In 1955 the Board of County Commissioners of Arapahoe County adopted a resolution (which will hereafter be referred to as the Resolution), providing that "the sum of $125 per dwelling unit shall be collected by the Building Inspector from and after the effective date of this resolution in addition to the regular building permit fee heretofore collected, said funds * * * [to be] used for the acquisition of school sites and for the construction and operation of schools within the district from which said funds originate."
Pursuant to the Resolution, Perlmutter's, Inc., a corporation engaged in the business of acquiring land and building houses thereon, paid under protest to the building inspector a total of $30,750, covering 246 dwelling units at the rate of $125 per unit.
Subsequently the aforementioned Resolution was declared to be unconstitutional by the district court of Arapahoe County, to which judgment no writ of error ever issued. The trial court in addition to its declaration that the Resolution was invalid also decreed that "the funds heretofore collected under this regulation" should be returned "to the rightful owners", and pursuant to Rule 53(c) R.C.P. Colo. appointed a master and ordered that all monies collected under this Resolution be transferred to the master.
According to the order of appointment, the master's duties inter alia were "to make distributions of the said school permit fee fund to those persons and claimants as are, in the best judgment entitled to the same, in all cases in which no contest is involved * * * [but] * * * to submit all cases in which any objection has been raised to his findings to this Court together with such findings * * *."
The present writ of error poses a dispute between Perlmutter's, Inc., and 120 individual claimants as to whether Perlmutter's, Inc., or the 120 individuals are the "rightful owner" of the sum of $15,000 held by the master.
Upon hearing the master ruled that Perlmutter's, Inc., was the "rightful owner" of the $15,000. However, the trial court "reversed" its master and decreed that the 120 individual claimants, and not Perlmutter's, Inc., were entitled to the $15,000, each to be entitled to his or her proportionate share thereof, i. e. $125. By writ of error Perlmutter's, Inc., seeks reversal of the judgment.
The hearing held by the master established the following background information:
As noted above, the master found that Perlmutter's, Inc., was entitled to the money, apparently on the ground that such was the "equitable" thing to do and that to hold to the contrary would be to impose a "double economic burden" on Perlmutter's, Inc., i. e. it would then have failed to get back the money paid by it under protest and at the same time had already "given" certain acreage to the school district.
The trial court later rejected the theory of a "double economic burden" on Perlmutter's, Inc., and decreed that the 120 individual claimants were entitled to the $15,000 on the basis that "absent a reservation by a seller in his warranty deeds to purchasers, the School Permit Refunds are payable to such purchasers."
Resolution of the present controversy involves not so much a search for the so-called "equities" of the case, but a proper determination of the legal rights of the parties. Perlmutter's, Inc., paid the fee, and is thus entitled to the refund thereof, unless it later assigned its right thereto. The several warranty deeds from Perlmutter's, Inc., to the 120 individual claimants do not constitute such an assignment. No deed makes any mention of any right to a refund from the "school permit fee fund". The grantor, Perlmutter's, Inc., and the 120 individual grantees agreed that in the execution and delivery of the 120 deeds there was an absence of intent on the part of all concerned that Perlmutter's, Inc. was thereby assigning its right to the refund of the money paid by it under protest to the building inspector of Arapahoe County pursuant to the Resolution which was later declared to be invalid. Such being the case, Perlmutter's, Inc., is clearly entitled to the refund of the $15,000.
Our attention has not been directed to any reported case "on all fours" with the instant one. However, certain cases are deemed to be helpful, even though they involve a "tax" or "special assessment", and not a "fee". So, in Boyer Bros. v. Board of County Commissioners of the County of Routt, 87 Colo. 275, 288 P. 408, a landowner who had previously paid under protest a tax levied on his property assigned his property to a trustee for the benefit of his creditors. When the taxing statute was later declared to be invalid, a dispute arose as to who was entitled to the return of the money thus paid. The landowner was held to be the "rightful owner" of the money paid by him pursuant to the void tax statute on the ground that he paid it and had not thereafter assigned his right to a refund thereof, his assignment for the benefit of creditors not having specifically mentioned his right to a refund of the taxes paid under the void assessment.
City of Grand Rapids v. Iosco Land Co. et al., 273 Mich. 613, 263 N.W. 753, 105 A. L.R. 695, presents a somewhat analogous factual situation where the owner of realty paid a special assessment designed to raise revenue for a street widening program and later by warranty deed conveyed title to the realty to Iosco Land Co. Several years later the state legislature enacted legislation which provided for "refunding to the taxpayers * * * of the special assessment." Pub. Acts Mich.1933, No. 107, § 19-a(5) (d). A dispute arose as to who had the right to
In Marano v. North Bergen Township et al., 116 N.J.Eq. 196, 172 A. 817, a similar dispute arose over the right to a refund for an over-assessment, the grantor having paid the special assessment but the grantee claiming that the grantor's right to the refund was conveyed to him under a deed of warranty. In upholding the right of the grantor to the refund the Court of Chancery of New Jersey stated that the "[o]ne who paid the assessment is the one entitled to a refund, even though title to the property may have been conveyed to another." See, also, In re Sixth Avenue Elevated R. R. in City of New York, Sup., 55 N.Y.S.2d 236.
The individual claimants point out that each of the foregoing cases involves a "tax" or a "special assessment" and argue that these authorities therefore have no applicability to the instant case where a "fee" is involved. Insofar as the issue here to be resolved is concerned, the distinction is one without a difference. Certainly the rationale announced therein is equally applicable to the present controversy. If a grantee under his warranty deed has thereby acquired no right to the refund of an unlawful tax theretofore paid under protest by his grantor, it would seem to logically follow that he would not have the right to a refund of an unlawful "fee" also paid under protest by his grantor.
The judgment is therefore reversed, and the cause remanded with direction to enter judgment in favor of Perlmutter's, Inc.
MOORE and HALL, JJ., not participating.