Miller v. Board of Com'rs of City and County of Denver

• Decision Date: 17 April 1933
• Docket Number: 12755.
• Citation: 92 Colo. 425,21 P.2d 714
• Parties: MILLER et al. v. BOARD OF COUNTY COM'RS OF CITY AND COUNTY OF DENVER et al.
• Court: Colorado Supreme Court

21 P.2d 714

92 Colo. 425

MILLER et al. v. BOARD OF COUNTY COM'RS OF CITY AND COUNTY OF DENVER et al.

No. 12755.

Supreme Court of Colorado, En Banc.

April 17, 1933

Rehearing Denied May 8, 1933.

Error to District Court, City and County of Denver; Henley A Calvert, Judge.

Action by Emma Miller and others against the Board of County Commissioners of the City and County of Denver, a municipal corporation, and another. To review a judgment for defendants, plaintiffs bring error, and defendants assign cross-errors.

Affirmed.

F. E. Dickerson and T. J. Morrissey, both of Denver, for plaintiffs in error.

Thomas H. Gibson, Karl C. Brauns, and B. F. Reed, all of Denver, for defendants in error.

BURKE Justice.

These parties appear here in the same order as in the trial court and for convenience we refer to them as there.

Plaintiffs brought this action under section 7447, C. L. 1921, to recover the first half of their 1926 tax, paid February 28 1927, the second half of their 1926 tax, paid July 19, 1927, and the first half of their 1927 tax, paid February 29, 1928 (all paid under protest), all on Denver real estate, in the total sum of about $17,800, alleging such illegality in assessment and levy as deprived the taxing authorities of jurisdiction. Defendants, maintaining the legality of said assessments, had judgment to review which this writ is prosecuted. There are six assignments of error and seven of cross-error. The former amount simply to an assertion that plaintiffs have been deprived of their property without due process of law, and the latter to an assertion that plaintiffs failed to state a cause of action and pursued the wrong remedy, by reason whereof defendants' general demurrer to the complaint, motion to dismiss, motion for nonsuit, and objections to testimony should have been sustained. Numerous and intricate questions are presented by the 140 pages of abstracts and argued in the 230 pages of briefs. We elect to assume, without deciding, that plaintiffs are right as to most of these, and dispose of this litigation on the question of the jurisdiction of the taxing authorities.

Plaintiffs contend that their valuations were greatly increased and that they did not receive the statutory notice thereof; that there was no assessment roll on which they could base the objections which they should have made; and that none was made up, if ever, until the statutory limitation for such objections had passed; that the assessor did not pass upon their necessarily tardy objections until long after they were forced to pay the taxes or incur penalties for nonpayment, and when, if ever, he did so, did not give his reasons in writing as required by law; that by reason of the foregoing they lost their right to a statutory hearing and appeal; that the assessor did not make and file with the tax commission his abstract of assessments, as required by law, hence no appeal by plaintiffs to that body would be availing; that the assessment which was made by the assessor was so made after he had lost jurisdiction by filing with said tax commission a purported abstract; and that plaintiffs' claim for refund has been disallowed by the county. Plaintiffs seek neither a reduction of their taxes nor the refund of excess payments, but demand that the entire assessment be held void, the entire tax illegal, and the total payments be refunded.

We first note briefly those sections of Constitutions and statutes only whose consideration is essential to a determination of the crucial questions presented.

Amendment 14, § 1, of the Federal Constitution provides that no state shall 'deprive any person of * * * property without due process of law.'

Article 2, § 25, of the state Constitution provides that 'no person shall be deprived of * * * property, without due process of law.'

Article 10, § 15, of the state Constitution provides that the board of county commissioners of each county shall be a board of equalization for that county.

Section 7178, C. L. 1921, p. 1836, provides that all taxable property shall be listed and valued each year.

Section 7291, Id., p. 1865, provides that prior to the first Tuesday in August each year the assessor shall mail to those 'whose property has been assessed at a valuation other than that given in the schedule filed by such person' a notice of such change and the date when he will sit and hear objections, and give general notice of such hearing by publication. That such hearings 'shall be concluded Before the day of the first meeting of the county board of equalization'; that one who thinks his property has been 'otherwise illegally assessed' or cassessed too high' may be so heard by the assessor, and, if entitled thereto, have the necessary corrections made.

Section 7292, Id., provides that if a taxpayer's total assessed valuation exceeds $7,500 objections to assessment and reasons therefore shall be in writing; if overruled by the assessor his grounds for such action shall be briefly stated in writing; and the taxpayer may appeal therefrom to the court, provided he first pays the disputed tax, which, if he is successful in such suit, shall be refunded to him.

Section 7256, Id., p. 1855, provides that no failure of the owner to return property or have errors corrected, and no error or irregularity in assessment or levy, shall affect the legality of the tax levied.

Section 7191, Id., p. 1838, and section 7386, Id., p. 1888, chap. 148, p. 439, Laws 1925, provide that statutory penalties attach to the first half of the tax if not paid Before March 1st, and to the second half if not paid Before August 1st.

Section 7317, Id., p. 1873, provides that not later than January 1st of each year, the assessor shall deliver to the treasurer his tax list and warrant, 'setting forth the assessment roll, with the taxes extended, containing in tabular form and in separate columns the names of the persons and bodies in whose names property has been listed in his county, with the several species of property and the value, the several taxes levied against the same, to-wit: total state, general county, including pauper and emergency, general school, road, town or city, special school and any other special taxes, and the total amount of taxes, and with the column of numbers and value footed, and commanding the treasurer to collect the said taxes and in a column to be provided for that purpose he shall write the words, 'by the assessor,' when the list was made by himself. At the end of the tax list and warrant he shall prorate the total tax levied to the several funds. Said tax list and warrant shall be in the form approved by the Colorado tax commission.'

Section 7318, Id., p. 1874, provides that 'no informality in complying with the above requirements shall render any proceeding for the collection of taxes illegal.'

Section 7268, Id., p. 1858, provides that on or Before September 1st of each year the assessor 'shall make in duplicate a true abstract of such assessment roll' and file the same with the tax commission.

Section 7311, Id., p. 1872, specifies what this abstract shall contain.

Section 7460, Id., p. 1908, provides that no abatement or refund of a tax shall be allowed by the commissioners save upon a hearing, with notice to the assessor; that, if the abatement or...