Berkey v. Board of Com'rs of Pueblo County

Citation110 P. 197,48 Colo. 104
PartiesBERKEY v. BOARD OF COM'RS OF PUEBLO COUNTY.
Decision Date04 April 1910
CourtColorado Supreme Court

Rehearing Denied June 6, 1910.

Error to District Court, Pueblo County; C. S. Essex, Judge.

Application by Charles H. Berkey, administrator de bonis non, with the will annexed, of the estate of Isaac Phelps, for mandamus to the Board of County Commissioners of the County of Pueblo. From a judgment dismissing the action, plaintiff brings error. Reversed and remanded.

On October 6, 1874, Pueblo county issued bonds in aid of the Pueblo & Salt Lake Railway Company, for $350,000, and received in exchange a like amount in stock of the Railway Company. The bonds matured 30 years after date. They were redeemable, at the pleasure of the county, within that period, at the office of the Railway Company in the city of Pueblo. Of this bond issue plaintiff below, plaintiff in error here, owns $2,000, which are, with continuing interest unpaid. The entire balance, $348,000, of the issue has been liquidated. In January, 1908, both written and oral demand was made upon the defendant, the board of commissioners of Pueblo county, defendant in error, for payment of these bonds and interest, or for a levy upon the taxable property of Pueblo county, sufficient in amount for that purpose. At the same time the bonds, with attached interest coupons, from May 1, 1878, to October 6, 1904, were presented for payment. In November, 1907, demand for payment, accompanied by the bonds and interest coupons as above, was made on the State Treasurer of Colorado. The State Treasurer indorsed on each bond so presented a statement to the effect that Pueblo county had never deposited any money there to pay either the interest or principal of the bonds, or the interest or principal of any bond of the issue of which these bonds were a part. Nor had he ever been directed by the board of commissioners of Pueblo county, or authorized, to pay any of the bonds of that issue or the interest thereon.

The office of the Pueblo & Salt Lake Railway Company was long since discontinued in Pueblo, and in February, 1908, the bonds with the coupons attached, as last above indicated were presented to the county treasurer of Pueblo county for payment, and payment refused, because there were no funds in the county treasury to pay either the principal or interest thereof. On April 30, 1908, the defendant having failed to take any action looking to a compliance with the demand made this suit was brought for a peremptory writ of mandamus directed to the board of commissioners of Pueblo county, requiring it to make a levy upon the taxable property of the county, sufficient in amount to discharge this debt, in accordance with the provisions of an act entitled: 'An act relating to railroads, wagon roads and mining companies, subscription to stock, issue bonds, taxes to pay interest and principal by counties, cities and towns and for other purposes,' passed by the General Assembly of the territory of Colorado, and approved by the Governor of said territory January 10, 1868, under which act said bonds were issued; and also pursuant to and in compliance with an act of the General Assembly of Colorado, entitled: 'An act relating to bonds and interest thereon heretofore issued by the counties, cities, and towns,' approved March 9 1877 (Gen. Laws 1877, §§ 103-110) relating to this and like indebtedness.

For return and answer to the petition defendant's claim is in substance and effect: That the complaint does not state facts sufficient to state a cause of action; that plaintiff, as appears from his complaint, has no legal capacity to sue, being an administrator de bonis non with the will annexed of the estate of Isaac Phelps, deceased, under letters of administration out of the probate court of Kent county, Mich., but fails to show that he has been appointed or authorized by any court, having jurisdiction within the state of Colorado, to act as such administrator here; bar of both the three and six year statutes of limitation; laches, in that plaintiff has failed and neglected, for an unreasonable period of time, to commence any action or proceeding for protection to, or enforcement of, his alleged cause of action; that no interest has been paid upon said bonds or coupons since May 1, 1878; that plaintiff has heretofore made no demand for payment, and has commenced no action to compel the levy of a tax to pay same; and, that, at the time of making the demand for the special tax levy, the annual tax levy for the year 1908 had been made and certified, and no further taxes on any account could be levied or assessed until the last quarter of the year 1908; this suit having been begun meanwhile, it was beyond the power of the board to comply with the demand for a special levy. Issue is joined on certain allegations of the complaint, and other defenses are pleaded, but the foregoing are the main ones, and are those covered in oral argument.

