Rio Grande Junction Ry. Co. v. Orchard Mesa Irr. Dist.

• Decision Date: 04 March 1918
• Docket Number: 8970.
• Citation: 64 Colo. 334,171 P. 367
• Court: Colorado Supreme Court
• Parties: RIO GRANDE JUNCTION RY. CO. v. ORCHARD MESA IRR. DIST.

171 P. 367

64 Colo. 334

RIO GRANDE JUNCTION RY. CO. v. ORCHARD MESA IRR. DIST.

No. 8970.

Supreme Court of Colorado

March 4, 1918

Error to District Court, Mesa County; Thomas J. Black, Judge.

Action by the Rio Grande Junction Railway Company against the Orchard Mesa Irrigation District. Judgment for defendant, and plaintiff brings error. Affirmed.

E. N. Clark and G. A. Luxford, both of Denver, for plaintiff in error.

Benjamin Griffith, of Denver, for defendant in error.

HILL C.J.

The plaintiff in error, hereafter called the plaintiff, elected to stand upon its second amended complaint after a demurrer had been sustained thereto. It contained three alleged causes of action growing out of the same transaction, and which entitled it, if at all, to but one judgment. The first count in substance, alleges that the defendant is an irrigation district; that in November, 1909, it entered into a written contract with the plaintiff, ratified by its electors at an election held for that purpose, etc., whereby the plaintiff agreed to raise its tracks on the north bank of Grand river so as to protect them from damage by reason of water to be impounded in a dam which the district was then constructing that the district agreed to pay plaintiff the cost of this work, and was to deposit with if $35,000 to be applied in such payment, if that amount was required; that if it cost more it would pay the additional amount, etc.; that the district deposited the $35,000; that the work was done as agreed; that its total cost was $43,733.77; that after crediting the $35,000, there was a balance due of $8,733.77 that plaintiff made out an itemized account of said balance due, verified and filed it with the secretary of the defendant; that said claim was disallowed by the board of directors of said district, and that there is due the plaintiff said sum with interest from the 25th of November, 1911; that defendant has at all times neglected and does now neglect, to make the necessary levy to pay or provide for the payment of said sum, and that defendant does not intend to provide any funds to pay the balance due. Judgment is prayed for the amount alleged to be due, with interest.

The second count alleges the same facts as the first up to the amount due it; then alleges that the defendant disputed the balance due and entered into negotiations for an adjustment of the sum to be paid, etc.; that in consequence of said negotiations, and on or about November 27, 1911, the parties then and there agreed that the plaintiff would accept $8,104.85 in full settlement of all that was due under said contract; that the defendant promised to pay said amount, and by its board of directors did audit and allow said bill for the sum of $8,104.85, but that defendant has neglected and does neglect to make the necessary levy to pay or provide for the payment of said sum; that there is no money in the treasury of said district with which to pay any part of said sum; and that defendant does not intend to provide any funds to pay the balance due, etc. The prayer is for judgment for the amount last named, etc.

The third count is practically the same as the first and second up to and including the performance of the contract. It then alleges: That plaintiff filed its claim in due form with the secretary. That thereafter, and in November, 1911, the claim was duly audited and allowed by the board of directors of the defendant district in the sum of $8,104.85, and that on January 2, 1912, the board of directors ordered a warrant drawn for the payment of same; that on January 4th following the defendant issued and delivered to plaintiff its warrant therefor, the material portion of which reads:

'Pay to the Rio Grande Junction Railway Company or bearer, $8,104.85, * * *. For services or material for maintenance, operation and current expense of said district. Charge same to general fund for maintenance,' etc.

That on January 5th following the plaintiff presented said warrant to the treasurer of the district for payment. That there were no funds to pay said warrant. That its payment was refused, and it was registered as follows:

'Registered. Presented. No funds. Jan. 5, 1912. This warrant draws interest from this date at 6 per cent per annum.

'Benton Canon, Co. Treas.'

That this warrant has never been paid, and is still due. That under and by virtue of the laws pertaining to irrigation districts, the board of directors is required to make a levy upon the land included within said district at a certain rate per acre sufficient to pay off delinquent and outstanding warrants. That the board of directors of defendant has failed and neglected to make any such levy, for the purpose of paying this warrant, and does now neglect and refuse to make any levy to pay said warrant or any part thereof. That there is now due the plaintiff thereon $8,104.85 with interest. The prayer is for judgment for this amount.

As the third alleged cause of action covers the entire transaction it should be considered first. Were we disposed to be technical, we could affirm the court's ruling thereon by calling attention to the fact that the irrigation district act does not require or authorize the board of directors of a district to make a levy to pay outstanding warrants or any levy for any purpose. The power to make levies for the district is vested in the board of county commissioners; hence the neglect or refusal of the district board to do something which it has no right to do fails to state any neglect of duty on its part. We do not care, however, to dispose of this count in this manner. In order to consider it on the real point involved, we will assume that the allegation is sufficient to charge neglect upon the part of those whose duty it was to certify an amount sufficient to include this warrant, as well as a failure upon the part of those whose duty it was to make the levy therefor. With these assumptions included, are the facts sufficient to allow the plaintiff, after accepting a warrant in payment of its debt, to thereafter secure a money judgment upon the warrant? When contested, it has never been permitted upon such a showing as to county, city, or town warrants in this jurisdiction, but, to the contrary, when nothing more is presented than alleged in this count, mandamus is held to be the exclusive remedy. Forbes v. Grand County, 23 Colo. 344, 47 P. 388; Gunnison County v. Sims, 31 Colo. 483, 74 P. 457; City...