McMillin v. State
| Decision Date | 13 September 1965 |
| Docket Number | No. 21120,21120 |
| Citation | 158 Colo. 183,405 P.2d 672 |
| Parties | R. M. McMILLIN, Plaintiff in Error, v. The STATE of Colorado, the State Department of Agriculture, and Paul W. Swisher, Commissioner of Agriculture of the State of Colorado, Defendants in Error. |
| Court | Colorado Supreme Court |
Sheldon & Nordmark, Richard C. McLean, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Clifton A Flowers, Asst. Atty. Gen., for defendants in error.
Plaintiff in error will be referred to as defendant or McMillin, and defendants in error will be referred to collectively as the State.
This controversy arises out of the Colorado 'grasshopper crisis' of 1958 and the statute concerning it which was passed by the state legislature. The statute in question is Chapter 3, Session Laws of Colorado, 1958, First Extraordinary Session.
This writ of error follows a jury verdict against McMillin in the amount of $2,259.62, which represents defendant's part of the cost of the State's action in spraying certain of his lands for grasshoppers against his will.
The case has been before this court previously. In State of Colorado v. McMillin, 150 Colo. 23, 370 P.2d 435 (1962) this court held that the statute in question was constitutional on its face; and even though it had expired by its own terms previous to the bringing of suit by the State, the State could still institute an action to collect money from a defendant under Section 8 of the Act.
On remand to the district court a trial was had on the merits. In his Answer, the defendant admitted that he owned the land in question; that it was sprayed; and that he had refused to consent to the State's action or pay the proportionate cost of such spraying operations.
Though McMillin urges five grounds for reversal of the judgment, we need only consider one that is determinative of the principal issue involved; stated succinctly it is:
Did the Board of County Commissioners carry out all the mandatory requirements of the Act so that liability without consent could be imposed on McMillin?
A review of the record shows that the above question must be answered in the negative. Section 8 of the Act requires that:
'Whenever the property of any person has been declared a hazard to the welfare of the surrounding community or the county or the state by the board of county commissioners, and the owner or occupant has refused to participate in cooperative action by the community or county or state and action has been taken under the provisions of Section 6, then the state, through its appropriate agency or agencies, shall make demand upon any such owner or occupant for his proportionate share of the costs of work performed, and upon his failure to pay said proportionate share of the costs the state shall commence action in any court of competent jurisdiction for the recovery of said costs from such owner or occupant.' (Emphasis supplied.)
The statute also provides in other sections that it was enacted under the police powers of the State (Section 1); that it relates to assistance needed as a result of 'major disasters' (Sections 2 and 3); and it sets forth how a determination is made that a disaster has occurred (Section 4). Under the enactment, emergency measures could be taken and certain priorities could be granted in giving assistance along with other necessary provisions of implementation.
An examination of the statute further discloses that one phase of its operation was the determination of an existing disaster and how relief was to be afforded; and, a second separate phase relates to how costs not voluntarily paid under Section 7 may be collected from noncooperating land owners. The latter, under Section 8 supra, clearly and unambiguously required a declaration by the board of county commissioners that McMillin's land was a hazard to the welfare of the surrounding community, county or state.
In an obvious attempt to meet the requirement of Section 8, the complaint itself alleged that the board of county commissioners had declared defendant's land 'to be a hazard to the welfare of the County of Prowers.' In addition, Instruction No. 1 told the jury that the board of county commissioners had 'declared the defendant's land among other property in said County to be a hazard to the County of Prowers, as a result of a severe infestation of grasshoppers thereon; * * *.'
The record discloses that Exhibit A, offered by the State and admitted into evidence, is the only official document evidencing written action taken by the board pertaining to the problem. This Exhibit is a copy of the Commissioners' Minutes dated June 24, 1958, and states in pertinent part:
'Pursuant to Section 4, House Bill No. 1, 1958 Special Session, notice is hereby given:
1. That a disaster has occurred in Prowers County, Colorado.
2. That the disaster consists of a grasshopper infestation.
3. That the area affected is the whole of Prowers County, Colorado.
4. That private facilities and funds and state, federal and local governmental facilities, other than those provided by said House Bill No. 1 are unavailable or inadequate.
5. Request is hereby made that the governor determine that a disaster exists in such area, and that the measures provided by said House Bill No. 1 be taken as expeditiously as...
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