Colorado & S. Ry. Co. v. Board of Com'rs of Boulder County

• Decision Date: 07 March 1921
• Docket Number: 9767.
• Citation: 70 Colo. 8,196 P. 331
• Parties: COLORADO & S. RY. CO. v. BOARD OF COM'RS OF BOULDER COUNTY.
• Court: Colorado Supreme Court

196 P. 331

70 Colo. 8

COLORADO & S. RY. CO. v. BOARD OF COM'RS OF BOULDER COUNTY.

No. 9767.

Supreme Court of Colorado, En Banc.

March 7, 1921

Error to District Court, Boulder County; George H. Bradfield Judge.

Action by the Colorado & Southern Railway Company against the Board of County Commissioners of Boulder County, Colorado. Judgment for defendant, and plaintiff brings error.

Affirmed.

E. E Whitted and J. Q. Dier, both of Denver (Percy Robinson, of Denver, of counsel), for plaintiff in error.

Thomas A. McHarg and Martin, Newcomer & Tinglof, all of Boulder (Victor E. Keyes, Atty. Gen., Bentley M. McMullin, Asst Atty. Gen., and Charles Roach, Deputy Atty. Gen., of counsel), for defendant in error.

ALLEN J.

This is an action by the Colorado & Southern Railway Company against the board of county commissioners of Boulder county to recover certain taxes paid under protest. The trial court rendered judgment for defendant, and plaintiff brings the cause here for review. The controversy arises from the following facts:

On November 13, 1915, the county commissioners fixed, or attempted to fix, a levy of 2.30 mills 'for ordinary revenue fund,' and a levy of .67 mills 'for support of poor,' in making the county tax levy for 1915. The assessed valuation of Boulder county for the year 1915 was $37,431,360. The total levy for the two items above mentioned, fixed in November, 1915, was 2.97 mills. It is conceded that it should have been limited to 2.26 mills, under the following provisions of chapter 137, p. 557, Session Laws of 1913:

'Section 1. The power of the board of county commissioners of each of the several counties of the state to fix rates of levy annually for the creation of funds out of which to meet and defray the ordinary county expenses including the support of the poor and for the purpose of raising a fund to meet and unforeseen contingency expenses of the county is hereby limited as follows: * * *

'Sec. 6. * * * In any county which has an assessed valuation in any amount in excess of eleven million dollars up to and including fifty million dollars, the maximum levy shall be determined by reducing the levy of 2.78 mills allowed upon a valuation of eleven million dollars, .02 of one mill for each one one million dollars in excess of eleven million dollars and any rate of levy so determined shall be the miximum rate of levy for all assessed valuations which are fractions of the next higher one million dollars of valuation.'

On December 31, 1915, the county commissioners adopted the 1915 tax levy, the county levy 'for ordinary revenue fund [being] 2.30 mills,' and 'for support of poor [being] .67 mills.' The levy thus fixed, for these two purposes, exceeded the statutory limit by .71 mills. At that time no authorization of the excessive levy had been obtained from the tax commission. On February 23, 1916, the county commissioners presented to the tax commission their petition for authority to make a levy exceeding the statutory limit by .71 mills. This step was taken under section 12 of the act above cited (S. L. 1913, pp. 557, 560), which provides:

'If any board of levy or any officer that is charged with the duty of levying a tax in any taxing district, except the state, shall be of the opinion that the amount of tax limited by this act will be insufficient for the needs of such taxing district for the current year, the question of an increased levy may be submitted to the Colorado tax commission and it shall be the duty of the Colorado tax commission to examine into the needs of such taxing district and ascertain from such examination the financial condition thereof and if, in the opinion of the Colorado tax commission, such taxing district is in need of additional funds the said commission may recommend an increased levy for such taxing district above the limits hereinbefore applied and such taxing district is authorized to make such excess levy not exceeding five mills on the dollar of the valuation of such district. * * *'

Thereafter the following communication and order was received by the county commissioners from the tax commission:

'The question of an increased

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