dissenting.
Believing as I do that the affirmance of this judgment strips from taxpayers the protection of a statute which has stood unshaken for more than half a century, sanctions, by indirection, a plain violation of the Constitution, and covers a fraud with the cloak of an inapplicable technical rule whose protection it has not even invoked, I must dissent.
The reasons urged by counsel for a reversal are not answered. I assume, therefore, they are considered as probably valid but for that given by the court. But since those reasons involve important legal questions fairly presented, I think they ought not be thus ignored. Hence I consider first the case made by the record.
Some facts, perhaps, should be added to the statement contained in the court’s opinion. Suffice it here, however, to say that the complaint, which for present purposes must be admitted as true, sets up' a conspiracy to frame a case with a dummy plaintiff; on false allegations *445and a false answer, for the purpose of deceiving the district court and misleading it into entering a judgment which could never have been obtained had the truth been told, and for the purpose of defrauding taxpayers. Based upon the judgment so entered a mandamus suit was immediately filed to secure a second judgment to compel a tax levy to pay the first. The second judgment was entered on a stipulation framed by the parties to the first, and in furtherance of the original plan, and thereby the alleged indebtedness was merged into so-called judgment bonds, negotiable instruments, which were passed to the state. The company paid, under protest, the tax so levied, and sued to recover. To this complaint the county demurred for want of jurisdiction of the subject matter, and both defendants demurred for want of facts, and defect of parties, i. e., because the state was not, and could not be, made a defendant. The demurrers for defect of parties were sustained and thereto the company assigns error. The demurrers for want of facts and jurisdiction were overruled and thereto the county and district assign cross-error. Judgment of dismissal was accordingly entered against the company, to review which it prosecutes this writ. Such are the only ques7 tions presented by the record.
Pertinent, constitutional and statutory provisions are:
“No debt by loan in any form shall be contracted by any school district for the purpose of erecting and furnishing school buildings, or purchasing grounds, unless the proposition to create such debt shall first be submitted to such qualified electors of the district as shall have paid a school tax therein, in the year next preceding such election, and a majority of those voting thereon shall vote in favor of incurring such debt.” Sec. 7, art. XI, Colo. Const.
“The board of education of any school district may. submit at any regular or at a special election called for the purpose, to such of the qualified electors of the district as shall have paid a school tax therein in the year *446next preceding such election, the question of contracting a bonded indebtedness, for the purpose of erecting or furnishing school buildings or purchasing grounds, or for funding floating debts or for any of said purposes.” C. L. 1921, p. 2146, §8356.
“In no event shall the aggregate amount of bonded indebtedness of any school district of the first or second class exceed five per centum, * * * of the assessed value of the property in such district for the year next preceding the date of said bonds; * * *.” S. L. 1923, p. 546, c. 162, §1.
“It shall not be lawful for the officers of any district to issue warrants at any time in an amount in excess of the tax levy for the current year.” C. L. 1921, p. 2123, §8302.
“Except in districts having- a school population of more than 30,000, no orders shall be drawn on the county treasurer except in favor of parties to whom the district has become lawfully indebted.” C. L. 1921, p. 2142, §8345 (S. L. 1919, p. 613). S. L. 1929, p. 595, c. 167, §1.
“In all cases where any person shall pay any tax, interest or cost, or any portion thereof, that shall thereafter be found to be erroneous or illegal, whether the same be owing to erroneous assessment, to improper or irregular levying of the tax, or clerical or other errors or irregularities, the board of county commissioners shall refund the same without abatement or discount to the taxpayer.” C. L. 1921, p. 1906, §7447.
I consider the questions presented in the following order: (1) Sufficient facts; (2) jurisdiction; (3) defect of parties; because if plaintiff has no cause of action, parties and jurisdiction are immaterial; if plaintiff has a cause of action but the court is without jurisdiction, defect of parties is immaterial; but if plaintiff has a cause of action and the court has jurisdiction the necessary parties must be in before the suit can proceed.
