Grisard v. Roselawn Cemetery Ass'n

• Decision Date: 27 February 1933
• Docket Number: 12806.
• Citation: 19 P.2d 766,92 Colo. 289
• Parties: GRISARD, County Treasurer, v. ROSELAWN CEMETERY ASS'N.
• Court: Colorado Supreme Court

19 P.2d 766

92 Colo. 289

GRISARD, County Treasurer, v. ROSELAWN CEMETERY ASS'N.

No. 12806.

Supreme Court of Colorado, En Banc.

February 27, 1933

Error to District Court, Pueblo County; Samuel D. Trimble, Judge.

Suit by the Roselawn Cemetery Association, a corporation, against W D. Grisard, as Treasurer of Pueblo County, to enjoin selling of plaintiff's property for taxes. To review a judgment for plaintiff, defendant brings error.

Affirmed.

Thomas R. Hoffmire, of Pueblo, for plaintiff in error.

M. G Saunders and E. F. Chambers, both of Pueblo, for defendant in error.

BURKE Justice.

Plaintiff in error is hereinafter referred to as the treasurer and defendant in error as the association.

The association, claiming its property was exempt, brought this suit to enjoin the treasurer from selling it for taxes. A demurrer to the complaint for want of facts, jurisdiction and necessary parties was overruled. The treasurer answered denying the claimed exemption and alleging that the association had a plain, speedy, and adequate remedy at law. The cause was tried to the court, which found generally for the association and entered judgment accordingly. To review that judgment this writ is prosecuted. Two questions are presented by the record: (1) Is the association's property exempt? (2) If so has it a remedy by injunction?

1. '* * * Cemeteries not used or held for private or corporate profit, shall be exempt from taxation unless otherwise provided by general law.' Article 10, § 5 Colo. Constitution, p. 59, C. L. 1921.

It has not been so 'otherwise provided.'

'The following classes of property shall be exempt from general taxation, to-wit: * * *

'Fifth. Cemeteries not held or conducted for private or corporate profit.' Section 7198, p. 1840, C. L. 1921.

'All the property of such corporation, used or owned for such purpose, and all lots owned by the members thereof, shall be exempt from taxation, assessment, lien, attachment and from levy and sale upon execution, except for the purchase price thereof.' Section 2435, p. 792, C. L. 1921.

The association was incorporated as an organization 'not for profit.' Whether it was such in fact was an issue on the trial. The most that can be said to the contrary is that the evidence on the subject was conflicting. Under a well-established rule the trial court's finding in favor of the association is conclusive.

2. No serious contention is here made that necessary parties were omitted. The real question raised by the demurrer, and argued here, is the remedy. It is insisted ...