In the court below plaintiff filed a general demurrer to each separate defense from two to six inclusive, and a motion to strike out practically all of the matter contained in the seventh and eighth defenses, except its denials. At the conclusion of argument on the demurrer and motion, the court dismissed the action, on the ground that it was without jurisdiction in such a proceeding to determine the disputed rights of the parties, and declined to pass upon either the motion to strike or the demurrer. Plaintiff brings the case here on error to review the judgment of dismissal. Reversed and remanded.

McCorkle & McCorkle, for plaintiff in error.

Alva B. Adams, for defendant in error.

BAILEY, J. (after stating the facts as above).

Under the pleadings there is practically no disputed fact question. The controversy fairly presents only matters of law, including the question of the propriety of the remedy through which relief is sought.

Counsel for defendant, at the oral argument, very properly suggested that he would not argue that mandamus is not the remedy, in view of the Colorado decisions directly in point on that proposition, but would seek rather to sustain the lower court in its judgment of dismissal on other grounds.

The bonds in question were issued under a special territorial act approved January 10, 1868, by the terms of which it was made the affirmative duty of the board of county commissioners to levy and assess a special tax annually, upon the taxable property of the county, in amount sufficient to pay accruing interest, and eventually the principal. The statute is positive and mandatory. The method therein provided for payment is exclusive. No action for a money judgment on the bonds would lie. These bonds can be paid only through a levy of a special tax by the county commissioners for that purpose. If that body neglect and refuse to make such levy, mandamus to compel the same is the sole remedy. This has been ruled by this court, in a case precisely in point, Board of County Commissioners v. Sims, 31 Colo. 483, 74 P. 457, and it is idle to discuss or consider that question further.

Counsel argues for an affirmance of the judgment on four specific grounds:

First. That the petition is insufficient, in that it shows upon its face that the defendant board was without power to make the levy as demanded, because the levy for 1908 had already been made, and this suit was brought before that for 1908 was made;

Second. That plaintiff is without legal capacity to sue;

Third. That the three-year statute of limitation is a bar to the action by mandamus; and,

Fourth. That plaintiff has been guilty of such laches, in failing to present and urge payment of his claim, that he ought not now to be permitted to recover thereon.

The demand for payment of the bonds and interest was made in January, 1908, after they had matured, and the demand for the special tax levy to provide for such payment was made in March next thereafter. It is said by defendant that it was beyond its power to make such levy, because levies under the statute can only be made in the last quarter of the fiscal year. When the demand came the levy for 1908 had already been made. No further levy by the board was competent until October following. This suit was instituted meanwhile, on April 30th, therefore it was impossible for the commissioners to lawfully make the levy; hence no cause of action is stated.

Section 5760, Rev. St. 1908, upon which defendant relies, is as follows:

'On the first Monday in November in each year, the board of county commissioners shall by an order to be entered of record among their proceedings, levy the requisite tax for the year, for school and other county purposes as required by law, and the same may be levied at any time prior to the first Monday of November, if the statement of the rate of tax to be levied for state purposes has been received from the Auditor. If, for any cause, the commissioners shall not be able to levy such taxes on or before the first Monday of November, in any year, they may make such levy at any time.'

This provision has no application to the levy to pay these bonds. It is limited by its very terms to the levy of taxes for general county purposes. By the terms of the railway aid bond act itself, under which the bonds in question issued, it is provided that the tax so levied shall be collected as are other taxes, but there is no limitation as to when the levy shall be made. The only limitation is that these taxes shall be collected as other taxes are. In 1877 the act of 1868 was substantially re-enacted, and precisely so in the matter of the levy and collection of taxes to pay these bonds. Further, there was no general provision then in our laws limiting the time of levy, but on the contrary this provision...

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