56 Colo. 343 | Colo. | 1914
Lead Opinion
delivered the opinion of the court:
Upon application of the People, ex rel. the State Board of Equalization and the Colorado Tax Commission, we assumed original jurisdiction of the matters here involved, and issued the alternative writ of mandamus directed to respondent Pitcher, as commissioner of finance and ex officio assessor of the city and county of Denver, commanding him to make, as directed and ordered by the Colorado tax commission and also by the state board of equalization, a certain increase in the valuation of the assessment of the real and personal property of the city and county of Denver as returned in his abstract of assessment for the year 1913, or to show cause within a day named why he had not done so.
The pleadings disclose that the eounty assessors within and for each county of the state, filed with the Colorado tax commission, as, required by law, abstracts of assessment of property within their respective counties for the year 1913; that the tax commission thereupon determined that in-fifty-eight of the sixty-three counties of the state the valuations fixed by the several assessors, and set forth in such abstracts of assessment, were below the full and true cash value of the property so assessed. It thereupon examined all such abstracts of assessment, and secured information for the purpose of ascertaining the changes and increase necessary to cause such prop
The tax commission thereupon reported its action in the premises to the state board of equalization, in session for the purpose of equalizing assessments among the several counties of the state. That board made no changes, but adopted the findings of the tax commission, fixed the levy of taxes for state purposes, and certified its action in the premises to the tax commission and the several assessors of the state. Thereafter, the tax commission, by an order made and entered, recited the action of the state board of equalization in the premises and the levy fixed for state purposes, and again ordered and directed the assessors of the several counties, including the respondent, to make the specified increase by adding the amount which the former had found necessary in each county to make the assessment of the property therein of full cash value. The state auditor likewise certified to the clerk and recorder of the city and county of Denver that the state board of equalization, convened and in session for that purpose, had, on the 20th day of October, 1913, fixed the rate of tax at 1.3 mills to be levied and collected within the various counties of the state, for state purposes, for that year, and, among other things, had, by resolution duly adopted, increased the valuation of the real and personal property of the city and county, as hereinbefore set forth, as having been made and ordered by the tax commission.
The record discloses that in making, ordering and directing the increase in the valuation of the assessable property, over that as returned by the assessor, the state board of equalization and the Colorado tax commission duplicated each others acts. It, therefore, follows that if the acts performed constituting the increase, fall within the powers conferred upon either body, the increase must be, sustained; otherwise declared non-effective. In determining this question it is also essential to consider the powers and duties of county assessors, and county boards of equalization; and in doing this a construction must be placed upon the acts of the general .assembly, if possible, so as to render them consistent with each other and in harmony with the fundamental law. Moreover, as the power of the legislature to enact laws and prescribe the procedure for raising revenue to support the government, is plenary, except as limited by the inhibitions of the federal and state constitutions, no act of that department will be declared invalid unless its repugnance to the fundamental law is clear and beyond reasonable doubt. The judicial department is not invested with legislative power and can not arrest acts of legislation
In People ex rel. v. Henderson, 12 Colo. 369, 371, 21 Pac. 144, 145, Mr. Justice Helm well expressed this rule in the following language:
“We also bear in mind the familiar principles that, except as controlled by constitutional limitation, the authority of a state legislature in enacting laws is plenary, and that, unless there be a clear and positive repugnancy between a statute and a constitution, the statute must be upheld.”
