Ochs v. Town of Hot Sulphur Springs

• Court: Colorado Supreme Court
• Writing for the Court: MOORE
• Citation: Ochs v. Town of Hot Sulphur Springs, 407 P.2d 677, 158 Colo. 456 (Colo. 1965)
• Decision Date: 15 November 1965
• Docket Number: No. 21878,21878
• Parties: Edwin C. OCHS and Betty M. Ochs, Plaintiffs in Error, v. TOWN OF HOT SULPHUR SPRINGS, a municipal corporation of the State of Colorado, and Carl F. Fischer, County Treasurer of the County of Grand, State of Colorado, Defendants in Error. . Banc

Page 677

407 P.2d 677

158 Colo. 456

Edwin C. OCHS and Betty M. Ochs, Plaintiffs in Error, v. TOWN OF HOT SULPHUR SPRINGS, a municipal corporation of the State of Colorado, and Carl F. Fischer, County Treasurer of the County of Grand, State of Colorado, Defendants in Error.

No. 21878.

Supreme Court of Colorado, En. Banc.

Nov. 15, 1965.

Robinson & Curran, Lakewood, for plaintiffs in error.

Henry J. R. Benac, Kremmling, for defendants in error.

MOORE, Justice.

The parties appear in this court in the same order as they appeared before the trial court and will be referred to as they appeared in the lower court.

The plaintiffs asked for entry of a declaratory judgment that certain 'frontage' taxes claimed by the Town of Hot Sulphur Springs were illegal and void and beyond the power of the town to exact. The trial court held that the taxes claimed by the town were valid, and the plaintiffs are here on writ of error to review that judgment. Although a formal appearance was entered by the defendants we were not favored by any brief attempting to support the judgment.

The undisputed facts are as follows: The plaintiffs, Edwin C. Ochs and Betty M. Ochs, were owners of about 184 parcels of land situated entirely within the corporate limits of the town of Hot Sulphur Springs. None of the plaintiffs' lots lie within any special improvement district of the town. The total assessed value of the lots for the year 1962 was $2,830.00. The property taxes assessed against the property on an ad valorem basis were: A general levy of 18.97 mills or a tax of $53.69, a school district levy of 26.52 mills or a tax of $75.05, a Moffat Tunnel levy of .40 mills or a tax a $1.13, and a town levy of 20.00 mills or a tax of $56.60--all being a total levy of 65.89 mills upon the assessed valuation with a resultant total tax of $186.47. Also it is undisputed that in addition to the town's 20 mill levy, it asserted a 'frontage tax' and a 'water frontage tax' against the plaintiffs' lots. The legality of these 'frontage' taxes is the foundation of the instant suit.

The 'frontage tax,' Town Ordinance No. 142, asserted a tax of ten cents per front foot upon properties within the town's corporate limits, and the revenues therefrom were allocated 60 per cent to the street department fund and 40 per cent to the equipment fund. The 'water frontage tax,' Town Ordinance No. 63, purported to levy a tax of $2 per each 50 feet of lot space fronting upon a water main, and was for the maintenance of the town's water system. Application of these 'frontage' assessments to plaintiffs' platted property amounted to an additional tax of $655.00 or in excess of 23% of the total assessed valuation of the land. It is argued as grounds for reversal of the judgment:

'1. If the 'taxes' were special assessments upon the properties of the plaintiffs the revenues therefrom could not be diverted to providing for general town purposes, but would necessarily have to be used and confined to payment for the capital improvement resulting in an equivalent benefit to the plaintiffs' properties.

'II. The revenues derived from the taxes are designated for general purposes of the Town, i. e., in maintenance of the Town's water system, roads and road equipment, and the manner of imposition of taxes upon properties by a municipality is governed by Section 3, Article X of the Colorado Constitution, prescribing that the same shall be uniform ad valorem taxes.

'III. Where the taxes result in a flagrant inequality between the burden imposed and the benefit received, such is confiscatory and unconstitutional.'

If the ordinances under attack are to be given validity they must be justified within one of two types of taxes permitted under statutory or constitutional authority, namely: (1) a general ad valorem tax as prescribed by Article X, Section 3 of the Colorado Constitution, which must be imposed uniformly upon both real and personal property according to their assessed valuation, Gordon v. Wheatridge Water District et al., 107 Colo. 128, 109 P.2d 899, 84 C.J.S. Taxation § 26; or (2) an assessment in the nature of a special tax for purposes of municipal improvement conferring a special benefit upon the property being assessed, 63 C.J.S. Municipal Corporations §§ 1290, 1291.

The source by which the municipality may impose either of these two types of taxes upon the properties within its corporate limits is found under the provisions of Article X, Section 7, of the Colorado Constitution. In turn, this power is specifically amplified or implemented by the provisions of C.R.S. '53, 139-32-1(5) which provides:

'POWERS OF GOVERNING BODIES.--The governing bodies in cities and towns shall have the following powers: * * *

'(5) TAXES.--To levy and collect taxes for general and special purposes on real and personal property.'

And the specific taxing power is governed...