Petitions
for mandamus, on the relation of O. J. Pfeiffer and others
regents of the State University, against Davis H. Waite and
others, comprising the board of equalization of the state of
Colorado, and on the relation of the board of trustees of the
State Normal School against the same, to compel a correction
and adjustment of the tax levies. Writ denied in the first
case, and granted in the second.
The
cases were commenced by the filing of sworn petitions. The
petitions and answers are, in substance, the same in both
cases. The opinion of the court was rendered upon demurrers
to the answers, the petitioners not desiring to plead over.
In the case of the regents of the State University the
pleadings are as follows, to wit:
'To
the Honorable the Supreme Court of the State of Colorado
and the Justices Thereof: Your petitioners represent and
show unto your honors that they, and each of them, now are
the duly elected, qualified, and acting regents of the
State University of Colorado, situated at Boulder, in said
state, and that the said Davis H. Waite is the duly
elected, qualified, and acting governor of the state of
Colorado; that the said N. O. McClees is the duly elected
qualified, and acting secretary of state; that the said
Albert Nance is the duly elected, qualified, and acting
treasurer of the state; that the said F. M. Goodykoontz is
the duly elected, qualified, and acting auditor of state
and that the said Eugene Engley is the duly elected,
qualified, and acting attorney general of the state; and
that the said defendants, by virtue of the several offices
to which they have been elected, and which they now hold
and enjoy, constitute the state board of equalization. Your
petitioners further show unto your honors that it was and
is the duty of the said defendants, and each of them, at
the September meeting of said board of equalization, as
provided by law, to adjust, assess, and levy on behalf of
the said University of the State of Colorado, located at
Boulder, as aforesaid, in addition to the regular tax and
levy provided therefor by the laws, a certain other special
tax, consisting of one-tenth of one mill on each and every
dollar of the assessed valuation of all taxable property in
the state, which is to be collected in the same manner and
at the same time as is now provided by law in the
assessment and collection of all other state taxes, as was
especially provided by an act entitled 'An act to
provide a special fund to meet urgent needs of the State
University by an additional assessment of one-tenth of a
mill for the years 1893 and 1894,' which said act was
duly passed and enacted by the general assembly of the
state of Colorado for the year 1893, and was approved
thereafter on, to wit, the 8th day of April, A. D. 1893,
and published at page 475 in the Session Laws of said year;
that, in pursuance of said act, the said defendants,
constituting the said board of equalization, did
theretofore, and during the year 1893, assess and levy the
said special tax of one-tenth of a mill in addition to the
regular tax for the said year 1893; but that at the regular
meeting of said board, on, to wit, the 8th day of
September, A. D. 1894, at which time the said levy should
have been made by the said board, and transmitted by them
to the proper officers of each of the counties in said
state for assessment and collection as a part, and together
with the regular general state tax, the said board,
notwithstanding the demand of your petitioners, refused,
and still continue to refuse, to make said adjustment,
levy, and assessment. Your petitioners further say that
they are informed and believe, and so charge the fact to
be, that the said defendants, constituting the said board,
refused to make and transmit the said special levy on
behalf of the university for the year 1894, because, in
their judgment, they do not consider that the said
university was in absolute need of said extra funds;
whereas, in truth and in fact, your petitioners allege
that, without said special tax, it will be impossible for
them to maintain and conduct the said university in a
satisfactory manner, or to furnish instruction and
educational opportunities for the large number of students
who will attend during the following school year. Your
petitioners further show unto your honors that, under the
provisions of the law, it is necessary for the said board
of equalization to transmit to the county clerk of each of
the several counties of the state a statement of the
assessments and the rate of taxes which are to be levied
and collected within his county for state purposes for that
year, and that this statement shall be made on or before
the 20th day of September in each year. And your
petitioners further say that the said statement which has
been or is being prepared by the said defendants for such
transmission does not contain the special tax of one-tenth
of a mill, as it should under the provisions of the law;
that if your petitioners should institute this suit, and
ask the relief first of any district court having
jurisdiction thereof, the necessary delay in having such
court hear the same, and the right of appeal, which the
said defendants would undoubtedly exercise, would produce
such further delay until the matter could have finally been
adjudicated and passed upon by this tribunal that the said
statement would have been made by the said defendants to
the different county clerks, and it would not be possible
to compel the said defendants to insert the said special
tax within the levy for said purposes on or before the said
20th day of September, nor until a long time thereafter,
and when it would be entirely too late for the said
defendants to act as a board for the year 1894; that it
would then be necessary for your petitioners to bring a
multitude of suits, by mandamus or such other writs as they
should be advised, against each and every county clerk
within the entire state of Colorado. Wherefore your
petitioners pray that an alternative writ of mandamus may
be issued against the said defendants, and each of them,
returnable at some short day, compelling them to make,
assess, adjust, and levy the said special tax of one-tenth
of a mill for the benefit of the State University at
Boulder, in addition to the regular tax already therefor
provided by law to be inserted in the general tax for state
purposes for the year 1894, and to transmit the same
therewith, on or before the 20th day of September, 1894, to
the county clerk of each and every county in the said
state, as provided by law, or to show cause why they should
not do so. And in duty bound your petitioners will ever
pray.'
'Answer.
'Now
come the above-named defendants, and, for their return and
answer to the alternate writ and petition herein, say that
it is not true that the defendants refuse to make or
transmit the said special levy in behalf of the said
university for the year 1894 because they do not consider
that the said university was in absolute need or any need
of said extra funds, but because the said board, at the
said September meeting of the year 1894, had, by making
other levies required by law which have a constitutional
and statutory preference and priority over said special
tax, already made levies aggregating four mills on the
dollar of the taxable property of the state, before they
reached the levy provided by the act of 1893, mentioned in
plaintiffs' writ and petition; that the levies so made,
as aforesaid, are as follows, viz:
|
For general revenue .................
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2 9/30 mills.
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Interest on capitol building bonds ..
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4/30 mills.
|
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Mute and blind asylum ...............
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1/6 mills.
|
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University ..........................
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1/5 mills.
|
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Agricultural college ................
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1/6 mills.
|
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School of mines .....................
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1/6 mills.
|
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Insane asylum .......................
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1/5 mills.
|
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Capitol building fund ...............
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1/2 mills.
|
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Stock inspection ....................
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1/30 mills.
|
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Normal school .......................
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4/30 mills.
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--------------
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Total ............................
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4 mills.
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'Defendants
further say that the said levy of two and nine-thirtieths
mills for general revenue is necessary for the payment of the
ordinary expenses of the executive, judicial, and legislative
departments of the state government for the fiscal year A. D
1894, and legislative appropriations, payable out of the
general revenue of said fiscal year, having a preference and
priority in law to said special university tax; that the
other said levies, except that of the capitol building bond
sinking fund, as made by said board, are based upon statutory
continuing appropriations, and constitute a fixed tax
required by law to be annually levied by said board, said
appropriations having been made by the general assembly of
Colorado prior to the enactment of said special university
tax; that the levy for said capitol building fund is made in
pursuance of a law passed by said general assembly long
before the enactment of said special university tax, and for
the purpose of liquidating an existing obligation of the
state. Defendants further say that the aggregate of the
levies so made, as hereinbefore alleged, amount to four mills
on all the taxable property of the state, and that they are
prevented by an inhibition of the state constitution from
levying a greater sum than said four mills. Defendants,
answering, further allege that the payment of said statutory...