And in Ames v. People, 26 Colo. 83, 109, 56 Pac. 656, 665, after quoting with approval this language of Mr. Justice Helm, we said:
“In numerous other cases this rule of construction has been approved by this court, but it is not necessary to cite them here, as it has become firmly established in this jurisdiction. ’ ’
See also State ex rel. v. Daniels, 143 Wis. 649, 653, 128 N. W. 565, 566, where the rule is aptly expressed in the following language:
“It is elementary law that an act of the legislature' will not be declared unconstitutional unless its repugnance to the constitution is clear and' beyond reasonable doubt. * * * Equally well settled and as oft reiterated is the other rule that ‘the legislature has plenary power over the whole subject of taxation within constitutional limitations.’ ”
Keeping in mind these elementary rules of construction, and directing our attention to the state constitu
The constitutional duty imposed upon the state board of equalization is to adjust and equalize the property values among the several counties of the state, and that upon the several county boards, to adjust and equalize such values within their respective counties. These duties having been imposed upon these agencies by the constitution, the general assembly is powerless to take them away, or confer them upon another. In People ex rel. v. Lothrop, 3 Colo. 428, it was held that the constitutional
In People ex rel. v. Lothrop, supra, it was held that the statutes then in force did not purport to confer upon the state board of equalization the power to raise the aggregate values of property previously ascertained by the county officers, and that if such power was conferred by statute it would constitute that body a board of assessors with power to fix and determine values as well as to adjust and equalize valuations. At the time of that decision the statutes provided that all property, both real and personal, within the state, not expressly exempted by law, should be subject to taxation; that all taxable property should be listed and valued each year and be assessed at its full cash value; and provided a complete plan whereby county assessors should list, value and assess such property at such value. Moreover, it required each assessor to take an oath, and attach the same to his assessment rolls, to the effect that he had made diligent inquiry and examination to ascertain all the property within his county subject to taxation; that he had assessed it equally and uniformly, according to his best judgment and information and belief, at its full cash value; that he had faithfully complied with all duties imposed on the assessor by the revenue laws; that he had not imposed any unjust assessment through malice, nor allowed any one to escape a just and equal assessment
Clearly, if as said on page 462 of that opinion, if the power to raise the aggregate values of property previously ascertained by the county officers was conferred by statute upon the state board of equalization, it would constitute that body a board of assessors with power to fix and determine values as well as to adjust and equalize valuations, then by % 38, Gr. L., p. 754, supra, when similar power was conferred upon county boards of equalization, they were thereby constituted boards of assessors within their respective counties. But, it is said that as a county assessor is a constitutional officer, though his duties are left unprescribed in that instrument, the general assembly is impliedly inhibited from authorizing any other officer to perform any of the duties or functions of assessment. Some courts have held that where the constitution designates an officer to be elected for a definite period without defining his duties or making specific provision therefor, and such office was known at common law, that thereby
“But it is said, that the word ‘sheriff,’ is known to, and derived from the laws of England, and that by its adoption into our constitution, the nature and character, the powers, duties and rights of that office, as it existed under those laws, became fixed and established, by the fundamental law of the state, beyond the reach of legislative alteration, and that as by the common law, and the statutes 14 Edward III, c. 10, and 19 Henry VII, c. 10, the sheriff has the custody and keeping of the jail, and of the prisoners therein, that custody is by the constitution, embraced in the office of sheriff, and cannot be separated from it by legislative act. If the premises assumed be, that the term ‘sheriff’ has been introduced into our constitution, according to its strict etymological sense, and as importing what it originally signified at common law, ‘the keeper of the county,’ with the authorities and dignities attached to the station, as the asso
“If it be true; the contemporaries of the constitution and those who, themselves, had an agency in framing it, have betrayed a lamentable ignorance, or been guilty of a wanton disregard of its provisions, by divesting the sheriff of the high judicial and executive powers which belonged to him in England and degrading him to the performance of unmixed ministerial services; by transferring from him the authority of presiding at elections and imposing on him the duty of attending them as a mere police officer, subject to the orders of others who preside; by depriving him of the important privilege of selecting jurors; by admitting constables, not of his nomination, to participate with him in the service of writs; by all the regulations in relation to sheriff’s sales, and by the in-forcing upon him of the duties of humanity towards prisoners whom the common law allowed ‘in the name of God’ to starve, if they could not support themselves; by requiring from him a bond, as a prerequisite to the discharge of his duties, and by numberless other interferences with his powers and privileges; nay, by the judiciary act itself, passed almost simultaneously with the constitution, and whose provisions the defendant invokes in support of his claims; — and not only by the.acts which
