Board of Com'rs of Arapahoe County v. Denver Union Water Co.

• Decision Date: 04 April 1904
• Court: Colorado Supreme Court
• Parties: BOARD OF COM'RS OF ARAPAHOE COUNTY v. DENVER UNION WATER CO.[*]

76 P. 1060

32 Colo. 382

BOARD OF COM'RS OF ARAPAHOE COUNTY v. DENVER UNION WATER CO.^[*]

Supreme Court of Colorado

April 4, 1904

Appeal from District Court, Arapahoe County; P. L. Palmer, Judge.

Cass E. Herrington, Henry C. Vidal, Jno. T. Bottom F. E. Carstarphen, Geo. F. Dunklee, O. E. Jackson, Harry A Lindsley, Co. Atty., and Chas. R. Brock, for appellant.

Chas J. Hughes, Jr., and Gerald Hughes, for appellee.

CAMPBELL J.

The county assessor of Arapahoe county added to the tax schedule of the Denver Union Water Company an item which he called a 'franchise,' and, for the purposes of taxation, fixed its value at $2,000,000. Sitting as a board of equalization, the board of county commissioners of the county afterwards reduced this valuation to $300,000, and levied the various taxes upon it. The water company, asserting that this franchise was not taxable either under the Constitution or the revenue laws of the state, filed its petition before the board, in which it asked, for the reason alleged, to have this valuation canceled and removed from its tax schedule, and to be relieved from payment of any taxes upon it. The petition was denied by the board, and an appeal was taken to the district court. That tribunal held that franchises are taxable property, under the Constitution, but ruled that they are not assessable in this state, because no general law has been enacted by the General Assembly for ascertaining their value, which is an imperative requirement of the Constitution, and accordingly granted the relief prayed for. The board seeks to have the judgment of the district court reviewed here on appeal.

Authority for this proceeding, if it exist at all, is to be found in an act of the Seventh General Assembly published in the Session Laws of 1889 (page 24), and the parties admit that these proceedings, if maintainable, are so thereunder. It is there provided that, whenever an owner of assessable property has been unjustly or erroneously assessed thereon for purposes of taxation, he may petition the board of county commissioners of the county wherein the property is assessed for its correction. In this petition he must describe the property claimed to be unjustly or erroneously assessed; state the sum at which it is assessed, its true cash value, and what is a just assessment thereof, compared with other like property. In considering the petition the board is required to hear all testimony that is produced bearing upon the claim therein made, and shall either grant or refuse the prayer of the petition in whole or in part, as may be just and proper. If the prayer of the petition is denied in whole or in part, the petitioner is allowed an appeal from the decision of the board to the district court of the county, where the trial of the issue is de novo. As a condition precedent to the allowance of the appeal, the petitioner must pay the taxes levied on the property upon the assessment as made, and, if he succeeds in having the same modified or set aside, the county treasurer to whom the taxes have been paid must refund the same, or such part thereof as the modification requires, whenever a certified copy of the judgment modifying the assessment is presented to him. Such other facts as are material will be stated in the opinion.

1. This act gives to an aggrieved property owner a remedy which in its absence he would not have. It prescribes a special procedure to which the person seeking to avail himself of its provisions must conform. It cannot by construction be extended to embrace cases not falling within its letter or spirit. It will be observed that the new right is given and the new remedy furnished only to an owner of assessable property, and not to one who owns property upon which no taxes can be assessed or levied. In the petition we are considering there is no allegation of the true cash value of the franchise in question, nor is there an averment as to what a just assessment thereon would be, as compared with other like property. Even if the petitioner conceded, as it does not, that the franchise was assessable property, its petition would be insufficient to entitle it to a hearing as to whether or not it had been unjustly or erroneously assessed, because of the absence of the necessary allegations to which we have just referred. The case as made by the petitioner in its petition, therefore, must be regarded as an attempt on the part of an owner of property, who claims that it cannot be assessed for taxation either because under the Constitution it is exempt, or because no general law has been enacted for the ascertainment of its value, and for that reason it is nonassessable, to obtain relief under a statute which provides a remedy only for owners of property conceded to be assessable, but upon which an unjust or erroneous assessment has been made.

2. Having determined that this proceeding, as instituted and conducted before the county commissioners, by which its character was unalterably fixed, is merely an attempt by an owner of property claimed to be nonassessable to obtain the statutory relief, the inquiry naturally arises whether either the board or the district court had jurisdiction of the proceeding. Before considering that question, however, we observe that the statute itself does not provide for any review of the judgment of the district court rendered in these proceedings, yet our Court of Appeals, without comment upon this fact, entertained an appeal from a judgment had thereunder. Gillett v. Logan Co. 13 Colo.App. 380, 58 P. 335. It is also doubtful if the Code provisions relating to appeals and writs of error apply to special proceedings, to which this belongs, though in Catron v. Co. Com'rs, 18 Colo. 553, 33 P. 513, this court, by writ of error, reviewed a judgment of the district court where the constitutionality of this act itself was attacked. But as our conclusion is that jurisdiction below did not attach, we may waive informalities, and treat the proceeding here as an application for a writ of certiorari, although the board of commissioners has denominated it an 'appeal.' We do this in the interests of both parties, to avoid a possible multiplicity of actions, and to point out, for the benefit of the district courts and public officials,...