City & County of Denver v. Highlander Boy Foundation

Mr. Chief Justice Burke delivered the opinion of the court. These parties are hereinafter designated as the City and the Foundation respectively. The Foundation brought this action against the City to quiet title to certain real estate in Denver against the purported lien of a special improvement tax. The City demurred on the ground of insufficient facts and defect of parties. Those demurrers were overruled and the City elected to stand. To review the judgment thereupon entered against it this writ is prosecuted. The alleged defect of parties is based upon the assumption that the tax imports bondholders whose securities must be paid from it and that such bondholders were necessary parties. We think the assumption unsupported, but if otherwise, as will hereafter appear,, they stand to lose nothing. The principal question presented is whether the City has lost its lien for the tax involved, approximately $1,100, by reason of the fact that its treasurer, in compliance with a statutory request for a certificate of “taxes due” furnished one which omitted said tax. Section 217, chapter 142, ’35 C. S. A. (§7392 C. L. 1921) provides that the treasurer shall, on request and payment of his fee, furnish such a certificate. The following section provides that the certificate, with receipt showing payment of said taxes, “shall be conclusive evidence for all purposes and against all persons,” that the tract “was at the time thereof free and clear of all taxes.” The following section provides that loss resulting from any error in such cer [367] tificate and receipt shall be paid by the county (formerly by the treasurer and his surety). In March, 1928, the Foundation, being then about to purchase the tract in question, procured this certificate; hence this suit. The main contention raised was settled by this court in Burton v. Denver, 99 Colo. 207, 61 P. (2d) 856. We find no occasion to re-examine that authority. Two new propositions are, however, here presented : 1. The whole matter is local and municipal over which Denver, a home rule city organized under article XX of the state Constitution, is given exclusive control. 2. The statutes above cited conflict with section 34 of the city’s charter of March 29, 1904, and hence the latter is controlling. If, as we conclude, the alleged conflict does not exist, we need go no further, since section 6 of said article provides for the applicability of all general statutes not superseded by charter ordinance. Said section 34 of the charter reads: “The Assessor shall provide in the assessment roll of general taxes a column wherein the Treasurer may make memoranda of special assessments. The Treasurer shall make suitable memoranda in such column, showing any unpaid special assessments levied before the receipt of the assessment roll, upon the property referred to in such memoranda. On request for the amount of taxes against any property the Treasurer shall include in his statement special assessments. No error, failure, neglect or default on the part of the Assessor or Treasurer in complying with the provisions of this section shall invalidate any tax or assessment or affect the lien thereof. ’ ’ No question of the treasurer’s memoranda in his official record is here before us. The “statement” above mentioned involves no formality and is based upon no special consideration. It may be a mere pencil notation, not only uncertified, but unsigned. It may even be oral. This is something entirely different from the formal certificate provided by statute, whose issuance is mandatory [368] and for which a fixed fee is exacted. Hence there is no conflict between statute and charter. Other questions raised now, either become immaterial to a determination of the cause or are settled in the Burton case, supra. The judgment is affirmed. Mr. Justice Bouck, Mr. Justice Knous and Mr. Justice Holland dissent.