1. The only objections urged to the sufficiency of the complaint are: (a) Failure to allege that the money *447borrowed was not for any of the purposes specified in section 7, article XI of the Constitution, supra, or in section 8356, C. L. 1921, supra; (b) no cause of action exists because it appears from the complaint that the warrants were issued and the money borrowed for lawful purposes, citing Sweet v. D. & R. G. R. R. Co., 59 Colo. 131, 147 Pac. 669.
a. School districts and their officers derive all their powers through delegation, constitutional or statutory, from the state. If not clearly conferred, either expressly or by necessary implication, they are withheld. 24 R. C. L. p. 562, §6; p. 564, §7; p. 568, §13. Said section 7 of article XI of the Constitution is a specific limitation, not a grant, and no necessary implication of the powers here exercised can be drawn from it. Said section 8356, C. L. 1921, is a grant which includes the power of “contracting a bonded indebtedness, for the purpose of * * * funding floating debts, ’ ’ which was the thing here attempted, but only after submission of the proposition to the qualified electors of the district, which was not here attempted. Again, the bonds issued exceeded the express limit fixed by law and could not have been issued even had they been approved by the electors. No other provision of Constitution or statute is relied upon. Hence not only was there no grant, express or implied, of the power to contract this bonded indebtedness, but there was an express statutory prohibition against it.
b. This contention rests solely upon the Sweet case. There, however, no attack was made upon the validity of the indebtedness; here $50,000 of warrants were illegally issued for which no prior debts existed. There county warrants were involved and counties may exceed anticipated revenue; here school district warrants were involved and school districts may not exceed anticipated revenue. There the levy was ordered to pay a judgment ; here the levy was ordered to pay bonds, issued by order of court in excess of the statutory limit, to borrow money *448to pay a judgment. Hence the Sweet case has no application.
2. The plea of want of jurisdiction is based upon the absence of the state, which, it is claimed, is the real party in interest; and the assertion that this is, in fact, a suit against the state; and that, since no action can be maintained against the sovereign without its consent and no consent has been given, no jurisdiction exists. This objection is therefore inseparable from that of defect of parties, and dependent upon it. Had the bondholder been subject to suit, and served, jurisdiction would be admitted. .For the moment, therefore, I assume it.
3. This action was brought under section 7447, C. L. 1921, supra. That it was properly so brought, subject to the objections hereinbefore answered, and could be maintained if the state voluntarily entered its appearance as a defendant, is conceded. The principal contention is that since the bonds, illegally issued to pay an unlawful judgment obtained on invalid claims, have passed into the hands of the state, and since the state cannot be sued without a consent it has not given, the taxpayers are helpless, and for the next twenty years must submit to this extortion. If so, this judgment should be affirmed; if not, it should be reversed. That an isolated case, and numerous judicial declarations in others not identical, seem to support that contention, cannot be denied. Since, however, no express statute so declares, the first question is, Has it been so decided in this jurisdiction? If not, the second is, Does our written law, interpreted in the light of outside precedents, and guided by reason, justice and public policy, so demand?
Cases are not wanting here which support the position of the county and district in actions in injunction, but no such case arising* under the statute which governs this (said section 7447, supra), has been called to our attention or is known to me. So far as Colorado is concerned, the chief bulwark of county and district is Grater v. Logan High School District, 64 Colo. 600, 173 Pac. 714. *449They recognize the fact that this was an injunction suit but contend that the reasoning of the opinion, as it relates to the subject of parties, is here applicable. Not only for this reason, but because that case, and the one upon which its main conclusion rests, points directly to said section 7447, as furnishing the proper remedy in these tax refund cases, a plain, speedy and adequate remedy at law which, in most instances, forestalls resort to equity, it becomes necessary to examine this Grater case and call attention to the condition of the record therein. It was a suit to enjoin the collection of a tax to pay bonds and interest. A demurrer for want of facts and absence of parties (the bondholders) was overruled May 2, 1914. Answer was filed May 22, 1914, and reply not until May 16, 1916. On the latter date the trial opened. "When plaintiff’s first witness was called and sworn an objection was made to the introduction of any evidence. Of the sixteen grounds of this objection the first was because the bonds had been issued and sold to unknown, nonresident, parties, and the seventh and eighth were that no facts were stated in the complaint which would justify injunction. After argument “the court sustained s,aid objection, holding that since the demurrer was overruled in this case the Supreme Court [Nov. 1, 1915] in the case of Nile Irr. Dist. v. English [60 Colo. 406, 153 Pac. 760] had held that an injunction to restrain the collection of taxes does not exist as a remedy # * and that therefore the objection would be sustained particularly for said reason # * To the judgment entered accordingly five errors were assigned, the second of which goes to the holding that injunction did not lie, but no one of which refers to defect of parties. The only ruling of the trial court on defect of parties was on the overruling of the demurrer, and that, being in favor of plaintiff in error, he did not, and could not, complain, and no cross-error was assigned by the district. The opinion of this court affirming the judgment makes no reference to the assignments. It *450shows that the cause was disposed of below on the motion to exclude testimony “and to dismiss the complaint because of its failure to state a cause of action, and for numerous other reasons.” Not only was the question of the existence of the remedy by injunction the first question to be determined, because if the action did not lie defect of parties was immaterial, but it was the only question decided by the trial court against the plaintiffs in error and the only question presented by the assignments. Nevertheless, this court, in its opinion, first noted that “It appears from the complaint that the bonds are now in the hands of unknown third parties” and held that “In such circumstances the bondholders being necessary parties, the great weight of authority is against the granting of injunctive relief.” It next took up the question of remedy by injunction and held, on the authority of Nile Irr. Dist. v. English, supra, that injunction did not lie. It thus appears that what was said in that opinion on the question of defect of parties was dictum. It should be noted that in that portion of the opinion in the English case (appearing on page 412 thereof) which is quoted with approval in the Grater case, the court says: “Our statute, sec. 5750 R. S. 1908 [which is said section 7447, C. L. 1921], * * * affords a complete remedy in a proper case, * * I therefore conclude that the proposition contended for by defendants in error finds no support in adjudicated cases in this jurisdiction.
