People ex rel. School Dist. No. 2 v. County Com'rs

• Decision Date: 14 December 1888
• Citation: 12 Colo. 89,19 P. 892
• Parties: PEOPLE ex rel. SCHOOL-DIST. NO. 2 v. COUNTY COMMISSIONERS.
• Court: Colorado Supreme Court

19 P. 892

12 Colo. 89

PEOPLE ex rel. SCHOOL-DIST. NO. 2 v. COUNTY COMMISSIONERS.

Supreme Court of Colorado

December 14, 1888

Application for mandamus.

Petition by the people at the relation of school-district No. 2 of Lake county against the board of county commissioners of Lake county for mandamus to compel respondents to levy a tax. Const. Colo. art. 10, § 7, provides that the general assembly shall not impose taxes for the purposes of any municipal corporation, but may vest the corporate authorities with that power. Gen. St. Colo. § 3019, provides that the county superintendent shall ascertain the boundaries of school-districts, and keep a record thereof. Section 3035 provides that each regularly organized school-district shall be a municipal corporation.

Blake & Sayer, for petitioner.

D E. Parks, for respondents.

ELLIOTT J.

This is an original proceeding, instituted in this court by school-district No. 2, Lake county, in the name of the people of the state against the board of county commissioners of Lake county, to obtain a writ of mandamus to compel the defendants to levy or cause to be levied upon the taxable property of said district a special school tax for the benefit of said school-district, in pursuance of amended sections 67, 70, c. 97, Gen. St. Colo.

The questions to be determined in this action arise upon demurrer to defendants' answer. The answer itself is, for the most part, only a demurrer to the petition, but as this form of answer seems to be contemplated by the Code (section 316,) the whole matter may be readily disposed of by considering the averments of the petition and answer together. Indeed, the answer, so far as it attempts to make any issues of fact, is quite informal and immaterial; so the facts of the case are practically admitted. That it is proper for the court to take original jurisdiction in a case of this kind is well settled in Wheeler v. Irrigation Co., 9 Colo. 255, 11 P. 103. To the averment of the petition that the relator is a regularly organized school-district, etc., the answer interposes the qualified traverse that defendants have not and cannot obtain sufficient knowledge, etc. This form of traverse is not sufficient, when we consider the intimate relations knowledge, and means of knowledge which the board of county commissioners must be presumed to have in respect to the organization of the school-districts of the same county; and especially is this true when other parts of the sworn answer affirmatively show defendants' recognition of relator's status as a school-district. Bliss, Code Pl. § 326; Gen. St. Colo. §§ 3019, 3035. The relator relies upon amended sections 67, 70, c. 97, Gen. St., found on pages 398, 399, Sess. Laws 1887, and which read as follows: 'Sec. 67. On or before the day designated by law for the commissioners of each county to levy the requisite taxes for the then ensuing year the school board in each district shall certify to the county commissioners the number of mills per dollar which it is necessary to levy on the taxable property of the district, to raise a special fund for any of the purposes specified in section 51 of this chapter, and the county commissioners shall cause the same to be levied at the same time that other taxes are levied, and the amount of such special tax which shall be assessed to each tax-payer of such district shall be placed in a separate column of the tax-book, which shall be headed 'Special School Tax." 'Sec. 70. It shall not be lawful for a district or a district board to reconsider the question of the levy of a special tax after the same has been certified to the county commissioners, nor shall said...