52 Colo. 609 | Colo. | 1912
delivered the opinion of the court:
In August, 1904, unusual and unprecedented floods washed away or destroyed the bridges across the natural streams in Bent county, and otherwise materially damaged the public roads. Thereafter, and on August 30, 1904, the board of county commissioners entered into a contract in the sum of $5700. for the rebuilding of a span of a bridge, so destroyed, across the Arkansas River, known as the Caddoa bridge. When the contract was entered into there was in the county treasury, belonging to the proper fund, a sum in excess of the contract price of the repairs, but it was known to the board of county commissioners that nearly all of such fund, together with the contingent fund, would be consumed by the ordinary expenses of maintaining the roads and bridges, aside from the repairs in question, and if the Caddoa bridge was repaired, and the ordinary expenditures for roads and bridges made, the road and bridge fund for the fiscal' year would not equal such total expenditures by about $3900. Subsequent to the making of the contract, but prior to the completion of the repairs, the commissioners caused other work to be done upon the roads and bridges-of the county, and drew warrants for the cost thereof, which were paid, so that upon the completion of the Caddoa bridge there had been paid on the contract price thereof only the sum of $1800., leaving a balance of $3900. after the road and bridge fund, and the contingent fund for the fiscal year were exhausted.
Such was the condition of the county’s affairs on November 30, 1904, at the time of making the general
Thereafter, at the beginning of the fiscal year of 1905, warrants were drawn upon the “special fund” in favor of the contractors who made the repairs on the Caddoa bridge, and were paid by the county. Subsequently, the defendant in error, which operates a railroad ’through Bent county, paid all taxes assessed against it for the fiscal year of 1905, except solely the 2.5 mills levied as a “special fund,” and prosecuted a suit in the district court to enjoin procedure by the proper officers to collect the same. The injunction was granted, and the defendants in that, suit bring the cause here for review on error.
Public interest, judicial announcement, and, in this state, statutory enactment, are opposed to injunctive interference in the collection of the public revenues.—State Railroad Tax Cases, 92 U. S. 575, 613, 614; Dows v. City of Chicago, 11 Wall. 108; Hannewinkle v. George
The policy of non-interference by the courts with the process of collecting the taxes on which the state depends for its continued existence, “is founded in the simple philosophy derived from the' experience of ages, that the payment of taxes has to be enforced by summary and stringent means against a reluctant and often adverse sentiment; and to do this successfully, other instrumentalities and other modes of procedure are necessary, than those which belong to courts of justice.”-—State Railroad Tax Cases, supra.
In Dows v. City of Chicago, supra, cited and quoted from in the State Railroad Tax Cases, supra, after commenting upon the necessary reliance of the state governments upon the prompt collection of the taxes for their support and maintenance, and the ill consequences of interference with their'proceedings in that matter, it is said:
“No court of equity will, therefore, allow its injunction to issue to restrain their collection, except where it may be necessary to protect the rights of the citizen whose property is taxed, and he has no adequate remedy by the ordinary processes of the law. It must appear that the enforcement of the tax would lead to a multiplicity of suits, or produce irreparable injury, or where the property is real estate, throw a cloud upon the title of complainant, before the aid of a court of equity can be invoked.”
While, perhaps, no absolute limitation has been placed upon the powers of courts of equity in restraining the collection of illegal taxes, it is settled beyond question that “in addition to illegality, hardship, or irregularity,
So recognizing the law, and appreciating the necessity of prompt payment of the public revenue as an essential prerequisite to efficient government, the general assembly enacted a law that, * * * “in all cases where any person shall pay any tax, interest or cost, or any portion thereof, that shall thereafter be found to be erroneous or illegal, whether the same be owing to erroneous assessment, to improper or irregular levying of the tax, or clerical or other errors or irregularities, the board of county commissioners shall refund the same without abatement or discount to the taxpayer.—Sec. 5750, R. S., supra.
