Weidenhaft v. Board of County Com'rs of El Paso County

• Decision Date: 02 May 1955
• Docket Number: No. 17399,17399
• Citation: 131 Colo. 432,283 P.2d 164
• Parties: Ray W. WEIDENHAFT and Joy C. Weidenhaft, Plaintiffs in Error, v. The BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO; The Colorado Tax Commission, and John R. Seaman, A. A. Hall and Howard A. Latting, as the members thereof; and Duke W. Dunbar, as the Attorney General of the State of Colorado, Defendants in Error.
• Court: Colorado Supreme Court

Page 164

283 P.2d 164

131 Colo. 432

Ray W. WEIDENHAFT and Joy C. Weidenhaft, Plaintiffs in Error, v. The BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO;

The Colorado Tax Commission, and John R. Seaman, A. A. Hall

and Howard A. Latting, as the members thereof; and Duke W.

Dunbar, as the Attorney General of the State of Colorado,

Defendants in Error.

No. 17399.

Supreme Court of Colorado, En Banc.

May 2, 1955.

Rehearing Denied May 23, 1955.

George M. Gibson, Colorado Springs, for plaintiffs in error.

Duke W. Dunbar, Atty. Gen., Frank A. Wachob, Deputy Atty. Gen., for defendants in error.

CLARK, Justice.

Plaintiffs in error commenced action against the Board of County Commissioners of El Paso county to recover the entire amount of 1952 taxes levied on two separate parcels of their real estate situated in Colorado Springs, and paid by them under protest.

By their complaint plaintiffs allege that the tax assessment for the year 1952, while purporting to be that of the county assessor, actually was made by the Colorado Tax Commission (hereinafter referred to as Tax Commission, or Commission) pursuant to its state-wide reappraisal program, and that said assessment was imposed upon said assessor by the Commission by forcing that official to prepare an inventory of all buildings and property within his county, upon forms provided by the Commission, the valuations of said improvements to be fixed in accordance with a 'Tax Manual,' or pricing manual, likewise furnished by the Commission, said completed inventory, with the values determined as stated, being referred to as 'Building Description and Value Calculation' to be thereafter used as the basis for assessment as to all said properties. It further is alleged that all such valuations determined in accordance with said manual were based upon 1941 cost of reproduction instead of present market value. Finally it is alleged that the assessment for 1952, made as outlined in plaintiffs' complaint, is violative of section 8 of Article XIV of the Constitution of Colorado, and, therefore, is illegal and void, and that the acts of the Commission of which complaint is made, are without and beyond its authority and are contrary to law and of no legal effect.

The Tax Commission, appearing by the Attorney General, and the Attorney General, pro se, were granted leave to intervene, and joined the Board of Commissioners in answer to plaintiffs' complaint. By the answer it is admitted that the 1952 assessment was made pursuant to the general reappraisal program directed by the Tax Commission; that the documents referred to in the plaintiffs' complaint as having been transmitted to the assessor by the Tax Commission were so furnished and supplied; that said assessor was directed to make use of the same in determining the valuation of taxable property within his county, but it is denied that the acts of said Tax Commission in connection with said reappraisal, or the valuation of property thereunder, were, or that the assessment is, illegal in any respect; denied that the assessment was made by the Tax Commission; and affirmatively it is alleged that the same was made by the duly elected, qualified and acting assessor of said El Paso county; that all of the acts done by said assessor were required of him by law and were performed by him in pursuance of his duty as such officer. Following the specific admissions, denials and affirmative allegations by way of denial, is a general denial of 'each and every allegation of the complaint not * * * specifically admitted or denied.' Then follows a second separate defense attacking the sufficiency of the complaint, and third and fourth separate defenses pleading failure on the part of plaintiffs to avail themselves of various administrative remedies, thus barring them from recovery.

The evidence consists only of the documents furnished the assessor by the Tax Commission; the orders, minutes and resolutions of the Commission; plaintiffs' tax schedule; abstract of assessment, to which is appended the affidavit of the assessor verifying the assessment roll; and receipts for the payment of the tax under protest, all of which exhibits were admitted in evidence without objection, save as to their materiality. Only one witness was orally examined, and her testimony goes exclusively to an explanation of the manner in which the valuation index was compiled by use of the tax manual.

