City of Denver v. Knowles

Chief Justice Hayt 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: — 207 — I. Does the uniformity clause of the constitution prohibit local assessments upon the abutting property, for' street improvements ? 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 — 208 — action in the premises by municipal authorities. But such considerations cannot control the judicial construction of constitutional provisions where the meaning is plain. And we feel constrained by strong logical reasons, as well as by the overwhelming weight of authority, to say that the uniformity of taxation enjoined by the constitution does not prohibit the legislature from authorizing the levy of special assessments in cities and towns, for local improvements in the nature of benefits to the abutting property. All matters of hardship and expediency must be left for legislative cognizance and action. 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. — 210 — A reference to the constitutional provision invoked to defeat this assessment, and a comparison between it and the constitutions of Pennsylvania and Missouri will show that one, and probably both of these instruments were drawn upon by members of the constitutional convention which prepared our constitution. “ 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 — 211 — no reference to special assessments, and we must assume that it was adopted in the light of such construction. While this construction at first met with much opposition and has not yet been universally accepted, it has been so frequently decided that the uniformity enjoined by the constitution does not invalidate local assessments, that such must now be considered as firmly established by precedent.- 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 — 212 — some way the cost of the improvement should be assessed upon the property in proportion to the benefit received by it. Absolute equality, however, cannot be expected. The duty of determining the mode to be adopted is peculiarly within the province of the legislative department of the government. And where substantial' equality has been provided for, the courts will not interfere. 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.