People ex rel. Rollins v. Board of Com'rs of Rio Grande County

• Decision Date: 09 December 1895
• Docket Number: 878
• Citation: 42 P. 1032,7 Colo.App. 229
• Parties: PEOPLE ex rel. ROLLINS v. BOARD OF COM'RS OF RIO GRANDE COUNTY et al.
• Court: Colorado Court of Appeals

42 P. 1032

7 Colo.App. 229

PEOPLE ex rel. ROLLINS v. BOARD OF COM'RS OF RIO GRANDE COUNTY et al.

No. 878

Court of Appeals of Colorado

December 9, 1895

Error to district court, Rio Grande county.

Petition of Frank W. Rollins for mandamus to the board of county commissioners of the county of Rio Grande, D.O. Darnell, and others. Writ denied. Plaintiff brings error. Reversed.

E.F Richardson, for plaintiff in error.

Jesse Stephenson and Geo. P. Wilson, for defendants in error.

Doud &amp Fowler, amici curiae.

BISSELL J.

Frank W. Rollins, the owner of a judgment against Rio Grande county, instituted these proceedings in mandamus to compel the county to levy a tax to pay the judgment. As originally formed, issues both of fact and of law were tendered by the petition and the answer. All questions of fact were subsequently eliminated by stipulation of counsel and an order of court, and only that part of the answer was retained which practically, though somewhat informally, tendered an issue of law as upon a demurrer regularly and formally put into the petition. We are therefore only concerned with this matter. Stating only the salient and material allegations, the petition recited the organization of the county of Rio Grande under the constitution of the laws of Colorado, and its possession of the general contractual, governmental, and political powers which belong to this class of corporations; the election of a board of county commissioners, who were named, and alleged to have been representing the county and transacting its business at the time of the demand of payment; the recovery of a judgment in January, 1885, by Burrows in one of the district courts of the state, for $10,502.77 and costs; the nonpayment of the judgment; and the petitioner's title. The judgment was in force and unreversed, and the right of the petitioner to collect it was stated in apt terms. The steps taken to collect it were fully narrated. On the 11th of December, 1893, the petitioner served a notice and demand on the board of county commissioners at one of the regular sessions, when all the parties named as commissioners were present. Generally the notice recited that the plaintiff Rollins, was the owner of the judgment, and the board was requested to levy a tax to pay the judgment and interest demanding that it be levied and put on the tax roll of the county for the current year. The notice was dated on the 11th of December, and served on the same day. This claimant owned several other judgments against the county, and his demand covered them. The petition purported to state the record of the proceedings of the board at this meeting. The board ordered that the demand which was made by Rollins be rejected, and the clerk was instructed to notify him that the board declined to levy a tax or to pay the judgments. The petition alleged there were no funds in the treasury applicable to the payment of the debt, and that there had been none therein since the rendition of the judgment. The failure of the county to pay the judgments, or any part of them, or to levy any tax to liquidate them, was averred. These, in brief, are the allegations of the pleading. When the petition was filed, an order was made directing the issue of the alternative writ, which accords both with the statute regulating proceedings in mandamus and is in harmony with the usual course of the common law. The order was not carried out, but the county appeared, and stipulated that the petition should be taken for the alternative writ, and the matter be heard on the law issue formed by the pleadings. This was not an irregularity which at all affects the proceedings, and really accords with the very general practice which now prevails. A mandamus is no longer regarded as a prerogative writ. Its form, tenor, and purpose, and perhaps it may therefore be said many of its objects, are totally different from those which obtained when the writ was first devised. This position could be easily sustained by a reference to the authorities. However interesting this might be as a bit of history or of learning, it would have very little significance in the determination of the present matter, or aid in the establishment of a practice which may be deemed pretty well settled by both the statute and the decisions. Fisher v. City of Charleston, 17 W.Va. 595.

