- tion 395.
436 by any injunction imagination,
If stretch property resulting exempting in the trial question court proper, from the can be deemed surely justification that there injunction for the extension of years 1935. One of two cover the things required, entry prayed, of a decree as exempting from all future taxation and ordering same from the or the roll, stricken assessment enjoining the collection of the tax that had accrued dur- ing proposed the time that it is now contended the build- program ing progress. enjoining was in But the collec- years only, tion for the future of 1934 was an acknowledgment reasoning correctness of the dissenting opinion program to the effect contingencies could be abandoned or other arise, which subject event the thereafter taxa- would be tion. any single nor fact, contention,
There is neither any brings applied rule former case within the opinion and to the of those who decision of this respectfully I view, dissent. take different that Mr. I am authorized state Chief Justice Butler concurs this dissent.