Burton v. City and County of Denver, 13808.

CourtSupreme Court of Colorado
Citation61 P.2d 856,99 Colo. 207
Docket Number13808.
PartiesBURTON v. CITY AND COUNTY OF DENVER et al.
Decision Date22 June 1936

Rehearing Denied Oct. 19, 1936.

Error to District Court, City and County of Denver; Frank McDonough, Sr., Judge.

Action by S.W. Burton against the City and County of Denver and another. To review an adverse judgment, plaintiff brings error.

Reversed and remanded, with directions.

Clarence L. Ireland and R. H. Blackman, both of Denver, for plaintiff in error.

Teller Ammons and Thomas H. Gibson, both of Denver, for defendant in error City and County of Denver.

BURKE Justice.

These parties are hereinafter referred to as Burton, the city, and Davis, respectively; the Burlington Investment Company as the Burlington Company, and the Colmex Investment Company as the Colmex Company. Burton brought this action to have tax sales held void, certificates of purchase canceled, claims based thereon adjudged invalid, and defendants in error enjoined from asserting such. He based his right to the relief prayed for on a certificate of taxes paid, issued by the county treasurer. This certificate covered the general tax for 1928 also the Moffat Tunnel tax for that year. Davis, who bought at the sale, stood upon his certificate. In case this was overthrown he demanded recovery from the city. The Moffat Tunnel certificate is held by the Moffat Tunnel Commission. The city denied Burton's right to relief under the statute and further contended that the statute, if applicable, was unconstitutional, and also asserted that it was not a proper party. Trial was to the court, on stipulation, plus testimony, and judgment against Burton. To review that judgment he prosecutes this writ. The contentions here are as above indicated, save that Davis does not appear in this court, hence we are not concerned with the issue as between him and the city. The Burlington Company owned certain Denver real estate. About September 1, 1929, it sold the tract to the Colmex Company which first obtained from the county treasurer a 'certificate of taxes due,' paying therefor the statutory fee. The certificate showed the questioned taxes 'paid.' They were not. Relying thereon, the Colmex Company took title. When the treasurer sold, one Atler bought for the general tax and assigned his certificate to Davis. In purchasing from the Colmex Company, Burton also relied upon the treasurer's certificate.

The statutes in question are sections 7392, 7393, and 7394, C.L.1921. The first provides that the treasurer shall, upon request and payment of his fee, 'certify in writing the entire amount of taxes and assessments due upon any parcel of real estate.' The second provides that such certificate, with the treasurer's receipts for the sums thereby disclosed, 'shall be conclusive evidence for all purposes and against all persons, that the parcel of real estate in said certificate, and receipt or receipts described, was at the time thereof free and clear of all taxes,' etc. The last reads: 'For any loss resulting to the county or to any tax purchaser or taxpayer, from any error in said certificate or receipt or receipts, the treasurer and his surety shall be held liable on his official bond.' Particular pleadings herein need not be specified.

1. It is said this suit should have been against the board of county commissioners and the treasurer as representatives of state, county, and school districts. But the city is primarily the party in interest here. By section 1, article 20 of the Constitution it is designated as 'the city and county of Denver' and 'by that name any sue and defend * * * in all courts and places, and in all matters and proceedings.' That the city is a proper party, and that it was here properly made so seems to us unanswerable.

2. A mere reading of the statute appears to us to place its applicability beyond question. It is said that under it the duty of the treasurer is positive only, i. e., to certify taxes due; not negative, i. e., to certify no taxes due. That construction appears to convert the act into an absurdity, a construction forbidden by a well-recognized rule, unless no other is possible. The purpose of the act seems clear. Few taxpayers are capable of personally determining from the public records the amount, if any, of their taxes due, or those due on property they may contemplate acquiring. To do this accurately often becomes a matter of vital necessity. For instance, the sum here involved is over $1,400. Except the legal duty rested upon some one to supply the requisite information, and except that information, when supplied, could be safely relied upon, transactions in real estate would often be too hazardous to be engaged in save by gamblers. But if the desired information could be obtained only when a tax was due, of what avail the remedy? Must we believe the purpose of the Legislature was to afford relief against a certificate which erroneously stated that $1 was due when in fact the amount was $1,000, and no relief against a certificate which erroneously stated that no taxes were due when in fact the amount was $1,000?

3. The validity of the statute presents a more serious question. It is said to conflict with section 7179, C.L.1921, which provides that taxes on real estate 'shall be a perpetual lien upon such real estate, until * * * paid.' But statutes are of equal dignity save that when in irreconcilable conflict we read into the last a repeal by necessary implication. Said sections 7179 and 7392 first appear as portions of the Revenue Act of 1902...

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