Union Nat. Bank of Greeley v. Board of Com'rs of Weld County

• Decision Date: 07 April 1924
• Docket Number: 10750.
• Citation: 225 P. 851,75 Colo. 298
• Parties: UNION NAT. BANK OF GREELEY v. BOARD OF COM'RS OF WELD COUNTY et al.
• Court: Colorado Supreme Court

225 P. 851

75 Colo. 298

UNION NAT. BANK OF GREELEY v. BOARD OF COM'RS OF WELD COUNTY et al.

No. 10750.

Supreme Court of Colorado

April 7, 1924

Rehearing Denied May 5, 1924.

Error to District Court, Weld County; George H. Bradfield, Judge.

Action by the Union National Bank of Greeley against the Board fo County Commissioners of the County of Weld and others. Judgment for defendants, and plaintiff brings error.

Affirmed.

Harry N. Haynes and Ralph L. Dougherty, both of Greeley, for plaintiff in error.

William R. Kelly, of Greeley, Russell W. Fleming, Atty. Gen., and Charles Roach, Deputy Atty. Gen., for defendants in error.

CAMPBELL J.

This is an action by the Union National Bank of Greeley against the board of county commissioners of Weld county to recover excessive taxes for the years 1913 and 1914, with interest and penalties, which it paid to the county treasurer under protest. The action is based on section 7447, C. L. 1921. In Kendrick v. A. Y. & M. Co., 63 Colo. 214, 164 P. 1161, it was held that a writ of injunction would not lie to restrain the collection of such a tax, but that the statute cited provides a plain, complete, and adequate remedy at law for a taxpayer to recover from the county a tax which shall thereafter be found to be erroneous or illegal. This decision, however, was not that an action at law will lie in every case to recover the amount of an illegal or erroneous tax paid by a taxpayer. The right to sue is not absolute, but conditional, and in the Kendrick Case it was held that the right was lost by failure of the taxpayer to comply with the prescribed condition.

After a careful consideration of this record and a reading of Colorado Tax Commission v. Pitcher, 56 Colo. 343, 138 P. 509 and First National Bank v. Patterson, 65 Colo. 166, 176 P 498, the judgment of the district court, in sustaining the general demurrer to the complaint and dismissing the action we think, was warranted. The Patterson Case involved taxes laid for the year 1913. The tax there complained of was laid in precisely the same manner as the 1913 tax involved in this action. Complaint is also made hrer of the 1914 tax, but it was laid as was the 1913 tax, and the same principle of law is applicable to the taxes of both years. The same facts which barred relief in the Patterson action bar relief in the instant case. The court in that case held as stated, that section 7447, which is the one upon which this action is based, makes it necessary, as an essential condition precedent, for an aggrieved taxpayer to pay the whole tax assessed against him and then bring an action at law for a refund, and a suit in equity to restrain collection does not now lie. In the Patterson Case the...