Colorado § 30-25-104 - Judgment against a county, how paid - tax levy.

§ 30-25-104. Judgment against a county, how paid - tax levy.

(1) When a judgment is given and rendered against a county of this state in the name of its board of county commissioners or against any county officer in an action prosecuted by or against him in his official capacity or name of office, when the judgment is for money and is a lawful county charge, no execution shall issue thereon, but the same may be paid by the levy of a tax upon the taxable property of said county. When the tax is collected by the county treasurer, it shall be paid over, as fast as collected by him, to the judgment creditor, or his assigns, upon the execution and delivery of proper vouchers therefor; but nothing in this section shall operate to prevent the board of county commissioners from paying any such judgment by a warrant drawn by them upon the ordinary county fund in the county treasury. The power conferred to pay such judgment by a special levy of such tax shall be held to be in addition to the taxing power given and granted to such board to levy taxes for other county purposes. The board of county commissioners shall levy under this law such taxes as shall be sufficient to discharge such judgment in the next fiscal year; but in no event shall such annual levy exceed a total of ten mills for one or more judgments exclusive of mill levies for other county purposes. The board of county commissioners shall continue to levy such taxes, not to exceed a total of ten mills annually, exclusive of mill levies for other county purposes, but in no event less than ten mills if such judgment will not be discharged by a lesser levy until such judgment is discharged.

(2) Any and all taxes levied to pay the last payment upon or to pay any such judgment shall be valid, whether the sum sought to be raised thereby exceeds the sum due on such judgment, principal and interest or not; but such excess of the sum required shall not exceed a sum equal to ten percent of such required sum, and no sale of real estate made to make such taxes shall be invalid by reason of such excess, if the same is within the above specified limit. All levies to pay judgments shall be made as near as possible to raise a sum equal to that due on the judgment, for which payment the tax is levied; but, nevertheless, any excess levied, if such does not exceed the said ten percent of the sum due and desired to be paid, shall not invalidate any tax levy upon or tax sale of real or personal estate made to raise, make, or collect the said sum due and excess.

Source: G.L. § 435. G.S. § 527. L. 1887: p. 240, § 1. R.S. 08: § 1183. C.L. § 8664. CSA: C. 45, § 7. CRS 53: § 36-2-4. C.R.S. 1963: § 36-2-4. L. 71: p. 1212, § 5.

ANNOTATION

I. General Consideration.

II. Mandamus to Compel Payment.

I. GENERAL CONSIDERATION.

Board obligated to act. Before a county treasurer is authorized to pay a judgment against the county in either of the ways mentioned in this section the board of county commissioners shall take some action in the matter. Stoddard v. Benton, 6 Colo. 508 (1883).

It is for the board to determine how far the county will defend against the claim which has been prosecuted to judgment against it. Stoddard v. Benton, 6 Colo. 508 (1883).

And the county commissioners can not be deprived of their option to pay the judgment against the county by a warrant drawn on the county fund or of their discretion as to levying a special tax, by a mandamus compelling them to levy a tax to pay the judgment. Bd. of Comm'rs v. King, 67 F. 202 (8th Cir. 1895); Stryker v. Bd. of Comm'rs, 77 F. 567 (8th Cir. 1896); King v. Bd. of Comm'rs, 77 F. 583 (8th Cir. 1896).

The effect of this section is not to leave it discretionary with the board of commissioners to say whether or not a judgment against a county should ever be paid, but should be construed as leaving it to the discretion of the board to pay a judgment either by levying the tax or by warrant drawn on the ordinary county fund, when the judgment can be paid by warrant, but if it cannot be paid by warrant on the ordinary fund the special tax must be levied. People ex rel. Reynolds v. Bd. of Comm'rs, 11 Colo. App. 124, 52 P. 748 (1898).

Thus discretion as to the levy of the tax is vested in the board of county commissioners, because they are charged with the administration of the affairs of the county, and familiar with its financial resources and its needs and the condition of its taxpayers. Bd. of Comm'rs v. King, 67 F. 202 (8th Cir. 1895).