However, it is said that the framers of the constitution, when they employed the term ‘ ‘ assessor, ’ ’ necessarily had in mind the officer, whom it designated, in the light in which he was known to the inhabitants of the territory. In this view we concur, but it does not follow therefrom that the duties pertaining to the office may not be changed and modified in some respects. The territorial laws recognized the assessor, from the beginning, as an agency in raising public revenue, whose duty was prescribed by legislative enactment, frequently changed, and always subject to legislative control. The employment of the term in the constitution, therefore, so far from relieving his duties rfrom the control of the legislature, imports their subjection to the legislative will in the formation and adoption of regulations that will secure a just valuation of-property for the purposes of taxation. Though the office can not be destroyed by the legislature, that agent may, nevertheless, not being restricted in this respect by the constitution, direct and provide that the work of such office may be corrected, supplemented or reviewed. While Savings and Loan Society v. Austin, 46 Calif. 415, was overruled in Houghton v. Austin, 47 Calif. 646, as pointed out in Ames v. The People, 26 Colo. 83, 92, 56 Pac. 656, certain language found in the overruled opinion is so pertinent to the question now being considered that we are constrained to adopt it. It is there said, on pages 474, 475 and 476:
“The argument for the plaintiffs is, that at the time of the adoption of the constitution, the term ‘assessor’ had a definite and well understood meaning, importing that he is an officer appointed or elected to ascertaifi and determine the value of property for the purposes of taxation ; and that in requiring such an officer to be elected in*357 each ‘district, county, or town in which the property taxed for state, county, or town purposes is situated, ’ the interference is necessarily implied, not only that he is to make .the valuation, but that, when made, his determination as to the value is final; and that the valuation cannot be changed, altered, or in any respect modified, unless possibly by some superior board or officer, to be elected for that purpose by the electors of that district, county, or town. In support of this view, we are referred to the fact that this provision is peculiar to our constitution; and, it is claimed, was inserted ex industria in deference to the wishes of the native Californians, who were then the proprietors of large landed estates, and were apprehensive that unless the valuation for taxing purposes should be made by local assessors, to be elected by the people of the district, the burdens of taxation might be imposed chiefly on their lands and herds, to the exclusion of other property.
“Whatever weight may be due to this argument, it can hardly be deemed of such conclusive force as to preclude an examination of other provisions of the constitution in order to determine whether the construction now contended for would not or might not be subversive of one of its fundamental principles. As already stated, the governing rule ordained by the constitution — the central idea which pervades that instrument in respect to taxation — is that it shall be equal and uniform, and that property shall be taxed in proportion to its value.
“As one of the necessary steps towards ascertaining its value, local assessors must be elected, who shall make the primary valuation. But there is nothing in the instrument to indicate that this valuation was intended to be final. On the contrary, it is expressly provided that the valuation is to be ascertained ‘as directed by law’— which is an explicit recognition of the power of the legis*358 lature to provide appropriate methods for ascertaining the value, subject only to the limitation that the primary valuation shall be made by local assessors to be elected by the people of the district. It may be further observed that, when the constitution was adopted, the term ‘assessor’ was not understood as defining an officer whose valuations were to be necessarily final. On the contrary, from the earliest period in our American jurisprudence, assessors had been employed in almost every state for the purpose of making the primary valuation of property for taxation, and in none of them, so far as we are advised, was this valuation final, but was subject to correction and alteration by some supervisory board or officer. In employing the term ‘assessor’ the framers of the constitution must be understood to have used it in this its popular sense.”
In Ames v. The People, supra, these California cases were reviewed and Houghton v. Austin was held inapplicable as an authority under our constitutional provisions. Moreover, while the doctrine of Savings and Loan Society v. Austin was not directly approved, it was held that in this state “the sole power of fixing values is not vested in the assessors by the constitution.” While we. there declined to say how far the general assembly might go in taking from county assessors the power to assess property for taxation, we did hold, substantially, that construing § 8 of art. XIV, creating the office of county assessor, in connection with § 3 of art. X of the constitution, which enjoins upon the general assembly the duty of providing 'by general law such regulations as shall secure a just valuation for taxation of all property, and bearing in mind that § 7 of the same article expressly permits the general'assembly to vest in corporate and municipal authorities power to assess and collect taxes for all their purposes, the general 'assembly was not inhibited from enacting laws authorizing the assessment of certain
Peculiarly applicable on this point is certain language from an opinion of the court of appeals of Kentucky in a case determined under a constitutional provision requiring the election of a county assessor for a definite period, but silent as to his duties. In that case, Spalding v. Hill, 86 Ky. 656, 660, 7 S. W. 27, 28, it is said:
*360 “The constitution of the state requires that a county assessor shall he elected every four years; but his duties are not prescribed by that instrument; his duties were wisely left to be prescribed by law. It is conceded that, ‘in all cases of taxes by valuation, an assessment is indispensable and primary; it lies at the foundation of the proceeding.’ But the action of the assessor in making the assessment is not necessarily final. His action is ex parte. It is true that the law authorizing the assessment may make his action final; but it is not necessarily final by virtue of his office. Prom the earliest history of the state, assessors have been employed for the purpose of making the primary valuation of the property in the several counties of the state; but at no period in the history of the state has the action of the assessors been regarded by the law making power as necessarily final; for laws have been passed time and again, creating county boards of supervisors, with the power to increase or decrease the value placed upon the citizens’ property by the assessor.”
