First National Bank v. Patterson
65 Colo. 166
Colo.
1917
Check Treatment
Mr. Justice White

delivered the opinion of the court:

After a careful consideration of the complaint, the points relied upon for reversal, and contention of counsel, in support thereof, we are of the opinion that the judgment of .the trial court was proper, and the plaintiff in error has not been deprived of either a constitutional or statutory right, or suffered any wrong of which it can justly complain. The injustice and discrimination, if any, arise wholly from an alleged overvaluation of property for taxation purposes, enforced by action of the State Tax Commission and the State Board of Equalization. No claim is made of actual fraud or intentional wrong. The alleged overvaluation was the result of a flat increase ordered by the State Tax Commission, and by the State Board of Equalization, upon the aggregate value of all the property within the county, originally assessed by the assessor, and imposed by the aforesaid central tax assessing agencies, in strict conformity with the provisions of section 31 of the Act of 1911, chap. 216, p. 623. Colorado Tax Commission v. Pitcher, 56 Colo. 343, 365, 367, 138 Pac. 509.

The fact that the Tax Commission raised the aggregate valuation of the property in the county originally assessed by the assessor, and did not raise the value of the property therein which was originally assessed by it, does not constitute discrimination. The Tax Commission was authorized by law “to bring the valuation of taxable property to the legislative standard of full cash value.” In making the valuation upon the property that it was authorized to assess, in the first instance, and increasing the value of that *173originally assessed by the assessor, it discharged this duty; and when the State Board of Equalization approved the assessments so made, the assessment of the property was finally fixed. Although the state taxing agencies did not make the same increase or raise upon the several aggregate valuations returned by the different assessors, in other counties, as they made in Weld County, it does not constitute a discrimination of which plaintiff in error is in a position to complain. It concedes that it was cognizant of, and satisfied with, the assessment made by the assessor. But the law also made it cognizant of the fact that such assessment was subject to change by superior governmental agencies who were required to meet at certain places, on certain days, and complete their labors within designated dates. With full knowledge of the respective powers of these several boards to make corrections in assessments and adjustments in equalization, essential to' bring about a complete and equitable assessment of all property within the state, it remained inactive until long after the tax was, laid, when it applied for an abatement or rebate of the tax, The aforesaid tribunals were open to plaintiff in error prioi to the laying of the tax, but it refrained from seeking relie: therein, and may not now complain. Colorado Tax Commission v. Pitcher, supra, 368, 375.

The case is unlike Cummings v. National Bank, 101 U. S. 153, 25 L. Ed. 903. In that case the acts and agreements of some of the different assessing bodies brought the matter within the jurisdiction of equity, as clearly appears in the opinion, page 161. In fact, there were four different bodies, acting independently of each other, in regard to as many different classes of property in fixing the final valuation thereof for taxation purposes, and by agreement among some of them, certain classes of property were assessed at one-third of their actual value, other classes at six-tenths of their value, and still other classes at their true value. This, in substantial effect, constituted conspiracy and actual fraud, and there was no means of relief, as there is in this *174state, through a supervisory board, with authority over all to finally fix values. The lack of such board is made an important factor in that case, page 159. Mere errors or excess in valuation, or hardship, or injustice of the law, or any grievance which can be remedied by application to agencies specially invested with power to act in the premises, either before or after payment of taxes, do not call for a court of equity to interpose by injunction to stay collection of a tax. Bent County v. Santa Fe, etc., 52 Colo. 609, 125 Pac. 528.

In this state we have a system of assessment of property for revenue purposes peculiarly sane and sound. The local authorities have supreme power to cause equality of valuation upon the property of individuals within the counties; a Tax Commission, and a State Board of Equalization, have like power to take the aggregate returns from the several counties, and if they find that a county has had its property assessed too low, in reference to the standard of full, cash value, they may raise its valuation.

But apart from this, if the tax was not legally laid, plaintiff in error could, upon payment thereof, recover the same from the county under the provisions of § 5750 R. S. 1908. Woodward v. Ellsworth, 4 Colo. 580; Hallett v. Arap. Co., 40 Colo. 308, 9 Pac. 678; Bent County v. Santa Fe, etc., supra; Singer S. M. Co. v. Benedict, 229 U. S. 481, 57 L. Ed. 1288, 33 Sup. Ct. 942; Union Pac. R. Co. v. Commissioners, 217 Fed. 540, 133 C. C. A. 392.

The last case cited reached the United States Supreme Court (see Union Pac. R. R. Co. v. Weld Co., 247 U. S. 282, 38 Sup. Ct. 510, 62 L. Ed. 1110), where that court, speaking of this section of our statute, said: “That the taxes

were levied for state, school district, and town, as well as for county, purposes, is not material; for it is apparent from the Colorado statutes and decisions that the section covers broadly the whole of the tax that is found to have been erroneous or illegal, regardless of the purpose for which it was levied and placed on the county tax roll. And *175it is also immaterial that the taxes were made a lien on the company’s real property, for the lien would be effectually removed by paying them and suing to recover back the money.”

The statute also eliminates any question of multiplicity of suits, should the plaintiff in error pay the tax exacted and thereafter be called upon by its shareholders to account for the same. It did not file with the County Treasurer for the year a list of its stockholders, and the number of shares held by each, as required by § 5754 R. S. 1908. By reason of this negligence, it became liable for the payment of the tax, and by express terms of the statute, subjected its lands to sale, and its moneys, goods and personal effects to distraint for the payment thereof. Waite v. Dowley, 94 U. S. 527, 24 L. Ed. 181. Therefore, in a single action at law under the statute, it could protect itself and its shareholders, for whom it stands as trustee in the premises. In Union Pacific R. R. Co. v. Weld Co., supra, it was contended that by the fifth section of chap. 134, S. L. 1913, section 5750 R. S. 1908, supra, had been repealed, or so modified and changed that the taxpayer no longer had the right to sue for and recover from the county an erroneous or illegal tax paid. It was held that the question was not free from doubt, and as a ruling by that court on the question would neither settle it for the state court, nor be binding in an action to recover the tax if paid, equitable relief would be extended. So it becomes necessary to determine the effect of the new section on the old section. We are of the opinion that it does not substantially affect the continued existence of the right conferred upon the taxpayer to recover from the county an illegal or erroneous tax he has paid. It may be conceded that the new section prohibits any voluntary refunding of taxes by the County Board of Commissioners, save in instances having the approval of the State Tax Commission. But this in no sense takes away the right of the taxpayer given by the old statute to sue. The true meaning of §5750 is to impose a liability upon the , *176county in favor of a taxpayer who pays an illegal or erroneous tax, and a corresponding duty upon the commissioners, as agents of such county, to refund the same. The effect of the new section in no wise removes that liability, or deprives the taxpayer of his right to maintain a suit therefor, but only takes away the right of the commissioners, without first obtaining the approval of the Tax Commission, to refund the tax until it is “found”' by judgment of a court of competent jurisdiction that the tax is erroneous or illegal, establishing the liability of the county. In other words, without the approval of the Tax Commission, it may not be “found,” except by judgment of a court, that the tax is illegal or erroneous.

Decided May 7, A. D. 1917. Rehearing denied December 2, A. D. 1918.

We see nothing in the record which requires a court of \ equity to extend relief to plaintiff in error. All the Justices / concur, but Chief Justice Hill and Mr. Justice Teller desire Í to have it stated that they concur in the conclusions only. } Our former opinion is withdrawn and this substituted \ therefor. The conclusions in both are identical and the ap- j plication for rehearing will, therefore, be denied, and theJ judgment affirmed. It is so ordered.

Decision en banc.