
    No. 10,750.
    Union National Bank of Greeley v. Board of Commissioners of Weld County, et al.
    Decided April 7, 1924.
    Rehearing Denied May 5, 1924.
    Action to recover taxes paid under protest. Judgment of dismissal.
    
      Affirmed.
    
    1. Taxes and Taxation — Refund—Procedure. Neglect of a taxpayer to apply for relief from erroneous taxation to the superior governmental bodies, is conclusive against his right to a court action for such relief.
    
      
      Error to the District Court of Weld County, Hon. George H. Bradfield, Judge.
    
    Mr. Harry N. Haynes, Mr. Ralph L. Dougherty, for plaintiff in error.
    Mr. William R. Kelly, Mr. Russell W. Fleming, Attorney General, Mr. Charles Roach, Deputy, for defendants in error.
    
      Department Three.
    
   Mr. Justice Campbell

delivered the opinion of the court.

This is an action by the Union National Bank of Greeley against the board of county commissioners of Weld county to recover excessive taxes for the years 1913 and 1914, with interest and penalties, which it paid to the county treasurer under protest. The action is based on section 7447, C. L. 1921. In Kendrick v. A. Y. & M. Co., 63 Colo. 214, 164 Pac. 1161, it was held that a writ of injunction would not lie to restrain the collection of such a tax, but that the statute cited provides a plain, complete and adequate remedy at law; for a taxpayer to recover from the county a tax which shall thereafter be found to be erroneous or illegal. This decision, however, was not that an action at law will lie in every case to recover the amount of an illegal or erroneous tax paid by a taxpayer. The right to sue is not absolute but conditional, and in the Kendrick Case it was held that the right was lost by failure of the taxpayer to comply with the prescribed condition.

After a careful consideration of this record and a reading of Colorado Tax Commission v. Pitcher, 56 Colo. 343, 138 Pac. 509, and First National Bank v. Patterson, 65 Colo. 166, 176 Pac. 498, the judgment of the district court, in sustaining the general demurrer to the complaint and dismissing the action, we think, was warranted. The Patterson Case involved taxes laid for the year 1913. The tax there complained of was laid in precisely the same manner as the 1913 tax involved in this action. Complaint is also made here of the 1914 tax, but it was laid as was the 1913 tax, and the same principle of law is applicable to the taxes of both years. The same facts which barred relief in the Patterson action bar relief in the instant case. The court in that case held, as stated, that section 7447, which is the one upon which this action is based, makes it necessary, as an essential condition precedent, for an aggrieved taxpayer to pay the whole tax assessed against him and then bring an action at law for a refund, and a suit in equity to restrain collection does not now lie. In the Patterson Case the plaintiff bank relied upon an equitable and legal remedy, but the decision there was that under the facts of that case the taxpayer was entitled to neither. It was the horizontal raise by the state tax commission and its approval by the state board of equalization later that the taxpayer there, as here, complained of. The court said that the law made the taxpayer cognizant of the fact that such assessment by the assessor — with which the taxpayer there, as here, is satisfied — was subject to change by superior governmental agencies which were required to meet at certain places and on certain dates and complete their labors within a designated time. Since, with full knowledge of the respective powers of these boards to make corrections in assessments and adjustments in equalization, the taxpayer there, as is true in the instant case, remained inactive until long after the tax was laid, when it applied for an abatement or rebate, he is not entitled to relief at the hands of the courts because he neglected to avail himself of his unquestioned right in advance of a final levy or assessment, to apply for relief at the hands of these superior governmental agencies. The court made no distinction between legal and equitable relief; it said that equitable relief in no event is available because the statute has provided an adequate remedy at law, and the right to maintain the latter was waived by negligence. The reasoning of the opinion there, that the neglect of the taxpayer to resort to his statutory remedy for obtaining the desired relief from the superior governmental bodies, is just as conclusive against the taxpayer’s right to a suit in law as it Is to invoke equitable relief. In the Patterson Case the taxpayer appeared by the same learned counsel who represents the complaining taxpayer in this case. Precisely the same objections to the validity of the tax laid in the present case were interposed in the Patterson Case. We see no escape from the conclusion that the taxpayer here may not obtain from the courts the demanded relief, unless we should overrule the Patterson decision. Necessarily we are thereby precluded from entering upon an inquiry as to the validity of the taxes complained of. The judgment is affirmed.

Mr. Chief Justice Teller and Mr. Justice Sheafor concur.  