City of Denver v. Colorado Seminary

Mr. Justice Hilliard,

dissenting.

I cannot share the opinion of the court. The astounding result of the decision, which I shall endeavor to point out, is so shocking that I am constrained to give expression to my view.

The exemption granted the seminary by the legislative act of 1864 is in this language: “Such property as may be necessary for carrying out the design of the Seminary *117in the best manner, while nsed exclusively for such purpose, shall be free from all taxation. ’ ’ Ter. Laws, ’64, p. 209.

' - This exemption, applied to the twelve-story building at a- street intersection in Denver where traffic is reputed to be the heaviest in the state, a building used exclusively for stores and offices, and maintained by the seminary -for the profit it may make, this exemption, I say, the court has construed as though it read, “ All -property owned by the seminary shall be free from all taxation.” And since the building is-occupied and maintained for revenue purposes, as it is, let me -inquire if it is logically possible that it can simultaneously be-“used exclusively for such [seminary] -purpose” within the intent- of the legislative exemption? Unless the legislature intended to limit the exemption as -thus indicated, why was the exemption expressed in what -must be said to be an elaborate and useless string of words, thirty in number, when less than half -that number would have sufficed and served better? Why did the legislature not simply say, “All -property owned by the seminary shall be free from all taxation”-?

We said, in Murray v. Montrose County, 28 Colo. 427, 429, 65 Pac. 26, that “Exemptions from taxation are.to be strictly construed, and cannot be enlarged by construction, for unless the privilege is limited to the very terms of the law under which it is claimed, its operation would be extended beyond what was intended.” This language was quoted with approval in San Luis Co. v. Trujillo, 93 Colo. 385, 395, 26 P. (2d) 537, and it should have been applied in the ease at bar. As Chief Justice-Taney said: ‘ ‘And if individuals choose to accept- a charter in which the words used are susceptible of different- meanings, * * * if they * * * claim an exemption from their equal share of the public burdens, or any peculiar exemption or privilege, they must show their title to it, and that title must be shown by plain and unequivocal language. ’ ’ Ohio Life Insurance, and Trust Co. v. Debolt, 16 How. 416, 436. The court here has. manifestly relieved the sem*118inary of the duty of showing its title to the exemption, for, I submit, if that just burden had been put upon the seminary its suit would have failed.

I am not persuaded that the more remote a grant of exemption is the more clearly we can see and the more justly construe its language. I see no reason, and certainly no sufficient reason, either in this case or in Colorado Seminary v. Commissioners, 30 Colo. 507, 71 Pac. 410, to override the rule announced otherwise in Commissioners v. Colorado Seminary, 12 Colo. 497, 21 Pac. 490. The latter decision expressed the general rule which existed at the time the grant of exemption was made to the seminary, many times theretofore and thereafter announced, that property of a religious, charitable or educational institution, which is rented out for revenue, and not directly used for the purposes of the institution, is not exempt from taxation as property used for such purposes, aiithowgh the entire income therefrom is so used. Annotation, 50 L. R. A. (N. S.), p. 1211; 2 Cooley on Taxation (4th Ed.), pp. 1434, 1435, §686; 1 Desty on Taxation, p. 120. The reasoning advanced in Colorado Seminary v. Commissioners, supra, merely renders the language of the exemption doubtful at best, and we should recollect that the presumption is always in favor of the taxing power. 37 Cyc. p. 891, 61 C. J. 391, §395.

What I have said would content me in adhering to our earliest decision (Commissioners v. Colorado Seminary), but there are other grounds which, since I have chosen to dissent, should be stated. I quote from the opinion of the court here: “In 1923, Mr. James H. Causey offered the property in question to the plaintiff as a gift, with an undertaking on the part of the seminary to pay to Mr. Causey and his wife during their lives an annuity of $9,000. At the time there were large mortgages on the property, and there was some hesitation on behalf of the seminary in accepting the gift from doubt whether it could be so manaiged as to yield a net income and also consideration whether it would be exempt from taxa*119tion. ’ ’ So this doubtful net income was to be turned into a certain annuity, stated, it is true, thereafter to have been relinquished, but admitted to have certainly been so conditioned and enjoyed nevertheless. Thus was done by indirection what admittedly could not and cannot be done by direction, which is said to be a fraud (Note 93,19 C. J. 385), and in which the seminary joined. A sorry spectacle, I submit. Surely no court should condone and sup^ port acts of this kind. The English courts have frowned upon such practices. In Jeffries v. Alexander, 11 H. L. (Eeprint) 562, 573, it was said: “To hold otherwise would * * invite a dexterous use of legal learning and forms to enable men to accomplish what the law forbids # * V’ And, page 577, “If * the intender knew that the purpose at which he may have aimed was forbidden, then the state of his knowledge * * * may * * * fortify the suspicion that it is a scheme to do what the law forbids.”

Consider, please, the effect of the decision of the court. It is plain to me that the taxpayers of Denver by this “gift” have been “exclusively used” to guarantee the bonds on the University Building through tax exemption and corresponding increase in the taxes of all others. And it is equally plain, the frailties of man considered, that we may expect to find downtown Denver incorporated, saddled with bankrupting debts, and presented to the seminary, with an annuity clause attached. Thus have we wrought, and the pages of time will record the names of many generous donors as benefactors of education, although we who know realize sadly that the actual donors are the unheralded and unsung taxpayers.

And so I say this alleged gift of the University Building is and can be nothing more than a liability in perpetuity to every taxpayer in Denver. I wish that when the court realized “there was some hesitation on behalf of the seminary in accepting the gift from doubt whether it could be so managed as to yield a net income,” and which could come only from tax exemption, it might have seen *120reasons “in the common speech of men,” as did Mr. Justice Cordozo of the Supreme Court of the United States in the recent case of Cortes v. Baltimore Insular Line, Inc., 287 U. S. 367, 53 Sup. Ct. 173, and adhered to the rule which we once announced. Commissioners v. Colorado Seminary, supra. The holding otherwise is not of my permitting.