Pensioners Protective Ass'n v. Davis
In Pensioners Protective Ass'n v. Davis, 112 Colo. 535, 150 P.2d 974 (Colo. 1944), the State Board of Public Welfare, in administering the pension fund, diverted surplus funds from the pension fund into other funds pursuant to statute. 150 P.2d at 974-75.
The statute was found unconstitutional, and as a result of the litigation, the plaintiffs were responsible for the return of approximately $400,000.00 to the pension fund. Id. at 975. After being denied by the trial court, the plaintiffs sought attorney's fees and costs on appeal. Id. at 974-75.
The Colorado Supreme Court ruled that "state sovereignty" did not bar the recovery of attorney's fees:
"Here, in marked contrast, there is a fund, wholly special, and of constitutional origin. It is administered by a board, statutorially denominated as 'trustee' thereof, in which relation, as we held in the Davis case, it is subject to judicial control and direction. The fund is not dependent upon legislative appropriation. The state, in its sovereign capacity, has, and can have, no interest therein. No relief against the state, as such, was sought originally, nor does the petition under consideration involve spoliation of the sovereign or inroads in, or forays, on, any state fund. The moneys involved are not public funds. They stand segregated for a special and designated use. The term "public funds" means funds belonging to the state. The term does not apply to special funds, which are collected or voluntarily contributed, for the sole benefit of the contributors, and of which the state is merely the custodian." Id. at 976.
Thus, attorney's fees and costs were not denied on the ground that it was violative of state sovereignty, since the pension fund was not a "public fund" belonging to the state. Id.