Oberst v. Mays, 19229
| Decision Date | 30 October 1961 |
| Docket Number | No. 19229,19229 |
| Citation | 365 P.2d 902,148 Colo. 285 |
| Parties | Henry C. OBERST, Plaintiff in Error, v. Floy MAYS, as Treasurer of the County of Kiowa, State of Colorado, P. L. Reed, Samuel R. Rehm and R. O. Scott, as County Commissioners of Kiowa County, Colorado, and Paul W. Swisher, State Commissioner of Agriculture of the State of Colorado. Defendants in Error. |
| Court | Colorado Supreme Court |
Gordon & Gordon, John C. Hover, Jr., Lamar, for plaintiff in error.
Carl M. Shinn, Lamar, for defendant in error Floy Mays.
John J. Lefferdink, Eads, for defendants in error P. L. Reed and others.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Clifton A. Flowers, Asst. Atty. Gen., for Paul W. Swisher, State Comr. of Agriculture
We will refer to the parties as they appeared in the trial court, plaintiff in error, Henry C. Oberst, as plaintiff, and defendants in error as defendants or by name.
The action was brought by plaintiff to enjoin defendants 'from attempting to enforce' a tax sale certificate as a general lien upon certain farm lands owned by him. In his prayer he sought an adjudication that the tax sale certificate mentioned in the complaint was null and void. The controversy arose out of certain actions of defendants performed by them under the authority of the Soil Erosion-Dust Blowing Act of 1954 (C.R.S. '53 Supp. 128-3-1 et seq.). The case was tried to the court and findings of fact and judgment were entered in favor of defendants.
Pertinent facts are as follows: Plaintiff, a resident of Oklahoma, owned and farmed two sections of land in Kiowa county, Colorado. On March 4, 1955, a written complaint was filed with the Board of County Commissioners of that county in which it was asserged that plaintiff's land was in a 'blowing' condition and needed to be worked at once; that the commissioners thereupon caused the land to be inspected; that the inspector recommended that the land be 'chiselled' by working it with 4 inch shovels 5 inches deep and 44 inches apart; that by order of the commissioners under date of March 7, 1955, the county clerk sent an 'Order to Perform Soil Treatment to Prevent Soil Erosion' to plaintiff, addressed to him at his residence as disclosed by the records of the county assessor; that this order was received by plaintiff's wife on March 12, 1955; that the said order set March 14, 1955, as the last date upon which the work should be started and March 30, 1955, as the date upon which it should be completed; that the said order further informed plaintiff that unless the work was commenced within the specified time the State of Colorado would perform the work, assess the cost thereof to plaintiff, and impose a lien on the land and collect the amount due for the said work, in the same manner as the ad valorem taxes on real property are collected; that upon failure of plaintiff to perform the work the commissioners entered into an agreement with a private contractor to perform the work which was commenced March 17, 1955; that after working about 878 acres the private contractor was ordered off the land by plaintiff; that the commissioners determined that plaintiff's land had been benefited by the work which was done on it and assessed $1,097.50 as the cost thereof; that plaintiff was notified of this assessment and upon his failure to pay this sum the treasurer duly issued a certificate of purchase of Kiowa county at the tax sale held in the county for unpaid taxes for the year 1955. The date of the certificate issued to the county was December 10, 1956.
Plaintiff's complaint was filed December 3, 1956. He sought a temporary restraining order to prevent issuance of the certificate of purchase but his request was denied. The issues were framed and raised questions concerning the validity of the assessment, and the cause proceeded to judgment on May 29, 1957, with the result above noted.
A pertinent provision of the statute reads as follows: (C.R.S. '53, 128-3-6 Supp.)
'Any landowner aggrieved at the amount of the assessment against his land may bring an action in the district court of the county in which the land is situated to test the validity of the assessment or to enjoin its collection, but such action must brought within thirty days after the assessment is made and the copy of the resolution of the board is mailed as hereinabove provided, and cannot be brought thereafter. * * *'
Admittedly the action was not commenced within the thirty day period prescribed.
The findings and decree of the trial court contained the following:
'Ordered Adjudged and Decreed that defendants' motion to dismiss by reason of the plaintiff's failure to seek judicial review of the assessment against his land within 30 days after the assessment was made and copy of the resolution of the said Board of County Commissioners was mailed as provided by Chapter 128, Article 3, Section 6, 1953 CRS, as Amended, be and the same is hereby granted. It is further
'Ordered, Adjudged and Decreed that the said Chapter 128, Article 3 of the 1953 CRS As Amended, does not violate the constitution of the State of Colorado as alleged in plaintiff's complaint and the Act in these respects is therefore constitutional.'
In essence, counsel for plaintiff, urge two grounds for reversal of the judgment, to-wit: (1) That the assessment against his land was void, and the 30 day statute does not run against a void assessment; (2) that, assuming the validity of the assessment, the short 30 day statute of limitations violates the due process clauses of the state and federal constitutions.
It is argued in support of the point that the assessment was void that due process requires an opportunity to be heard and notice of hearing before one can be deprived of property rights. The statute (128-3-3) provides in pertinent part:
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