Insurance Co. of North America v. Bonner

• Decision Date: 22 June 1897
• Citation: 49 P. 366,24 Colo. 220
• Parties: INSURANCE CO. OF NORTH AMERICA v. BONNER, Treasurer.
• Court: Colorado Supreme Court

49 P. 366

24 Colo. 220

INSURANCE CO. OF NORTH AMERICA v. BONNER, Treasurer.

Supreme Court of Colorado

June 22, 1897

Appeal from court of appeals.

Charles A. Merriman (Henry C. Charpiot and Wm. M. Maguire, of counsel), for appellant.

Jesse Stephenson and C. M. Corlett, for appellee.

CAMPBELL, J.

This action was begun in the district court of Rio Grande county by the Insurance Company of North America against Olando Bonner, county treasurer, to restrain the collection of a tax levied against it, upon the ground that the tax was void. The complaint was dismissed upon the defendant's demurrer and it thereupon sued out a writ of error in the court of appeals, where the judgment below was affirmed. Plaintiff now prosecutes its appeal from the judgment of the court of appeals, and invokes the jurisdiction of this court, upon the ground that a determination of a constitutional question is necessary to a decision of the case.

Upon the plaintiff's own theory that the tax whose collection is sought to be enjoined is a franchise tax, and was illegally levied under a law impliedly repealed by a later law covering the same subject, and prescribing a lower rate than, and a basis of taxation different from, that contained in the prior law, it is doubtful if there is any constitutional question in the case, or any question other than one of statutory construction. Be that as it may, we are precluded from passing upon that point, for we are of the opinion that the complaint does not state a cause of action or present a case that warrants the granting of equitable relief. This was the ground upon which the court of appeals predicated its judgment of affirmance, and, as our judgment is in accord with the conclusion of that court, it follows that the determination of a constitutional question is not necessary to a decision in the case as presented, and therefore jurisdiction to entertain this appeal is not vested in this court. The opinion of the court of appeals is reported in 7 Colo.App. 97, 42 P. 681, and so clearly shows the insufficiency of the complaint as to leave but little further to be said. The able presentation of the case here by counsel for appellant, and the fact that they raise questions of practice that are of importance, call for some further consideration by us. None of the counsel upon either side appearing in this court was in the case when it was heard in the district court. That the complaint is not satisfactory,--indeed, that it is seriously defective,--counsel for appellant frankly admit; but that it is so defective as not to support a judgment, had one gone for the plaintiff they are not willing to concede. They claim that the defendant interposed only a special demurrer below, upon which ground alone argument was had, and the decision based.

There may be some doubt as to the correctness of this claim, but for the purpose of the argument, we assume it to be true. It appears, then, that the objection by the defendant that the pleading did not state facts sufficient to constitute a cause of action was not raised until the case reached the court of appeals. Although, under section 55 of the Code, as construed by this court and the court of appeals (Wilcox v. Jamieson 20 Colo. 158, 36 P. 902; Black v. Bent, 20 Colo. 342, 38 P. 387; Mulock v. Wilson, 19 Colo. 296, 35 P. 532; McKee v. Howe, 17 Colo. 538, 31 P. 115; Toothaker v. City of Boulder, 13 Colo. 219, 22 P. 468; Marriott v. Clise, 12 Colo. 561, 21 P. 909; Hall v. Linn, 8 Colo. 264, 5 P. 641; Emery v. Yount, 7 Colo. 107, 1 P. 686; Creswell v. Woodside, [Colo. App.] 46 P. 842), this objection may be raised at any time, yet, when raised for the first time in an appellate court, it is looked upon with disfavor. Applying this rule, counsel say it is our duty (which is true) to disregard all irregularities and informalities in the complaint, and, if possible, to sustain it. To the same effect is the case of Burkhart v. Gladish, 123 Ind. 337, 24 N.E. 118, and cases cited. The rule has thus been stated: 'If the facts alleged, with all reasonable deductions that can be drawn therefrom, are sufficient to show a cause of action, the complaint will be upheld upon review.' Black v. Bent, supra. This is the settled doctrine of this court, and we are disposed to frown upon the practice of reserving even such objections as are here raised, until the cause reaches an appellate court. But, giving to the rule its most liberal application, we are unable to spell a cause of action out of the complaint. It is more than merely inartificial; it is entirely wanting in some essential averments. In addition to what is said by the court of appeals, we may say that courts discourage the practice of granting injunctions to restrain the collection of the public revenue. That a tax is void is, of itself, not sufficient to justify the granting of a writ. The case...