The authority to issue a warrant at once instead of levying a tax contemplated the presence in the treasury of money applicable to the payment of the judgment, and unless there was money in the treasury to meet the warrant its issuance was unauthorized and the board of commissioners had no alternative except to levy the tax, and the warrants thus issued and received by plaintiff constituted no payment of the judgment. People ex rel. Reynolds v. Bd. of Comm'rs, 11 Colo. App. 124, 52 P. 748 (1898).

In all statutes of this description, the word "may" is interpreted to mean "must", and the permission is regarded equivalent to a mandate wherever the public interests or the rights of third persons are concerned, the discretion only exists where there are no third parties, either the public or persons, to be injuriously affected by its exercise. People ex rel. Rollins v. Bd. of Comm'rs, 7 Colo. App. 229, 42 P. 1032 (1895).

II. MANDAMUS TO COMPEL PAYMENT.

Unless forbidden by statute, mandamus lies to compel the levy of taxes to pay judgments against a county. Bd. of Comm'rs v. Schradsky, 43 Colo. 84, 95 P. 312 (1908).

And when there is no fund in the treasury applicable to the payment of a judgment against a county, the judgment creditor is, upon the refusal of the board of county commissioners to levy a tax for the payment of the judgment, entitled to peremptory mandamus to compel them to levy one for that purpose. People ex rel. Rollins v. Bd. of Comm'rs, 7 Colo. App. 229, 42 P. 1032 (1895).

So also in case the commissioners delay, or refuse to make provision for payment of a judgment against a county, a writ of mandamus will lie to compel them to act. Stoddard v. Benton, 6 Colo. 508 (1883).

It is also the proper proceeding to compel an officer to pay warrants drawn on a special fund who refuses to pay, but to make the remedy available, proof must be made that the officer has funds in his hands available for the purpose. Hockaday v. Bd. of County Comm'rs, 1 Colo. App. 362, 29 P. 287 (1892).

And a petition for a mandamus is to be construed in the same way and subject to the general rules applied in the construction of an ordinary complaint, but the certainty to a certain intent in every particular is no longer a prerequisite. Substantial accuracy is all that is necessary. People ex rel. Rollins v. Bd. of Comm'rs, 7 Colo. App. 229, 42 P. 1032 (1895).

Also since the merger of a debt into a judgment changes its form, but not its identity when the judgment is presented to a court for affirmative action, and is sought to be collected by a process not contained within itself, the court will look behind the judgment in order to ascertain from the nature of the original claim what method may be adopted for its enforcement. Bd. of Comm'rs v. People ex rel. New Hampshire Sav. Bank, 16 Colo. App. 215, 64 P. 675 (1901).

Conclusiveness of judgment. In an action for mandamus to compel the board of county commissioners to levy a tax to pay a judgment against a county the judgment is conclusive of all questions which were or might have been litigated in the suit. People ex rel. Reynolds v. Bd. of Comm'rs, 11 Colo. App. 124, 52 P. 748 (1898).

No collateral attack. In mandamus proceeding against a board of county commissioners, the judgment must be accepted as a verity, it cannot be collaterally attacked, and it must be assumed to represent an honest debt, regularly contracted, fairly and honestly put into collectible form. People ex rel. Rollins v. Bd. of Comm'rs, 7 Colo. App. 229, 42 P. 1032 (1895).

Insufficient cause of action stated. In an action of mandamus to compel a board of county commissioners to levy a tax to pay a judgment against the county where the petition shows that the judgment was rendered upon county warrants, the relator must make the same showing that he would have to make if the action had been brought upon the warrants, and unless the petition shows that the board has failed to levy the tax it was required by law to levy to pay such warrants, it fails to state a cause of action, and it is not sufficient to allege that the board has failed and refused to levy a tax to pay the judgment. Bd. of Comm'rs v. People ex rel. New Hampshire Sav. Bank, 16 Colo. App. 215, 64 P. 675 (1901).

When no issue has been made as to the capacity of the county to contract the indebtedness, it seems to be doubtful whether a judgment against a county on a void obligation can be enforced in any form. Wilder v. Bd. of County Comm'rs, 41 F. 512 (D. Colo. 1890).