People ex rel. Winbourn v. District Court of Eighth Judicial Dist. In and For Boulder County

• Citation: 87 Colo. 316,287 P. 849
• Decision Date: 21 April 1930
• Docket Number: 12527.
• Court: Supreme Court of Colorado
• Parties: PEOPLE et rel. WINBOURN, Atty. Gen., et al. v. DISTRICT COURT OF EIGHTH JUDICIAL DIST. IN AND FOR BOULDER COUNTY et al. (BOARD OF COM'RS OF BOULDER COUNTY et al., Interveners).

287 P. 849

87 Colo. 316

PEOPLE et rel. WINBOURN, Atty. Gen., et al. v. DISTRICT COURT OF EIGHTH JUDICIAL DIST. IN AND FOR BOULDER COUNTY et al. (BOARD OF COM'RS OF BOULDER COUNTY et al., Interveners).

No. 12527.

Supreme Court of Colorado, En Banc.

April 21, 1930

Proceeding for writ of prohibition by the People of the State of Colorado, upon the relation of Robert Winbourn, Attorney General, and others, against the District Court of the Eighth Judicial District of the State of Colorado in and for the County of Boulder, and Hon. Claude C. Coffin, Judge of said District Court, in which the Board of County Commissioners of Boulder County and others intervened.

Writ of prohibition granted.

BUTLER and BURKE, JJ., dissenting.

Robert E. Winbourn, Atty. Gen., Charles Roach Deputy Atty. Gen., and Fred A. Harrison, Asst. Atty. Gen for petitioners.

John R Wolff, of Boulder, Thomas A. Nixon, of Greeley, and Horace N Hawkins, of Denver, for respondents.

ADAMS, J.

This matter is before us on original proceedings upon the answer and return to an order to show cause why a writ of prohibition should not issue to restrain the district court of Boulder county from further proceeding in a suit there pending. This cause is brought in the name of the people upon the relation of the Attorney General, the Colorado tax commission, and the three members thereof, against the district court and judge thereof. The plaintiffs in the district court were allowed to intervene in the proceeding in this court.

The cause in the district court is a suit in equity; it is entitled, 'complaint in injunction,' and was brought in the name of the people, on the relation of the several boards of county commissioners of the fourteen counties and two individuals, as plaintiffs, against the Colorado tax commission, the three members thereof, and the several county assessors of forty-seven counties throughout the state, as defendants. Our reference hereafter to 'petitioners' means the petitioners in the present application for a writ of prohibition, and the word 'respondents' means the respondents herein, including respondents who were allowed to intervene here. The word 'plaintiffs,' as hereafter used, means the plaintiffs in the district court, and the word 'defendants' means the defendants there.

Plaintiffs' complaint as amended (hereinafter designated as the complaint) is set forth in haec verba in the petition in this court. As far as material at this point, it alleges in substance as follows: Thirty-three designated public utility corporations owned property of the fair and true cash value, for the purposes of taxation for the year 1929, of over $300,000,000. It is claimed that the tax commission pretended and attempted to value and assess said property on a basis of 25 to 75 per cent. of its true cash value. That the commission was guilty of gross, habitual, arbitrary, capricious, unlawful, illegal, discriminatory, fraudulent, and void practices, methods, and procedure, in that the commission deliberately and intentionally fixed the total assessments of said corporations at about $100,000,000 below the aggregate cash value of the tangible and intangible value of said corporations. It is alleged that such practices were adopted for the special benefit of thirty favored corporations, and were not uniformly applied to the fixing of valuations of the property of over two hundred other similar corporations in Colorado, which defendant commission was required by law to value and assess in the year 1929. The complaint goes into detail as to the unlawful methods claimed to have been pursued by the tax commission, and avers other alleged similar illegal practices involving other taxpayers.

The complaint further alleges that the counties of Boulder and Weld, two of the interveners here, also plaintiffs in the district court, applied to the state board of equalization for relief from the action of the tax commission, but relief was denied. Hoover and Bixler, plaintiffs, claim to be resident taxpayers whose property has not been assessed on a uniform basis.