And equally applicable is that from. State of Wisconsin ex rel. Brown County v. Meyers, Judge, etc., 52 Wis. 628, 632, 9 N. W. 777, 778, where, in considering a statute authorizing the appointment of three discreet freeholders, not residents or owners of real estate in the county, to review the aggregate valuations made by the county board of the taxable property in the several towns, villages, and cities of the county, it is said:
“The law is evidently in furtherance of justice and fairness in the equalization of values, and does not seem open to any constitutional objection; for this whole matter is within the control of the legislature, which, doubtless, might abolish the present system and create a state board for the assessment and equalization of the value of the taxable property of the state. At all events, such a law would be within the constitutional power of the legis*361 lature. Therefore the legislature may change the existing method and adopt one better calculated to insure greater uniformity and fairness in the assessment and equalization of the taxable property of the state, when such a method can be devised. A fair valuation of property constitutes the very basis for the apportionment of a tax, and is the main object to be secured in all legislation upon the subject.”
In Board of State Tax Commissioners v. Board of Assessors, 124 Mich. 491, 494, 496, 83 N. W. 209, 210, the constitutionality of a statute creating a tax commission to supervise the assessment roll of the assessors, was under consideration. The court therein used the following pertinent language, to-wit:
“It gets down, then, to the question whether the exclusive agency for making such assessments is, under our constitution, some officer of the municipality, whose acts are final and conclusive as well to the state as to the municipality; for it is to be kept in view that, both at the time of the adoption of the constitution and at the present, the taxes levied for state purposes are based on the same assessment as are those collected for local use. * * * The state is concerned in the proper assessment of property, not only as to its own interests as they are affected by the collection or failure to collect the funds necessary to carry on government, but, as the supreme authority in the state, the legislature , is required by section 12, art. 14, of the constitution, to see to it that assessments be made on property at its real value. We think that the authority of the legislature is not so restricted as to preclude the use of a state board in carrying into effect this important constitutional’provision. * * * . It is suggested that inasmuch as section 13, art. 14 provides for a state board of equalization, this excludes the right to authorize such a board as the board of state tax com*362 missioners. This is based upon- the claim that the board of equalization is in one sense an assessing board; but an examination of this act discloses that none of the duties of the state board- of equalization are interfered with in any way. ’ ’
In the light of these decisions, and bearing in mind the constitutional duty imposed upon the general assembly to provide by law for a state tax sufficient, with other resources, to defray the estimated expenses of the state government for each fiscal year, the constitutional limitation of the rate of taxation on property for state purposes, the necessity for uniformity, and the constitutional /mandate that taxes shall be levied under a plan which ; shall secure a just valuation for the purposes of taxation, ; it would seem that there should be no doubt as to the i power of the general assembly to create a central body, ^ and empower it with the duty of performing those func- ! tions of assessment, in each county, essential to bring j the property therein for taxation purposes to its full cash Í value, the standard by it prescribed to insure a just valua- ; tion. Such law would in no wise interfere with the con- * stitutional powers of the state or county boards of equalization, and would be, in effect, the same power previously conferred by statute, § 38, G. L., supra, upon county boards of equalization.
