City of Highlands v. Johnson

• Decision Date: 20 December 1897
• Citation: 24 Colo. 371,51 P. 1004
• Parties: CITY OF HIGHLANDS et al. v. JOHNSON.
• Court: Colorado Supreme Court

51 P. 1004

24 Colo. 371

CITY OF HIGHLANDS et al. v. JOHNSON.

Supreme Court of Colorado

December 20, 1897

Appeal from district court, Arapahoe county.

Action by Frank Johnson against the city of Highlands and another. From a decree for plaintiff, defendants appeal. Reversed.

L. E. Kenworthy, George C. Norris, and Emerson J Short, for appellants.

Carpenter & McBird, for appellee.

CAMPBELL J.

This action was brought by the appellee (plaintiff below) against the county treasurer of Arapahoe county and the city of Highlands, to restrain them from selling his property for a delinquent assessment levied thereupon by said city for constructing a sewer. The treasurer was perpetually enjoined from selling, and from the decree so providing both defendants have appealed.

The grounds of the action, as set up in the complaint, are (1) that the assessment was void; (2) that the county treasurer had no warrant for its collection, and, in attempting to do so, was proceeding to take private property without due process of law. The first ground has been waived in argument, and the appellee relies now upon the sole ground that the city council did not cause to be certified to the county clerk the delinquent assessment, and the county clerk did not include the same in his warrant to the county treasurer for its collection; the point being that this failure is not a mere irregularity, but is in violation both of the statute in that behalf, and of the fourteenth amendment of the federal, and section 25 of article 2 of our state, constitution, and so leaves the county treasurer wholly without authority in law for collecting the assessment. The respective counsel apparently agree that this constitutional question is necessary to a determination of this controversy,--for by the appellant it is contended that the threatened act of the treasurer to advertise and sell conforms to, and is in substantial compliance with, said provisions of the statute and constitutions; and, on the part of appellee, that such acts, if done, would be entirely unwarranted by any law of the land. The statutes bearing upon the question are Gen. St. § 3312, subd. 75, as amended by the act of 1889; Sess. Laws 1889, p. 4541 (2 Mills' Ann. St § 4403); Gen. St. §§ 3321, 3350-3352 (2 Mills' Ann. St §§ 4441 4471-4473); Sess. Laws 1893, p. 418, § 28 (3 Mills' Ann. St. § 3819); Sess. Laws 1893, p. 423, § 55 (3 Mills' Ann. St. § 3829).

That a tax or assessment is void is not sufficient to justify the interposition of a court of equity to restrain its collection. Insurance Co. v. Bonner, 24 Colo. 220, 49 P. 366 and State Railroad Tax Cases, 92 U.S. 575. It is probably because of this well-established principle that counsel for appellee now abandon the first, and rely solely upon the second, ground set up in their complaint. To municipalities organized thereunder, as was the defendant city, two remedies are given by our general municipal corporation act for collecting sewer assessments duly levied by them. By subdivision 75, § 3312, supra, they may be collected, and the lien thereof enforced, by the city council, in a proceeding at law or in equity. The other remedy is found in section 3351, which gives to the municipality the right by ordinance to cause a delinquent assessment 'to be certified to the county clerk of the county, and be collected and paid over by the treasurer of the county in the same manner as taxes are authorized to be by this act.' When compliance therewith is made, it becomes the duty of the treasurer, under section 3352, supra, to collect said assessment in the same manner, and at the same time, as other taxes upon the same tax list are collected; and it is further provided therein that 'all the laws of the state for the assessment and collection of general taxes, including the laws for the sale of property for taxes, and the redemption of the same, shall apply and have as full effect for the collection of such city or town taxes as for such general taxes, except as modified by this act.' The position taken by the appellee is that, before the county treasurer has any right to collect the assessments and enforce the lien, all the statutory conditions precedent to the existence of the right must be strictly fulfilled, and, unless they are, the treasurer, in attempting to collect, acts without process of law. The certification to the county clerk, as provided by section 3351, and the issuing by the latter of his warrant to the treasurer, as section 3350 requires, are said to be imperative statutory conditions to be observed, and noncompliance therewith is said to be fatal to the treasurer's right to collect. It will be observed that section 3350 does not, in terms, require the county clerk to include, in his general warrant to the treasurer for the collection of taxes, assessments levied by a municipality; but it is contended that, inasmuch as section 3352 makes applicable to the collection thereof all the laws of the state for the collection and assessment of taxes generally, except as modified by the act, and prior to the amendment of 1893, supra, the county clerk was required by section 2866 of the revenue act to issue to the county treasurer the warrant for the collection of all taxes, the county clerk must therefore include the municipal assessment in such general warrant. Assuming this to have been his duty prior to 1893, we proceed to an examination of the specific objection urged to the treasurer's lack of authority. Counsel for appellee themselves argue, as just stated, that, when a city council elects the second of the two remedies above mentioned, the reason for requiring certification to the county clerk is that when section 3351 was passed the county clerk was required by section 2866 of the revenue act, and by said section 3350, to issue his warrant to the county treasurer for the collection of all taxes of every kind, includig municipal assessments. The argument further is that the issuing of this warrant by the county clerk, and its delivery to the treasurer, constitute the only authority of the latter to collect, and without it no collection can be enforced. All the authorities agree that the collector of taxes, by whatever title called, must have some authority or warrant for their collection, and in lieu thereof his acts are trespasses. Cooley, Tax'n (2d Ed.) pp. 424-431, 469, 481; Burroughs, Tax'n, §§ 107 et seq., 113; Black, Tax Titles, § 76; 1 Blackwell, Tax Titles, §§ 330 et seq., 453. Generally, and in most of the states, this 'warrant' as it is usually called, is issued to the collector by some other designated officer, who prepares, or has in his possession, the...