Washington County v. Weld County

• Decision Date: 18 January 1889
• Parties: WASHINGTON COUNTY v. WELD COUNTY. LOGAN COUNTY v. SAME.
• Court: Colorado Supreme Court

20 P. 273

12 Colo. 152

WASHINGTON COUNTY v. WELD COUNTY.

LOGAN COUNTY v. SAME.

Supreme Court of Colorado

January 18, 1889

Error to district court, Weld county.

In the spring of 1887 the Sixth General Assembly passed two acts creating the counties of Washington and Logan, respectively by carving territory therefor out of the county of Weld. Each of these acts contained a provision to the effect that 'the present indebtedness' of Weld county should be apportioned between the new counties 'in proportion to the ratio which the taxable property of that portion of Weld county' included in each 'bears to the taxable property of Weld county as shown by the assessment rolls for the year 1886.' It appears that at the time of these divisions Weld county had no indebtedness, but, on the contrary, that there was a surplus of $60,000 in the treasury. Each of the new counties made demand through the proper officials for a share of the $60,000 in proportion to the ratio of its taxable property, as specified in relation to indebtedness by the statutory provision referred to. The commissioners of Weld county refused to comply with these demands, whereupon the present actions were brought by the counties of Washington and Logan, respectively, against the county of Weld. Demurrers were interposed to the complaints filed, and in each case judgment was rendered by the court sustaining the demurrer and dismissing the complaint. To review these judgments the present writs of error were sued out.

Markham & Dillon, C. A. Bennett, and E. A. Clark, for plaintiffs in error.

J W. McCreery and H. N. Haynes, for defendants in error.

HELM C.J., ( after stating the facts as above.)

In the absence of restrictive constitutional or statutory provision on the subject, when a new county is created by segregating a portion of the territory belonging to an existing county, the old county retains all assets previously owned by it including rights of action, funds, and other personal property; also all real estate held in proprietory right save such, if any, as may be within the territory taken away; it likewise remains bound by its existing contracts, and is subjected to the burden of discharging all existing obligations and liabilities. The new county receives none of the assets, and assumes none of the burdens. Cooley, Tax'n, 176, note 2; Laramie Co. v. Albany Co., 92 U.S. 307; Mount Pleasant v. Beckwith, 100 U.S. 514.

The reasons for the foregoing doctrine are that the title to all property and ownership of all assets are vested in the old county as a corporate entity, this entity being in no way disturbed by the division of its territory and separation from it of a portion thereof; while, on the other hand, all existing obligations and liabilities were incurred in its corporate capacity and name. Therefore, while the legislature has power to divest title and apportion property as well as indebtedness, yet, if such power be not exercised, there does not follow, as a legal sequence, either a transfer of the assets or liabilities to the new county. Creditors will not be heard to complain, because, in the first place, the legislature has plenary authority to divide counties; secondly, the claims of creditors are exclusively, as above suggested, against the old corporation; and, thirdly, they have no specific lien upon the property, real or personal, assigned to the new county by the act of separation.

The constitution of Colorado contains a provision requiring that each new county, upon the establishment thereof, shall be made responsible for a ratable proportion of the 'then existing liabilities of the county or counties from which such new county shall be formed.' But that instrument is wholly silent as to the distribution of the assets belonging to the old corporation. This matter is therefore governed by the doctrine above announced, unless provision otherwise be made by the general assembly when creating new counties; and if the legislative acts before us do not clearly abrogate this common-law rule, Weld county may retain the surplus funds shown by the pleadings to be in its treasury. The legislature may not have...