12 Colo. 600 | Colo. | 1889
delivered the opinion of the court.
This was a case submitted to the district court upon an agreed statement of facts similar to the case of City of Pueblo v. Robinson, ante, p. 693, the only substantial difference being that the improvements sought to be charged for in this case by special assessments are curbstones and gutters instead of sewers. The agreed state
Appellees having refused to pay their respective assessments, the county treasurer threatened to sell the property of appellees as a mode of collecting the assessments. The court granted a perpetual in junction against such sale. The city of Pueblo and the county treasurer bring this appeal.
The views expressed in the case of City of Pueblo v. Robinson seems to us controlling in every respect, except as to the question whether the constructing of gutters and curb-stones in the public streets of a city is fairly within the domain of police regulations. Considering the reluctance with which special assessments for the construction of public works of any kind have been sustained by this and other courts, we hesitate to extend the exceptions to the uniformity rule of taxation required by section 3, article 10, of our constitution. The following from the opinion of Justice Beck in Palmer v. Way, 6 Colo. 106, clearly evinces the danger to be apprehended from this source:
‘ ‘ Beferring to the constitutional provisions of the state of Coloreado it will be apparent that there is but one mode of taxation provided, and that this mode is applicable alike to the levy of taxes for state, county, city and town purposes. Taxes levied under this mode must ‘ be uni
The general rule is that the power to pave streets includes the power to supply gutters and curb-stones; but it does not follow that the power to construct sidewalks, and compel payment therefor by local assessments, carries with it the power to supply gutters aqd curb-stones
By the agreed statement of facts it appears that the gutters were necessary to carry off the filth from the street; hence, it is argued with great force that they are as “conducive to the health, comfort and protection of society’'1 as sewers, and should therefore, upon the authority of Keese v. City of Denver, 10 Colo. 112, be classed among the municipal improvements for the construction of which the police power of the state may be invoked. But the same may be said of street pavements, and many other public improvements in large cities. Public parks, groves, fountains, statuary and the like are a great source of comfort, and are indirectly conducive to the health and protection of society; and so, if we yield to such arguments, the danger is we shall be led to make one exception after another, until the uniformity rule of taxation guarantied by the constitution will be entirely swept away.
Chief Justice Agnew, in Reed v. Erie, 79 Pa. St. 316, uses the following pertinent language upon this subject: “The doctrine of local taxation for benefits conferred by
Accepting the doctrine of Palmer v. Way as stare decisis, the police power of the state includes the sidewalk and excludes the street. We must, therefore, as between the street proper and the sidewalk, draw the line somewhere; so we draw it at the curb-stone. If the street requires other than sidewalk, improvements, either for the convenience of travel, the gratification of taste or as a protection to health, the power of the city to improve the same by general or special taxes is ample, without infringing the uniformity rule of taxation required by the constitution.
The judgment of the district court is affirmed.
Affirmed.