On Petition for Rehearing. In its petition for rehearing the county voices for the first time the contention that the plaintiff in error mistook its remedy and that the only proper court action would be mandamus. The dissenting opinion of Mr. Justice Hilliard, now being filed, adopts the contention, as well as the citation of the following cases said to support the position: (1) Board of Com'rs v. Sims, 31 Colo. 483,74 P. 457; (2) 1 Forbes v. Board of Com'rs,23 Colo. 344, 47 P. 388; (3) Board of Com'rs v. People,16 Colo. App. 215, 64 P. 675; (4) Denver v. Bottom,44 Colo. 308, 98 P. 13. The dissenting opinion adds to these the following cases, not cited by plaintiff in error: *Page 185
(5) Berkey v. Board of Com'rs, 48 Colo. 104,110 P. 197; (6) Rio Grande Co. v. Orchard District, 64 Colo. 334,171 P. 367; (7) Henrylyn Irr. Dist. v. Thomas,64 Colo. 413, 173 P. 541.
[5, 6] The above cases, in so far as they are relevant, recognize an exception — and seem to approve a money demand action — where public securities are payable out of a certain fund, as here, but where, after the fund has been duly provided, there has been a diversion thereof. This is the present case. The proceeds of the tax duly levied and collected were diverted by the county treasurer as legal custodian thereof by sending the money to the Kountze Brothers bank in New York City without any request from the plaintiff in error to do so, as already stated in our original opinion, resulting in the loss of those proceeds by the insolvency and bankruptcy of that bank. It is self-evident from a reading of the statute that, having once levied and collected a tax sufficient to pay the securities involved herein, the county had exhausted its power and could not be mandamused to levy and collect another tax, since there is no longer a "clear legal duty" to do so. Gunter v. Walpole,65 Colo. 234, 176 P. 290. Nor could the county treasurer be mandamused, for by voluntarily sending the specific funds to a failing bank in New York he has diverted the funds which it was once his clear legal duty to pay out, but which he can no longer either willingly or unwillingly pay out and which in fact he has refused to pay because those funds were lost as aforesaid in the New York bankruptcy.
[7-10] But there are three even stronger reasons for not changing our decision, namely: First, the point was neither raised in the trial court nor assigned as error in this court, the only cross-errors assigned by the county being as to the court's permitting the complaint to be amended; second, the case was prosecuted and defended on an entirely different theory from the one now attempted to be raised by petition for rehearing, and the *Page 186 county is bound by its trial-court theory; third, even if we should concede — as we cannot — that the cited cases support the reasoning of the dissenting opinion, the truth is that those cases were decided before the Uniform Declaratory Judgments Act (S. L. '23, c. 98, pp. 268-271; '35 C. S. A., vol. 3, c. 93, §§ 78-92) became the law of this state, since which time this court is permitted to declare and adjudge rights and liabilities under a given state of facts irrespective of whether we directly supply remedies to enforce them. In our original opinion we have not undertaken to dictate the manner in which the judgment shall be satisfied. That particular subject matter is not before the court at his time.
The petition for rehearing is denied.
MR. CHIEF JUSTICE BURKE and MR. JUSTICE HILLIARD dissent.
1 See "Note by the Court" at the end of this opinion.
Note by the Court. In Hockaday v. County Com'rs, 1 Colo. App. 362,374-376, 29 P. 287, 291, cited in Forbes v. Board of Com'rs, supra, it was said: "It is urged in argument, by counsel of defendant in error, that this form of action would not lie. He says, `Another objection to plaintiff's recovery in this action is, that the warrants are payable out of a particular fund and are not a charge against the county in this action' * * *. The first, and perhaps the only answer necessary to this position, is, that no such question was raised in the court below * * *. In the stipulation of counsel it is conceded that the warrants in controversy were presented to the treasurer and payment demanded, `andthat payment thereof was refused for want of funds.' Here is a conclusive and binding agreement entered of record, that there was no money in the road fund for the payment of the warrants. Counsel for plaintiff, knowing this fact in advance, could not be required or expected to proceed by mandamus, which could only be available with the money in the treasury, and upon proof that it was there, and of a refusal to pay." The record in the case at bar shows affirmatively that the money had been lost by the action of the county treasurer in sending the funds out of the state.