Indeed, almost every state in the union has provisions, either in its constitution or statutes, authorizing some central body to examine into the assessment of the several counties, and in case the assessment of one or more counties is found to be relatively higher or lower than other counties, to increase or dimish such assessment, even though the effect be to greatly increase the aggregate of the total assessments from all counties.— Wallace et al. v. Bullen, 6 Okla. 17, 52 Pac. 954, and on rehearing, p. 757, overruling Gray v. Stiles, 6 Okla. 455, 49
Indiana has a state tax commission law very similar to ours. A number of cases have been tried there involving the constitutionality of the act, and it has been uniformly upheld. In C. C. C. & St. Louis R. W. Co. v. Backus, 133 Ind. 513, 536, 33 N. E. 421, 428, 18 L. R. A. 729, it is said:
“As to the latter .clause of the section of the constitution providing that the general assembly ‘ shall prescribe such regulations as shall secure a just valuation for taxation,’ it leaves it to the legislature to prescribe the mode by which the valuation of all property shall be ascertained, enjoining upon them the one obligation to provide such regulations as shall secure a just valuation.”
The state of Arkansas has also, by statute, created a state tax commission and conferred upon it the general supervision of the assessment and collection of taxes, and over the county assessors and other officers, and given it the power to revise the action of such officials. The constitutionality of the act has been sustained. See Bank v. Tax Commission, 92 Ark. 492, 123 S. W. 754.
We find nothing in our constitution, either directly or by necessary implication, which inhibits the legislature from creating such a body and investing it with such power, nor do we find anything in the decisions of our courts to prevent it. While in People ex rel v. Lothrop, supra, it was said, in view of the fact that a county assessor is a constitutional officer, and of other constitutional provisions, that “it may be gravely doubted whether it is competent for the legislative authority to take from county assessors the substantial control of valuations of property for state taxation, and vest it in a central authority,” the matter was not determined. On
“While in this brief no special effort is made to controvert the doubt thus expressed in the Lothrop case, for the reason that the legislature has not attempted such legislation, we do not for one moment doubt the powder of the legislature to pass general laws which shall be effectual to secure ‘a just valuation for taxation of all property, real and personal,’ even though the result might be the increasing of the average valuation of the county assessors. It would be a strange conclusion to hold that the legislature has not the power to pass such laws and prescribe such regulations as the constitution expressly provides shall be passed to carry into effect its essential guaranties.” Supreme Court Briefs, vol. 166.
Having determined that the general assembly may create a central body and confer upon it general supervision of the assessment and collection of taxes, and likewise over officers authorized by statute to perform such functions, we will advance to a consideration of the pertinent provisions of the statutes of this state creating and defining the Colorado tax commission under which, if at all, the increase ordered in the assessed valuations here involved can he upheld.
Chapter 216 of the Laws of 1911 created the Colorado tax commission and. defined its duties. This act in some particulars was amended in 1913, S. L. p. 525. Subdivision 1, § 13 of the act of 1911, p. 615, purports to invest the tax commission with authority to cause all property of every kind or character to be assessed at its actual and full cash value, and, to that end, confers upon it general supervision over the administration and the enforcement of all laws for the assessment, levying and
This view is further fortified by other provisions of the act. Subdivision 7 of § 13 provides for the giving of notice to the owner of property and fixing a time and place for a hearing. This notice, however, applies only in cases where the tax commission is exercising its power
“Exactly what due process of law requires in the assessment and collection of general taxes has never yet been decided by this court, although we have had frequent-occasion to hold that, in proceedings for the condemnation of land under the laws of eminent domain, or for the imposition of special taxes for local improvements, notice to the owner at some stage of the proceedings, as well as an opportunity to defend, is essential. * # * But laws for the assessment and collection of general taxes stand upon a somewhat different footing and are construed with the utmost liberality, sometimes even to the extent of holding that no notice whatever is necessary
Moreover, under the law as it existed prior to the adoption of the act of 1911, and as it now is, the state board of equalization is required to meet at a certain place, on a certain day, and to complete its labors'by another day. It has never been questioned that such board has the right, without further notice than that implied by the law, to equalize valuations of the property among the counties by raising the valuation in one or more and reducing it in others. The only question that has been raised is as to whether the aggregate valuation of the counties might be increased. But whether the aggregate is increased or not, the same legal principle
In State Railroad Tax Cases, supra, in speaking upon this subject, it is said :
‘ ‘ The main function of this board is to equalize these assessments over the whole state. If they find that a county has had its property assessed too high in reference to the general standard, they may reduce its valuation; if it has been fixed too low, they raise it to that standard. When they raise it in any county, they necessarily raise it on the property of every individual who owns any in that county. Must each one of these have notice and a separate hearing? If a railroad company is by law entitled to such notice, surely every individual is*370 equally entitled to it. Yet, if this be so, the expense of giving notice, the delay of hearing each individual, would render the exercise of the main function of this board impossible. _ The very moment you come to apply to the individual the right claimed by the corporation in this case, its absurdity is apparent. Nor is there any hardship in the matter. This board has its time of sitting-fixed by law. Its sessions are not secret. No obstruction exists to the appearance of any one before it to assert a right of redress a wrong; and, in the business of assessing taxes, this is all that can be reasonably asked.”
