THIS is an action at law by the representatives of a taxpayer against the board of county commissioners of a county, to recover taxes he had paid on lands assessed to him on the mistaken and erroneous premise that he was the owner thereof. The action is based on a statute, the pertinent part of which reads: "* * * and 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." '35 C.S.A., c. 142, § 281. The taxpayer enjoyed a favorable finding and judgment below.
It appears that the lands involved always have belonged to the state; that in an attempted construction of an irrigation system, the company engaged therein became the owner in fee of a considerable tract of land, and enjoyed easements from the state of other lands (those here), "with provision for reversion to the state in case of abandonment," etc. There was abandonment of the project, and the company interested in the
matter, proceeding pursuant to court order in the premises, and employing a quitclaim deed to that end, conveyed its "entire property," but describing none of it particularly, to Henry L. Doherty and Company, a copartnership, of which plaintiffs' decedent was the sole survivor and owner. At the time of the conveyance, the "abandonment," as of course, had worked elimination of the use rights the irrigation company had enjoyed in relation to the state lands involved in this action. At no time, as should be emphasized, did Doherty and Company, or plaintiffs' decedent, own the lands involved in this action, or enjoy easement, use, or other right therein or thereto, and for none of the years for which plaintiffs' decedent paid taxes thereon (1925-1937), or ever, were said lands assessable for taxes at the instance of any authority for any purpose whatsoever. It appears, however, that the county assessor, giving attention to the property considered as the "system," as the irrigation project was known, and failing to note that plaintiffs' decedent did not have title to the state lands, nevertheless scheduled them as belonging to him, and plaintiffs' decedent's agent, examining the schedule submitted to him by the assessor, which included much land that did belong to his principal, likewise failing to note that certain of the lands included in the schedule so prepared by the assessor, were the said state lands, ok'd the schedule as submitted by the assessor. There was no evidence that either such assessor or said agent was cognizant of, or suspected, that the premise indulged by both of them through the years involved, was erroneous. Of a verity, neither could have had interest or purpose in accomplishing what resulted from their error. Giving attention to the fact situation, the trial court, amply justified, as we think, found "That the plaintiff and the county, by mutual mistake during all the years in question, assessed said lands and paid taxes without any negligence on the part of either the county or the taxpayer."
That the land on which the taxes sought to be recovered were levied and paid, was nontaxable is not gain-said. In relation to property which is taxable, however, many situations have been presented and various conclusions, all tied to the fact that the property involved, in some manner or degree, were subject to taxation, have been stated in our reports. Many of those cases have been cited by counsel for plaintiff in error. We regard them as not applicable. We are dealing with a situation which presents no complications. The property here was not taxable. Through error and mistake, a tax was levied against it, and plaintiffs' decedent made payment thereof. Recovery of the sum resulting from the tax thus illegally levied, and mistakenly paid, is sought in an appropriate common-law action. We think of no situation to which the statute would more aptly apply.
[1] Generally, as seems certain, in the absence of such a statute, payment of a tax is voluntary, and, although the tax may be erroneous or invalid, still the money paid cannot be recovered. The rule applied especially to taxes levied on real property, as here, for in relation thereto the process of collection is so gradual, and so many opportunities of resistance obtain, payment in manner here concluded the taxpayer. Union Pac. R.Co. v. Board of Com'rs, 222 Fed. 651. But, as the court there further observed, "The statute of Colorado here under consideration changes that law. It provides that, in all cases in which a person shall pay a tax which is for any reason erroneous or illegal, the board of county commissioners shall refund the same without abatement or discount. This is substantive law. It gives a new right. The statute has nothing to do directly with the law of procedure. The remedy for the enforcement of the right which it gives is not prescribed by the statute. That remedy is a suit at law. It is given by the common law. * * * This remedy, as Mr. Justice Van Devanter points out in Singer Sewing Machine Co. v. Benedict, 229 U.S. 481, 33 Sup. Ct. 942, 57 L. Ed. 1288, is available in the federal courts the same as in the state courts." The "new right" which the statute affords, and which may be enforced through a remedy "given by the common law," prompted the court in South Broadway Nat.Bank v. City and County of Denver, 51 F.2d 703, proceeding on the allegation that the assessment and levy were "illegal and invalid," to say that "indebitatus assumpsit" would lie, and approved the doctrine announced in First National Bank v. Patterson, 65 Colo. 166,176 Pac. 498. The federal court denied recovery there, however, on the theory that since the controlling question had to do with valuation of the property which had been assessed, not the legality of the assessment as such, the taxpayer should have resorted to administrative agencies. In short, the property there was taxable, and the controversy did not involve the recovery of a tax paid pursuant to a levy illegally and erroneously made on property not taxable, as here.
