Board of County Com'rs of Cheyenne County v. Board of County Com'rs of Bent County

• Decision Date: 12 December 1890
• Docket Number: 2,640.
• Citation: 25 P. 508,15 Colo. 320
• Parties: BOARD COUNTY COM'RS CHEYENNE COUNTY v. BOARD COUNTY COM'RS BENT COUNTY. No. 2,618. BOARD COUNTY COM'RS LINCOLN COUNTY v. SAME. No. 2,619. BOARD COUNTY COM'RS KIOWA COUNTY v. SAME.
• Court: Colorado Supreme Court

25 P. 508

15 Colo. 320

BOARD COUNTY COM'RS CHEYENNE COUNTY v. BOARD COUNTY COM'RS BENT COUNTY.

No. 2,618.

BOARD COUNTY COM'RS LINCOLN COUNTY v. SAME.

No. 2,619.

BOARD COUNTY COM'RS KIOWA COUNTY v. SAME.

No. 2,640.

Supreme Court of Colorado

December 12, 1890

Appeal from district court, Bent county.

These three cases were consolidated for the purposes of the argument in this court, and will be disposed of together. The cases, which are numbered respectively 2,618, 2,619, 2,640 here, were tried below upon an agreed statement of facts, and involve the same questions of law. The controversies arose over the adjustment of certain matters of revenue between the counties of Cheyenne, Lincoln, and Kiowa, appellants, and the county of Bent, appellee, consequent upon the creation by the seventh general assembly of the former, in part, out of the territory up to that time included in the latter. The counties of Prowers and Otero, also formed out of the county of Bent at the same legislative session, do not appear to be in any way interested in the present controversy. The agreed statement of facts in cause No. 2,619, in so far as the same is material to the present controversy, is, in substance, as follows: First. It appears from the assessment roll of said Bent county for the year 1888 that the taxable property of said county for said year amounts to the sum of $7,800,149. Second. The value of taxable property in said county of Bent included within the boundaries of the present county of Kiowa for said year is $1,244,381. Third. The value of taxable property in said county of Bent included within the present county of Lincoln for said year is $402,692. Fourth. The value of taxable property in said county of Bent included within the present boundaries of the county of Cheyenne for said year is $1,390,838. Fifth. The books and accounts of the county of Bent show the total gross indebtedness or liabilities of Bent county on the 13th day of April, 1889, to be the sum of $131,403.96, and that said total amount includes certain items the validity of which as a charge against said defendants is controverted by the above-named defendants. At this point, these controverted claims are set forth, and numbered respectively from 1 to 7, the claims above numbered 3, 4, and 5 being now in suit in the district court of Bent county, Colo., in three certain actions therein pending, entitled 'The Atchison, Topeka & Santa Fe Railroad Company v. The Board of County Commissioners of Bent County;' 'The Prairie Cattle Company v. The Board of County Commissioners of Bent County;' and 'J. C. Coad v. The Board of County Commissioners of Bent County,'--all of which said actions are being defended by said Bent county; and the files in said causes may be referred to and are made a part of this stipulation for the purpose of enabling the court to determine whether said claims legally constituted part of the indebtedness or liabilities of said Bent county on said April 13, 1889. Sixth. That on the 13th day of April, 1889, the cash in the hands of the county treasurer of Bent county to the credit of the several funds amounted to the sum of $22,705.67. Seventh. That on the 13th day of April 1889, there was due to said Bent county delinquent and unpaid taxes for the year 1887, amounting to the gross sum of $7,270.66, and for the year 1888 taxes amounting to the gross sum of $35,297.96. Eighth. And it is further stipulated and agreed that the 13th day of April, 1889, shall be taken as the date of the settlement or apportionment between the county of Bent and all of the three above defendant counties. Ninth. The defendants above named conceded the correctness of the amount of the gross indebtedness or liabilities of Bent county as above specified on the 13th day of April, 1889, with the exception of the items hereinbefore numbered respectively 1, 2, 3, 4, 5, 6 and 7, and the plaintiff, Bent county, asserts that all said items, controverted as aforesaid by defendant counties, are proper to be estimated in arriving at the total amount of the gross indebtedness of Bent county on said date. Tenth. The defendant counties above named claim that, in making the apportionment of their proportion of the indebtedness of Bent county, on the date above specified there should be deducted from the gross amount of the indebtedness of said Bent county (1) the sum of $22,705.67 cash in the hands of the treasurer of said county, and (2) the amount of delinquent taxes due said Bent county on said date, amounting, in the aggregate, to the sum of $42,568.62, which said claim, upon the part of the defendant counties, is controverted by the plaintiff county claiming that said defendant counties are not entitled to any part of the cash in the hands of the treasurer of Bent county on said date, nor to any part of the delinquent taxes due to Bent county on said date.

A. B. McKinley, W. T. Rogers and M. B. Gerry, for appellants.

Cald well Yeaman, for appellees.

Upon the statement of facts, and the exhibits mentioned therein the court made certain findings. Of these the following were specifically excepted to: ' Fourth. The court further finds that all the cash in the hands of the treasurer of Bent county to the credit of the several county funds on the 13th day of April, 1889, amounting to the sum of $22,705.67, belongs to and is the property of said Bent county, and not subject to apportionment between it and said county of Cheyenne. Fifth. That all delinquent taxes unpaid and owing to the said county of Bent on the 13th day of April, 1889, amounting to the sum of $42,568.62, belong to and are the property of said Bent county, and not subject to apportionment between it and said county of Cheyenne.' The court further found that the plaintiff, Bent county, was not entitled to include as part of the liabilities or indebtedness of said county, and to collect from the defendant county, its proportion of the claim specified in subdivisions 1, 2, 3, 4, 6, and 7 of paragraph 5 of said agreed statement of facts, and disallowed the same, to which said finding and disallowance the plaintiff county, by its attorney, excepted. And thereupon the court entered judgment in favor of the plaintiff and against the defendant, in accordance with said findings, for the sum of $21,567.31, with interest thereon at 10 per cent. per annum from April 13, 1889, and costs of suit. Similar judgments, but varying in amounts, were entered in each of the other cases.

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

The district court found that the cash in the hands of the treasurer of Bent county at the date of the creation of the new counties, and the delinquent taxes at that time due Bent county, belonged to, and were the exclusive property of, said county, and judgment was entered accordingly. Appellants question the correctness of these findings and judgment. They say the new counties are entitled to have deducted from the gross indebtedness of Bent county an equitable share of the cash fund, and a ratable proportion of the delinquent taxes and that the balance then remaining represents the indebtedness which is to be apportioned under the statute. And the failure of the court below to so decide is the basis of the assignment of error in this court. In the case of Washington Co. v. Weld Co., 12 Colo. 152, 20 P. 273, it is said: 'In the absence of a restrictive constitutional or statutory provision on the subject, when a new county is created by segregating a portion of the territory belonging to an existing county, the old county retains all assets previously owned by it, including rights of action, funds, and other personal property; also all real estate held in proprietary right, save such, if any, as may be within the territory taken away. It likewise remains bound by its existing contracts, and is subject to the burden of discharging all existing obligations and liabilities. The new county receives none of the assets, and assumes none of the...