So in Suydam v. Merrick Co., 19 Nebr. 1551, 27 N. W. 142, Mr. Justice Cobb, speaking for the court, said:
“When complaint is made that a certain individual is assessed too low, then it is a condition precedent to action thereon by the board, that such individual owner have notice of such proceeding. But the increase of the assessment of a precinct is not made upon anyone’s complaint, but arises in the official mind and judgment of the commissioners, upon an inspection and comparison of the assessment rolls of the severa\ precincts. The law has designated no officer or person upon whom notice could be served, or to represent the precinct at such equalization. The county commissioners themselves are the only and proper representatives of the precinct, and, as they constitute the board of equalization, no notice need be served on them. ’ ’
In Pittsburg, etc., Ry. Co. v. Backus, 154 U. S. 421, 425, 38 L. Ed. 1031, 14 Sup. Ct. 1114, 1116, Mr. Justice Brewer, speaking- for the court, said:
“It is contended specifically, that the act fails of due process of law respecting the assessment, in that it does not require notice by the state board at any time before the assessments are made final, and several authorities*371 are cited in support of the proposition that it is essential to the validity of any proceeding by which the property of the individual is taken that notice must be given at some time and in some form, 'before the final adjudication. But the difficulty with this -argument is that it has no foundation in fact. The statute names the time and place for the meeting of the assessing board, and that is sufficient in tax proceedings; personal notice is unnecessary. In State Railroad Tax Cases, page 610, 23 L. Ed. 663, are there words, which are also quoted with approval in the Kentucky Railroad Tax Cases:
“ ‘This board has its time of sitting fixed by law. Its sessions are not secret. No obstruction exists to the appearance of anyone before it to assert a right, or redress a wrong; and, in the business of assessing taxes, this is all that can be reasonably asked. ’ ’ ’
In Territory v. First National Bank, 10 N. M. 283, 303, 65 Pac. 172, it is said:
“The statute relating to the assessment of property within the county requires, that where the board of equalization or the assessor increases the valuation of property as returned by the taxpayer that notice of such increase shall be given the taxpayer affected, and the object of this notice is to give the taxpayer an opportunity to object to the altering of the assessment and to appeal if he so desires, but there is no such provision in regard to the action of the territorial board of equalization. This failure to provide for such notice was, no doubt, intentional on the part of the legislature, because it would be both expensive and burdensome; in fact, it would be practically impossible to notify all individual taxpayers whose assessments might be affected by the territorial board of equalization, in their effort to secure the reasonable uniformity required by law. Indeed, it might happen that almost all the taxpayers of a county*372 or the territory might be affected by the action of the board of equalization, and it would be unreasonable to require a notice to be served upon all who might be affected by the action of such territorial board of equalization. It is reasonable to believe that the legislature in fixing a specified date upon which this board should meet, clothed with territorial jurisdiction for the purpose of equalizing the valuations of the property of the territory, deemed this a sufficient notification to all parties interested to attend the meetings of such board, and there to look after any interests liable to be affected by the action of the board within the scope of its powers, and for that reason made no further provision for notice.”
