Board of Com'rs of Lake County v. Schradsky

• Decision Date: 06 April 1908
• Court: Colorado Supreme Court
• Parties: BOARD OF COM'RS OF LAKE COUNTY v. SCHRADSKY.

95 P. 312

43 Colo. 84

BOARD OF COM'RS OF LAKE COUNTY v. SCHRADSKY.

Supreme Court of Colorado

April 6, 1908

Error to District Court, City and County of Denver; John I Mullins, Judge.

Mandamus by Frieda Schradsky against the board of county commissioners of Lake county to compel it to levy a tax sufficient for the payment of her judgment against the county. From a judgment for relator, defendant brings error. Affirmed.

Charles Cavender and James Glynn, for plaintiff in error.

HELM J.

The judgment under consideration was in mandamus compelling plaintiff in error to levy a tax sufficient for the payment of another judgment previously entered against Lake county for $11,404.75. To the petition filed in this case an answer was interposed. To that answer petitioner demurred generally. This demurrer was sustained, and, as plaintiffs in error declined to amend, the present judgment was entered requiring them to make the tax levy.

It is contended that the court below erred because: (1) The funding bond act of 1899 (3 Mills' Ann. St. Rev. Supp. § 780a et seq.) furnishes the exclusive method for paying such judgments, and mandamus can no longer be invoked; and (2) because the answer to which the demurrer was sustained shows that the county was virtually bankrupt, and owing to such financial condition this sort of relief should not have been given. Unless forbidden by statute, mandamus lies in this state under proper circumstances to compel the levy of taxes to pay judgments against a county. Stoddard, Treas., v Benton, 6 Colo. 517. Hence the first of these objections is necessarily limited to the statute referred to. This statute authorizes the board of county commissioners to issue bonds in satisfaction of such judgments. These bonds are to be exchanged dollar for dollar for the judgment and interest, if acceptable to the judgment owner; or, if not, then they are to be sold, and from the proceeds realized the judgment and interest are to be paid. There is no express legislative declaration making the statute exclusive, or prohibiting resort to any legal remedy theretofore existing for the collection of these judgments. Nor does the act contain any language from which such a conclusion can be fairly deduced. On the contrary, the purpose of the act is evidently to furnish the county officials named with additional means for paying such judgments, or raising the funds with which to pay them. The statute is intended to avoid the necessity for resort to mandamus, or to any other legal remedy against the county. But the judgment for the payment of which the writ of mandamus issued in this case was obtained on interest coupons attached to certain outstanding bonds of Lake county, which bonds were themselves issued pursuant to a similar funding statute for the purpose of paying another judgment against the county rendered previous to such funding process. The funding statute pursuant to which the bonds were issued and the act of 1899 above mentioned each contained a provision directing the levy of a tax annually to pay the interest on bonds issued thereunder.

Upon the last foregoing circumstance counsel predicates another argument. He says that by obtaining an ordinary judgment for this interest defendant in error made an election of remedies; that she cannot now compel the levy of a tax to pay the judgment thus obtained, even though she might perhaps have enforced such levy to pay the interest coupons; and that she must wait until such time as the county sees fit to issue more bonds, and by exchange or sale discharge that judgment. The principle of election thus relied on by counsel...