Colorado Racing Commission v. Brush Racing Ass'n, 17880
| Citation | 136 Colo. 279,316 P.2d 582 |
| Decision Date | 14 October 1957 |
| Docket Number | No. 17880,17880 |
| Parties | COLORADO RACING COMMISSION and Earl E. Ewing, as Treasurer of the State of Colorado, Plaintiffs in Error, v. BRUSH RACING ASSOCIATION, Inc., a Colorado corporation, Defendant in Error. |
| Court | Supreme Court of Colorado |
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Patricia H. Maloy, Asst. Atty. Gen., for plaintiffs in error.
William B. Paynter, Richard B. Paynter, Brush, for defendant in error.
On November 5, 1951, there was filed in the District Court of Arapahoe County a complaint wherein Centennial Turf Club, Inc., Mile High Kennel Club, Inc., Rocky Mountain Kennel Club, Inc., Pueblo Kennel Association and Brush Racing Association, Inc., were plaintiffs and Colorado Racing Commission and Earl E. Ewing, Treasurer of the State of Colorado, were defendants. The plaintiffs sought a declaratory judgment and requested the District Court to judicially determine two specific questions set forth in the prayer:
Par. 1. Does Sec. 11, Chap. 207, 1949 Session Laws provide that the 'breakage' at plaintiff's tracks belongs to plaintiffs or does it provide that said 'breakage' belongs to the State of Colorado?
Par. 2. Are the plaintiffs entitled to receive back from the State Treasurer the breakage heretofore paid by plaintiffs, under protest, to the State Treasurer?
On December 6, 1951, defendants filed their motion to dismiss the complaint for the reason that it did no state a claim against defendants upon which relief could be granted. On December 12, 1951, the plaintiffs filed their amended complaint which does not differ substantially from the original. On March 31, 1953, defendants' motion to dismiss (directed to the original complaint) was overruled and defendants granted time and until April 20, 1953, to file their answer.
On April 18, 1953, defendants filed their answer setting up two defenses:
1. The amended complaint does not state a claim upon which relief can be granted.
2. Deny that it is to the best interests of plaintiffs and defendants that their respective rights under said Sec. 11, Chap. 207, Session Laws 1949 be judicially determined.
On may 18, 1953, pursuant to stipulation, the case was ordered dismissed, with prejudice, as to Mile High Kennel Club, Inc. On May 22, 1953, pursuant to stipulation, the case was ordered dismissed, with prejudice, as to Rocky Mountain Kennel Club, Inc. On May 26, 1953, pursuant to stipulation, the case was ordered dismissed, with prejudice, as to Pueblo Kennel Association. On May 26, 1953, the Centennial Turf Club, Inc. (hereinafter referred to as Centennial) and Brush Racing Association (hereinafter referred to as Brush) and the defendants (hereinafter referred to as the State) entered into a stipulation:
'* * * that the above entitled cause be submitted to the Court upon the following proposition only:
'That the controversy existing between plaintiffs and defendant Colorado Racing Commission with respect to Section 11 of Chapter 207, 1949 Session Laws of Colorado, as amended, and the construction thereof and the respective rights of the parties to the 'breakage' be judicially determined under the provisions of Chapter 93, Article 10, 1935 Colorado Statutes Annotated, concerning declaratory judgments;
'and that a determination by this Court with reference to Paragraph 2 of the prayer of said amended complaint be deferred at this time.'
Upon trial of the above stated proposition the trial judge entered a declaratory judgment wherein it was judicially determined that all 'breakage' belonged to the State of Colorado. The matter was presented to this Court for review by writ of error and on June 21, 1954, this Court reversed the judgment of he trial Court and held that the 'breakage' should be collected and retained by the licensees. Centennial Turf Club v. Colorado Racing Commission, 129 Colo. 529, 271 P.2d 1046.
The record before us does not disclose that any action other than as outlined above was taken in the case with reference to the second question (plaintiffs' right to receive back breakage paid to the State Treasurer under protest) until May 10, 1955, at which time Brush served notice on the State that it would on May 17, 1955, apply to the Court for a trial setting on he matters presented by Paragraph 2 of the prayer of its complaint. There is nothing in the record to indicate that a trial setting was ever made; however, the record discloses that on December 19, 1955, he two remaining plaintiffs, Centennial and Brush, and the defendants were present in Court and apparently ready for trial on the question presented by Paragraph 2 of the prayer of the amended complaint:
'That the Court determine whether or not plaintiffs are entitled to receive back from defendant Earl E. Ewing, State Treasurer of Colorado, the said breakage heretofore paid under protest.'
Prior to trial the State tendered for filing an amended answer setting forth the same matters set forth in its original ananswer and in addition two additional defenses:
(1) Plaintiffs' amended complaint does not state facts upon which relief can be granted.
(2) That on August 28, 1954 Centennial, pursuant to C.R.S. '53, 130-2-5, filed with the State its claim for all breakage theretofore paid and that on November 3, 1954 refund was made by the State in the amount of $67,693.40; that on September 20, 1954 Brush, pursuant to C.R.S. '53, 130-2-5, filed its claim for all breakage theretofore paid and that on November 3, 1954 refund was made in the amount of $7,902.15.
Said answer also contains the following:
'That said statute (130-2-5, supra) is a bar to any further claims by or on behalf of said plaintiffs.'
Permission to file this amended answer was denied on the ground that it came too late. Testimony was taken and the evidence conclusively showed the following payments of breakage, all made under protest:
Centennial Brush
1949 -- $3,178.90
1950 $134,837.55 $2,328.10
1951 $154,211.50 $4,789.65
1952 $177,381.00 $5,691.85
1953 $171,867.20 $6,095.95
----------- ----------
$638,297.25 $22,084.45
During the taking of testimony, Centennial admitted that the State had refunded to it $67,693.40 of the above total leaving a balance not refunded of $570,603.85.
On December 19, 1955, the trial Court found the issues in favor of plaintiffs; found plaintiffs were entitled to receive back from defendant Ewing the breakage paid in less refunds made; that all breakage had been paid under protest; that payments made under written protest were in fact claims for refunds; that payments made were involuntary and the result of an erroneous rule of the Racing Commission which compelled payments. Judgment was entered against defendants and in favor of Centennial for $570,603.85 and in favor of Brush for $22,084.45.
On February 2, 1956 Centennial filed in the trial Court Certificate of Satisfaction of its judgment and the record indicates that satisfaction was entered for the reason:
'that it would be to the benefit of the shareholders of the Corporation and to the people of the State of Colorado to forego the collection of said Judgment.'
The State brings to this Court by writ of error and for review the question of the correctness of the judgment in favor of Brush.
No one disputes the fact that during the years 1949-1950-1951-1952-1953 Brush Racing Association paid under protest to the State of Colorado 'breakage' in the total amount of $22,084.45; that money rightfully belonged to Brush and not the State and it had never been refunded.
The State assigns four reasons for reversal of the judgment and urges the same reasons for its conclusion that Brush should not get its money back:
1. The declaratory judgment entered by the trial Court and reversed by the Supreme court, Centennial Turf Club v. Colorado Racing Commission, supra, does not constitute consent on the part of the sovereign State of Colorado to be sued.
2. Payments made to the State were all voluntary, not under duress, and therefore cannot be recovered.
3. No fund exists from which the judgment entered herein can be paid.
4. Refusal of permission to file amended answer.
Counsel for the State vigorously urge the doctrine that Colorado cannot be sued in its severeign capacity, that the State enjoys sovereign immunity from suit, and cite numerous decisions of this...
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