Moore v. Gas Securities Co.

Decision Date05 December 1921
Docket Number5719.
Citation278 F. 111
PartiesMOORE, County Assessor, et al. v. GAS SECURITIES CO.
CourtU.S. Court of Appeals — Eighth Circuit

Bert Martin and Samuel H. Morrow, both of Denver, Colo., for plaintiffs in error.

Platt Rogers, of Denver, Colo. (Edmund Rogers and Robert G. Strong both of Denver, Colo., on the brief), for defendant in error.

Before CARLAND, Circuit Judge, and YOUMANS and JOHNSON, District judges.

YOUMANS District Judge.

This cause was submitted to the court below on the petition for mandamus and the response thereto. There was no dispute as to the essential facts, either in the court below or in this court.

The East Denver municipal irrigation district was a corporation organized on the 22d day of November, 1909, under an act of the General Assembly of Colorado entitled 'An act in relation to irrigation districts,' approved May 3, 1905 (Laws 1905, p. 246), and all acts amendatory thereof. On the 8th of October, 1910, the landowners and taxpayers of the irrigation district, at an election duly held, authorized an issue of bonds to the amount of $3,000,000 for the purpose of constructing an irrigation system for the lands of the district. On the 10th of October, 1910, the board of directors of the district, pursuant to such election directed the issuance of bonds in the amount authorized by the voters. During the year 1914 the defendant in error, a corporation of the state of New York, purchased bonds of the district to the amount of $628,500. On the 8th of May, 1919 the defendant in error obtained judgment in the court below on interest coupons on said bonds to the amount of $226,170.95, which judgment was and is unpaid.

In December, 1919, the court below issued a writ of peremptory mandamus, commanding the board of county commissioners of Adams county, Colo., to fix the rate and make the levy to pay the judgment. Levies for each of the years 1919 and 1920 were to be at such rate as to be equivalent to $2 upon each acre in the district, and for the year 1921 at such rate as would be necessary to complete the payment of the judgment. The defendant in error demanded of E. B. Martin, one of the plaintiffs in error, that he, as assessor, extend the levy for the payment of the judgment in the proper column of the tax list opposite each piece of real property assessed, and that he total said taxes with the state, county, and other taxes, and at the end of the tax list prorate the total of said taxes to the several funds. The assessor proceeded to comply with such demand, but on the 22d of January, 1920, the Colorado state tax commission ordered him not to incorporate irrigation district taxes in the total of general property taxes. The said assessor then refused to comply with the demand of defendant in error. The order of the state tax commission was by letter, which reads as follows:

'State of Colorado, Colorado Tax Commission.
'January 22, 1920.
'Forms.
'Mr. E. B. Moore, Assessor, Adams County, Brighton, Colorado-- Dear Sir:
'It has recently come to our attention that you have proposed a change in form of your tax roll, in order to include in the total of general property taxes special taxes levied for irrigation districts. Your attention is called to the fact that, under the statutes creating the tax commission, all authority for establishing or changing forms is vested in this body. We have heretofore approved the form which your county has used and the manner of recording the various tax levies thereon, and we do not approve any change from that method. In other words, we do not consider it advisable to incorporate irrigation taxes in the total of general property taxes. There are numerous reasons for keeping these taxes separate, which need not be gone into at this time.
'Very truly yours,

Colorado Tax Commission, 'E. B. Morgan, Chairman.'

After stating the foregoing facts and setting out the order of the Colorado tax commission, the petition of the defendant in error contains the following allegations:

'Your petitioner alleges that the object and purpose of said order, and of the observance of the same by the said assessor, was and is to deny to your petitioner, and the other holders of the bonds of said irrigation district, the benefit of the revenue laws of the state of Colorado in the assessment, levying, and collection of the special tax provided for by the Irrigation District Law for the payment of the bonds of the said irrigation district and the interest thereon, and to discriminate said special tax from the state, county, school, and other taxes, in the collection of said taxes, and by not demanding the payment of the total of all taxes, including said special tax, to cause said special tax to remain unpaid, and to otherwise encourage a refusal to pay said special tax.
'12. Your petitioner further shows to the court that the only levy heretofore made by the county commissioners of Adams county for the payment of interest on the bonds of your petitioner, and other bonds of said district then outstanding, was in the year 1913; but the assessor of said county then failed and neglected to include said levy in a proper column in the tax roll, or to include the same in the total of taxes assessed against the real property in said irrigation district, but, on the contrary, made a separate and different roll for the levies made on account of said district, and thereafter said James W. Campbell, the treasurer of said county, in notifying each person in said irrigation district from whom a tax was due on real estate in said district, failed and refused to include the levy for interest on bonds of said district in the amount stated to be due from such person, and never required or demanded the payment of the levy for such interest at the times of collecting taxes for other purposes, but, on the contrary, deliberately and intentionally, and for the purpose of aiding in the avoidance of the payment of said tax, has offered to give receipts for all other taxes other than those levied for the payment of said bonds, and has aided and abetted those desirous of avoiding the payment of said taxes for interest.
'13. Your petitioner also shows to the court that said James W. Campbell, as treasurer of said county, has treated the levy of taxes for the payment of interest as made in 1913, and the levies of taxes as made in subsequent years for the general expenses of said district, as separate and distinct from levies made for state, county, school, and other purposes, and has refused to include said tax for the payment of interest in the total tax of the owners of lands in said district, and has not demanded payment of said tax for interest as part of the tax due from said owners of lands, but, on the contrary, has allowed and encouraged the payment of all taxes other than those for bond interest and other district taxes whereby the taxes for state, county, and school purposes have been generally paid, and said interest tax has not been paid, and said James W. Campbell, as treasurer, threatens to continue the same practice with respect to the levies heretofore by the court commanded to be made.
'14. And your petitioner further shows that said treasurer has heretofore distinguished the levy made in 1913 for interest on the bonds of said district from the levies made for other purposes, and in making sales of lands in said district for delinquent taxes has refused to include as part of said delinquent taxes the taxes which then remained unpaid on account of interest on said bonds, and has, by separate advertisement, with separate and additional penalties and costs, offered for sale the lands in said district on which said levy for interest on said bonds had not been paid, and has executed and delivered separate and different certificates of purchase for said separate and distinct sales, and said treasurer has for the unpaid taxes for the general expenses of said district made separate and distinct sales, with separate and additional penalties and costs, all of said sales for delinquent taxes being made in the year 1919 for the taxes of 1913 and subsequent years, and although all of the taxes of said years were delinquent at the times of said sales the said treasurer refused to include all of said delinquent taxes in one sale, but made advertisement and sale for each of said previous years, with penalties and costs in each of said sales, and the said James W. Campbell threatens to continue to discriminate all levies made on account of bond interest from those for state, county, school, and other purposes, and in case of failure to pay taxes on the land in said district to make separate and distinct sales, and to give separate and distinct certificates of purchase.
'15. By reason of the acts and doings of said treasurer, as above set forth, the undertaking of the state of Colorado to levy and collect taxes for the payment of the bonds issued by the said irrigation district and the interest thereon in the same manner, at the same time, and with the like effect as in case of all other taxes, is wholly nullified and set at naught, and your petitioner and other holders of the bonds of said district are denied the taxing power of the state in the collection of said bonds and the interest thereon, and they are wholly without remedy, except by the interposition of this court.
'16. By reason of the acts and doings of said treasurer, as above set forth, none of the sales of lands in said district for delinquent taxes either for state, county, school, or other purposes, or for interest on bonds, or the general expenses of said district, have been in accordance with the statutes of Colorado, and no legal tax deeds on account of said sales can be made, and said practice, if
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