Denver Turnverein v. McGlone

• Decision Date: 24 October 1932
• Docket Number: 12971.
• Citation: 15 P.2d 709,91 Colo. 473
• Parties: DENVER TURNVEREIN v. McGLONE.
• Court: Colorado Supreme Court

15 P.2d 709

91 Colo. 473

DENVER TURNVEREIN v. McGLONE.

No. 12971.

Supreme Court of Colorado, En Banc.

October 24, 1932

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Suit by the Denver Turnverein, a corporation, against William F McGlone, Manager of Revenue and Ex Officio Assessor and Treasurer of the City and County of Denver. Judgment for defendant, and plaintiff brings error.

Reversed.

Jacob V. Schaetzel and John S. Gibons, both of Denver, for plaintiff in error.

James D. Parriott and Frank L. Hays, both of Denver, for defendant in error.

HILLIARD J.

A suit to enjoin threatened tax sale; the basis being that the property involved is exempt from taxation. The facts, in the development of which, other than cross-examination of plaintiff's witnesses, defendant made no contribution are simple.

It appears that plaintiff is a corporation not for profit; that it owns lots in Denver on which there is a one-story building and basement, equipped with gymnastic apparatus, and having a floor suitable for dancing; that its purposes, to which it conforms, are to promote the physical and mental qualities of its members and others who may comply with its rules, conduct school in subjects commonly taught, singing societies, debating clubs, theatricals, and whatever may be incidental thereto, and to extend a charitable hand to those in need; that its doors are never guarded and all well-behaved persons, regardless of race or creed, are welcomed to its classes, and its charities, not restricted to its membership, are as extensive as its funds will admit. It further appears that plaintiff has a dues paying membership of about two hundred fifty, men and women, and frequently at meetings, counting visitors, never denied, and children, there is an attendance of four hundred fifty, and sometimes as many as eight hundred gather within its doors; that aside from voluntary contributions it is mainly supported in its work by monthly dues from its membership, proceeds of bazaars and concerts, and rentals collected for occasional use of its building for dancing; that it neither plans for nor derives profit, and for the year particularly involved, and other years immediately preceding, its income from all sources was less than its outlay; that only the instructor in physical education, and the janitor or caretaker of the property, both regularly employed, receive compensation. It does not appear that its members, or their dependents or descendants, as such, have any claim to, or right in, any of its funds, however raised, immediate or prospective. It further appears that for more than a half century plaintiff and its predecessors, of the same name and purpose, have pioneered and persevered in the matter of teaching physical culture in Denver and Colorado, and from the inception hitherto it has been a noteworthy institution in such educational endeavor.

Under section 5, article 10, of the Constitution, and section 7198, C. L. 1921, lots and buildings used solely and exclusively for schools, or strictly for charitable purposes, and not held or used for private profit, are not subject to general tax levy. It is the plaintiff's claim that under the facts, and these sections, its property is exempt from taxation. The trial court held adversely to such claim, and error is prosecuted.

We think that, notwithstanding plaintiff's charities are altogether worthy, its primary object may fairly be said to be educational. Through the years it has emphasized the teaching of physical culture and in that field is outstanding. Nothing done by it has been for gain, nor has profit resulted. In the case of Bishop & Chapter of Cathedral of St. John the Evangelist v. County Treasurer of Arapahoe County, 29 Colo. 143, 68 P. 272, consideration was given to these provisions of the Constitution and statutes, the claim for exemption being that the property involved was used solely and exclusively for educational purposes by the theological school of the Episcopal diocese of Colorado. The facts were that to a fourteen-room residence, all used as such by the Episcopal bishop and his family, some half dozen students, living elsewhere, repaired for lectures and recitation, the bishop, principal instructor, devoting much of his time to other duties. Mr. Justice Gabbert wrote the opinion, and, after stating generally that laws exempting property from taxation are strictly construed, said: 'Provisions exempting property used for educational purposes are less strictly construed than those exempting property used for ordinary gain or profit.' It was further observed by the learned justice that the object was to foster educational institutions by relieving their property from the burden of taxation. The meaning of the law, the court said, was to be ascertained by construction within its spirit, consonant with that which prompted the adoption of the provisions in question and which would give them full effect. The court concluded that only a narrow construction, doing violence to the intent of the people and Legislature with respect to schools, not to be indulged, would operate to defeat the claim of exemption, and adjudged accordingly. The spirit of this...