Richardson v. City of Denver

• Citation: 30 P. 333,17 Colo. 398
• Parties: RICHARDSON v. CITY OF DENVER.
• Decision Date: 05 May 1892
• Court: Supreme Court of Colorado

30 P. 333

17 Colo. 398

RICHARDSON v. CITY OF DENVER.

Supreme Court of Colorado

May 5, 1892^[1]

Error to district court, Arapahoe county.

Charles Heidseick commenced an action against Cyrus G. Richardson to enjoin the issuance of a certain tax deed. Afterwards that city of Denver was made a party defendant on motion of plaintiff. On the judgment, Richardson brings error. Affirmed.

The other facts fully appear in the following statement by HAYT C.J.:

Charles Heidseick, as plaintiff in the district court, commenced his action, making plaintiff in error, Cyrus G. Richardson, the sole defendant. Afterwards, by leave of the court, he filed an amended complaint, making the city of Denver also a party defendant. In this complaint, it is alleged that plaintiff is the owner in fee of certain lots in the city of Denver; that the city had caused to be constructed a certain sidewalk in front of these lots, in pursuance of a certain ordinance. The cost of constructing this sidewalk, it was provided, should be paid by the abutting lot owners, respectively, and unless so paid should be certified to the county clerk and recorder of Arapahoe county, and by the latter placed upon the tax list as a special assessment against the abutting lots, in order that the same should be collected in the same manner as general city taxes are collected. The cost of constructing such sidewalk remaining unpaid, the city authorities, in accordance with the provisions of said ordinance, caused the same to be placed upon the tax list for the current year by the county clerk and recorder. The clerk in due time and manner issued his warrant to the county treasurer for the collection of the general city taxes, including this special assessment. Afterwards, and on the 26th day of May, 1882, at a general tax sale, duly holden, said lot was sold by the treasurer for such assessment to one S.E. Tibbals for the sum of $292. Tibbals was given a certificate of purchase, which he assigned to the defendant, Richardson, the plaintiff in error herein. On September 21, 1885, the statutory period for redemption having expired, Richardson demanded of the county treasurer a tax deed upon said lot. Thereupon, Heidseick, the owner, instituted this suit and obtained a temporary writ of injunction, restraining the issuance of such tax deed. Afterwards an amended complaint was filed, to which the defendant Richardson answered and the city of Denver demurred. This demurrer was overruled. Appellee refusing to plead over, judgment was entered against the city. The tax certificate held by Richardson was ordered canceled, the sale adjudged invalid and void, and Richardson, his heirs and assigns, were perpetually enjoined from making any claim whatever to the premises by virtue of such sale. In his answer to the complaint the defendant Richardson also filed a cross complaint against his codefendant, the city of Denver. In this complaint he demanded from the city the refunding of the money he had paid at the sale, with interest. To this cross complaint a demurrer was filed and overruled, and an answer filed by the city. In this answer the passage of the ordinance, and all proceedings thereunder up to and including the sale, were admitted as alleged. In addition it is averred that the money received at the sale was paid to the city treasurer for the use of the holder of the side walk warrant and by him paid to such holder in accordance with the ordinance; that the city of Denver never received any of this money for its own use, and never used any portion thereof but that the city treasurer received the same solely as the agent of the holder of the warrant. A reply to this answer was filed by Richardson, denying all the new matters set up therein. A trial was thereafter had on the issues raised on this cross complaint, answer, and replication. This trial resulted in a judgment against Richardson for costs. This proceeding is brought to reverse the latter judgment. Among the facts admitted by the pleadings in this case are First, that appellant was the bona fide assignee of the certificate of purchase; second, that the regular tax sale was held for the collection of a special sidewalk assessment by the defendant in error, in accordance with the provisions of its ordinance; that by the judgment of the court this sale had been adjudged null and void, the certificate canceled, and the issuance of the deed enjoined.

Charles H. Burton and Henry Trowbridge, for plaintiff in error.

F. A. Williams and John F. Shafroth, for defendant in error.

HAYT C.J., ( after stating the facts.)

Is a municipal corporation liable to the purchaser at its tax sale for the money paid, where the proceedings leading up to the sale, as well as the sale itself, are absolutely void? In answering this question, we will consider-- First, appellant's rights, in the absence of a statute fixing the city's liability; second, the statutory law upon the subject. The question is one of first impression in this court, although the subject has received the careful consideration of many able courts in other jurisdictions. In Lincoln v. Worcester, 8 Cush. 65, Chief Justice SHAW declares there are three requisites to the right of recovery for money paid by reason of illegal taxation First, the assessment must be absolutely void; second, the money sued for must have been received by the corporation for its own use; third, the payment must have been upon compulsion, and not voluntary. Justice Dillon, in his work on Municipal Corporations, fully indorses the conclusions reached in the above cause, and cites many authorities in confirmation of the views expressed by the Massachusetts court. The learned author says that unless all these conditions are present a payment under protest will not ordinarily give a right of recovery, in the absence of a statute authorizing the same. 2 Dill. Mun. Corp. (3d Ed.) § 940. The soundness of these legal propositions must be admitted. Testing appellant's claim by...