People ex rel. Crawford v. Lothrop

• Decision Date: 01 December 1877
• Citation: 3 Colo. 428
• Court: Colorado Supreme Court
• Parties: THE PEOPLE ex rel. CRAWFORD, State Auditor, v. LOTHROP, County Clerk, etc.

3 Colo. 428

THE PEOPLE ex rel. CRAWFORD, State Auditor, v. LOTHROP, County Clerk, etc.

Supreme Court of Colorado

December, 1877

DEMURRER to the answer to a petition for mandamus:

The sections of the Code passed upon but not set out in full in the opinion are as follows:

'SECTION 307. On the trial the applicant shall not be precluded by the answer of any valid objection to its insufficiency, and may controvert it by proof either in direct denial or by way of avoidance.'

'SECTION 60. The defendant may set forth, by answer or cross complaint, as many defenses and counter-claims or set-offs as he may have, whether the subject-matter of such defenses be such as were heretofore denominated legal or equitable or both-they shall each be separately stated; and the several defenses shall refer to the cause of action which they are intended to answer in a manner by which they may be intelligibly distinguished.'

'SECTION 61. When the answer contains new matter constituting a defense or a counter-claim or cross complaint or set-off the plaintiff shall, within ten days (said days to be

computed from the time of the filing of said answer) reply or demur to the same for insufficiency, stating in his demurrer the grounds thereof; and he may also, within the same time, demur to one or more defenses set up in the answer; sham and irrelevant answers and defenses, and so much of any pleading as may be irrelevant, redundant immaterial or insufficient, may be stricken out on demurrer, and upon such terms as the court in its discretion may impose.'

The petition, answer and demurrer were as follows:

To the Honorable, the Supreme Court of the State of Colorado:

Your petitioners, David C. Crawford, as State auditor, on behalf of the people of the State of Colorado, respectfully represents and shows that on the 2d Monday of August, A. D. 1877, being the 13th day of August, the State board of equalization in and for the State of Colorado did convene and sit at the office of secretary of State, at the capital, pursuant to and by authority of the Constitution of the State of Colorado, and of an act 'to provide for the assessment and collection of revenue and to repeal certain acts in relation thereto,' approved on the 20th day of March, A. D. 1877, for the purpose of examining the various assessments of the several counties of the State, as far as regards the State tax, and to equalize the rate of assessment in the various counties of the State, and to adjust and equalize the valuation of real and personal property among the several counties of said State, as by the Constitution and said act contemplated, whenever, upon such examination, they should be satisfied that the scale of valuation in said counties had not been adjusted with reasonable uniformity, by the different assessors thereof, and to discharge such other duties as were imposed upon them by law; that said board was duly adjourned from time to time, and met pursuant to adjournment, at the said office of secretary of State until the ___ day of August, A. D. 1877, at which time abstracts of the assessment rolls of all the counties in said State had been received by the State auditor, from the county clerks of each of the respective counties in said State, and said board did then and there publicly sit and proceed to act and discharge the duties imposed upon the said State board of equalization; and that at said last-named meeting, the said abstracts of the assessment rolls were severally before the said board and duly considered; that said board did then and there proceed to examine the various abstracts of the assessment rolls of property in the various counties in the State, for the year A. D. 1877, as far as the State tax was concerned, for the purpose of equalizing the rate of assessment in the various counties of the State, and to increase or diminish the aggregate valuation of real estate in any county, so as in their judgment to adjust and equalize the rate of assessment in the various counties of said State; that upon such examination the said board of equalization became and were satisfied that the scale of valuations in the various counties of the State had not been adjusted with reasonable uniformity by the different assessors thereof, and that thereupon the said board being so satisfied, in the discharge of their said duty, then and there proceeded to equalize the rate of valuation of real and personal property among the several countis of the State, as regards the State tax; that to that end, and in the discharge of their duty, the said board of equalization adjourned from day to day, and met pursuant to adjournment, at the office of secretary of State, until they had completed their work, as said board, to equalize the rate of assessment in the said various counties; that said board did proceed, after said abstracts of the assessment rolls had been received, as in their judgment authorized, after careful examination and deliberation had, to adjust and equalize the rate of assessment of the various counties as far as regards State tax, and adjust and equalize the valuation of real and personal property among the several counties of the State, according to their best knowledge and judgment, and said board did ascertain that the valuation of the real estate in several counties of the State did not bear a fair relation or proportion to the valuation in all other counties of the State, and thereupon they increased the aggregate valuation of the real estate of some of said counties, and diminished the aggregate valuation of the real estate of other of the said counties as much, and no more, than in their judgment was necessary to produce a just relation between all the valuations of real estate in the State; that said board, in the discharge of duty, to adjust and equalize the valuation of real and personal property among the several counties of the State, made certain charges in the valuation and assessment of the real and personal property of the county of Arapahoe from the valuation as shown by the abstract of assessment roll returned as aforesaid by Wilbur C. Lothrop, then and now being county clerk of Arapahoe county, to the State auditor, as follows: Increased the valuation of land 100 per centum, increased the valuation of horses 15 per centum, increased the valuation of mules 25 per centum, increased the valuation of cattle 71 per centum, and increased the valuation of sheep 39 per centum; that the said action of the said State board of equalization in respect to the equalization of the rate of assessment, and the increase and diminution of the valuation of real estate aforesaid, and in respect to the said changes made in the assessment of Arapahoe county was agreed to by a majority of all the members of said board, as in their judgment just and right, and as authorized by law; that thereafter, on the 1st day of September, A. D. 1877, the said State auditor, David C. Crawford, duly transmitted to each of the county clerks of the various counties of the State a statement of the changes so made in the assessment of his county by said board, and to Wilbur C. Lothrop, then and now being county clerk of the county of Arapahoe, the said State auditor duly transmitted a statement of the changes so made in the assessment of said county of Arapahoe, and the rate of State tax to be levied and collected in said county of Arapahoe, at the rate of 5 mills on the dollar; that said statement, so sent, was duly received by the said Wilbur C. Lothrop, county clerk, as aforesaid, on or about the 1st day of September, A. D. 1877.

