Colorado § 37-41-123 - Special tax levy.

§ 37-41-123. Special tax levy.

(1) It is the duty of the board of county commissioners of the county in which is located the office of any irrigation district, immediately upon receipt of the returns of the total assessment of said district and upon the receipt of the certificates of the board of directors certifying the total amount of money required to be raised, to fix the rate of levy necessary to provide said amount of money and to fix the rate necessary to provide the amount of money required to pay the interest and principal of the bonds of said district as the same shall become due; to fix the rate necessary to provide the amount of money required for any other purposes as provided in this article and which is to be raised by the levy of assessments upon the real property of said district; and to certify said respective rates to the board of county commissioners of each county embracing any portion of said district. The rate of levy necessary to raise the required amount of money on the valuation for assessment of the property of said district shall be increased fifteen percent to cover delinquencies.

(2) For the purposes of said district it is the duty of the board of county commissioners of each county in which any irrigation district is located in whole or in part, at the time of making levy for county purposes, to make a levy at the rates above specified upon all real estate in said district within their respective counties and, in case of contract with the United States, in the amounts and on the tracts as fixed and certified by the board of directors as prescribed in section 37-41-120. If the board of directors of an irrigation district has certified the amount payable for any tract of one acre or less, it is the duty of the board of county commissioners of each county in which the irrigation district is located, in whole or in part, also to levy such amount against each of such tracts. All taxes levied under this article are special taxes.

Source: L. 05: p. 260, § 20. R.S. 08: § 3459. L. 17: p. 305, § 10. C.L. § 1997. CSA: C. 90, § 397. CRS 53: § 149-1-21. L. 63: p. 1002, § 3. C.R.S. 1963: § 149-1-21.

Cross references: For procedure to increase tax levy beyond statutory limits, see § 29-1-302.

ANNOTATION

I. General Consideration.

II. Rights and Remedies of Bondholder.

I. GENERAL CONSIDERATION.

The tax levied under this section is a special tax. Henrylyn Irrigation Dist. v. Thomas, 66 Colo. 296, 181 P. 979 (1919).

Special taxes may be, and frequently are, public taxes as well, that is, taxes levied for a public purpose. Frequently the term "special" is used simply as a designation or for the purposes of classification. McCord Mercantile Co. v. McIntyre, 25 Colo. App. 376, 138 P. 59 (1914).

The authority for levying the special irrigation district tax is the same as the authority for levying the general public revenue tax, i.e., it proceeds from the same source. McCord Mercantile Co. v. McIntyre, 25 Colo. App. 376, 138 P. 59 (1914).

This section does not undertake to limit the amount of the levy the board may make. This section granting power to the county board to estimate and fix the amount of the levy in no way undertakes to limit the amount of the levy they may make. Norris v. Montezuma Valley Irrigation Dist., 248 F. 369 (8th Cir. 1918).

The failure of the means of payment prescribed by statute does not extinguish the debt for which such provision is made. Michigan Trust Co. v. Otero Irrigation Dist., 76 Colo. 441, 232 P. 919 (1925).

Reason for 15 percent levy. The general assembly is presumed to have knowledge of the fact that, under any system of taxation by assessment hitherto devised, a portion of the taxpayers neglect to pay the taxes levied against their property for a long period after they become due. In partial recognition of this fact, this section provides that the county board shall increase the rate of levy on an irrigation district 15 percent to cover delinquencies. Norris v. Montezuma Valley Irrigation Dist., 248 F. 369 (8th Cir. 1918).

Such levy cannot be used to discharge the proportionate obligation of those who do not pay. The 15 percent levy "to cover delinquencies" provided by this section cannot be made, and the amount collected cannot be used, to discharge the proportionate obligation of those who do not pay their district taxes. Bd. of Comm'rs v. Heath, 87 Colo. 204, 286 P. 107 (1930).

The 15 percent levy must be limited so as to cover delinquencies in maintenance, operating, current, and other expenses of the district. The holder of district bonds has no claim upon the funds arising from such levy for the payment of his bonds or interest thereon. Bd. of Comm'rs v. Heath, 87 Colo. 204, 286 P. 107 (1930).

The property of one landowner shall not become liable for the assessments for other lands where the owners fail or refuse to pay. Bd. of Comm'rs v. Heath, 87 Colo. 204, 286 P. 107 (1930).