The whole intricate and perplexing question of the necessity, generally, of making bondholders parties in suits in injunction to prohibit the levy and collection of taxes to pay bonds, in suits to recover taxes paid under protest, and in similar actions for similar purposes, is elaborately examined and ably discussed in the briefs before us. I find no necessity, however, for entering this practically limitless morass, or attempting to plat a pathway through it. The vital question here is much simpler, i. e., Where the state is the bondholder, and the *451suit for refund is under this particular statute, may it proceed without the formal appearance of the sovereign?
In considering’ this question the following’ facts should be borne in mind: The statute applies “in all cases” where an illegal tax is paid under protest. It does not make suit to recover necessary. It says, “the county commissioners shall refund. ’ ’ The provision has existed since 1870. In 1913 it was modified by a further provision that the refund should be made only on approval of the tax commission. C. L. 1921, p. 1908, §7460. But we have held that said amendment does not affect the right of the taxpayer to recover under said section 7447. First Nat. Bank v. Patterson, 65 Colo. 166, 176 Pac. 498. Suit follows only when the commissioners fail in their statutory duty. Doubtless in most cases they refund, on approval of the tax commission, without suit. Had they done so here, without notice to judgment debtor or bondholder, would their action have been lawful? Certainly so. "What then would have become of the alleged rights of the state? Said section 7460 provides for a hearing before the commissioners on questions of refund, but requires notice to no one save the assessor. In many cases of illegal or erroneous levy the tax, or some part of it, is for general or special state purpose, for state institutions, for municipalities, for school districts, etc. If the state is an indispensable party in the instant case why not it and these other subdivisions and agencies in actions to recover taxes in which they may be interested? And if so why should not it or they, as well as the assessor, have notice of hearings in such cases on applications for refund? Their interest in refunds resulting from suits is neither greater nor different from their interest in refunds resulting from hearings. Counsel for the county and district, doubtless recognizing the absurdity and untenability of any such theory, admit, in substance, that as to all such taxes the statute makes the county commissioners agents, for the purposes of refund by hearing or suit, of the state and all governmental divi*452sions interested. In fact that proposition has been settled. Union Pac. R. R. Co. v. Weld Co., 247 U. S. 282, 38 Sup. Ct. 510, 62 L. Ed. 1110. First Nat. Bank v. Patterson, 65 Colo. 166, 174, 176 Pac. 498. Bnt counsel says: ‘ ‘ There is a clear-cut distinction between taxes levied for administrative purposes and taxes levied for payment of bonds,” which are “trust funds, the beneficial interest in which belongs to the bondholders.” Hence, here, “the State of Colorado occupies the position of a bondholder entitled to the proceeds of a trust fund.” These are mere conclusions deduced from authorities in which the rights of private bondholders were under consideration and but one of which deals with a similar suit under a similar statute. Our statute makes no such distinction. If the tax collected belongs exclusively to a state institution or a governmental division, why is it not as much a trust fund as if necessarily segregated to pay a bond? If the state can make the county commissioners agents for itself, and all its subdivisions and institutions, in actions for the refund of taxes levied and collected for administrative purposes, involving their daily existence, their very life, why may it not do likewise in actions for the refund of taxes to pay bonds held as investments, and why has it not done so?
Defendants in error here cite a single case arising under a similar statute and allegedly supporting their position. St. Louis-San Francisco Ry. Co. v. Blake, 36 F. (2d) 652. There judgment creditors and bondholders were not made parties and the United States Circuit Court of Appeals held they must be. But there they were private persons and within reach of process, presenting a situation differing widely from that which now confronts us. Moreover, that decision involved the construction of an Oklahoma statute and the Supreme Court of that state took a contrary view. Eaton v. St. Louis-San Francisco Ry. Co., 122 Okla. 143, 251 Pac. 1032.
