Northcutt v. Burton

• Decision Date: 27 February 1953
• Docket Number: No. 17009,17009
• Citation: 254 P.2d 1013,127 Colo. 145
• Parties: NORTHCUTT et al. v. BURTON et al.
• Court: Colorado Supreme Court

Page 1013

254 P.2d 1013

127 Colo. 145

NORTHCUTT et al. v. BURTON et al.

No. 17009.

Supreme Court of Colorado, en Banc.

Feb. 27, 1953.

Howard M. Schmidt and Warren E. Schmidt, Springfield, Bernard E. Engler, Denver, for complainants.

Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., Frank A. Wachob, Asst. Atty. Gen., and C. M. Soller, Asst. Atty. Gen., for respondents Colorado Tax Commission et al.

Ray Perkins, Jr., Springfield, for respondents Officers of Baca County.

CLARK, Justice.

This is an original proceeding, filed pursuant to Rule 116, Rules of Civil Procedure of Colorado, leave of the court being first had and obtained. Complainants, asserting that they are property owners and taxpayers of Baca County, bring this action on behalf of themselves and others similarly situated, that they may procure 'the judgment of this court declaring said 1952 reappraisal of Baca County property illegal and void and of no force of effect whatsoever; that said reappraisal shall be set aside and held for nought and that no taxes founded or predicated upon same shall be collected; and that another 1952 appraisal be effected and consummated according to law for the collection of taxes in 1953.' (Emphasis supplied.)

Complainants in their complaint then proceed to detail certain defects and irregularities in the procedure with reference to the 1952 tax assessment in Baca County, the burden of which is that, because of the failure of completion of the reappraisal of property subject to the ad valorem tax, as ordered by the Colorado Tax Commission: (1) No tax roll was available in said county by July 1, 1952, or since; (2) on account thereof all proceedings thereafter had by both county and state tax officials are without legal effect and are void. They charge also that the county assessor failed to publish notice of the time and place when he would sit and hear complaints; that the county clerk published an incorrect notice of the meetings of the county board of equalization; and that said meetings were not held upon the dates as directed by statute, thus rendering the 1952 tax levy void. They contend that under the reappraisal their properties have been valued so high as to be out of proportion and not uniform with the resultant valuations of properties comprising other classifications, and for the reason, causing the tax levies upon the properties of complainants, and others similarly situated, to be excessive. Following the allegations above mentioned, complainants further allege that 'through the failure to complete the assessment roll for Baca County within the time prescribed by law and within the time prescribed for the hearings of objections by affected property owners,' complainants' rights to examine and object to their property valuations, and to prosecute their objections and protests to this end to the county board of equalization, have been 'arbitrarily and illegally' taken from them, and the exercise thereof, 'prevented by the unlawful acts of' the tax authorities. The complaint ends with the prayer that the 'reappraisal' be declared void and that this court restrain the assessor from delivering to the treasurer the 1952 tax list and warrant 'based upon said illegal 1952 reappraisal;' restrain the treasurer 'from collecting any taxes based upon said illegal 1952 reappraisal,' and to set aside all acts of all respondents had in connection therewith.

In response to our rule to show cause respondents, who are county officials, answered, and those who are state officials filed motion to quash our rule and dismiss the action.

Counsel for complainants in their motion for leave to file the complaint and again in their brief, commendably state that the the facts of this case, for all purposes presently relevant and material, are practically identical with the situation presented in case No. 17004, entitled Citizens' Committee For Fair Property Taxation v. Warner, Colo., 254 P.2d 1005. A study in comparison of the two cases demonstrates the accuracy of this statement, and the temptation is strong here to say no more than that the decision in that case, announced by us on the 18th day of February, 1953, settles all matters involved in the instant proceedings, and to adopt by reference the decision in No. 17004 as the opinion here. While adoption by reference to the decision in that case would be a fair disposition of this matter, nevertheless we indulge the liberty of adding slightly to what we therein said, because of the gravity of these cases and the considered importance of them by persons directly interested therein; and, also, on account of a slightly different situation concerning notice in this case than that with which we were dealing in the Pueblo county case.

Counsel for complainants insistently contend that the provisions of section 114, as amended by section 14, chapter 158, S.L. '43, p. 498, section 293 and section 292, as amended by section 19, chapter 158, S.L. '43, p. 502, of chapter 142, '35 C.S.A., relating to time of hearing of complaints by the assessor, county board of equalization, and the giving of notice, thereof, are mandatory, and that strict compliance therewith is requisite to a legal and valid assessment. This is tantamount to saying that if, for any reason, the county officials charged with duty by any of said statutes, failed in full and exact compliance therewith in every respect and in full measure, the entire tax assessment for that year, in any particular county, is ipso facto void. So to hold would be to place an entirely too strict a construction upon the statutes involved. These statutory requirements are to be construed as mandatory only in specific instances where, upon clear showing on behalf of an aggrieved taxpayer, that, on account of noncompliance with these statutory requirements by the county officials charged therewith, he has been deprived of an 'opportunity for a hearing, or for any other purpose important to him.' Tallon, Treasurer v. Vindicator Consolidated Gold Mining Co., 59 Colo. 316, 328, 149 P. 108, 112. Where, as here, failure to appear and protest is admittedly due to the assumption and belief that the tax valuations were unavailable because of the incomplete status of the tax roll, as a consequence of which no protest was made, the issue of lack of notice and other irregularities in the proceedings become irrelevant and immaterial. It immediately is apparent that under such circumstances full statutory compliance and regularity in every respect on behalf of the officials would have made no difference to the complainants, because they did not intend to appear anyway. No prejudice to their position could have resulted in such instance, and the burden of showing injury is upon them. Instead of such a claim, accompanied by an adequate showing to substantiate it, they attempt to excuse themselves by asserting that it would have been useless to appear, because the tax roll was not complete. Furthermore, in so far as the question of notice is concerned, the statutes within themselves constitute notice, and it is presumed that the owners of assessed property, if aggrieved, will avail themselves of the remedy...