Taxes to pay warrants could not be pyramided so as eventually to compel those who paid to carry the burden of those who failed. Interstate Trust Co. v. Montezuma Valley Irrigation Dist., 66 Colo. 219, 181 P. 123 (1919); Bd. of Comm'rs v. Heath, 87 Colo. 204, 286 P. 107 (1930).

Additional levy upon all property because of failure of some to pay their portion may be valid. It is a common provision in state constitutions and statutes that assessments or levies for taxation shall be uniform upon the same class of subjects or by value. Such provisions are not violated when, after the lapse of a reasonable time and after reasonable efforts have been made to collect the first levy, an additional levy is made upon all the property in the district because of the failure of some of the taxpayers to pay their portions of the first levy. Norris v. Montezuma Valley Irrigation Dist., 248 F. 369 (8th Cir. 1918).

Where sufficient assessment is made to pay annual interest on bonds, the board cannot reassess lands which have paid. When an assessment has been levied by the county board on the lands of a district to pay the annual interest on the district bonds, and it is sufficient in amount, the board has no power to reassess lands which have paid the assessment to make up a deficiency caused by the failure of other lands to pay. Norris v. Montezuma Valley Irrigation Dist., 240 F. 825 (D. Colo. 1916).

Such assessments are only sustainable when the benefits received by the property assessed are proportionate to the burden placed upon it. City & County of Denver v. Kennedy, 33 Colo. 80, 80 P. 122 (1905); Norris v. Montezuma Valley Irrigation Dist., 240 F. 825 (D. Colo. 1916).

II. RIGHTS AND REMEDIES OF BONDHOLDER.

Sole remedy of bondholder upon default in payment of interest is mandamus. Under the provisions of this section, the sole remedy of the holder of the bonds of an irrigation district, if default be made in the payment of interest, is by mandamus. Henrylyn Irrigation Dist. v. Thomas, 64 Colo. 413, 173 P. 541 (1918); Norris v. Montezuma Valley Irrigation Dist., 248 F. 369 (8th Cir. 1918); Kiles v. Trinchera Irrigation Dist., 136 F.2d 894 (10th Cir. 1943).

An ordinary action demanding judgment for money will not lie. Henrylyn Irrigation Dist., v. Thomas, 64 Colo. 413, 173 P. 541 (1918); Rio Grande Junction Ry. v. Orchard Mesa Irrigation Dist., 64 Colo. 334, 171 P. 367 (1918); Kiles v. Trinchera Irrigation Dist., 136 F.2d 894 (10th Cir. 1943).

If it is not the plain duty of the board to make a levy, action of mandamus will be dismissed. In an action in mandamus to compel county commissioners to levy a tax for irrigation district purposes, it is held that, if it was not the plain legal duty of the board to make the levy, the action was properly dismissed. Kerber Creek Irrigation Dist. v. Woodard, 76 Colo. 219, 230 P. 807 (1924).

Board cannot be compelled to complete legal duty if what they have done satisfies petitioner's legal demands. In an action in mandamus to compel the levy and collection of taxes for the payment of irrigation district bonds, the petitioner cannot lawfully compel the county officials to do their complete legal duty even although they have neglected to do it completely, if what they have done is sufficient to satisfy his legal demands. Bd. of Comm'rs v. Heath, 79 Colo. 429, 246 P. 794 (1926).

If an irrigation district has money or property aside from the specific fund to be raised by a tax levy, it can be subjected to the payment of its outstanding negotiable bonds and coupons which have not been paid because of inability to collect the special tax. Michigan Trust Co. v. Otero Irrigation Dist., 76 Colo. 441, 232 P. 919 (1925).

Although board has exhausted legal method to gather a fund to pay, this does not constitute a payment. Where the board of directors of the district complied with the statute and performed its duty by making a sufficient levy of taxes which, if paid by the taxpayers, would have discharged the obligations evidenced by its negotiable bonds and coupons or a judgment rendered thereon, even though the district board has done all that it may lawfully do to gather a fund to pay, this does not constitute a payment or discharge of the debt. Michigan Trust Co. v. Otero Irrigation Dist., 76 Colo. 441, 232 P. 919 (1925); Kiles v. Trinchera Irrigation Dist., 136 F.2d 894 (10th Cir. 1943).

Though the particular method of payment proves abortive, a debt remains an obligation of the district until it is paid. Michigan Trust Co. v. Otero Irrigation Dist., 76 Colo. 441, 232 P. 919 (1925).