[2] In recognition of the necessity for prompt collection of taxes, and regardless of alleged error or illegality of levies, to require it in the first instance, the general assembly enacted the statute of the taxpayer's reliance here, the sum of which is that the taxpayer shall pay in any event, but if the tax is illegal or shall "thereafter be found to be erroneous or illegal," etc., "the board of county commissioners shall refund the same without abatement or discount to the taxpayer." Bent County v.Santa Fe Co., 52 Colo. 609, 125 Pac. 528. The applicability and efficacy of the statute is emphasized in Kendrickv. A. Y. Minnie M. M. Co., 63 Colo. 214,164 Pac. 1161. In Spaulding Mfg. Co. v. La Plata County,63 Colo. 438, 168 Pac. 34
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THIS is an action at law by the representatives of a taxpayer against the board of county commissioners of a county, to recover taxes he had paid on lands assessed to him on the mistaken and erroneous premise that he was the owner thereof. The action is based on a statute, the pertinent part of which reads: "* * * and 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." '35 C.S.A., c. 142, § 281. The taxpayer enjoyed a favorable finding and judgment below.
It appears that the lands involved always have belonged to the state; that in an attempted construction of an irrigation system, the company engaged therein became the owner in fee of a considerable tract of land, and enjoyed easements from the state of other lands (those here), "with provision for reversion to the state in case of abandonment," etc. There was abandonment of the project, and the company interested in the
matter, proceeding pursuant to court order in the premises, and employing a quitclaim deed to that end, conveyed its "entire property," but describing none of it particularly, to Henry L. Doherty and Company, a copartnership, of which plaintiffs' decedent was the sole survivor and owner. At the time of the conveyance, the "abandonment," as of course, had worked elimination of the use rights the irrigation company had enjoyed in relation to the state lands involved in this action. At no time, as should be emphasized, did Doherty and Company, or plaintiffs' decedent, own the lands involved in this action, or enjoy easement, use, or other right therein or thereto, and for none of the years for which plaintiffs' decedent paid taxes thereon (1925-1937), or ever, were said lands assessable for taxes at the instance of any authority for any purpose whatsoever. It appears, however, that the county assessor, giving attention to the property considered as the "system," as the irrigation project was known, and failing to note that plaintiffs' decedent did not have title to the state lands, nevertheless scheduled them as belonging to him, and plaintiffs' decedent's agent, examining the schedule submitted to him by the assessor, which included much land that did belong to his principal, likewise failing to note that certain of the lands included in the schedule so prepared by the assessor, were the said state lands, ok'd the schedule as submitted by the assessor. There was no evidence that either such assessor or said agent was cognizant of, or suspected, that the premise indulged by both of them through the years involved, was erroneous. Of a verity, neither could have had interest or purpose in accomplishing what resulted from their error. Giving attention to the fact situation, the trial court, amply justified, as we think, found "That the plaintiff and the county, by mutual mistake during all the years in question, assessed said lands and paid taxes without any negligence on the part of either the county or the taxpayer."
That the land on which the taxes sought to be recovered were levied and paid, was nontaxable is not gain-said. In relation to property which is taxable, however, many situations have been presented and various conclusions, all tied to the fact that the property involved, in some manner or degree, were subject to taxation, have been stated in our reports. Many of those cases have been cited by counsel for plaintiff in error. We regard them as not applicable. We are dealing with a situation which presents no complications. The property here was not taxable. Through error and mistake, a tax was levied against it, and plaintiffs' decedent made payment thereof. Recovery of the sum resulting from the tax thus illegally levied, and mistakenly paid, is sought in an appropriate common-law action. We think of no situation to which the statute would more aptly apply.
