Aggers v. People ex rel. Town of Montclair
| Decision Date | 20 November 1894 |
| Citation | 38 P. 386,20 Colo. 348 |
| Parties | AGGERS, Assessor, v. PEOPLE ex rel. TOWN OF MONTCLAIR. |
| Court | Colorado Supreme Court |
Error to district court, Arapahoe county.
Action by the people of the state of Colorado, on the relation of the town of Montclair, against George L. Aggers, assessor of Arapahoe county, Colo., for a writ of mandamus. Judgment for relator, and respondent brings error. Affirmed.
On the 13th of November, 1890, the S.W. 1/4 of section 5, township 4 S., range 67 W., in the county of Arapahoe, and state of Colorado, was duly platted and annexed to the town of Montclair as 'Porter and Raymond's Montclair, an addition to the town of Montclair,' and on January 1 1891, the S. 1/2 of the S.E. 1/4 of section 6, in said township and range, was duly platted and annexed to said town as 'Porter and Raymond's Second addition to Montclair,' and ever since said dates respectively said additions were, and still are, a part of, and included within, the territory of the town of Montclair. In September 1891, the board of trustees of the town of Montclair levied a tax of 18 mills, and in September, 1892, 15 mills, for town purposes. These levies were reported to the county commissioners. The assessor entered the property in said additions, properly described as lots and blocks, upon the tax list and assessment book for those years, but extended these respective levies for town purposes only upon the property in Montclair outside of these two additions, and omitted to extend them upon the lands included within them. In 1893, upon the discovery of this omission, the relator the town of Montclair, requested the plaintiff in error, the then assessor of Arapahoe county, to place the property in these additions upon the assessment roll for 1893, and extend the taxes so levied for 1891 and 1892 against the same. Upon his refusal to do so the relator instituted this proceeding. The court below granted a peremptory writ of mandamus to compel him to perform this duty. From this judgment he prosecutes this writ of error.
I. N. Stevens and Robert E. Foote, for plaintiff in error.
Talbot & Dennison, for defendant in error.
GODDARD J. (after stating the facts).
The foregoing brief summary sufficiently presents the question involved in this case, namely: Does the fact that the taxes only, and not the land, were omitted from the tax list and assessment roll, entitle relator to the relief sought under the following provisions of our statute relative to the assessment of back taxes? 'All taxes shall be levied for the fiscal year ending November thirtieth (30) in each year and shall be a perpetual lien upon all real estate subject to taxation, until such taxes and any penalty, charges and interest which have accrued thereon, shall be paid; and any property, real or personal, which has by mistake or oversight been omitted from the tax list for any year or years, shall be subject to assessment for all back taxes properly chargeable thereon.' Mills' Ann. St. § 3770; Gen. St § 2818. 'If by any means any property, real or personal, shall be omitted in the assessment of any year or series of years, and not put upon the assessor's book, the same when discovered shall be assessed by the assessor for the time being, and placed upon his book before the same is returned to the county clerk, with all the arrearages of taxes which should have been assessed and paid in former years, charged thereon, or in case of the failure or neglect of the assessor, the same shall be assessed by the treasurer, as provided for 'additional assessments." Mills' Ann. St. § 3820; Gen. St. § 2857. It is urged in argument of counsel for plaintiff in error that since the language of the statute is that property omitted from the tax list or omitted from the assessment book shall be subject to assessment for back taxes, and it appearing from the facts in this case that the property was not omitted from either, but only the town tax, that the case is not one that comes within the letter or the purview of the statute. We can see no merit in this claim. The...
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