Hallett v. Board of Com'rs of Arapahoe County

• Decision Date: 03 June 1907
• Citation: 40 Colo. 308,90 P. 678
• Parties: HALLETT v. BOARD OF COM'RS OF ARAPAHOE COUNTY et al. (three cases). BOARD OF COM'RS OF ARAPAHOE COUNTY et al. v. HALLETT.
• Court: Colorado Supreme Court

90 P. 678

40 Colo. 308

HALLETT v. BOARD OF COM'RS OF ARAPAHOE COUNTY et al. (three cases).

BOARD OF COM'RS OF ARAPAHOE COUNTY et al. v. HALLETT.

Supreme Court of Colorado, En Banc.

June 3, 1907

Appeal from District Court, Arapahoe County; F. T. Johnson, and Jno. I. Mullins, Judges.

Suits by Moses Hallett against the board of county commissioners of Arapahoe county and others. From a judgment in favor of defendants in three of the actions, plaintiff appeals, and from a judgment in favor of complainant in one of them defendants appeal. Judgments affirmed on complainant's appeals, and reversed on defendants' appeals.

Appellant brought four actions in the court below, the purpose of which was to annul assessments against him in the county of Arapahoe and enjoin the collection of taxes thereon, upon personal property scheduled by the assessor as belonging to him, for the years 1897, 1898, 1899, and 1900, respectively. To each of these actions the county assessor, county treasurer, and board of county commissioners of Arapahoe county were made defendants. The controlling question presented by each of these appeals is the same, and they will be disposed of in one opinion.

The first case (No. 5,150) is an appeal from the judgment in the action involving the assessment and the tax levied thereon for 'amount of money, notes, and credits' in the sum of $75,000 for the year 1897. The averments of the complaint are to the effect that plaintiff was not, at the time of such assessment, the owner of money, notes, or credits subject to taxation, except in the sum of $12,000; that the assessment was made by the assessor fraudulently, unjustly, and illegally, and through malice and ill will towards the plaintiff; that for the year 1897 the assessor uniformly assessed the class property mentioned in the return made by him at one-half of its value, but that, with reference to the plaintiff, no such rule was adopted, but the property was assessed for its full value; that the plaintiff had applied to the board of county commissioners to have the excess above $12,000 set aside, which application was refused; that he had tendered the tax on this sum, which the treasurer refused and that he is ready and willing to pay the tax on this amount, but the board and treasurer claim the right to require him to pay taxes on the full amount of $75,000.

Case No. 5,151 is an appeal from the judgment rendered in the action attacking the assessment and tax levy thereon in the sum of $250,000 for 'amount of money, notes, or credits' for the year 1898. The averments of this complaint are to the effect that the assessment was made in gross, without any distinction between money, notes, or credits, or whether the sum assessed was a statement of amount or value of the items mentioned; that the assessor had no reason to believe that plaintiff owned the property assessed against him, but that such assessment was made arbitrarily for the purpose of compelling plaintiff to appear before the board of county commissioners and submit to an examination touching his money, notes, and credits. Plaintiff further avers that he made application to the board of county commissioners to have this assessment set aside, but that his application was never acted upon, and that a tax was levied against him upon the property as scheduled by the assessor which the board and treasurer claim the right to collect. It is also alleged that plaintiff did not own the property for which he was assessed, and that the assessment was made by the assessor fraudulently and through malice and ill will towards the plaintiff, and for the purpose of injuring and oppressing him. It is further averred that the assessment was made upon notes secured by mortgages on real estate, which real estate was also assessed.

No 5,152 is an appeal from the judgment rendered in the action involving the assessment and tax thereon for 'amount of money, notes or credits' in the sum of $350,000 for the year 1899. Except as to amount and dates, the averments of the complaint are substantially the same as in No. 5,151.

No. 5,220 is an appeal from the judgment in the action attacking the assessment and tax levy thereon for the year 1900, in the sum of $100,000 on 'money, notes, and credits.' The averments of the complaint in this action are to the effect that in the year 1900 the plaintiff, within the time and in the manner required by law, returned a schedule, wherein he charged himself with the sum of $858.06 as for 'money, notes, and credits' held by him subject to taxation in the county of Arapahoe for that year; that after this return the assessor, without his knowledge or consent, charged against him, for money, notes, and credits, the additional sum of $99,141.94; that the county commissioners assessed taxes against him upon this additional sum; that the assessor added this sum, without making any distinction between money, notes, or credits, or whether this sum was a statement of amount or value of the items mentioned; that this addition was made on the conjecture of the assessor, and without reason to believe that plaintiff owned or possessed the property represented by this addition to his assessment, as returned; and that in making such assessment the assessor acted arbitrarily, and upon conjecture only. Plaintiff further alleges that the tax schedule made and returned by him to the assessor, as above stated, was a true and correct schedule of his personal property subject to taxation in the county of Arapahoe for the year 1900; and that, within the time appointed by law, the plaintiff applied to the board to have the additional assessment against him set aside as illegal, which application was denied. Plaintiff further charges that for the year 1900 property under the denomination of 'moneys, notes, and credits' was uniformly assessed at one-half of the amount thereof, and that in the year 1900 he did not own, and was not possessed of, the personal property represented by the additional assessment made by the assessor, but that the treasurer intends to collect the taxes levied upon this additional assessment.

To each of these complaints an answer was filed. Upon the issues thus formulated there was a trial to the court, with the result that in the first case the plaintiff was nonsuited, and in the next two cases the complaints were dismissed, from which judgments the plaintiff appeals. In the fourth case judgment was rendered for the plaintiff, annulling the additional assessment, and enjoining the collection of taxes thereon, from which judgment the defendants appeal.

In the first case, the only witness called was the assessor, who was called as a witness for plaintiff. It is claimed that his testimony established that he had no knowledge upon which to base an estimate of the value of the property which he scheduled against the plaintiff. In the second and third cases, the testimony introduced was that of the assessor, who was called as a witness for the plaintiff, and the testimony of the plaintiff himself. In these cases it is also claimed by counsel for appellant that the testimony establishes that the assessor did not have sufficient knowledge upon which to base an estimate of the value of the property which he scheduled against the plaintiff, and that he made such assessments without having reason to believe that the plaintiff had the property so assessed, and that the evidence discloses that the assessments against the plaintiff in these cases were upon real estate mortgages. In these three cases the errors assigned are, substantially, that the assessments were not based upon the value of the property scheduled; that such assessments were made by the assessor arbitrarily, and for a corrupt purpose; that they were made without the assessor having any reason to believe that the plaintiff had the property so assessed against him; and, in the second and third cases, that such assessments were upon notes secured by mortgages on real estate. Errors are also assigned upon the reception and rejection of testimony. On behalf of the appellees in these cases, counsel contend that the respective complaints do not state a case which justifies the interposition of a court of equity to annul the respective assessment or enjoin the collection of taxes thereon. In the case appealed by the defendants, a reversal of the judgment is asked upon the same ground, while counsel for appellee contend it should be affirmed for substantially the same reasons which they assign in support of their contention that the judgments in the first three cases should be reversed; it being their contention, also, in all of the cases, that a court of equity has jurisdiction to grant the relief prayed for in the respective complaints, set aside the respective assessments, and enjoin the collection of taxes thereon.

Geo. W. Allen and W. C. Kingsley (Chas. W. Waterman, of counsel), for plaintiff.

Fred W. Parks, Jno. T. Bottom, and Henry A. Lindsley (Chas. R. Brock, of counsel), for defendants.

GABBERT, J. (after stating the facts).

The grounds upon which counsel for plaintiff rely, in support of their contention that the...