In McMillen v. Anderson, 95 U. S. 37, 24 L. Ed. 335, it is said:
“It seems to be supposed that it is essential to the validity of this tax that the party charged should have been present, or had an opportunity to be present, in some tribunal when he was assessed, but this is not, and never has been, considered necessary to the validity of a tax. ’ ’
The same doctrine was announced and affirmed in the Kentucky Railroad Case, 115 U. S. 321, 29 L. Ed. 414, 6 Sup. Ct. 57. It would seem, therefore, that where such a notice has not been provided for in the laws of the state, the courts hold that the failure to provide for or give the taxpayer a specific notice, does not affect the validity of. the tax. The principle declared in these cases, as to the sufficiency of notice essential to‘authorize equalization boards to act, applies with like force to the tax commission when proceeding under the provisions of § 31, supra. The latter body is empowered by the legislature to cause to be added to or deducted from the valuation of the various counties the amount necessary to place upon the assessment rolls of the state the taxable property therein at the true and full cash value. Its place
Furthermore, the tax commission, by § 15 of the act, is expressly authorized to receive complaints, and carefully examine into all cases, where it is alleged that property, subject to taxation, has not been assessed, or has been fraudulently or for any reason improperly or unfairly assessed, etc. Here is an express provision for an opportunity to be heard which, with the notice given by the statute of the time and place of the meeting of the tax commission, surely constitutes due process of law. We think respondent does not properly interpret Gale v. Statler, 47 Colo. 72, upon which he relies. While in that case it was held that notice and an opportunity for hearing must be given a taxpayer when the assessor raises the valuation of his property, the case involved the placing upon the rolls property that had been omitted, and the statute in relation thereto expressly provides that notice must be given. So, under the tax commission statute, when complaint is made or knowledge comes to the tax commission that the property of a certain individual in any county is assessed improperly, too high, or too low, then it is a condition precedent to action thereon by the commission, that such individual have actual notice, and an opportunity to be heard as provided by the act. But, paraphrasing the language of Mr. Justice Miller in the State Railroad Tax Cases, supra, the
As to the contention that all property in the city and county of Denver was valued by the county assessor at its full cash value, and that the proposed increase ordered by the tax commission, and confirmed by the state board of equalization, will result in an over-valuation of property, and therefore operate as a discrimination against the taxpayers of the district, in that it compels them to pay taxes on property they do not possess, in violation of the constitutional rule requiring taxation to be uniform and according to a just valuation, it is sufficient to say, that it is not conceded that the property assessed as valued by the county assessor is at its full cash value. It is conclusively presumed, however, that as between individual property owners within the county, there has been a just value placed thereon, that is, a value relatively equal. If the latter has not been done the fault
“It must be remembered that, so long as the local officers obey the laws of the state they are not meddled with and their functions are in no way curtailed, and it is only when they violate the law which they are bound to obey that the state undertakes to interfere. * * * The state has a vital interest in insisting that its laws pertaining to taxation be honestly and fairly administered, to the end that the burden of taxation may be equitably distributed. * * * In order to make an equal distribution of the county and state taxes it is essential that all taxable property that can be discovered be placed upon the tax rolls and that a uniform basis for valuation be adopted and adhered to. So long as the practice prevails of assessing property in different localities at figures varying from twenty-five to one hundred per cent or more of its true value, and of doing the same thing locally for that matter, so long are we liable to have gross inequalities in the distribution of the tax burden. So the state in endeavoring to enforce the*376 requirements of the law in regard to the assessment and equalization of property, is not acting as a mere interloper, exercising a paternalistic function for the purpose of exploiting its right so to do, but is attempting in good faith to perform a duty in which its citizens generally have something more than a passing interest. All the state has undertaken to do is to review the work done by local officers when its proper agencies are satisfied that the law has been violated. In such a contingency the law in substance and effect provides for a reassessment of the property of the local municipality.”
Any one. familiar with the. history of taxation in this state can readily realize the purpose and necessity of the legislature enacting chapter 216 of the Session Laws of 1911. All the statutes, adopted previous to this law, had proven inadequate to coerce the assessors to fix a full cash value, as required by law, upon the taxable property within the county. Moreover, they had likewise failed to place a relatively equal value upon the same class of property within their respective counties, and county commissioners and boards of equalization had not corrected the evil. It, no doubt, became apparent to the general assembly that the assessment of property could not be entrusted solely to the local assessors and local boards, for the reason that such officials continually assessed property far below its real value, justifying their acts in that respect on the assertion that other counties did likewise. Indeed, history discloses that such has been the experience of many of the states of the union, and imperative necessity, there as- here, has required the creation of central bodies with power to correct assessment rolls, and increase or lower the valuations placed upon property for taxation purposes by the local authorities.