[1] Generally, as seems certain, in the absence of such a statute, payment of a tax is voluntary, and, although the tax may be erroneous or invalid, still the money paid cannot be recovered. The rule applied especially to taxes levied on real property, as here, for in relation thereto the process of collection is so gradual, and so many opportunities of resistance obtain, payment in manner here concluded the taxpayer. Union Pac. R.Co. v. Board of Com'rs, 222 Fed. 651. But, as the court there further observed, "The statute of Colorado here under consideration changes that law. It provides that, in all cases in which a person shall pay a tax which is for any reason erroneous or illegal, the board of county commissioners shall refund the same without abatement or discount. This is substantive law. It gives a new right. The statute has nothing to do directly with the law of procedure. The remedy for the enforcement of the right which it gives is not prescribed by the statute. That remedy is a suit at law. It is given by the common law. * * * This remedy, as Mr. Justice Van Devanter points out in Singer Sewing Machine Co. v. Benedict, 229 U.S. 481, 33 Sup. Ct. 942, 57 L. Ed. 1288, is available in the federal courts the same as in the state courts." The "new right" which the statute affords, and which may be enforced through a remedy "given by the common law," prompted the court in South Broadway Nat.Bank v. City and County of Denver, 51 F.2d 703, proceeding on the allegation that the assessment and levy were "illegal and invalid," to say that "indebitatus assumpsit" would lie, and approved the doctrine announced in First National Bank v. Patterson, 65 Colo. 166,176 Pac. 498. The federal court denied recovery there, however, on the theory that since the controlling question had to do with valuation of the property which had been assessed, not the legality of the assessment as such, the taxpayer should have resorted to administrative agencies. In short, the property there was taxable, and the controversy did not involve the recovery of a tax paid pursuant to a levy illegally and erroneously made on property not taxable, as here.
[2] In recognition of the necessity for prompt collection of taxes, and regardless of alleged error or illegality of levies, to require it in the first instance, the general assembly enacted the statute of the taxpayer's reliance here, the sum of which is that the taxpayer shall pay in any event, but if the tax is illegal or shall "thereafter be found to be erroneous or illegal," etc., "the board of county commissioners shall refund the same without abatement or discount to the taxpayer." Bent County v.Santa Fe Co., 52 Colo. 609, 125 Pac. 528. The applicability and efficacy of the statute is emphasized in Kendrickv. A. Y. Minnie M. M. Co., 63 Colo. 214,164 Pac. 1161. In Spaulding Mfg. Co. v. La Plata County,63 Colo. 438, 168 Pac. 34, we said: "Recovery is sought in this case under a specific and unqualified statute commanding a refund by the county of every erroneous or illegal tax paid, and does not involve the general law upon the subject. * * *. The statute provides that when 'any person shall pay' an illegal or erroneous tax, the
board shall refund." Since the taxpayer there had paid the illegal tax, we reversed the judgment below and required the county to refund. "If the tax was not legally laid, plaintiff in error [taxpayer] could, upon payment thereof, recover the same from the county under the provisions" of the statute. First National Bank v. Patterson,supra. In Antero Lost Park Reservoir Co. v.Board of Com'rs, 65 Colo. 375, 177 Pac. 148, taxes had been levied and paid on property not taxable. We sustained an action brought under the statute, and required the county to "refund the tax." Again, as we have said, "It has been several times pointed out * * * that section 5750 R.S., 1908 ['35 C.S.A., c. 142, § 281], affords an adequate remedy in case of an illegal or erroneous levy."Denver R. G. R. R. Co. v. Commissioners, 69 Colo. 212,193 Pac. 555. In a subsequent Antero Company case against Board of County Commissioners, 75 Colo. 131,225 Pac. 269, we affirmed a judgment for refund of taxes paid on property not taxable. For discussion of the principles involved and review of the authorities, see,Boyer Bros. v. Commissioners, 87 Colo. 275, 288 Pac. 408. In Miller et al. v. Commissioners, 92 Colo. 425, 432,21 P.2d 714, "increased valuations" of real estate was the basis on which the taxpayer claimed a refund pursuant to the statute here. Mr. Justice Burke, writing our opinion, said that the taxpayers had neglected to question such valuation directly, which, pursuant to another statute, was their burden, and added: "They say there are but two prerequisites to a suit under the latter section [the section here], i.e., that the tax be paid and that it be erroneous or illegal. First National Bank v.Patterson, 65 Colo. 166, 176 Pac. 498. But here," Justice Burke continued, "the tax was neither erroneous nor illegal. If incorrect for any reason it was simply that it was excessive. In Antero Co. v. Park County, 65 Colo. 375,177 Pac. 148, the tax in question was not excessive. It was levied against nontaxable property, hence was both erroneous and illegal." In the foregoing opinion,
