Board of County Com'rs of Delta County v. Board of County Com'rs of Gunnison County

• Decision Date: 21 December 1891
• Citation: 17 Colo. 41,28 P. 476
• Court: Colorado Supreme Court
• Parties: BOARD OF COUNTY COM'RS OF DELTA COUNTY v. BOARD OF COUNTY COM'RS OF GUNNISON COUNTY.

28 P. 476

17 Colo. 41

BOARD OF COUNTY COM'RS OF DELTA COUNTY v. BOARD OF COUNTY COM'RS OF GUNNISON COUNTY.

Supreme Court of Colorado

December 21, 1891

Error to district court, Gunnison county.

Suit by the board of county commissioners of Delta county against the board of county commissioners of Gunnison county to recover an excess paid defendant in a certain settlement. Judgment for defendant on demurrer. Plaintiff brings error. Reversed.

J. Warner Mills and A. E Amsbary, for plaintiff in error.

D T. Sapp, for defendant in error.

HELM C.J.

In 1883 the legislature carved the new county of Delta from territory theretofore embraced within the county of Gunnison. The statute provided, among other things, 'that the present indebtedness of the county of Gunnison shall be apportioned between the county of Gunnison and county of Delta in proportion to the ratio which the taxable property in that portion of the county of Gunnison which is now included within the boundaries of Delta county bears to the taxable property of the county of Gunnison, as shown by the assessment rolls for the year of 1882.' The law lodged in this hands of the boards of county commissioners of the two counties, acting conjointly power to adjust all matters of revenue necessarily growing out of the formation of the new county. The same joint body was also authorized to apportion the existing indebtedness of Gunnison in accordance with the section above cited. The boards of county commissioners met as directed, and apportioned the indebtedness, endeavoring to follow the statutory injunction on the subject. They found the aggregate amount due from Delta upon this indebtedness to be $11,329.37. For the sum thus determined, Delta issued to Gunnison its warrant, and Gunnison used and appropriated the same. In 1888, upon discovery of the matters hereinafter referred to, Delta made demand upon Gunnison for a readjustment of the account, and repayment of an alleged excess or overplus in the settlement. This demand was peremptorily refused. Thereupon, Delta instituted the present suit. The complaint avers mutual mistake on the part of the boards of county commissioners in the original accounting and settlement. This mutual mistake, it is alleged, exists in three particulars, viz.: First, in respect to the boundaries of the new county, by which error certain territory, including taxable property valued at $25,000, was erroneously regarded as a part of Delta; second, in not excluding from the assessment of Gunnison for 1882 certain grading outfits belonging to the Denver & Rio Grande Railway Company, temporarily employed within the county; third, in a misapprehension or miscalculation whereby the aggregate indebtedness of Gunnison county was found to be $200,000 greater than it actually was. To the complaint a general demurrer was filed and sustained. Judgment being entered for defendant in pursuance of this ruling, plaintiff brings the same here for review.

Except as forbidden by some express or implied constitutional inhibition, the legislature may, upon creating a new county, provide such regulations touching the liabilities and assets of the county from which it is carved as legislative wisdom shall dictate. But the provisions of the statute under consideration touching the apportionment of existing indebtedness are in direct accordance with a constitutional mandate, and we are not asked in the present case to consider any objection based upon constitutional grounds.

A court of equity undoubtedly possesses the power to correct mutual material mistakes to fact in the settlement of accounts, where the law furnishes no adequate remedy. 2 Pom. Eq. Jur. §§ 852, 853. Without disputing the correctness of this legal proposition, counsel for defendant in error, through his demurrer, asserts that the complaint does not sufficiently allege a mutual mistake in either of the three particulars above specified. Our determination of the present review depends, therefore, upon the sufficiency of the pleading in this regard.

1. As regards the boundaries. The statute designates generally, with reference to correction lines and natural objects, the boundaries of the new county, but makes no provision for the running of a survey to accurately determine the exact lines of division. This duty, whenever it became a material question, devolved, under powers conferred by general law, upon the boards of county commissioners of the two counties. According to the complaint, these boards at the time of the complaint, were fully aware of the fact that they did not know the precise location of the boundary lines. The averment is that, 'acting upon unofficial information, they assumed' the territory of Delta to be larger than it was. Being destitute of exact information upon the subject, the commissioners voluntarily elected to rely upon such general information touching the territory to be divided as they might possess or acquire, instead of ordering the proper survey to be made. Acting upon this basis, they committed...