Colorado & S. Ry. Co. v. People
| Decision Date | 09 December 1912 |
| Citation | 128 P. 886,53 Colo. 571 |
| Parties | COLORADO & S. RY. CO. v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to District Court, City and County of Denver; H. C. Riddle Judge.
Action by the People against James Cowie, in which the Colorado & Southern Railway Company intervenes. From a judgment in favor of the state, intervener brings error. On motion to dismiss. Denied.
E. E Whitted, of Denver, for plaintiff in error.
Benjamin Griffith, Atty. Gen., and Archibald A. Lee, Deputy Atty Gen., for the People.
The state of Colorado, through its Attorney General, brought an action against James Cowie, a former Secretary of State, and a surety on his official bond to recover a sum of money that had been paid by various corporations to the Secretary, under the provisions of an act of 1903, for the annual license tax imposed by the Revenue Act of 1902 (Sess. Laws 1902, p. 73, §§ 64, 65). The corporations, claiming that the act imposing the tax was unconstitutional, paid it under protest to avoid the penalties prescribed in section 66 of the act. The Colorado & Southern Railway Company, a domestic corporation, intervened in the action, claiming that it had paid $960 of the money to the Secretary under protest for the annual tax for 1905; that it was paid involuntarily to avoid the penalties prescribed; that, for various reasons alleged, the law imposing the tax was unconstitutional and void, and asked that the Secretary be directed to repay the money to the company. It is claimed that the petition shows that the money was at all times kept by the Secretary as an identified fund. A motion to strike the petition in intervention from the files, on the ground that the company had no right to intervene, was denied, and thereafter a demurrer to the petition was sustained, and it was dismissed. The case was tried and a judgment, which included the $960 in question, was rendered in favor of the state and against the defendants.
The defendants are not here complaining of the judgment against them. In fact, as is said in the brief, the amount of the judgment was paid into court and the money claimed by the company is now there awaiting the final disposition of this writ of error, the only purpose of which must be confined to a review of the action of the court in sustaining the demurrer and dismissing the petition. The Attorney General has moved to dismiss the writ of error on the ground that the writ is a new suit and cannot be maintained against the state, and that the company had no right to intervene. It is conceded that a suit cannot be maintained against the state without its consent. It is also conceded that, if the state voluntarily goes into its own courts and obtains a judgment against a defendant, that defendant may review the judgment by a writ of error, for ...
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