The trial court entered findings in effect that plaintiffs were the owners of the properties; that their 1951 valuation was $14,400, on which they paid a tax of $943.78; that the 1952 valuation was $34,930, on which they paid, under protest, a tax of $1,545.65; that the assessor of El Paso county, in fixing the valuation for 1952, caused a field inspection and appraisal of said premises to be made and 'fixed the valuation thereon by applying to said field appraisal, the formulae set forth in the pricing manual and chart card furnished to the Assessor by the Colorado Tax Commission in pursuance of the state's reappraisal program'; that said assessor used the same method for determining valuations of all property in said county and did not discriminate against plaintiffs or their property; that said assessor made use of said formulae and pricing manuals 'of his own volition and without coercion or usurpation by the' Tax Commission; that proper notices of time and place for correction of errors by the assessor and by the Board of Equalization were given; but that plaintiffs failed to appear; nor did they make complaint to the Tax Commission nor to the State Board of Equalization; nor avail themselves of any administrative remedy whatsoever. The trial court specifically found, 'that the said reappraisal program of the State of Colorado and the statutes authorizing the same, do not violate, or offend, the Constitution of the State of Colorado and particularly section 8 of Article XIV thereof.' Pursuant to the foregoing findings the court determined that the complaint failed to state a claim upon which relief could be granted and entered judgment against the plaintiffs.

At the outset, counsel for plaintiffs, emphasizing the fact that it is not the intention to claim a refund of any part of the tax paid, but insistence on the part of plaintiffs that the entire tax is illegal and void, voluntarily removes them from any relief that might have been afforded under the administrative procedures provided by statute. They insist that if their action is maintainable at all, it is pursuant to the provisions of 137-1-22, '53 C.R.S. Other points alleged by plaintiffs to be erroneous in the findings and conclusions of the trial court are:

(1) That the finding of the court that the assessor made use of the formulae and pricing manuals provided by the Commission as of his own volition, without coercion by the Commission, is unwarranted.

(2) That the trial court erred in finding that the reappraisal program, and the statutes authorizing the same, do not violate the Constitution of the State of Colorado and particularly section 8 of Article XIV thereof.

(3) That the Tax Commission violated section 8 of Article XIV of the Colorado Constitution by substituting its assessment for that which should have been made by the county assessor; and

(4) That said assessment is based upon reproduction value rather than market value and therefore is contrary to law.

At the outset counsel for plaintiffs was confronted with a dilemma in determining the form of his attack. His difficulty in this respect was first presented when he drew his pleadings; again when the case was heard by the trial court; and it pursues him likewise upon this review. If he admitts the constitutionality of the statute and asserts that injury resulted to his client only by reason of the improper application and administration of valid law, then his complaint falls into that class of proceeding where the tax may be said to be irregular, improper or erroneous, making recourse to the courts conditional upon his first having exhausted the usual administrative remedies. In such case the tax could not be said to have been illegally laid but erroneously computed, thus bringing the issues squarely within the rule announced in Bordner v. Board of County Commissioners, 92 Colo. 81, 18 P.2d 323; Miller v. Board of County Commissioners, 92 Colo. 425, 21 P.2d 714, and other decisions of our Court cited in Citizens' Committee for Fair Property Taxation v. Warner, 127 Colo. 121, 136, 254 P.2d 1005, wherein the Miller and Bordner cases were given approval.

Plaintiffs' approach would seem to be somewhat double-barrelled in that it is contended that if the statute is not unconstitutional and invalid, the proceedings conducted pursuant thereto were irregular and illegal. This lends merit to the separate defenses interposed on behalf of defendants to take advantage of the fact that the administrative remedies provided by various statutes had not been pursued; and, in the light of such defenses, also warrants the special findings of the trial court that plaintiffs had failed to pursue said administrative remedies, to which findings plaintiffs now object on the ground that they are immaterial and irrelevant to any issue in the case. It could well be that the case might be disposed of upon this issue alone, but we hesitate to pursue that theory to its extremity in view of the insistence of plaintiffs' counsel that his entire case is based upon the invalidity of the law and his admission that, unless he has an action maintainable under 137-1-22, '53 C.R.S., the proceeding must fail in its entirety.

In passing, attention should be called to the well-established rule that where one attempts to maintain a proceeding for a tax refund pursuant to the statute above cited, he has the burden of showing that the tax was illegally laid, is erroneous in its entirety, and incapable of adjustment. If the property be assessed too high, or...