Rocky Ford enterprise., 1913-12-12


dertook to show that tax of 3H
property for the support of certain
high school in the City of La Junta
was illegal and. unwarranted, and
prayed that the defendant as county
treasurer be enjoined from proceed
and during all subsequent preliminary
proceedings, even down to the date
of the final argument after the trial
of the cause, the case seems to have
been regarded by all parties as purely
an equitable action. Ii appears, how
ever, that very shortly before the date
OF the final hearing plaintiff filed his
replication, and at the same time a
supplemental complaint, in which he
set up the fact that in order to avoid
the payment of interest and penalties
on his other taxes, he had under pro-
test paid the tax about which COM
plant was made, and prayed the court
to award him judgment for the return
of the tax SO paid under protest. Soon
thereafter the case was set for trial
At the time of setting the case for
trial some of counsel for both parties
were present in court and the hearing
was fixed for an agreed date on which
Il
would be in attendance upon the
court. One of counsel for defndant
even consented that If more agreeable
to the court, the case might be tried
| in Pueblo at chambers. When this
case was called on the appointed date,
both sides announced their readiness
for trial. The opening statements
were made by opposing counsel and
they substantially agreed that the
principal question in the case was
the legality or illegality of the tax in
question. Counsel for defendant pro-
posed that an agreed statement oi
facts be submitted to the Court, say
ing that the questions to be decided
were questions of law only. An,
agreed statement was not submitted
and the evidence was heard, but IT
developed that there was very little,
if any. dispute as to any material
fact in the case. At the conclusion
| of the testimony a subsequent date
was fixed for the final argument OF
| the case to the Court. Upon the
| final argument, for the first time,
| counsel for defendant raise the ques-
ton that this is not an equitable ac-
ton and move its dismissal. They
say:
The plaintiff has set up as supple
mental to the complaint herein that
on account of the summer adjourn
ment OF the court under its rules and
in order to avoid interest and penal
ties on his other taxes in question,
the plaintiff did on or about the first
day of August. 1913. pay under pro-
test the said three and one-half mill
levy along with the balance OF his
taxes
whatever may have been the
equitable rights of the plaintiff at
the time of the beginning of his ac-
ton. he appears to have no standing
in a court of equity at the present
time. His suit is for the purpose oil
obtaining an injunction against the
collection OF tax and as the record
now stands. there is no tax levied and
unpaid to be enjoined. II is difficult
to understand how the court could
enjoin the collection of tax which
is already paid. AS the case now
stands. instead OF having an equitable
action for restraining the collection
of these taxes, the plaintiff simply
has law action to recover taxes paid
ton to be decided by the court
Whether the tax is legal or illegal, 1t
has been paid and, having been paid,
the payment thereof cannot be en-
joined
The authorities to this proposition
cited by defendant are not conclusive
for the reason that in those cases the
right of the plaintiff to an injunction
was the only question involved. As
said by the supreme court of the Uni-
ted States in San Mateo County VS.. ).
P. R. r. Co. 116 U. S. 1888: For
the reason that there is no longer an
existing cause of action in favor of
the County against the Railroad CON-
pany, this writ of error is dismissed
But it is admitted by the defendant
that, the plaintiff in the case at bar
has "a law action to recover taxes
paid under protest. and counsel say
they were entitled to a jury. That
point is not we'll taken. At the time
when the date for the trial of this
case was fixed, the case was pending
as an equitable action pure and SIM
pie, and the trial was set for date
upon which it waa known to all par
ties that no jury would be in attend
ance. The subsequent filing OF the
supplemental complaint changed the
action from one in equity to one OF
law, but that fact was not called to
the Courts attention prior to the trial
and both sides voluntarily went to
trial to the Court without any sug-
gestion of a jury from any one. IT
they were entitled to a jury origin
ally, they waived their right to the
same by voluntarily going to trial
without asking it. After the conclu-
sion OF the trial. under such circum.
stances, il was too late for any one