La Junta tribune., 1915-10-30
HIGH SCHOOL CASE Dlsanaan
(continusd from First Passy


taxes.
wherefore. having fully replied 4
said answer plaintiff prays that II a.
dition to holding said levy Of thsss
and one-half mills to be void no NJ,
be held to be entitled to the rotuf,
Of the portion thereof 20 paid By hin
since the institution Of this suit.
The case was tried to the court
The plaintiff contended that the lsv,
was illegal. because II section le
act 8. supra. Is properly construed. /,
limits the levy to property within III
school district In which the higi
school is located. to-wit, school dis
trict No. II. Further. that the &C,
Is unconstitutional. This court held
that when Section 1t. l.. '0S wai
construed In connection with otheI
sections. In pari materia. II contem.
plated that the levy should extend q
all property In the county and. there.
fore. contemplated levy upon ths
plaintiffs property. As to the con.
tention that the statute was uncou.
stitutional. l said In my former opin.
ion:
plaintiff insists that the Law In
question is unconstitutional. but II
would be unavailing for me to en-.
ter upon a discussion OF that Ques.
ton since ! could only give him relief
by declaring the law unconstitution.
al. and that declaration. II made a
all, under the existing Jurisprudence
OF our state. must be by the supreme
court OF the state"
Though believing the statute 70 be
unconstitutional. ! was forbidden "a
so declare. and hence had to dismiss
the action. On review the supreme
court considered but one question
the constitutionality OF the statute
The court says:
THE authority for levyinG the tar
upon the property of plaintiff In er.
ror in district .. is based upon the
provisions OF section 1S. above quot
ed. which authorizes the county com.
missioiers to levy a tax upon proper
ty In district 3. for the support Of q
school In district II. without givins
the electors OF the former district
any voice In the selection Of those
who manage and control the school
at La Junts. This violates. both In
letter and In spirit. Article .. Sec
tion Is OF our state constitution.
THE Judgment Of the district
court Is reversed and the cause re-
manded for further proceedings In
harmony with this opinion"
After this decision. the case stood
for trial de novo. II Was called %
for final disposition and plaintiff
stated that he now desired u money
judgment for the recovery OF the
taxes paid on the first of August
1913. AZ set out In his replication
above mentioned. The defendant
contends that the case should be- dis.
missed for the reason that the wrong
party is sued AS the defendant. aud
further that the plaintiff as . condi.
tion precedent TO bringing the suit
should have first presented his claim
TO the board OF county commissioner
for It's allowance.
As the case now stands. the plain.
tiff seeks to recover u money ludg.
ment upon q claim for taxes paid
which have been declared by the 50.
prcmc court TO be illegal. The De.
tendant IL sued a. the county treas.
urer Of otero county. and the qucs.
iion l.. can the treasurer Of the ooun.
~ be required TO refund these ,Ases
TO the plaintiff. the same having I'd.
miitedly been paid under protest.
Our statute provides that In all
cases where any person shall ray
taxes. Interest or cost. or any por.
ton thereof. thai shall be found "a
be erroneous or illegal. the board ol
county commissioners shall refund
the same. without abatement or dis.
count. 10 the taxpayer" This stat.
ute has existed for more than forts
years. and has b~cn repeatedly held
by the highest court Of the stat. "a
afford the taxpayer . plain. spoedy
and adequate remedy. Therefore, N
IL plain that n this were an ordinary
suit for the recovery of an y,as ,hsl
had already been paid. Il would have
10 be brought against the board o(
county commissioners.
II II eontendcd. however. by the
plaintiff In this case that the ruie
Just announced does not appl, fos
the reason that this suit va. oririn.