Town of Fairplay v. Board of Com'rs of Park County

• Decision Date: 07 October 1901
• Citation: 67 P. 152,29 Colo. 57
• Parties: TOWN OF FAIRPLAY v. BOARD OF COM'RS OF PARK COUNTY.
• Court: Colorado Supreme Court

67 P. 152

29 Colo. 57

TOWN OF FAIRPLAY v. BOARD OF COM'RS OF PARK COUNTY.

Supreme Court of Colorado

October 7, 1901

Error to district court, Park county.

Action by the town of Fairplay against the board of county commissioners of Park county. From a judgment of the court of appeals affirming a judgment for defendant, plaintiff brings error. Reversed.

C. A. Wilkin, for plaintiff in error.

August Pease, for defendant in error.

STEELE J.

Fairplay a municipal corporation within the limits of the county of Park, claims the right to recover from the county her proportion of the road tax collected by the county for the years 1887 to 1894, inclusive, amounting in the aggregate including interest, to the sum of about $2,000. The statute under which the town claims is as follows: 'The board of county commissioners of the respective counties of the state may levy a property tax for road purposes, which shall not exceed one dollar on each one hundred dollars, to be levied and collected in the same manner and at the same time as other property taxes are levied and collected in each year. The commissioners, at the time of making such levy, shall order that such proportion of the tax levied upon property located in any city or incorporated town, as to the commissioners shall seem just and proper, shall be paid to the corporate authorities of such city or incorporated town in the same manner and at the same time that city or town taxes are paid, which road taxes so set apart and paid to such corporate authorities of such city or incorporated town shall be used and expended by them, or under their supervision, for the sole purpose of improving the streets, alleys and public highways of such city or incorporated town, and for no other purpose whatever. The funds so collected under the provisions of this section, except the part so set apart for the use and benefit of cities and incorporated towns, shall be apportioned by the commissioners among the several road districts of their respective counties, and the same shall be paid out only on the order of the board of county commissioners.' Mills' Ann. St. § 3953. In the year 1887 the county commissioners of Park county, under this section, directed that one mill of the road tax collected on the corporate property of the towns of Como, Fairplay, and Alma be paid to the authorities of said towns, respectively. Since 1887 no action appropriating money under the statute has been taken by the county commissioners. In the first cause of action, claim is made for the amount collected by the county of Park under the resolution of 1887, which it is alleged has never been paid to the authorities of the town. The other seven causes of action are based upon the alleged right of the town to recover the amount actually paid by the town, with interest, for the repair of the streets within the corporate limits. A demurrer was filed to the complaint, and, upon hearing, the demurrer was sustained, judgment was rendered for the defendant, an appeal was taken to the court of appeals, and the case was sent here from the court of appeals.

The demurrer, in general, is upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and upon the ground that the plaintiff is barred from enforcing its claim, if it ever had one, on account of its unexplained and culpable delay and laches in not heretofore bringing and taking appropriate proceedings to enforce the same, and also upon the ground that the said claim in the first four causes of action did not accrue within six years preceding the commencement of...