written in the light of our opinions in earlier presentations, the line of distinction obtaining between claims made because of erroneous or illegal assessments, for example, on property not taxable, and those made because of excessive valuations on property that is taxable, is illuminated. As to erroneous assessments, and, as already stated, the case under review not only has to do with property not belonging to the taxpayer to whom it was assessed, but was not assessable to any taxpayer on any hypothesis whatever, the unmistakable doctrine is that the statute invoked warranted the judgment given below, while as to excessive valuations, as Justice Burke emphasized, the taxpayer must seek relief pursuant to another statute.
[3] The unmistakable doctrine which should control here, as we think, appears from our decisions, which we have undertaken to state. The county, however, basing its contention on '35 C.S.A., chapter 142, section 50 (amended, S.L. '43, p. 492), claims that since the taxpayer, through his agent, approved the tax schedule submitted by the county assessor, and which included the state lands, he may not claim under the statute here, a statute which, for immediate consideration, is restated, some words thereof being italicized, broadly provides that, "in all cases where any person, shall pay any tax, * * *, that shall thereafter be found to be erroneous orillegal, whether the same be owing to erroneous assessment, to improper or irregular levying of the tax, orclerical or other errors or irregularities, the board ofcounty commissioners shall refund the same without abatement or discount to the taxpayer." ('35 C.S.A., c. 142, § 281.) The section of the county's reliance, provides that, every "inhabitant * * * shall set down * * * all real estate situate within the county by him owned or controlled on the first day of April, of the then current year, describing," etc. Certainly, that statute is reasonable, and should be observed. But it is a far cry, we think, and most unjust, to say that because a
taxpayer's agent, proceeding in the manner and under the circumstances here, mistakenly schedules real estate that not only does not belong to his principal, but is nonassessable state lands in which he has no interest, and, while continuing in error, pays the taxes levied thereon, does not come within the "new right" which the statute invoked by the taxpayer clearly declares. "Submission of property not taxable confers no authority on the taxing officers to assess or levy a tax thereon, and being without authority so to do, the taxpayer cannot be estopped by such listing from asserting such want of authority or the illegality of taxes levied and collected thereon." Commercial Nat. Bank v. Board ofSupervisors, 168 Ia. 501, 150 N.W. 704. See, also, Charlestownv. County Com'rs, 109 Mass. 270; 3 Cooley on Taxation (4th ed.), p. 2557, § 1280.
Since Stephens v. Board, 104 Colo. 556, 92 P.2d 732, is cited and emphasized by plaintiff in error, we pause to give it particular consideration. That case had to do with the valuation of a stock of merchandise, which, perforce, was assessable pursuant to a special statute ('35 C.S.A., c. 142, § 54) (amended S.L. '43, p. 493), which does not require itemization or description of property in kind, but a valuation based on the merchant's average investment, etc. There, although the opinion does not make it wholly clear, the record shows that the merchant filed schedules for 1932 and 1933, in which he fixed the value of his stock, based whereon assessments and levies were made by the proper officers, and paid by the taxpayer. November 3, 1936, the merchant, claiming he had over valued his merchandise for the years mentioned — 1932 and 1933, demanded refund, which was refused. February 17, 1937, four and five years subsequent to the respective events, he instituted action to recover, and invoked the statute involved here. That the merchant's merchandise was taxable was never in question, but only its value, and relief as to that, as already we have shown by our decisions, should
have been sought pursuant to another statute. In such situation, as of course, and as the trial court there had adjudged, we denied recovery. In no conceivable sense, as we are convinced, is the Stephens case comparable to the present inquiry.
