Board of Com'rs of Arapahoe County v. City of Denver

• Decision Date: 02 June 1902
• Parties: BOARD OF COUNTY COM'RS OF ARAPAHOE COUNTY v. CITY OF DENVER.
• Court: Colorado Supreme Court

69 P. 586

30 Colo. 13

BOARD OF COUNTY COM'RS OF ARAPAHOE COUNTY v. CITY OF DENVER.

Supreme Court of Colorado

June 2, 1902

Appeal from district court, Arapahoe county.

Action by the city of Denver against the board of county commissioners of Arapahoe county. From a judgment for plaintiff, defendant appeals. Reversed.

George F. Dunklee, Co. Atty. (O. E. Jackson, of counsel), for appellant.

A. B McKinley and Everett Bell, for respondent.

GABBERT J.

The city, as plaintiff, instituted an action in the court below to recover from the board of county commissioners of Arapahoe county, as defendant, the amount collected by the treasurer of the county from 1877 to 1899, inclusive, as interest or penalties upon delinquent taxes of the city, and paid to the county instead of the city.

From a judgment against the county for the aggregate amount of such items for the years mentioned, it brings the case here for review on appeal.

The county pleaded the statute of limitations in bar of all items accruing more than six years prior to the commencement of this action. This plea was not regarded available by the trial court. We shall not discuss or determine the question of the application of the statute of limitations to this case, because it is apparent from the character of the action, the nature of the defenses interposed, the relationship of the county to the city, and the facts fairly inferable from the proof and circumstances, that, as to the items to which the plea of the statute was directed, an estoppel in pais was established. The defense of equitable estoppel may be asserted against a municipal corporation when the character of the action and the facts and circumstances are such that justice and equity demand the corporation should be estopped. Dill. Mun. Corp. (4th Ed.) § 675; Mouat Lumber Co. v. City of Denver, 21 Colo. 1, 40 P 237; Denver v. Girard, 21 Colo. 447, 42 P. 662; Board of Sup'rs of Logan Co. v. City of Lincoln, 81 Ill. 156; Town of Fairplay v. Board of Com'rs of Park Co. (Colo. Sup.) 67 P. 152.

By reference to the city charter, it appears the county treasurer is made ex officio the collector of taxes levied by the city upon property within its limits; that he is required to collect these taxes at the same time and in the same manner county and state taxes are collected, and shall each month pay over to the city treasurer the moneys so by him collected. Laws 1874, p. 285, § 4. There is no liability on the part of the county to the city for the collection of these taxes, nor is the county responsible for the default or neglect of the treasurer to perform the duties imposed upon him by law with respect to city taxes. In short notwithstanding a statement by counsel for the county which might be construed to the contrary, there is no privity whatever between the city and the county with respect to the taxes of the city, and, so far as the collection of these taxes is concerned, the county treasurer is ex officio the official of the city for this purpose. The action, therefore can only be maintained upon the theory that the county has received money belonging to the city, which, in equity and good conscience, it should pay to the latter. In fact, counsel for appellee squarely base the right of the city to maintain this action upon that ground. In the replication filed to the answer it is asserted that the services performed by the county treasurer, which the county sought to recover the value of by counterclaim, were performed by the treasurer as ex officio collector of taxes for the city. They do not lirect our attention to any statutes which impose a liability on the county to collect or account for such taxes, and, in our opinion, it is apparent from the statutory provisions on the subject that, while a county official is designated as the person who shall collect the city taxes, he does so solely as the agent and official of the city. It must follow, therefore, as already suggested, that the only theory upon which this action can be maintained is that the treasurer of the county, instead of paying the interest collected upon delinquent taxes of the city to the treasurer of the latter, paid them over to the county. In other words, the liability of the county does not arise from any trust relations with the city, or from a breach or neglect of any governmental or public duty imposed by law.

Twenty-three years have elapsed between the date the first cause of action accrued and the time this action was commenced. During all that period, or, perhaps more correctly speaking, since 1879 at least, the official of the city charged with the duty of collecting its revenue and accounting to its treasurer therefor has paid these funds to the county. There is no proof whatever of any fraud...