Price v. Kramer

• Decision Date: 01 April 1879
• Citation: 4 Colo. 546
• Parties: PRICE et al. v. KRAMER et al.
• Court: Colorado Supreme Court

4 Colo. 546

PRICE et al. v. KRAMER et al.

Supreme Court of Colorado

April, 1879

Appeal from District Court of Pueblo County.

KRAMER the appellee, filed his complaint in the district court of Pueblo county, alleging:

First. That he is the owner of nine hundred cattle branded thus, Q on the left side and hip, and he does not know how many of said cattle are Texan and how many are American cattle, but thinks that about one-half of them are American cattle, and the other half are half breeds and Texan cattle; and that he is also the owner of thirty horses branded thus 'Q' on left shoulder. That he was the owner of said cattle and horses during the year 1875, and has been ever since. That he resides in Pueblo county, aforesaid, and has so resided in said county all the time during the ten years last past. That all of said cattle and horses were assessed for taxes, and said taxes were levied and collected on the same, in, for and by Pueblo county, aforesaid, for the years 1875 and 1876. That for the year 1875, said herd of cattle and horses were assessed for taxes, in said Pueblo county, at a less number than herein stated, and for the year 1876 at a greater number than herein stated, but that it was the same herd that was assessed in both instances; and the amount of said taxes so assessed and levied by Pueblo county, aforesaid, and which the plaintiff paid on said cattle and horses, was for said year 1875, one hundred and thirty dollars and seventy-two cents, and for said year of 1876, it was two hundred and twelve dollars and eighty-five cents.

Second. That the board of county commissioners of Bent county in the State of Colorado, one of the defendants herein, claims the right to tax and have taxed the same cattle and horses, and all of them, in and for Bent county, aforesaid, for the same years of 1875 and 1876, and have directed M. B. Price, one of the defendants herein, as treasurer of said Bent county, to collect said taxes on the same for said years of 1875 and 1876, and said Price, as such treasurer, during the year 1877 actually levied upon and seized one hundred of said cattle for taxes before that time assessed and levied upon said cattle and horses, in, for, and by Bent county, aforesaid, for said years of 1875 and 1876 and threatens to sell and seize other property belonging to the said plaintiff for said taxes. That the amount of taxes thus levied and claimed by said Bent County upon said horses and cattle was and is two hundred and seventy-eight dollars and thirty-one cents for said year of 1875, and six hundred and fifty-three dollars and thirty cents for said year of 1876; and that said cattle and horses were assessed and taxed in Bent county, aforesaid, at a larger number than herein stated, but that it was the same herd that was thus taxed.

Third. The plaintiff further avers that in the year 1876, after the first day of May of that year, and after the assessment for taxes had been made in and for that year within said county of Bent and said Pueblo county, he purchased another herd of cattle running at large on the range, estimated by him to be four hundred cattle, in addition to the cattle above mentioned, and that the cattle thus purchased are still owned by him, are branded thus on left side and hip.

Fourth. That all of said cattle and horses above mentioned, including those thus purchased in 1876, were assessed for taxes and were taxed in and by both and each of said counties of Bent and Pueblo for the year of 1877. That said Bent county claiming the right to tax all of said cattle and horses for said year of 1877, has levied a tax of seven hundred and eighty-four dollars and fifty-five cents on the same for said year of 1877, and has directed its said treasurer to collect the same from the plaintiff and out of his property, and said treasurer is threatening to do so.

And plaintiff further avers that said Pueblo county, claiming the right to tax the same cattle and horses, for the year 1877, has levied a tax of four hundred and five dollars and seventy-six cents for said year 1877, and has directed George W. Morgan, one of the defendants herein named, as its treasurer, to collect the same from the plaintiff, and out of his property; and said Morgan as such treasurer is threatening to do so; and that the plaintiff is in danger of being obliged to pay taxes twice upon the same property, to-wit, said cattle and horses for said of said years of 1875, 1876 and 1877; said taxes being claimed by each of said counties as above stated.

Fifth. That the plaintiff is ignorant of the respective rights of the defendants. That, although plaintiff resided in Pueblo county as above stated during said years, and although on the 1st day of May of 1875, kept, held, and herded all of said horses and one hundred and twenty of said cattle in Pueblo county aforesaid, and on the 1st day of May of 1876, kept, herded and held all of said horses and two hundred of said cattle in Pueblo county aforesaid, and on the 1st day of May of 1877 kept, held and herded all of said horses and three hundred of said cattle in Pueblo county aforesaid, as it is his habit to keep his horses and such of his cattle as are weak, so far as he can conveniently, near his residence in Pueblo county, aforesaid, during the latter part of the winter, and a part of the spring, yet the said cattle and horses thus kept, herded and held, as above stated, during the greater portion of each of said years, were running at large, and all the rest of said cattle were running at large during each and all of said years of 1875, 1876 and 1877, and when so running at large, went and ranged where they happened to be driven by the storms, or where their own inclinations led them to go, and that sometimes during said years the greater portion of them (the exact number the plaintiff does not know) were in fact in Pueblo county aforesaid, and at other times the greater portion of them (the exact number the plaintiff does not know) were in fact in Bent county aforesaid, and that the plaintiff does not know how many of them were in either or each of said counties on the 1st day of May of each or either of the years 1875, 1876 and 1877, nor where as a matter of law those that were thus running at large were or would be said to be held, kept, or herded on the 1st day of May of each or either of said years.

Sixth. The plaintiff admits that either the one or the other of said counties has the right to tax said cattle and horses for each of said years 1875, 1876, and 1877, but does not admit that the same cattle and horses, above mentioned, are taxable in both of said counties for the same year or each or either of said years. And plaintiff is ready and willing to pay into court, to be disposed of as the court shall direct, the said several sums claimed by the treasurer of Bent county as above stated, for taxes on said cattle and horses for each or either of said years of 1875, 1876 and 1877, and hereby offers to deposit the same in court, or to deliver the same to such person as the court shall direct, to be held subject to the order of this court. And the plaintiff is also willing and ready and offers to deposit in court, or deliver to such person as the court shall direct, the said sum of money claimed by the treasurer of Pueblo county, as above stated, for taxes upon said cattle and horses for the year 1877, to be held subject to the order of the court.

Seventh. That this action is not brought by collusion with either of said defendants.

Therefore the plaintiff demands judgment:

First. That the defendants be restrained by injunction from taking any proceedings against the plaintiff in relation to said taxes, or either of them, for either of said years 1875, 1876 or 1877.

Second. That they be required to interplead together concerning their claims to the said taxes upon the said cattle and horses for each of said...