Board of Com'rs of Morgan County v. Doherty

• Decision Date: 15 April 1946
• Docket Number: 15233.
• Parties: BOARD OF COUNTY COM'RS OF MORGAN COUNTY v. DOHERTY et al.
• Court: Colorado Supreme Court

168 P.2d 556

114 Colo. 594

BOARD OF COUNTY COM'RS OF MORGAN COUNTY v. DOHERTY et al.

No. 15233.

Supreme Court of Colorado, En Banc.

April 15, 1946

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 897 P.2d 792

Error to District Court, Morgan County; Arlington Taylor, Judge.

Action by Grace Hardin Doherty, executrix of the estate of Henry L Doherty, Deceased, and Temple W. Tutwiler, administrator with will annexed of the goods, chattels and credits of Henry L Doherty, deceased, against the Board of County Commissioners of the County of Morgan in the State of Colorado, to recover taxes that Henry L. Doherty, Deceased, had paid on lands assessed to him on the mistaken and erroneous premise that he was the owner thereof. To review a judgment in favor of the plaintiffs, the defendant brings error.

Judgment affirmed.

STONE and BURKE, JJ., dissenting.

Six-year statute of limitations was not applicable in action against board of county commissioners by personal representatives of taxpayer to recover taxes paid by taxpayer by mistake on realty not owned by him over 13-year period, where action was promptly begun after mistake was discovered. '35 C.S.A c. 102, § 1; c. 142, § 281.

G. C. Twombly and C. E. Robison, both of Fort Morgan, for plaintiff in error.

Paul W. Lee, George H. Shaw, Donal C. McCreery, and Wolliam A. Bryans, III, all of Denver, for defendants in error.

HILLIARD Justice.

This is an action at law by the representatives of a taxpayer against the board of county commissioners of a county, to recover taxes he had paid on lands assessed to him on the mistaken and erroneous premise that he was the owner thereof. The action is based on a statute, the pertinent part of which reads: '* * * and in all cases where any person shall pay any tax, interest or cost, or any portion thereof, that shall thereafter by found to be erroneous or illegal, whether the same be owing to erroneous assessment, to improper or irregular levying of the tax, or clerical or other errors or irregularities, the board of county commissioners shall refund the same without abatement or discount to the taxpayer.' ' 35 C.S.A. c. 142, § 281. The taxpayer enjoyed a favorable finding and judgment below.

It appears that the lands involved laways have belonged to the state; that in an attempted construction of an irrigation system, the company engaged therein became the owner in fee of a considerable tract of land, and enjoyed easements from the state of other lands (those here), 'with provision for reversion to the state in case of abandonment,' etc. There was abandonment of the project, and the company interested in the matter, proceeding pursuant to court order in the premises, and employing a quitclaim deed to that end, conveyed its 'entire property,' but describing none of it particularly, to Henry L. Doherty and Company, a copartnership, of which plaintiffs' decedent was the sole survivor and owner. At the time of the conveyance, the 'abandonment,' as of course, had worked elimination of the use rights the irrigation company had enjoyed in relation to the state lands involved in this action. At no time, as should be emphasized, did Doherty and Company, or plaintiffs' decedent, own the lands involved in this action, or enjoy easement, use, or other right therein or thereto, and for none of the years for which plaintiffs' decedent paid taxes thereon (1925-1937), or ever, were said lands assessable for taxes at the instance of any authority for any purpose soever. It appears, however, that the county assessor, giving attention to the property considered as the 'system,' as the irrigation project was known, and failing to note that plaintiffs' decedent did not have title to the state lands, nevertheless scheduled them as belonging to him, and plaintiffs' decedent's agent, examining the schedule submitted to him by the assessor, which included much land that did belong to his principal, likewise failing to note that certain of the lands included in the schedule so prepared by the assessor, were the said state lands, ok'd the schedule as submitted by the assessor. There was no evidence that either such assessor or said agent was cognizant of, or suspected, that the premise indulged by both of them through the years involved, was erroneous. Of a verity, neither could have had interest or purpose in accomplishing what resulted from their error. Giving attention to the fact situation, the trial court, amply justified, as we think, found 'That the plaintiff and the county, by mutual mistake during all the years in question, assessed said lands and paid taxes without any negligence on the part of either the county or the taxpayer.'

