Union Pac. R. Co. v. Board of Commissioners, 96
| Decision Date | 11 December 1929 |
| Docket Number | 97,123.,No. 96,96 |
| Citation | 35 F.2d 785 |
| Parties | UNION PAC. R. CO. v. BOARD OF COMMISSIONERS, WELD COUNTY. DENVER TRAMWAY CORPORATION v. CITY AND COUNTY OF DENVER. ATCHISON, T. & S. F. RY. v. BOARD OF COMMISSIONERS, PROWERS COUNTY. |
| Court | U.S. Court of Appeals — Tenth Circuit |
C. C. Dorsey, of Denver, Colo. (N. H. Loomis, of Omaha, Neb., and Gerald Hughes, of Denver, Colo., on the brief), for appellants Union Pacific R. Co. and Denver Tramway Corporation.
Erl H. Ellis, of Denver, Colo. (W. W. Grant, Jr., Morrison Shafroth, and Henry W. Toll, all of Denver, Colo., on the brief), for appellant A. T. & S. F. Ry. Co.
Wm. R. Kelly, of Greeley, Colo., and John R. Wolff, of Boulder, Colo. , for appellees.
Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.
These are actions at law under section 7447, C. L. Colo. 1921, which authorizes the recovery from a county, after payment, of any tax or portion thereof found to be erroneous or illegal.
Jurisdiction of the federal court is invoked in each case on the ground of diversity of citizenship and on the claim that certain orders of the State Board of Equalization, increasing the assessment of the property of plaintiffs, amounted to a deprivation of property without due process of law, contrary to the Fourteenth Amendment to the Constitution of the United States.
The plaintiffs in causes numbered 96 and 123, respectively, own systems of railroad located partly in the state of Colorado, and the plaintiff in cause numbered 97 owns the street railway system located in the city and county of Denver and counties adjacent thereto.
The causes were disposed of below upon complaints and demurrers. The complaints are substantially the same in all three cases, and, in addition to the jurisdictional facts, alleged the following: That, for the year 1927, each plaintiff made a return of all its various kinds, classes and items of property according to law; that, in due course, after hearings, the Colorado Tax Commission made assessments of the property of the plaintiffs for taxation purposes; that on Saturday, October 15, 1927, same being the Saturday preceding the third Monday in October of such year, the State Board of Equalization made an order which increased the valuation of the Union Pacific Railroad Company, for assessment purposes, $2,000 per mile over and above the valuation placed thereon by the Tax Commission; and made an order which raised the valuation of the Atchison, Topeka & Santa Fé Railway Company, for assessment purposes, $2,000 per mile over and above the valuation placed thereon by the Tax Commission; and made an order which increased the valuation of the Denver Tramway Corporation, for assessment purposes, $250,000 above the valuation placed thereon by the Tax Commission; that the plaintiffs had no knowledge of such orders until after the adjournment of the statutory session of such State Board of Equalization; that such attempted increases in valuation were not based upon any reference to or study of the relevant facts, and that the actions of the State Board of Equalization were arbitrary, capricious, unreasonable and oppressive; and that each of the plaintiffs, involuntarily and under protest, paid the 1927 taxes upon such increased assessments to the proper authority. The complaints pray for the recovery of the taxes thus paid.
In each case, the trial court sustained the demurrers to the complaints. The plaintiffs elected not to further plead, and judgments of dismissal were entered. These are appeals therefrom.
The primary question presented is the construction of section 15 of article 10 of the Colorado Constitution, which defines the powers of the State and County Boards of Equalization. This section reads as follows:
The italics are ours and indicate changes resulting from an amendment, proposed by the 1913 session of the Colorado Legislature, and adopted at the general election held November 3, 1914.
We believe a consideration of the provisions of the Colorado statutes on taxation will disclose the policy of that state with reference to assessment of property and will throw light upon this inquiry.
Section 7284, C. L. Colo. 1921, provides that the Tax Commission shall meet on the first Monday in April of each year, and from day to day thereafter until its business is finished, and shall assess, at full cash value, all property of public utilities in the state of Colorado. This section also provides that the Tax Commission shall certify such assessments to the county assessors and the county clerks on or before June 15th of each year.
Section 7294, C. L. Colo. 1921, provides that every railway company shall furnish to the Tax Commission, between March first and April first of each year, a detailed and sworn statement of the several classes of its real and personal property.
Section 7307, C. L. Colo. 1921, provides that the Tax Commission shall afford an opportunity to any public utility or any taxpayer to appear before the Tax Commission and submit to it any facts which may tend to inform the Tax Commission as to the fair value of such property.
Section 7287, C. L. Colo. 1921, provides: (1) That, on or before August 25th of each year, any public utility or any Board of County Commissioners of any county may file a complaint with the Tax Commission if it believes the assessment certified by the Tax Commission is illegal, erroneous or not uniform, or that the amount of such assessment has not been justly distributed between the counties of the state; (2) that adequate notice shall be given to all interested parties; (3) that hearings shall be held between the second Monday in September and the first Monday in October, and that the Tax Commission must render its decision in writing and transmit a copy thereof to all interested parties on or before October first; and (4) that the Tax Commission shall place the property assessed by it on an equality with the assessment of other property.
Under the Statutes of Colorado (sections 7221 to 7269, inc., C. L. Colo. 1921), property other than public utility property is assessed by the county assessors of the several counties.
Section 7291, C. L. Colo. 1921, provides that the assessor, prior to the first Tuesday in August of each year, shall mail to each taxpayer, whose property has been assessed at a valuation other than that given in the schedule filed by such taxpayer, a statement of such change in valuation and shall give notice, by publication in at least one issue of a paper published in the county seat, that on a day named he will sit to hear any and all objections to the assessment roll, and that the assessor shall continue such hearing from day to day until all grievances shall have been heard but that the hearing shall be completed before the first day of the initial meeting of the county board of equalization.
Section 7458, C. L. Colo. 1921, provides: (1) That the County Board of Equalization shall hold two regular meetings at the office of the county clerk at the county seat, the first commencing on the first Tuesday in September and continuing not less than three nor more than ten consecutive days, and the second meeting commencing on the third Tuesday in September and continuing not less than three nor more than ten consecutive days; (2) that if, at the first meeting, any changes are made or directed to be made by such board, in the assessment of any person or persons, the county clerk shall mail to each of such persons written notice of such change, and that such board shall, at its second meeting, sit to hear the complaints of those dissatisfied with such changes and to adjust the assessment so as to equalize the same among the several taxpayers of the county; and (3) that if the meeting shall prove too short for the consideration of all cases for adjustment, such board may, by order, extend the time of such meetings to not to exceed ten additional days.
It will thus be seen that through two independent agencies, one, the county officials as to property generally, and, the other, the Tax Commission as to public utility property, complete provision is made for (1) the assessment of all the property of the state, (2) an opportunity for a taxpayer to file complaints with reference to the assessment of his property, (3) notice of such complaints to the parties affected, and (4) a hearing thereon. Before the first day of the meeting of the State Board of Equalization, such hearings have been held and such assessments completed by such tax assessing agencies.
Section 7292, C. L. Colo. 1921, provides that an appeal may be taken, on or...
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