We do not hold that this statute affords an adequate remedy to the taxpayer in all cases founded upon an erroneous or illegal tax. We readily conceive that a case might arise in which the complainant would not have an adequate remedy by an action at law based upon the statute. Facts like those in Cummings v. National Bank, 101 U. S. 153, would bring a case within the exception. The case at bar, however, is not within the exceptions recognized by the authorities, and the trial court erred in taking jurisdiction of the case. Nevertheless,' as the parties stipulated in the trial of the cause that the sole question involved was the legality of the tax in question, and if the tax was found to be illegal, the injunction should be made permanent," regardless of the
The trial court held, and the defendant in error maintains, that the contract for the repairs on the Caddoa bridge was void, for the reason that when it was entered into there was not sufficient money in the county treasury belonging to the proper fund out of which payment for such repairs could be made. The holding of the court, and the assumption of counsel in that respect has no support in the record. On the contrary, the stipulation of the parties is to1 the effect, that the contract for the repairs was made on the 30th day of August, 1904; that on said date “there was in the proper fund sufficient money to pay for the construction of said bridge;” that the fund so on hand was afterwards consumed in the ■ necessary repairs of other bridges and roads before warrants could be issued for the contract in question.
As far as the legality of the contract is concerned, we think it wholly immaterial as to what caused the necessity for the work, or what knowledge the commissioners had as to the necessity of doing other work, or the necessary expenditures therefor. The primary duty rests upon the state to open, construct and maintain public highways, and such duty, in part, at least, has been imposed by such sovereign power upon the counties, and entrusted to the various boards of county commissioners therein.
The county commissioners, within the legitimate limits of their power, brought into existence for the fiscal year of 1904, a specific fund for “Roads and Bridges” in Bent county. Such commissioners had exclusive power
It is claimed, by defendant in error, that the board of county commissioners, in making the levy assumed to do so under the authority of the legislative act, Session Laws 1893, chapter 54, pp. 100-102, but failed to comply with the essential requirements of that act; and further,
It may be, though we shall not now determine, that the purpose and intent of the act of 1893, was as defendant in error contends, though it is certain the act contains expressions that might include indebtedness subsequently incurred. However that may be, we think the levy can be sustained, without reference to the existence, non-existence or purpose of that act. We think that an essential part of section 4 of the act of 1891 sufficient to support this levy, was in no wise affected by the act of 1899. llie latter act, as it applies to the county in question, authorizes the levy of not to exceed 16 mills on each dollar of valuation “for ordinary county revenue, including the support of the poor and for the purpose of raising a fund to meet any unforseen contingencies,” and an unlimited rate “for the erection, maintaining, repairing, leasing or renting of county buildings, for roads and bridges, bonds and interest thereon, or judgment bonds and interest thereon, and for school purposes.” When we consider the several purposes enumerated in the statute for which taxes shall be levied, it is apparent that no provision is made therein for the raising of a- fund “for the purpose of paying outstanding warrants and for floating indebtedness.” However desirable it may be that the affairs of the several counties be conducted on a cash basis, from, the revenues derived each year from taxation, it is a matter of common knowledge that to do so is. practically
Possessing such knowledge, we do not think it reasonable or probable that the general assembly intended to malee it impossible for a county to pay a valid indebtedness previously incurred, from funds arising from taxes levied in a subsequent year, unless the indebtedness be first reduced to judgment. To do so would be useless and absurd.. Such, however, would be the effect of the legislation if all of section 4 of the act of 1891 was repealed by the act of 1899. This is true, for the latter act does not authorize the raising of a fund for the payment of a debt previously contracted. The expression “for ordinary county revenue” as used in the statute must necessarily mean the sum or amount set aside for the ordinary expenses, such as the payment of officers, expenses of courts, etc., and in no sense a debt previously existing, the latter not coming within the ordinary or usual. Neither would it fall within an unforeseen contingency. A fund, to meet an unforeseen contingency must necessarily refer
It, therefore, follows that the levy is valid, unless designating it “special fund” makes it void. While such designation is indefinite, nevertheless, we think it sufficient when aided, as it is, by the annual appropriation resolution. The statute requires the commissioners to pass a resolution to be termed the annual appropriation resolution for the next fiscal year, at the same time that the county levy of taxes is made. It also requires the specification therein of the objects and purposes for which such appropriations are made, and the amount appropriated for each object or purpose. Sec. 1215, R. S. The resolution sets aside the sum raised by the special fund “for liquidation, payment and redemption of unliquidated and unpaid amounts.” This we think sufficient, as that which was uncertain is thereby made certain. The act of levying and the act of appropriation must necessarily be construed together. The judgment of the trial court was wrong, and is, therefore, reversed, with directions to dissolve the injunction, and dismiss the complaint. Judgment reversed.