In the Henderson Case the proofs of the plaintiff tended to show that the cow, at the time of the accident, was lying between the rails; that from the engine, going west, she could have been seen five hundred yards, and going east, from one hundred to two hundred yards; that she was probably struck by the west-bound train; and that a passenger train, running at the usual speed, could at that point be stopped within one hundred feet of the spot where the signal to stop was given. In the Zastrow Case the evidence of plaintiff tended to show that the colt killed was struck by the train going west; that it ran along the track, before being struck, for about fifty yards; that it could have been seen by a person on the train five or six hundred yards from the place where it appeared to have received the injury; that for a distance of fifty to one hundred yards on each side. of the track there were no obstacles to obstruct the view; and that, at the place where this animal was struck, a passenger train, running at the regular rate of speed, could also be stopped within one hundred feet of the spot where the signal was given. In view of the foregoing testimony, there being nothing to contradict or rebut the same, we think both cases were properly submitted to the jury, and shall decline to set aside the verdicts. The judgments in both are affirmed. Affirmed. BREEZE, COUNTY TREASURER, ETC., V. HALEY. 1. General Statutes 1883, section 2825, and Session Laws 1885, page 317, section 1, vest the board of county commissioners with power almost unlimited to correct any errors that may occur in an assessment, either before or after the payment of taxes thereon, and an injunction will not issue to restrain the collection of a tax, at the suit of a property owner alleging that the assessor himself had assessed the property, on an excessive valuation, without giving him an opportunity to make a return. 2. Where no injury is caused by the delay, the failure of the assessor to complete the assessment for delivery to the county clerk by June 25th, the date fixed by General Statutes 1883, section 2856, will not render the tax invalid. Where the assessment was made out and delivered during the first meeting of the board of equalization in July, held to be a substantial compliance with the statute. 3. The fact that the weather, feed and market were unfavorable at the time the treasurer distrained the horses and cattle of the plaintiff for a tax is no ground for injunction to restrain the sale, especially when the plaintiff, by his conduct and requests for time, induced the delay to a season so unfavorable to an advantageous sale. Appeal from District Court, Clear Creek County. THIS is an action brought by Ora Haley against Breeze, as treasurer of Routt county, to enjoin him from the collection of certain taxes assessed against the property of Haley. By his complaint Haley admits that he failed to make out and return a list of his property for taxation for the year 1884, and alleges that the assessor of the county called on his foreman in charge of his property for a list and return some time in May, but refused to wait until the foreman could make the same; but immediately made out and returned a list of his property, listing and charging him with nine hundred and sixty acres of land, assessed at a valuation of $2,880, while he had but six hundred and forty acres of land, and of the valuation of $1,920; with eight thousand two hundred head of cattle, assessed at a valuation of $163,000, while he had but six thousand three hundred head of cattle in said county, and of the valuation of $120,000; and with one hundred and sixty-five head of horses, assessed at a valuation of $6,845, while he had but one hundred and fortyone head of horses, and of the value of $4,935; that the assessor so wrongfully listed and assessed the property of the plaintiff for taxation knowing the same was wrong, and for the purpose of oppressing plaintiff, and for the same purpose had knowingly and wilfully omitted to list and assess other property in the county, for the purpose of making the taxes of plaintiff greater than his just share thereof, and did thereby increase the amount of his taxes, and that one of the members of the board of county commissioners, as well as the defendant treasurer, well knew of the same; that no blank list for listing his said property had ever been left with him or his agent; that the assessor never took and subscribed the oath to his report of assessments; that the county clerk never gave any notice of the meeting of the board of county commissioners to act as a board of equalization in the year 1884; that the said board held no such meeting that year; that he filed with said board an application to correct the said list made and filed by the assessor as soon as he knew of it, and that the said board of county commissioners did not take any action upon the same, "inasmuch as there was only two commissioners qualified and acting as such in the said county of Routt, and they were divided, and continued to be divided," and that said application was never acted upon by the board of equalization; that the amount of taxes he is charged with for said year 1884 upon his said property is $4,248.59, but, on account of charging him with more property than he had in said county, and on account of omitting to list and assess other property in said county subject to taxation, he does not know what the amount of his just taxes are; that he had always been able and willing to pay the just amount; that the treasurer was making distraint of his said cattle and horses to make the said tax; that the weather was inclement, and very unfavorable to gathering or handling such stock, and of great damage to them; that there was a poor market for them; and asks for an injunction, etc. A temporary injunction was ordered. A motion to dissolve injunction was made; and during the hearing, February 12, 1887, an amendment to the complaint was filed, alleging that no assessment roll or tax schedule, or list upon which to found a tax for 1884, was ever made or existed; that the only one ever made was then in pos session of John M. Breeze; that said Breeze was county attorney of Routt county; that the assessor made and returned no tax list or schedule whatever for 1884, listing the plaintiff's property for 1884. Before the filing of this amendment defendant had answered, denying all the material allegations of the complaint, except that there is no response to the language in the complaint, "inasmuch as there were only two commissioners qualified and acting as such in the said county of Routt." So, at the hearing on the motion to dissolve, the treasurer showed that notice had been given of the meetings of the board of county commissioners as a board of equalization in July, 1884; that said board did so meet and hold its meeting as a board of equalization on the first Monday in July of 1884, and was in session as provided by the statute, and did hold its second meeting, commencing on the third Monday in July; that no change of the assessment of the property of plaintiff, as returned by the assessor, was made at the first meeting, and no complaint of the same was made at the second meeting. On July 9 the following from plaintiff was filed: "LARAMIE CITY, WYOMING, June 27, 1884. "To the Honorable Board of County Commissioners of Routt Co., Colo.: "DEAR SIRS-As I have not listed my Routt county property for taxation for the year of 1884, I consider it quite necessary for me to make an explanation and statement. I have not been to my Lay Creek ranch since the last of April. Neither have I heard anything from the assessor regarding it, and there has been no one at my ranch competent to list my property, my foreman being a new man there. There has been no blanks sent me here, and I have been unable to find any at this place, or at Rawlins, of the Colorado form; so, under the circumstances, all I can do at this late date is to make this statement, which I trust will take precedence over any circulated reports from any prejudiced persons regarding my Routt county property. "In addition to my property of 1883, I have three additional one-fourth sections of four hundred and eighty acres. Improvements on same, $150 each.... I have eleven yearling colts, $25 each.... I have sixteen hundred head more cattle, at $30.. $450 275 48,000 200 $48,925 "Trusting this, in addition to my assessment of 1883, may be satisfactory, I remain, most respectfully, "ORA HALEY." The list for the previous year referred to was not by plaintiff, but by the assessor, wherein it appears that three thousand five hundred head of horses and cattle only were listed, at a valuation of $42,000. The next from plaintiff was of date October 3, 1884, and was received and filed October 6, 1884, and is as follows: "RAWLINGS, Wyo., October 3, 1884. "To the Hon. Board of County Commissioners of Routt County, Colorado: "DEAR SIRS -Below please find sworn statement of my Routt county property as should have been listed for taxation on May 1, 1884, which I trust will receive your just consideration. I have land proofs for six hundred and forty acres only, which cost about $3 per acre; improvements on same not to exceed $650; improvements on school and other public lands, $500. I was the owner of one hundred and forty-one horses only, in the county, not worth more than $35 per head, and three mules. I did not have to exceed six thousand three hundred head of cattle in the county; wagons and farming implements, $300. Trust you will adjust this before the levy. "Very respectfully, ORA HALEY. "Subscribed and sworn to before me this 3d day of October, A. D. 1884. A. G. EDGERTON, J. P.” |