[4] It is urged that since, necessarily, the taxes collected have been distributed or allocated to the state, school district, municipality, as well as to the county, that that should prompt us to withhold relief. Such allocation always obtains. That, no doubt, was what prompted the General Assembly to employ the significant words with which the statute is concluded, that is to say, "the board of county commissioners shall refund the same without abatement or discount to the taxpayer." Besides, by simple bookkeeping entries, the county can charge the state and all other agencies for which it collects taxes, with whatever sums it has allotted and paid to them, which because of erroneous or illegal assessments it has been required to refund. See,Union Pac. R. R. Co. v. Board of Com'rs, 217 Fed. 540, where it is said: "Again, we are told that the remedy given by the statute will lead to multiplicity of suits. The county treasurer is, under the statutes of Colorado, the collector of all taxes, state, county, school and municipal. In the accounting system, which the law provides, he is required to pay over the taxes to the state, city, school, and town authorities as the same are collected. It is therefore urged that, if the plaintiff should pay the taxes here complained of, they would be promptly distributed to the several public treasuries on whose behalf they were levied, and that plaintiff would be compelled to resort to a separate suit against each of these in order to recover the money paid. These difficulties are all of counsel's own creating. They do not exist in the statute. Its language is plain and comprehensive. It provides that: 'In all cases where any person shall pay any tax, interests or costs, or any portion thereof, that shall be found to be erroneous or illegal
* * * the board of county commissioners shall refund the same, without abatement or discount to the taxpayer.' As to state taxes, there is an express provision giving to the county credit in its accounting with the state for any taxes that have been refunded. We have no doubt that the same remedy would apply as to municipalities, and that the county treasurer could take credit in his settlements made from time to time with them for their proportion of any sum which the county was compelled to pay as a refund. Be this as it may, the language of the statute is plain. It has existed for more than 40 years. It has been repeatedly held by the highest court of the state to afford the taxpayer a plain, speedy, and adequate remedy. We cannot, from speculative reasoning as to difficulties of accounting, hold that the aggrieved taxpayer will not receive, in a single suit against the county, the full compensation which the law provides. All these dangers as to multiplicity of suits were present in the case of Singer Sewing Machine Co. v. Benedict, 229 U.S. 481, 33 Sup. Ct. 942,57 L. Ed. 1288, and in Indiana Mfg. Co. v. Koehne, 188 U.S. 681,23 Sup. Ct. 452, 47 L. Ed. 651; and still the remedy provided by the statute was held to be plain, adequate, and complete." "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." Union Pac. R. R. Co.v. Weld County, 247 U.S. 282, 38 Sup. Ct. 510,62 L. Ed. 1110. The foregoing doctrine was approved in FirstNational Bank v. Patterson, supra.
[5] We cannot think the six-year statute of limitations has application. Almost immediately on discovery of the erroneous and illegal levy, the taxpayer demanded refund, and on refusal thereof this action was promptly begun, all long before the expiration of six years, in
fact well within one year. Plaintiff in error cites AnteroCo. v. Commissioners, 75 Colo. 131, 225 Pac. 269, but that case is distinguishable. From the beginning there, the taxpayer was apprised of the factual situation, contended at all times that the property was not taxable, yet, from year to year, although always protesting, it paid in accordance with the assessment. Our holding was that for the years for which the taxes had been paid, more than six years prior to filing the action, the statute applied, but for payment made within that period there should be recovery. Here, as already stated, both the taxpayer and the county authorities proceeded in error as to the facts until shortly before the taxpayer started action. The dissimilarity is obvious.
Let the judgment be affirmed.
MR. JUSTICE BURKE and MR. JUSTICE STONE dissent.