We now recur to the main question. Put in the tersest fashion, it concerns the right of a judgment creditor to compel a county to levy a tax to pay his judgment. If this right exists, it must be either because it is conferred in direct terms by some statute, or conferred in terms which grant the right when the act is construed according to well-recognized principles of statutory construction. The revenue legislation pertaining to this matter, and that which confers political and governmental authority on these subdivisions of the state, are not always definite, and are frequently obscure. This uncertainty and obscurity is pronounced and unfortunate. Some of the enactments bear the evident marks of an attempt to confer the authority on the county authorities, and to so confer it as to make it a legal certainty, though so deftly expressed as to leave the purpose of the legislation in doubt to any but a trained legal mind. Notwithstanding this apparent fact, the duty is put on the court to construe the act in the light of judicial precedent and the apparent purpose of the legislation, regardless of our judgment of the source or the history of the acts. As the law stood in 1883, whenever a judgment was rendered against a county, it was to be paid by a tax levied like other county charges, paid into the treasury, and turned over to the person to whom the money was adjudged. There was a proviso in the section which likewise permitted the payment of the judgment by warrant on the county treasury, when there were funds there, not otherwise appropriated, which could be applied to the purpose. Gen.St.1883, § 527. Whether this general right to levy a tax to pay a judgment would be always available is not entirely clear. Subsequent legislation puts certain restrictions on the county authorities with reference to the amount of taxes which may be levied in any one year. Gen.St.1883, § 2816. According to this provision, the tax levy for any current year was limited to 10 mills on the dollar for ordinary county purposes. Evidently this might or might not, in any given case, produce a surplus after the payment of any outstanding judgment. We are not concerned with this possible difficulty. Subsequent acts of the legislature have totally changed this general scheme, and have brought about the result which creates our present difficulty. In 1887 the legislature passed an act specifically providing for the levy of taxes to pay judgments against counties. Section 1 of the act reads as follows: "That section 7, chapter 23, of the General Statutes of the state of Colorado, be, and the same is hereby amended so as to read as follows: Sec. 7. When a judgment shall be given and rendered against a county of this state in the name of its board of county commissioners, or against any county officer, in an action prosecuted by or against him in his official capacity, or name of office, when the judgment is for money, and is a lawful county charge, no execution shall issue thereon, but the same may be paid by the levy of a tax upon the taxable property of said county, and when the tax shall be collected by the county treasurer, it shall be paid over, as fast as collected by him, to the judgment creditor, or his or her assigns, upon the execution and delivery of proper vouchers therefor; but nothing contained in this section shall operate to prevent the county commissioners from paying all or any part of any such judgment by a warrant, drawn by them upon the ordinary county fund in the county treasury; provided, that the power hereby conferred to pay such judgment by a special levy of such tax, shall be held to be in addition to the taxing power given and granted to such board, to levy taxes for other county purposes, but the board of county commissioners shall levy under this law only such taxes as they, in their discretion, may deem expedient or necessary, and all taxes levied by authority of this act shall not exceed one and one-half per centum on the dollar of assessed property for any one fiscal year; and, provided, further, that the powers herein given to the board of county commissioners shall not be construed as requiring said board to levy any special tax to pay any judgment, unless in its discretion the said board shall so determine. Any and all taxes levied to pay the last payment upon, or to pay any such judgment shall be valid, whether the sum sought to be raised thereby exceeds the sum due on such judgment, principal and interest or not; but such excess of the sum required shall not exceed a sum equal to ten per centum of such required sum, and no sale of real estate made to make such taxes shall be invalid by reason of such excess, if the same is within the above specified limit; but all levies to pay judgments shall be made as near as possible, to raise a sum equal to that due on the judgment to pay which the tax is levied; but, nevertheless, any excess levied, if such excess does not exceed the said ten per centum of the sum due and desired to be paid, shall not invalidate any tax levy upon or tax sale of real or personal estate, made to raise, make or collect the said sum due and excess." Sess.Laws 1887, p. 240. The grant of authority is plain, definite, broad, and complete. Taking the granting clauses by themselves, they give the amplest authority to levy a tax to pay a judgment. There can be no possible dubitation concerning it. The same restriction which was expressed...