That the land on which the taxes sought to be recovered were levied and paid, was nontaxable is not gainsaid. In relation to property whichis taxable, however, many situations have been presented and various conclusions, all tied to the fact that the property involved, in some manner or degree, was subject to taxation, have been stated in our reports. Many of those cases have been cited by counsel for plaintiff in error. We regard them as not applicable. We are dealing with a situation which presents no complications. The property here was not taxable. Through error and mistake, a tax was levied against it, and plaintiffs' decedent made payment thereof. Recovery of the sum resulting from the tax thus illegally levied, and mistakenly paid, in sought in an appropriate common-law action. We think of no situation to which the statute would more aptly apply.

Generally, as seems certain, in the absence of such a statute, payment of a tax is voluntary, and, although the tax may be erroneous or invalid, still the money paid cannot be recovered. The rule applied especially to taxes levied on real property, as here, for in relation thereto the process of collection is so gradual, and so many opportunities of resistance obtain, payment in manner here concluded the taxpayer. Union Pac. R. Co. v. Board of Com'rs, 10 Cir., 222 F. 651, 653. But, as the court there further observed, 'The statute of Colorado here under consideration changes that law. It provides that, in all cases in which a person shall pay a tax which is for any reason erroneous or illegal, the board of county commissioners shall refund the same without abatement or discount. This is substantive law. It gives a new right. The statute has nothing to do directly with the law of procedure. The remedy for the enforcement of the right which it gives is not prescribed by the statute. That remedy is a suit at law. It is given by the common law. * * * This remedy, as Mr. Justice Van Devanter points out in Singer Sewing Machine Co. [of New Jersey] v. Benedict, 229 U.S. 481, 33 S.Ct. 942, 57 L.Ed. 1288, is available in the federal courts the same as in the state courts.' The 'new right' which the statute affords, and which may be enforced through a remedy 'given by the common law,' prompted the court in South Broadway Nat. Bank v. City and County of Denver, 10 Cir., 51 F.2d 703, 706, proceeding on the allegation that the assessment and levy were 'illegal and invalid,' to say that 'indebitatus assumpsit' would lie, and approved the doctrine announced in First National Bank v. Patterson, 65 Colo. 166, 176 P. 498. The federal court denied recovery there, however, on the theory that since the controlling question had to do with valuation of the property which had been assessed, not the legality of the assessment as such, the taxpayer should have resorted to administrative agencies. In short, the property therewas taxable, and the controversy did not involve the recovery of a tax paid pursuant to a levy illegally and erroneously made on property not taxable as here.

In recognition of the necessity for prompt collection of taxes and regardless of alleged error or illegality of levies, to require it in the first instance, the general assembly enacted the statute of the taxpayer's reliance here, the sum of which is that the taxpayer shall pay in any event, but if the tax is illegal or shall 'thereafter be found to be erroneous or illegal,' etc., 'the board of county commissioners shall refund the same without abatement of discount to the taxpayer.' Bent County v. Atchison, T. & Santa Fe Co., 52 Colo. 609, 125 P. 528, 529. The applicability and efficacy of the statute is emphasized in Kendrick v. A. Y. & Minnie Min. & Mill. Co., 63 Colo. 214, 164 P. 1161. In Spaulding Mfg. Co. v. Board of Com'rs of La Plata County, 63 Colo. 438, 168 P. 34, 35, we said: 'Recovery is sought in this case under a specific and unqualified statute commanding a refund by the county of every erroneous or illegal tax paid, and does not involve the general law upon that subject. * * * The statute provides that, when 'any person shall pay' an illegal or erroneous tax, the board shall refund.' Since the taxpayer there had paid the illegal tax, we reversed the judgment below and required the county to refund. 'If the tax was not legally laid, plaintiff in error [taxpayer] could, upon payment thereof, recover the same from the county under the provisions' of the statute. First National Bank v. Patterson, supra [65 Colo. 166, 176 P. 501]. In Antero & Lost Park Reservoir Co. v. Com'rs, 65 Colo. 375, 177 P. 148, 150, taxes had been levied and paid on property not taxable. We sustained an action brought under the statute, and required the county to 'refund the tax.' Again, as we have said: 'It has been several times pointed out * * * that section 5750 R.S., 1908 ['35 C.S.A. c. 142, § 281], affords an adequate remedy in case of an illegal or erroneous levy.' Denver & P. G. R. Co. v. Board of Commissioners, 69 Colo. 212, 193 P. 555, 556. In a subsequent Antero Company case...