Palmer v. Way

• Decision Date: 01 December 1881
• Citation: 6 Colo. 106
• Court: Colorado Supreme Court
• Parties: PALMER v. WAY ET AL.

6 Colo. 106

PALMER v. WAY ET AL.

Supreme Court of Colorado

December, 1881

Error to District Court of Arapahoe County.

THIS was a complaint for an injunction against the defendant in error, Way and others, and the city of Denver, to restrain the building of a sidewalk by Way and others, contractors under a city ordinance. The defendants demurred, the demurrer was sustained, and Palmer prosecutes this writ of error.

The facts are stated in the opinion.

Mr. WM KNAPP and Mr. G. H. GRAY, for plaintiff in error.

Messrs STALLCUP and LUTHE and Mr. JOHN L. JEROME, for defendants in error.

BECK J.

The question here presented is the validity of an ordinance of the city of Denver relating to sidewalks.

It requires the owners of lots abutting upon streets to construct sidewalks in front of their respective lots, at their own expense, in manner provided by the ordinance.

If the owners fail, after due notice has been given, the work is to be done by the city, and the expenses of construction are to be assessed against the respective lots fronting the sidewalk, and are made liens upon the same, are to be placed upon the tax list of the current year and collected in the same manner that general city taxes are collected.

The authority for this ordinance is found in section 64 of an act of the first general assembly of this state, entitled 'An act to reduce the law incorporating the city of Denver, and the several acts amendatory thereof, into one act, and to revise and amend the same,' approved April 6, 1877.

Section 64 is as follows: 'The expense of the construction and repair of sidewalks shall be assessed upon the property fronting upon the same, and said assessment shall be a lien upon said property until it shall be paid. In case of failure to pay such assessment in a reasonable time, to be specified by ordinance, the same may be certified to the county clerk and recorder, and by him placed on the tax list for the current year, to be collected in the same manner as general city taxes are now collected, together with ten per centum penalty thereon to defray the cost of collection; provided that the owner of said property shall have not less than thirty days in which to construct, nor less than five days in which to repair, any sidewalk, in accordance with the plan detailed by ordinance, under the supervision of the city engineer.'

The principal question discussed in briefs of counsel is whether, under our constitution, the special benefits supposed to result to lots fronting upon a street improvement can be legally assessed upon the lots so benefited, by virtue of the taxing power.

The point is well made, that if assessments of the character under consideration can be sustained as a legitimate exercise of the power of taxation, then assessments for other improvements, of a local character, but of greater magnitude, such as grading and paving streets, may be imposed under the same power.

The question involved is one which has received the earnest attention of the ablest lawyers and jurists of this country, as is evidenced by a long line of adjudications, reaching back almost to the foundation of the government. The conclusions arrived at in the various cases are certainly not uniform. In several instances the same court has reversed its earlier decisions and adopted a different doctrine. And to-day the settled doctrine of each state is based to a great extent upon the peculiar phraseology of its constitution.

In the majority of the states it has been held that no constitutional restrictions exist as to the power of the legislature to authorize such special assessments.

The provisions of our constitution bearing directly upon this question are sections 3 and 7 of article X. Section 3 provides that 'all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws which shall prescribe such regulations as shall secure a just valuation for taxation of all property, real and personal.'

Section 7 is as follows: 'The general assembly shall not impose taxes for the purposes of any county, city, town or other municipal corporation, but may by law vest in the corporate authorities thereof respectively, the power to assess and collect taxes for all purposes of such corporation.'

There is no provision in the constitution of this state authorizing assessments upon property, except in the sense of taxation for general revenue purposes.

Is there any restriction which confines the exercise of the power to the mode provided? If not, special assessments for local improvements may be held valid; otherwise they must be declared unconstitutional. The received doctrine of the courts is, if there be no constitutional restraint upon the power of taxation, the legislature may authorize the whole or a proportion of the burden of such improvements to be assessed upon the real estate benefited thereby.

Judge Dillon says (2 Dillon on Municipal Corporations, p. 756, 3d edition): 'Where there is no special constitutional requirement, the expense of the local improvement may be authorized by the legislature to be apportioned on some other basis than that of the value of the property within the taxation district.' Supplementary to the above proposition is another, viz.: 'When not restrained by the constitution of the particular state, the legislature has a discretion, coextensive with the broad domain of legislative power, in making provision for ascertaining what property is specially benefited, and how the benefits shall be apportioned.'

Referring to the constitutional provisions of the state of Colorado, it will be apparent that there is but one mode of taxation provided, and that this mode is applicable alike to the levy of taxes for state, county, city and town purposes. Taxes levied under this mode must 'be uniform upon the same class of subjects within the territorial limits of the authority levying the tax,' and must be assessed upon all property according to its 'just valuation,' mines and mining claims, except the net proceeds and surface improvements thereof, being for the present exempted.

The rule of taxation is prescribed by section 3; and section 7 authorizes the legislature to delegate the power of imposing taxes for corporate purposes, subject to this rule, to the several political subdivisions of the state.

The limitation is a very important one, and must be held, in the absence of any other provision qualifying the rule, to be applicable to the levy of all taxes authorized by the taxing power. A certain mode being prescribed, all other modes are excluded; and any act of the legislature assuming to authorize the levy and collection of taxes by a mode which ignores the principles of valuation and uniformity, is null and void.

Street improvements in a city are for the benefit of the public, and may be paid for out of the city treasury. This has been repeatedly decided. Being a public purpose, and mainly for the public benefit, it would contravene the rule of uniformity, as well as that of valuation, to impose the whole burden, or an unequal proportion thereof, upon a part only 'of the same class of subjects within the territorial limits of the authority levying the tax.'

If the rule can be ignored as to the streets of a city, no reason is perceived why it may not in like manner be disregarded in the improvement of the highways of a county, or in the construction of public improvements by the state. There being but one rule of taxation prescribed, the state government does not appear to be under any greater obligation to its strict observance than are the municipal governments within the state. If, therefore, the right to impose special assessments is to be referred to the sovereign power of taxation, it would seem that it cannot be sustained under our constitution. The grant of power is limited, and the maxim expressio unius fairly applies.

An examination of the leading cases which sustain such assessments shows that they were either authorized in terms by the constitution, or that no such limitation was imposed as to restrain the exercise of the power.

In the leading case in New York, The People v. The Mayor of Brooklyn, 4 Comst. 427, the court says: 'There is not, and since the organization of the state government there has not been, any such constitutional limitation or restraint.' That the people 'have not ordained that taxation shall be general so as to embrace all taxable persons within the state, or within any district or territorial division of the state; nor that it shall or shall not be numerically equal, as in the case of capitation tax; nor that it must be in the ratio of the value of each man's land, or of his goods, or of both combined; nor that a tax must be coextensive with the district, or upon all the property in a district which has the character of, and is known to the law as, a local sovereignty. Nor have they ordained or forbidden that a tax shall be apportioned according to the benefit which each tax-payer is supposed to receive from the object on which the tax is expended. In all of these particulars the power of taxation is unrestrained.'

The learned judge considered the conclusion arrived at by the court materially supported by the...