Stewart v. City and County of Denver

• Decision Date: 07 November 1921
• Docket Number: 9987.
• Citation: 202 P. 1085,70 Colo. 514
• Parties: STEWART, County Treasurer, v. CITY AND COUNTY OF DENVER.
• Court: Colorado Supreme Court

202 P. 1085

70 Colo. 514

STEWART, County Treasurer, v. CITY AND COUNTY OF DENVER.

No. 9987.

Supreme Court of Colorado, En Banc.

November 7, 1921

Rehearing Denied Jan. 6, 1922.

Error to District Court, Douglas County; J. W. Sheafor, Judge.

Action by Geo. P. Stewart, county treasurer and collector of taxes for Douglas County, against the City and County of Denver. Judgment for defendant, and plaintiff brings error.

Affirmed.

Harold A. Senter, of Parker, Flor Ashbaugh, of Littleton, and Wm. G. Smith, of Denver (William Dillon, of Castle Rock, of counsel), for plaintiff in error.

James A. Marsh and Norton Montgomery, both of Denver, for defendant in error.

ALLEN J.

This is an action brought by the treasurer of Douglas county against the city and county of Denver, to recover the sum of $11,983.09 as taxes due upon property of the defendant. A demurrer to the complaint was sustained. The plaintiff electing to stand on the complaint, a judgment was entered against him, dismissing the action, and he brings the cause here for review.

It is admitted, and, moreover, the record shows, that if the property, and each and every part thereof, described in the complaint, is exempt from taxation, the complaint states no cause of action and the court properly dismissed the suit.

The property, above mentioned, consists of real estate, situated in Douglas county and owned by the defendant. The total acreage of the land is 4,659.53 acres, of which about 750 acres is improved with costly and highly valuable improvements which form a part of the waterworks system owned and operated by the defendant, the city and county of Denver. An area of 425 acres is under water, forming part of an artifical lake, or reservoir, created and built by the predecessors in title of the defendant, for the purpose of storing water for the system of waterworks above mentioned. Concerning another portion of the real estate, it is alleged in the complaint:

'That * * * about 3,910 acres thereof is not actually used by defendant in connection with, or as a necessary part of, its system of waterworks; * * * that neither the acquisition nor the ownership of said 3,910 acres, or thereabouts, was or is necessary to the efficient and sanitary conduct and operation of defendant's said system of waterworks.'

The defendant is a municipal corporation of the state of Colorado, organized and existing as such under the constitution and laws of this state. Whether property, or any property, of a municipal corporation is subject to taxation depends upon the construction or effect to be given to section 4, art. 10, of our state Constitution, which reads as follows:

'The property, real and personal, of the state, counties cities, towns and other municipal corporations, and public libraries, shall be exempt from taxation.'

The property described in the complaint lies outside of the territorial limits of the municipal corporation owning the same, and a part of such property is alleged, in effect, to be unnecessary for waterworks or other municipal purposes. These...