No. 4870 | Colo. | Sep 15, 1904
delivered the opinion of the court.
For the material facts in this case reference is made to the opinion in School District No. 1 v. School Districts Nos. 7 and 35, ante, p. 43. In that case the ascertainment of petitioners ’ claims was made before the actual, or formal, levy of the tax by the hoard of county commissioners, hut after its certification by the school district; in this the ascertainment was not made until after both such acts were performed. Hence the'refusal of the respondent to pay the claims out of the special levy of 1903 was, if possible, more abundantly justified than in the other cases. The procedure adopted below in this cause was also different from that in the other two. Herein .the application was without notice and the alternative writ issued in the first instance, and was in the alternative commanding the respondent either to pay in cash the amount of the claim, or to levy a tax for such purpose; while in the other cases the peremptory writ, though the mandate thereof was in the same language, was the first and only one issued.
The judgment in this action, which awarded a peremptory writ requiring the respondent to pay the claim in cash out of the special levy of 1903, must he reversed for the same reasons given for the reversal of the judgments in the other two cases tried with it, hut the difference in the procedure adopted calls for a slightly different direction to the district court.— High’s Ex. Legal Bemedies (3d ed.) § 562.
The judgment is reversed and the cause remanded with instructions to the district court, upon petitioner’s request, to amend the alternative writ
Reversed and remanded.