McGlone v. First Baptist Church of Denver

• Citation: 97 Colo. 427,50 P.2d 547
• Decision Date: 07 October 1935
• Docket Number: 13523.
• Parties: McGLONE v. FIRST BAPTIST CHURCH OF DENVER.
• Court: Colorado Supreme Court

50 P.2d 547

97 Colo. 427

McGLONE v. FIRST BAPTIST CHURCH OF DENVER.

No. 13523.

Supreme Court of Colorado, En Banc.

October 7, 1935

Error to District Court, City and County of Denver; Otto Dock Judge.

Action by the First Baptist Church of Denver against William F McGlone, manager of revenue and ex-officio assessor and ex-officio treasurer of the City and County of Denver, Colo Judgment for plaintiff, and defendant brings error.

Affirmed.

BUTLER C.J., and HOLLAND, J., dissenting.

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

William R. Eaton and Henry B. Babb, both of Denver, for defendant in error.

YOUNG Justice.

This is an action by a religious organization against tax officials to remove certain property from the tax rolls and have it declared exempt from taxation under the existing Constitution and laws of Colorado. Judgment below was for plaintiff, to review which, defendant brings the case here on error. The parties will be herein designated as plaintiff and defendant as in the trial court.

The plaintiff is a corporation organized and existing under the laws of Colorado since the 22d day of May, 1873. Its objects and purposes are set forth in its articles of incorporation to be, 'The support of the gospel and maintenance of religious worship in accordance with the faith, form and usages of the Baptist Church of the United States of America; to maintain, hold and keep in repair a house of public worship. * * *' The corporation is the owner of a church building located between 17th and 18th streets on Stout street in the city of Denver, which, at the time of bringing the action, it was using as a place of worship, but which it then deemed inadequate to carry out its objects and purposes. For this reason, the board of trustees had acquired property located at the southwest corner of 14th avenue and Grant street in the city of Denver for a purchase price of $25,000--which the church had fully paid--with the view of erecting thereon a suitable and adequate church building. When this property was acquired, a large residence building was located thereon, and a number of small garages were constructed which the plaintiff rented with the residence. So long as the same were paying a revenue, no objection to taxation or claim for exemption was made and plaintiff paid taxes on the lots and improvements thereon. In the early part of 1931, the church determined, and by resolutions duly passed, expressed its intention to proceed at once in a building campaign for the erection of a new church building. Pursuant to this determination, plaintiff accumulated a building fund of approximately $16,000, and in May of 1932 entered into a contract which shortly thereafter was carried out, to raze the residence and garages on the lots on which it proposed to build, to prepare them for the immediate construction of its proposed church edifice. At about this time the pastor of the church, due to health conditions in his family, was forced to retire from the pastorate of the church and it was left without a leader. This, together with generally depressed business conditions, prevented further immediate action being taken toward the erection of a church building, and in the spring of 1933, when the taxes of 1933 became a lien on its property, plaintiff filed this action, praying that the property be removed from the assessment roll and tax list of the City and County of Denver, that all taxes theretofore assessed and levied be set aside, and that the property be declared to be exempt from taxation for the year 1933, and forever after, and praying further that the taxing officials be restrained from collecting any taxes against such property. The trial court found that the lots with the improvements thereon and the entire proceeds therefrom had been used exclusively for carrying on and conducting plaintiff's religious activities, and that the demolishment of said buildings on said property was the commencement of the construction of plaintiff's new house of public worship, and that, 'since the commencement of said use of said lots for said purposes, said plaintiff has, in good faith, continued in the intention and contemplation of following out said use thereof by further construction of its new House of Public Worship, and that said described property and all improvements thereon are and were wholly exempt from all assessments, levies and impositions of taxes assessed, levied and imposed, and to be assessed, levied and imposed thereon, in accordance with the provisions of the Constitution and statutes and the decisions of the Supreme Court of the State of Colorado with reference to such matters, for the years 1933, 1934 and 1935; and that said assesments, levies and imposition of taxes for said year 1933, is and is hereby declared to be, null and void and of no force or effect whatever.' The trial court further ordered that the taxing officials be restrained from levying or collecting any taxes on said property for the years 1933, 1934, and 1935.

All of defendant's assignments of error may be considered under the proposition of whether or not the property is exempt under section 5 of article 10 of the Colorado Constitution, which is as follows: 'Lots with the buildings thereon, if said buildings are used solely and exclusively for religious worship, for schools, or for strictly charitable purposes * * * shall be exempt from taxation, unless otherwise provided by general law.'

Section 7198, C. L. 1921, enacted pursuant to the foregoing section of the Colorado Constitution, and in almost the identical words of that section, is as follows: 'Second. Lots with the buildings thereon, if said buildings are used exclusively for religious worship. * * * Fourth. Lots with the buildings thereon, if said buildings are used for strictly charitable purposes.'

There are two distinct lines of authorities on the construction of tax exemption provisions in Constitutions and statutes; one line construing them strictly, the other giving them a liberal construction. In a recent case this court said: 'The courts of some of the states interpret such provisions strictly and others liberally. Our own decisions unquestionably are liberal. [Citing cases.] The argument of counsel for the defendants in error, which, in substance, in a plea for the adoption by this court of the strict rule of construction, which, if approved, would be contrary to our previous decisions on this important subject, does not meet with our approval, and we are not disposed to depart from such decisions upon the controlling question involved in this case.' El Jebel Shrine Ass'n v. McGlone, 93 Colo. 334, 26 P.2d 108, 109. This rule of liberal construction was again approved in Kemp v. Pillar of Fire, 94 Colo. 41, 27 P.2d 1036

In a very recent case, this court used the following language: 'With the wisdom or unwisdom of provisions establishing tax exemptions this court has, of course, nothing to do. It must deal with constitutional and statutory provisions as it finds them.' Colorado Tax Commission v. Denver Bible Institute, 94 Colo. 402, 30 P.2d 870, 871. In dealing with such constitutional and statutory provisions, this court must take into consideration its former decisions construing them, and so long as such decisions stand as the pronouncements of this court, cases arising under the above-quoted sections of our Constitution and statutes should be determined in accordance with the rules and principles of law laid down in those cases.

It will be observed that under the constitutional provision with reference to exemptions, it is expressly provided that the property therein exempted 'shall be...