Plaintiff prayed for an injunction against the tax commission to restrain it from making and enforcing 'said pretended and void assessments' of the thirty-three corporations, and the levy and collection of the taxes thereon until the further order of the court. Also for an injunction against the county assessors, to restrain them from extending the assessments on the tax rolls of the relator counties, and from certifying to the county treasurers of such counties, the assessments made against the said corporations until the further order of the court. Also for a mandatory injunction, commanding the tax commission to cancel and set aside the 'pretended and void assessments,' and to value and assess the property of each of said corporations in the manner provided by law. Further details of the complaint as amended will be stated in the opinion. Demurrers thereto were overruled. The case was tentatively set for hearing in the district court, but was interrupted by the application for a writ of prohibition.

The answer and return of respondents, filed in this court in response to the order to show cause, contain this statement: 'In the argument in opposition to the demurrer, plaintiff's counsel Horace N. Hawkins announced that upon any hearing of the applications for an injunction the plaintiffs would not ask the court to set aside or interfere with any assessment which had already been made by the Tax Commission, would not ask the court to make any assessment against any company, and would not ask the court to order said Colorado Tax Commission to increase the assessment of any company, but would on such application ask that the court order said Commission to reconvene, and make an additional assessment against any corporation which the Commission itself should find, after evidence, had been under-assessed, after due notice being given to such corporation, and after such corporation had full opportunity to present evidence and be heard, and that no injunction would be asked against any county assessor, and that the county assessors would be in no way prevented from pursuing their duties the same as if no complaint had been filed.'

1. It is not our purpose, on this application for a writ of prohibition, to do more than is necessary to determine whether or not it should be allowed, but to do this we must first discuss the subject-matter of the action sought to be stayed, to decide whether the trial court has jurisdiction over such subject-matter. If jurisdiction has not attached, it is discretionary with this court to allow or disallow prohibition.

2. We are confronted at the outset with plaintiffs' anomalous position created by the disparity between the complaint and that which their chief counsel has subsequently announced as their present ground of attack. They are irreconcilable. In particular, whether there was fraud or not in the manner of assessment, and the results thereby obtained, as alleged in the complaint, nevertheless, one of plaintiffs' leading counsel now given the court to understand that plaintiffs will not ask the court to set aside or interfere with any assessment already made by the commission. Another contrast is in the complaint which declares on alleged underassessments to the extent of $100,000,000, but now counsel for plaintiffs say they will not ask the court to make any assessment against any company, or order the commission to increase the assessment of any company. We remark that noninterference with assessments as made precludes the disturbance of such assessments. It prevents a reassessment, whether up or down.

3. The suit to enjoin forty-seven county assessors is abandoned; the county treasurers may proceed to collect taxes based on assessments as made, according to counsel for plaintiffs, but if those assessment are to remain stationary, as they must under counsel's statement in open court, there is nothing for the court to determine, at least in the suit now pending in the district court, for their legality is no longer open to question. An assessment cannot be void and valid at the same time, at the convenience of the pleader, and the withdrawal of a contest on any assessment based on fraud is tantamount to a withdrawal of the charge that it was fraudulently procured. Charges which, even if sustained, are to result in a policy of noninterference with the assessments that have been made, are altogether idle.

4. It is mere play on words to say that it is not the court, but the commission, that is asked to review their work. The coercion sought to be imposed on the administrative body is to come, if at all, from the court; the commission to do its bidding in a particular way, and to perform acts not authorized by law. Counsel's modified position would allow plaintiffs to obtain by indirection an advantage not possessed under the complaint, i. e., to insure against any revision downwards, but to make a revision upwards and only upwards the goal. This proposal in offered as a liberal inducement or concession to 'equity,' but it is not well named. It concedes nothing to the commission or to the taxpayer who supplies the revenue. It would take away their rights. A rehearing might possibly warrant a reduction but that would be denied under the system proposed. We cannot presume that the discretionary powers of the board are not to be interfered with, when thus inhibited at the outset. Counsel has qualified his statement, as will be seen above, but to intimate that an 'additional' assessment on 'underassessed' property does not result in an increased assessment, is merely a faulty arithmetical computation.

5. The present position of counsel for plaintiffs is an...