Your petitioner further complaining shows that the said changes in the assessment and valuation of the real and personal property of Arapahoe county were made by said board as aforesaid, as in their judgment was just and right, to adjust and equalize the valuation of real and personal property in said Arapahoe county with the valuation of the real and personal property of the several counties of the State, and said statement of changes so made and transmitted to, and received by the said county clerk of said Arapahoe county, have been by him disregarded, and he hath and still doth neglect and refuse to perform his duty in the premises, and he hath and doth wrongfully refuse, in making up the tax list in and for said county of Arapahoe, to compute and carry out in the proper column a State tax according to said change so made as aforesaid by the said board of equalization, and so transmitted to said clerk, contrary to the provisions of said act, and he, the said Wilbur C. Lothrop, county clerk of said Arapahoe county as aforesaid, hath wholly failed and refused, and doth continue to fail and refuse to discharge his duty herein, contrary to the provisions of said act.

Wherefore, inasmuch as said Wilbur C. Lothrop, county clerk as aforesaid, hath failed and refused, and doth fail and refuse to compute and carry out in the proper column a State tax at the rate as returned to him, as aforesaid, by said State board of equalization; and, whereas, your petitioner further shows, that there is not a plain, speedy and adequate remedy in the ordinary course of law, whereby the said Wilbur C. Lothrop, county clerk as aforesaid, can be compelled, in making up his tax list, to compute and carry out in the proper column, a State tax according to the changes so made in the assessment of property in said Arapahoe county by said State board of equalization; and your petitioner further shows that the only remedy whereby the people of the State of Colorado can or may realize from the said county of Arapahoe its just quota of taxes for State purposes in accordance with, and pursuant to said act, is by the writ of mandamus.

Wherefore your petitioner prays a...