Berman v. City and County of Denver
| Decision Date | 29 March 1965 |
| Docket Number | No. 21401,21401 |
| Citation | 156 Colo. 538,400 P.2d 434 |
| Parties | Norman E. BERMAN, in behalf of himself and others similarly situated, Plaintiff in Error, v. CITY AND COUNTY OF DENVER, a municipal corporation and Charles L. Temple, Manager of Revenue of the City and County of Denver, Defendants in Error. |
| Court | Colorado Supreme Court |
Norman E. Berman, pro se, M. O. Edison, Jorge E. Castillo, Denver, for plaintiff in error.
Max P. Zall, City Atty., W. Keith Peterson, Earl T. Thrasher, Thomas A. Gilliam, Asst. City Attys., Denver, for defendants in error.
J. Kinney O'Rourke, Boulder, Gordon D. Hinds, Pueblo, Joseph W. Esch, Englewood, Alan L. Sternberg, Denver, A. M. Emigh, Durango, William O. DeSouchet, Jr., Alamosa, Charles Alexander, L. M. Coulter, Denver, Neil C. King, Boulder, Gerald J. Ashby, Grand Junction, John E. Kreidler, Montrose, Frederick T. Henry, Colorado Springs, amici curiae.
Plaintiff in error was plaintiff in the trial court and defendants in error were defendants. We will refer to the parties as they appeared in the district court. The City and County of Denver will be referred to as the City.
At issue in this case is (1) the validity of the sales and use taxes imposed by ordinance of the defendant City; and (2) the legality of the bond issue submitted to the voters under the terms of Ordinance No. 130, series of 1964, Revised Municipal Code of the city of Denver.
The plaintiff in his complaint sought to recover $64.86 paid by him, under protest, as a 'use tax' on an automobile purchased by him in Englewood, Colorado. The argument advanced in support of this portion of his complaint is that the City and County of Denver lacks the power to enact sales and use taxes for the reason that these taxes do not involve matters of purely local concern; and furthermore, that the State of Colorado has not given its consent to the enactment of such taxes by the City, but on the contrary has fully pre-empted the field to the exclusion of the City.
With reference to the bond issue, the trust of plaintiff's case is that the defendant thrust of plaintiff's case is that the defendant tax on property to pay the bonded indebtedness; and that there was an additional failure to comply with Article XI, Section 8, of the Constitution of Colorado in that under the ordinance the bonds would mature thirty years from date of issue in violation of the constitutional limit of fifteen years.
The parties stipulated that plaintiff is a resident and taxpaying elector of the City; that the City was a home rule municipal corporation; that plaintiff paid a use tax to the City and County of Denver under protest in the amount of $64.86 on his purchase in Englewood, Colorado, of a 1964 Ford automobile which was delivered to his home in Denver. The parties further stipulated that the certified copy of the Sales and Use Tax Ordinance was Exhibit 1 of the complaint, and that Ordinance No. 130 attached to the complaint was a correct copy. They agreed that the assessed valuation of property in the City, the existing bonded indebtedness, and the legal debt limit for the years 1962 and 1963 were correctly stated.
The trial court by written 'Findings and Judgment' upheld the City's power to impose the sales and use taxes. It further decreed that the issues raised concerning the bond issue were premature except as to the legality of the submission to the voters, which the court approved and found legal. The court entered judgment in favor of the defendants.
We first consider the issues raised with relation to the sales and use tax adopted by the City.
First. Do home rule cities have the power to adopt a sales and use tax under the grant of authority given to them by the people, as contained in Article XX of the Constitution of the State of Colorado?
This question must be answered in the affirmative. The right to levy a tax to raise revenue with which to conduct the affairs and business of the City is clearly within the constitutional grant of power to home rule cities, contained in Article XX, Sec. 6 of the Constitution of Colorado. There we find that home rule cities:
'* * * are hereby vested with, and they shall always have, power to make, amend, add to or replace the charter of said city or town, which shall be its organic law and extend to all its local and municipal matters.
'Such charter and the ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict therewith.
* * *
* * *
'It is the intention of this article to grant and confirm to the people of all municipalities coming within its provisions the full right of self-government in both local and municipal matters and the enumeration herein of certain powers shall not be construed to deny such cities and towns, and to the people thereof, any right or power essential or proper to the full exercise of such right.'
The provisions of the sales and use tax ordinances adopted by the City relate to matters of 'local or municipal' concern within the meaning of Article XX, Sec. 6. They were adopted to raise revenue with which to conduct the affairs and render the services performed by the City. These ordinances cover sales within the City, or sales outside the City where delivery is made in the City of goods or commodities to be used therein.
The arguments of plaintiff relating to the fact that visitors or transients are unjustly required to pay the tax carries no substance and is not persuasive. These visitors are within the City when purchases are made by them and are subject to all the valid ordinances of the City governing their conduct and fixing their responsibilities. All the facilities and services of the City which are available to permanent residents are equally available to the visitors, and they cannot complain that they are required to contribute to the cost of supplying those facilities and services. Whether the money to be derived from an ordinance which levies a tax is used to provide revenue for the maintenance of local government is one of the tests to be applied in determining whether the ordinance relates to a matter of 'local or municipal' concern. On this point it is sufficient to make reference to the following language found in Four-County Metropolitan Capital Improvement District, et al. v. The Board of County Commissioners of Adams County, et al., 149 Colo. 284, 369 P.2d 67:
'In numerous opinions handed down by this court extending over a period of fifty years, it has been made perfectly clear that when the people adopted Article XX they conferred every power theretofore possessed by the legislature to authorize municipalities to function in local and municipal affairs. * * *'
The plaintiff cites a number of cases which involve an exercise of the police power of cities. These cases are neither imperative nor persuasive in this controversy. The power to levy a tax in home rule cities, to be paid by those who live or sojourn there, for the purpose of defraying expenses of local and municipal government, stems from a grant by the people in the form of a constitutional provision. Such authority is not based upon the police power, and cases dealing with that subject are not necessarily applicable, although each might involve a determination of the question as to whether the subject matter relates to a 'local or municipal' activity.
Second. By the adoption of the old age pension amendment, Article XXIV, and the legislative enactment of a sales and use tax by the General Assembly, has the state pre-empted the field and taken the power to enact sales and use taxes beyond the reach of the City?
This question is answered in the negative. Two cases decided by this court conclusively establish that Article XXIV has no application to the proceeds of the Denver sales and use tax, and that state taxation in the same field as that of a municipality can co-exist. State v. City & County of Denver, 106 Colo. 519, 107 P.2d 317; Post v. Grand Junction, 118 Colo. 434, 195 P.2d 958. Article XXIV of the state constitution, and the state sales and use tax statutes, deal exclusively with state levies and have no application to taxes levied by home rule cities, which are purely local and municipal.
Third. Does the admitted fact that, under the collection procedures adopted by the City, the plaintiff was required to pay the use tax before he could receive his automobile license plates, invalidate the ordinance?
This question is answered in the negative. It is not...
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