Interstate Trust Co. v. Montezuma Valley Irr. Dist.

• Decision Date: 05 May 1919
• Docket Number: 9153.
• Citation: 66 Colo. 219,181 P. 123
• Parties: INTERSTATE TRUST CO. v. MONTEZUMA VALLEY IRR. DIST. et al.
• Court: Colorado Supreme Court

181 P. 123

66 Colo. 219

INTERSTATE TRUST CO. v. MONTEZUMA VALLEY IRR. DIST. et al.

No. 9153.

Supreme Court of Colorado, En Banc.

May 5, 1919

Error to District Court, Montezuma County; W. N. Searcy, Judge.

Mandamus by the Interstate Trust Company against the Montezuma Valley Irrigation District and William B. Ebbert and others, its directors. From an order denying the writ, plaintiff brings error. Affirmed.

Melville & Melville, of Denver, for plaintiff in error.

W. F Mowry, of Cortez, for defendants in error.

BAILEY J.

In these proceedings, plaintiff below, The Interstate Trust Company, sought by writ of mandamus to compel the board of directors of the Montezuma Valley Irrigation District to certify an additional tax by cumulative levy to the County Commissioners of that county, for the purpose of paying off some $25,000.00 in warrants of that district and held by it amounting with interest to approximately $38,000.00. There was a demurrer to the writ on the ground that it did not state sufficient facts to constitute a cause of action. The demurrer was sustained, and plaintiff electing to stand by its case as made a judgment of dismissal was entered. The trust company brings the cause here for review.

It is admitted that sufficient levies have been made to pay the warrants in question in full, and that such levies are also sufficient to cover in addition a margin of fifteen per cent for deficiencies. It appears, however, that many taxpayers are delinquent, and that for this reason the warrants have not been discharged. Therefore plaintiff claims that it is the clear legal duty of the defendant officers to levy and collect an additional tax to pay and discharge these warrants.

It is urged that the words: 'such additional amount as may be necessary to meet any deficiency in the payment of said expenses theretofore incurred,' found in the statute (Laws 1905, p. 259, § 18), confer the power upon, and make it the duty of, the district officials to levy a cumulative tax for this purpose. The outcome of this suit, therefore depends wholly upon the construction to be given the irrigation district act.

It is clear that the claim of plaintiff can be upheld only upon the theory that the clause above quoted gives the board of directors of the district general taxing powers, and that the taxes levied under the act are in the nature of general taxes, and are not local or special in character. The question is whether irrigation districts are organized for the purpose of making local improvements, with the power to levy local improvement taxes only, or whether they are so closely akin to municipal corporations in their nature and objects as to give them general taxing powers.

The statute in question was taken in substance from the Wright Act, of California (St. 1887, p. 29, as amended), and under the familiar rule we adopted the construction theretofore given to it by the courts of the state from which it is borrowed. McCord v. McIntyre, 25 Colo.App. 376, 138 P. 59. In San Diego v. Linda Vista Irr. Dist., 108 Cal. 189, 193, 41 P. 291, 292 (35 L. R. A. 33), the court in determining whether irrigation assessments levied under the Wright Act were a tax within the meaning of a provision of the State constitution providing that all property in the State, not exempt from taxation by federal provisions, should be taxed in proportion to its value, said: 'But the assessment, to satisfy which the lands in question were sold, is not a tax within the meaning of said provisions of the constitution. The act under which the Linda Vista District was organized authorizes the formation of districts where the lands of the different owners are 'susceptible of one mode of irrigation from a common source, and by the same system of works.' The district, when formed, is a local organization to secure a local benefit to be derived from the irrigation of lands from the same source of water supply, and by the same system of works. It is, therefore, a charge upon lands benefited * * * by a single local work or improvement, and from which the state, or the public at large, derives no direct benefit, but only that reflex benefit which all local improvements confer.'

In Irrigation District v. Williams, 76 Cal. 360, 370, 18 P. 379, 380, in discussing the nature of irrigation districts, and the relation of irrigation assessments to general taxation, it was said:

'And in no sense can it be said that under the act in question the assessment to pay the bonds is to be levied or collected in order that one man may take another's property for his own exclusive use. * * * Nor does it follow that the method of assessments and their collection adopted must be assimilated to and follow exactly the mode provided in the constitution for the assessment and collection of taxes for general state purposes. The nature of the assessment is one for local improvements, which, however, eventuate in the advancement of the public good, and such assessments and collections can be lawfully made.'

Cases in other jurisdictions holding that irrigation district taxes are in reality local improvement or special assessment taxes are: Board of Directors v. Peterson, 4 Wash. 147, 29 P. 996; Lundberg v. Green River Irr. Dist., 40 Utah 83, 119 P. 1039; Oregon Short Line R. R. v. Pioneer Irr. Dist., 16 Idaho 578, 102 P. 904; Pioneer Irr. Dist. v. Bradley, 8 Idaho 310, 68 P. 295, 101 Am.St.Rep. 201; Nampa Dist. v. Brose 11 Idaho 474, 83 P. 499; Alfalfa Dist. v. Collins, 46 Neb. 411, 64 N.W. 1086; In re Gallatin Dist., 48 Mont. 605, 140 P. 92; and Little Walla Dist. v. Preston, 46 Or. 5, 78 P. 982.

In Fallbrook Irr. Dist. v. Bradley, 164 U.S. 112, 17 S.Ct. 56, 41 L.Ed. 369, the Supreme Court upheld the constitutionality of the Wright Act upon the ground that since the power given under the act was to assess special improvement taxes only, that therefore it was constitutional.

This court, in Anderson v. Grand Valley Irr. Dist., 35 Colo. 525, 533, 85 P. 313, 316, in passing upon the validity of the district irrigation act of this State, in effect approved the construction given the Wright Act in the Fallbrook Case and in the California cases, in the following language:

'The so-called Wright Act, which, in all substantial particulars, is the same as the one now under consideration, has repeatedly been construed and upheld by the supreme court of California and the supreme court of the United States in the following, among other cases that might be cited: Irrigation Dist. v. Williams, 76 Cal. 360 ; Irrigation District v. De Lappe, 79 Cal. 351 ; Board of Directors v. Tregea, 88 Cal. 334 ; In re Madera Irr. Dist., 92 Cal. 296 [28 P. 272, 675, 14 L.R.A. 755, 27 Am.St.Rep. 106]; In re Central Irr. Dist., 117 Cal. 382 ; Merchants' Bank v. Irr. Dist., 144 Cal. 329 ; Fallbrook Irr. Dist. v. Bradley, 164 U.S. 112 [17 S.Ct. 56, 41 L.Ed. 369]; Tregea v. Modesta Irr. Dist., 164 U.S. 179 [17 S.Ct. 52, 41 L.Ed. 395]; Tulare Irr. Dist. v. Shepard, 185 U.S. 1 [22 S.Ct. 531, 46 L.Ed. 773].'

It is urged, however, that those cases determined simply the constitutionality of the statute and not the character of the assessments. While it is true that the question was primarily one as to the constitutionality of the act, the courts in determining that question were obliged also to determine the character of the tax imposed. The Fallbrook Case, supra, specifically upheld the constitutionality of the act upon the ground...