La Junta tribune., 1915-10-30

him judgment ehe1efor.
In addition 70 The statute above
quoted. which provides that ths hoard
OF county commissioner shall rofund
oil taxes found to - srroneous o. II
legal. there e another statute Sec
tion sol. ! Mills Annotated Statistics
which provides that IAN claims
and demands held BY any psrson
against county SHAH b pressnted
for audit and allowance TO the board
Of county commissioners Of the prop
er county in due form Of law. before
any action in any court shall be
maintained thereon
1t Is hence contsnded by the de-
fendsnt that the plaintiff in this case
should have presented claim 10 the
board OF county commissioners Of
Otero county for the return OF this
tax. before he was entitled to bring
suit for the same.
The position OF the defendant in
this matter seems 70 me TO be impreg-
nable. There IL no doubt whatever
that when Mr.. Wilson - county
treasurer received Q list and war
rant" from the assessor covering the
tax In question II was the plain duty
OF the treasurer 10 proceed to collect
the tax. Al said in Section 3s23 n.
3 Mills Annotated Statutes: The
treasurer. on receiving the tax list
and warrant. shall proceed to collect
the tax therein levied. and the list
and warrant shall be his authority
and justification against any illegal
i,y In the proceedings prior to re-
ceiving the list" And as said in
Hardesty ct al. vs.. Price. 3 Colo. $50:
"As II appeared on his lists. II was
not for him to inquire into the ie-
gality OF the tax. or entertain any
question respecting Il. Section as OF
the act made the list and warrant
his authority and justification against
any iilegaiity In the proceedings pri-
or to receiving the list. and Section
lis made his wilful neglect, or re-
fusai to perform any OF the duties
imposed by the act. . misdemeanor.
punishable by . fine and imprison-
ment." Hence. Notwithstanding the
action Of the plaintiff In this case. Il
was the plain duty OF the treasurer to
proceed to collect the tax IN question.
Again. having collected II. Il vas the
plain duty Of the treasurer to pay Il
out to the parties entitled 70 the
same. A said In Union Pacific Rail.
road Company W. Board Of County
Commissioners. 2l7 Fed. $40: The
county treasurer IL under the stat
utes Of Colorado. the collector Of all
taxes. state and county. school and
municipal. In the accounting sys-
TEN, which the Law provides. he u
required to pay over the taxes TO the
state. city. school. and town authori-
ties ~ the same are collected"
Therefore. II Is clear that the
county treasurer can not be requir-
ed 10 refund to any taxpayer any tax
which he has collected under war
rant from the county assessor. On
the contrary. our statutes provides
that the board Of county commission
ers shall. In . proper case. refsnd
such = tax. Hence. ] conclude that
when any one brings n suit to recover
taxes which he has paid. and which
have since bcen declared erroneous
or Illegal. he must bring his suit
against the hoard o: county commits
sioners. and not against the county
treasurer.
fail TO zee how the defendant In
this case could have waived the point
- 70 the proper defendant. for the
reason that the defendant In the case
can not legally waive . right exist
ins In another.
rhis suit ~ originally brought was
pureiy m equitable action 10 enjoin
the collection Of . tax. but when the
plaintiff In hts replication changed
the nsturr Of the action 10 one st Lac
for the recosesy Of . tax which had
been paid. he should have made the
hoard Of county commissioners .
PARTY. or else should have dismissed
shs original suit and brought an &C.
tlea against the board Of county con.
nissloasss.
An therefore compelled 10 con.
elude and hence - decide. that this
action ausa b disnisssd. aad Il 10
- ordered.
Judss.