Assuming that otherwise the state would be an indispensable party defendant in the present proceeding, it *453seems clear that the Legislature has designated the county commissioners as its agents to represent it in applications for tax refunds under the statute in question and elected to be bound by their action, and that, in authorizing suits ag'ainst the commissioners in case of their failure to refund in the circumstances defined by said section 7447, the state has consented to the suit, so far as such consent is necessary to bind it, and designated the county commissioners as its representatives for that purpose.
I therefore think that the state, by statute duly passed by the Legislature, is, through its agents the county commissioners, already a party defendant, by consent, in the present litigation. Since it is clear that judgment debtor and bondholder, if not indispensable parties, are by reason of their status as such, proper parties, and since the district is already in by its duly authorized officers, and the state by its statutory agents, and might further appear by its attorney general if he so elected, there is no apparent reason why this action should not proceed.
Notwithstanding the foregoing the court’s opinion now holds that the present suit is a collateral attack upon a judgment and so fails. For many reasons, based upon what I conceive to be well established principles, I think that holding is erroneous.
This action has nothing to do with an attack upon a judgment. It is a simple suit under a special statute, to recover a tax illegally exacted and paid under protest. If it succeeds, the judgment stands just where it did before. In fact, even the bonds so stand. For example: If this were a suit to recover a tax levied on exempt property, and all taxes on similar property had been set aside by law to pay bonds issued to erect a building at the State University, when the tax was refunded the bonds would still stand even though there was so much property in the same class, and hence governed by the decision, that a wholly insufficient amount remained subject to the tax to ever pay them.
*454Moreover, the relief here sought is against the tax, not against the judgment or the bonds. An, attack upon the latter cannot be spelled out of the complaint and no objection to such an attack is even hinted at in demurrers or assignments. Hence the question is wholly absent from this record.
But assuming now that it is otherwise, it is not presented by the briefs. It is well established, in this and other tribunals, that a reviewing court, where necessary to do justice, will consider questions fairly presented by the record but not relied upon by counsel in argument. Here, however, the court goes afield for such a question to defeat a taxpayer of his right to recover an illegally exacted tax, and by the application of a technical rule raises a barrier of protection for fraud and collusion. In that particular I think no precedent can be found for the opinion.
If the court’s opinion is right the defense of indirect attack upon a judgment would be good here though the bondholder were a private resident and joined as a defendant. The opinion, in effect, writes into the statute this exception, “Provided, however, that no recovery shall be had hereunder if the levy has been made to pay an illegal judgment, or to pay bonds illegally issued.” Yet the statute says that under it may be recovered taxes illegally exacted “in all cases.”
Going still further now and assuming that the question of a collateral attack is presented by this record and may with propriety be considered by the court, what have we? The Legislature has unquestioned power to authorize a collateral attack in a particular case. If this is such an attack it has been specifically authorized by said section 7447 by the provision for recovery of taxes thereunder “in all cases.”
The defense of collateral attack is not jurisdictional. It may be raised or waived. It was not raised in the trial court and is not raised here, hence, if otherwise in the record, it is waived.
*455Again, the levy objected to is directed by the second judgment. It is not mentioned in the first. While this second judgment by its language provided that the levy should be made to pay the first, it also provided that the first should be paid by bonds which the second authorized, and it was in fact so paid and discharged. This second judgment approved the form of those bonds and that form specifically provided that the bonds should be paid by the levy in question: Certainly the first judgment could not be paid twice nor could the levy be used for both purposes. The court was wholly without power to order the issuance of these bonds. That could only be done by a vote of the electors. Hence the court had no jurisdiction to enter the particular judgment and, that want of jurisdiction appearing on the face of the record, the judgment is void. People ex rel. v. Burke, 72 Colo. 486, 212 Pac. 837. A judgment void on its face may always be attacked collaterally, and want of jurisdiction may be raised here for the first time.
It is alleged that this judgment was procured by fraud, practiced in the very act of obtaining it. Such a judgment may be collaterally attacked. 34 C. J., p. 565, §866. It is alleged that this judgment was procured by collusion. Such a judgment may be collaterally attacked by a third person when his rights in litigation are threatened by it. Id. §867. In fact, a third person whose rights are injuriously affected by a judgment may always attack it collaterally. 34 C. J., p. 526, §832; 2 Black on Judgments (2d Ed.), §534; Beatty v. Davenport, 45 Wash. 555, 559, 88 Pac. 1109; 122 A. S. R. 937, 13 Ann. Cas. 585.
For the reasons given I have no doubt this judgment should'be reversed.
I am authorized to say that Mr. Chief Justice Adams and Mr. Justice Campbell concur herein.