75 Colo. 298 | Colo. | 1924
delivered the opinion of the court.
This is an action by the Union National Bank of Greeley against the board of county commissioners of Weld county to recover excessive taxes for the years 1913 and 1914, with interest and penalties, which it paid to the county treasurer under protest. The action is based on section 7447, C. L. 1921. In Kendrick v. A. Y. & M. Co., 63 Colo. 214, 164 Pac. 1161, it was held that a writ of injunction would not lie to restrain the collection of such a tax, but that the statute cited provides a plain, complete and adequate remedy at law; for a taxpayer to recover from the county a tax which shall thereafter be found to be erroneous or illegal. This decision, however, was not that an action at law will lie in every case to recover the amount of an illegal or erroneous tax paid by a taxpayer. The right to sue is not absolute but conditional, and in the Kendrick Case it was held that the right was lost by failure of the taxpayer to comply with the prescribed condition.
After a careful consideration of this record and a reading of Colorado Tax Commission v. Pitcher, 56 Colo. 343, 138 Pac. 509, and First National Bank v. Patterson, 65 Colo. 166, 176 Pac. 498, the judgment of the district court, in sustaining the general demurrer to the complaint and dismissing the action, we think, was warranted. The Patterson Case involved taxes laid for the year 1913. The tax there complained of was laid in precisely the same
Mr. Chief Justice Teller and Mr. Justice Sheafor concur.