Price v. Kramer, 4 Colo. 546

Price v. Kramer

4 Colo. 546 | Colo. | 1879

Elbert, J.

The bill alleges complainant’s ownership of thirteen hundred head of cattle, but does not show how many head were listed to him by- each County for the several years named. These facts were easily ascertainable from the assessment rolls, and the failure to allege them leaves the bill in this respect uncertain. Neither does it show that the number listed in one county corresponded with the number listed in the other county for any one year. On the other hand, it is alleged that for the year 1875, the complainant was listed in the county of Pueblo for a less number and for the year 1876 for a greater number than he owned, and in the county of Bent for the year 1876, also for a greater number. The general allegations that “all of the said cattle were taxed' in'said counties,” and that “it was the same herd” must be taken subject to these more specific allegations.

There is no allegation that the board of county commissioners of Pueblo county claims the right to tax the cattle of complainant, that on the 1 st day of May of the year for which the tax was levied, were in the county of Bent; nor is there any allegation that the board of county commissioners of the county of Bent claims the right to tax the cattle of complainant, that on the 1st day of May were in the county of Pueblo. Nor could any doubt arise upon either proposition if such right were asserted by either defendant. The law is plain, * * * “ horses, mules, cattle and sheep running at large and not worked, shall in all .cases *553be returned and assessed in the county in which they are being herded or kept on the 1st day of May in each year.” Applying the most liberal construction to the allegations of the bill of complaint, they amount to this — that the complainant is the o wner of thirteen hundred head of cattle, which roam at will in both the counties of Pueblo and Pent; that they are scattered here and there as their inclinations may lead them or the storms may drive them; that he is ignorant of how many head were on the 1st day of May of either of said years named, in the respective counties ; and that consequently he is ignorant of how many head each county had a legal right to tax for either of said years ; that for each of said years both of the said defendants have taxed him in some instances for more cattle than he owned in both of said counties, and in some instances for a less number ; that consequently for each of said years he has been listed and taxed for too large a number of cattle by one or the other of the said defendants; but by which he does not know, because he is ignorant of the locus of his cattle on the 1st day of May of the several years named.

It is plain that the whole difficulty grows out of uncertainty respecting a question of fact, namely : the locus of the complainant’s cattle on the 1st day of May of the years 1875, 1876 and 1877. Is this a proper case for the interference of a court of equity by an order of interpleader ?

Under the law it was the duty of the complainant to make return to the assessors of both counties, showing the number of cattle he owned running in each of the counties on the 1st dáy of May. In estimating cattle, the result may not be reached with entire certainty, but the duty is nevertheless imposed upon the owners to make some return upon which the authorities may act. Failing to furnish the information it is the duty of the assessor to act upon what means of knowledge he possesses. In any case, if injustice is done, either in assessing him for a larger number of cattle than are properly taxable, or in assessing him at all, he *554may present the facts to the commissioners, who constitute a board of equalization with power to correct the assessment roll. Revenue Laws of 1870, §§ 24, 29 and 39.

In the case of the People ex rel. Crawford v. Lathrop et al., 3 Col. 465, in speaking of the same provisions re-enacted, the court say: “We find here a complete system, with well-defined and minutely prescribed rules and regulations, guarding the property rights of the citizen, guarding equally the revenue necessities of the. State, acting through the instrumentalities of owners and assessors chosen by the electors of the several counties, listing, valuing and returning taxable property under the sanction of an oath, with the board of county commissioners acting as a board of appeal and review, all for the one purpose of ascertaining, determining and fixing the value of taxable property in each county of the State as a basis of taxation.

Here is a mode prescribed and a tribunal established by the law, for the purpose of determining the very question out of which the complainant’s grievances arise. It does not appear that the complainant ever listed his property in either of the counties for either of the years named ; nor does it appear that having been listed as he claims for too many cattle in each county, that he ever appeared before the county commissioners to have the assessment roll corrected. The proposition that a court of equity will take jurisdiction in such a case amounts to this : that the owner of personal property of doubtful locus may neglect his statutory duty of listing his property in the proper county, may neglect to appear before the tribunals established by law for the correction of errors in assessments, and by his bill of interpleader, devolve the duties of himself, the assessor and the board of county commissioners, upon a court of equity, and through its instrumentalities review and correct the assessment rolls. The proposition is. not to be entertained. 1STor is the plea of difficulty and expense a ground for equitable interference.

If there be difficulty and expense involved in determin*555ing the number of his cattle for which the complainant was legally taxable in each county, it is an incident to the kind of property and the complainant’s mode of keeping it.. Having neglected his statutory duty to list it, there is no-propriety or equity by an order of- interpleader to release him and throw this hardship and expense on the defendants.

Against an illegal tax complainant has a full and adequate remedy at law, and we see no reason why in this case he should not be remitted to that remedy. Cooley on Tax. 528; Brewer v. Springfield, 97 Mass. 152; Brooklyn v. Messerole, 26 Wend. 132 ; Rev. Law, Sess. 1870, p. 123, §106.

The text of Mr. Story (2 Story’s Eq. Juris.,- § 813 a), relied on by counsel for complainant, does not contemplate any such case, nor are the authorities upon which the text is based at all like the case at bar. In both the case of Thompson v. Ebberts, 1 Hopkins, 272, and in the case of Mohawk etc., Co. v. Clute, 4 Paige, 384, there was a doubt of law — not a doubt of fact — arising from the laches of the complainant, and which the complainant’s duty required him to ascertain.

The decree of the court below is reversed and the case remanded.

Reversed.