
    No. 8382.
    City and County of Denver, et al. v. Gunter.
    
      Taxes- — Exemptions—Charitable Uses. Properties the rents and in-i come of which are devoted to the maintenance of a school are exempt from taxation under sec. 4, art. X of the Constitution. Three judges contra and one not sitting. Judgment affirmed pursuant to Code sec. 438.
    
      Error to Denver District Court, Hon. James H. Teller, Judge.
    
    Hon. James A. Marsh, City Attorney; Mr. I. N. Stevens, Mr. George Q. Eichmond and Mr. Jacob Lieberman, for plaintiffs in error.
    Mr. John S. Macbeth and Mr. Henry F. May, for defendants in error.
   Per curiam:

By the will of George W. Clayton, certain property was devised to the corporation of the City of Denver, in trust, to be devoted solely and exclusively to founding, establishing and forever maintaining a permanent college within such city, named the George W. Clayton College, for the better education and more comfortable maintenance of poor, white, male orphan children.

April 23rd, 1914, defendants in error, plaintiffs below, constituting the Board of Trustees of the College, filed complaint in the District Court, against 'pMntiffs in error, defendants below, the City and County of Denver and its Commissioners, to have certain of the devised property not directly used in the operation of the school, but the rentals of which are used for its maintenance and support, declared exempt from taxation, first, as the property of the city, under section 4, article 10 of the Constitution, and second, as property used solely and exclusively for charitable and educational purposes, under section 5, article 10 of the Constitution, and for a decree restraining the city and its officers from levying or collecting any tax upon the property in question. Defendants demurred to the complaint, on the ground, among others, that it does not state facts sufficient to constitute a cause of action, which was, upon argument, overruled, whereupon they declined to plead over, and elected to stand by their case as made on demurrer. Judgment was entered for plaintiffs, and a permanent injunction issued as prayed. Defendants bring the judgment and proceedings here for review.

Mr. Justice Garrigues, Mr. Justice Bailey and Mr. Justice Allen are of the opinion that under sec. 4, art. X, supra, the property in question is exempt from taxation, and that the judgment of the trial court, restraining the city and its officers from levying or collecting any taxes thereon, should be affirmed. Chief Justice White, Mr. Justice Hill and Mr. Justice Scott are of the opinion that the property is not exempt from taxation by virtue of that clause, or any provision,, of the Constitution, and that the judgment of the trial court should be reversed. Mr. Justice Teller, having, tried the case in the court below, declines to participate herein. It, therefore, follows that the judgment stands affirmed by virtue of § 438, Code of Civil Proceedure, E. S. 1908. The former opinion is withdrawn and the motion for rehearing denied.

Decided July 3, A. D. 1916.

Eehearing denied April 2, A. D. 1917.

Judgment affirmed.  