It also became apparent to the legislature, no doubt, that in order to enable the state to secure sufficient reve
That an unsuccessful effort was made in 1912 to amend § 15 of art. X of the constitution, so as to create thereby a central body under the name of “The Colorado Tax Commission,” and vest it with power to adjust, equalize, raise or lower the valuation of real and personal property among the several counties of the state, and to constitute for each county a county board of equalization, with like powers within their, respective counties, their work, subject, however, to revision, change and amendment by the aforesaid central body, in no sense affects the validity of the statute, nor constitutes a legislative interpretation thereof. Surely, no court will assume that the legislative power enacted a law, believing it to be unconstitutional, and sought to correct its efforts at legislation in that regard by submitting a proposed constitutional amendment to a vote of the people. Neither will it assume that, because the people refused to create a central constitutional body and invest it with both constitutional and statutory powers previously invested respectively in distinct bodies, one constitutional and the other statutory, that thereby they placed a legislative construction upon a statute creating such statutory body and defining its duties. There is a vast and important difference between lodging these powers in one or two bodies. Moreover, that which the people might be willing to do by statutory enactment they might be wholly unwilling to do by constitutional pronouncement.
The fact that petitioner has sought to sustain the acts here involved upon the theory that they were performed by the state board of equalization, and that the performance of them by the tax commission was only
“That the Colorado tax commission, after receiving the" abstracts of the various assessors of the state as aforesaid, examined each and all of said abstracts for the purpose of determining whether the real and personal property of the several counties of the state had been assessed at its true and full cash value, and that after having examined all of said abstracts and after having secured information for the purpose of determining the true and full cash value of the real and personal property of the counties of the state, said commission, on, to-wit, the first day of October, 1913, found and determined the amount of increase or déerease in the valuation of said real and personal property of the respective counties which would place said property on the assessment roll at its true cash value, and on said day issued an order to said Pitcher as assessor of the city and county of Denver, ordering and directing him to add to his valuation of property within said city and county of Denver, the amount of $101,902,088 so found necessary to be added in order to place said property on the assessment roll at its*381 full and true cash value; and that after said commission had determined upon the true value of the real and personal property of the several counties, it made a report of its actions and findings and transmitted the same to the state hoard of equalization, which said statement showed the amount to be added or deducted from the valuation of the real and personal property of each county, and which statement specified the amount to be added to or be deducted from the valuation of such real and personal property, and that said commission in determining the valuation to be placed on the real and personal property of the various counties of the state, proceeded in all respects according to the provisions of the law in such cases made and provided.”
And in subdivision 13 of the alternative writ appears the command of this court as follows:
“Wherefore, we command you, .the said Clair J. Pitcher, commissioner of finance and ex-officio assessor of the city and county of Denver, Colorado, your successors, deputies, assistants and subordinates, immediately upon receipt or service of this alternative writ of mandamus, to make such additions or corrections in your assessment and assessment roll and in the assessment and assessment roll of said city and county of Denver for the year 1913 as is or may be necessary to carry out the directions of the state board of equalization and the Colorado tax commission, as you are bound to do under the constitution and laws of the state of Colorado,” etc.
Turning to § 32 of the statute, we find that the things I herein set forth as having been done and performed by f the tax commission are the acts and things which that ! body is authorized and required to do, and are, therefore,' primarily its acts. However, as that which the tax commission orders done in the premises may be changed by the state board of equalization in adjusting and equaliz
This case only demonstrates anew the wisdom of the general rule that public officials, whose duty it is to carry out statutory directions, should not be permitted to raise the constitutionality of statutes. People v. Leddy, 53 Colo. 109, 111, 123 Pac. 824. As said in Ames v. The People, supra:
“The reasons for this rule are apparent. Public policy and public necessity require prompt and efficient action from such officers, and when intrusted with the assessment of taxes and the collection and disbursement of the revenue, they have no right to refuse to perform ministerial duties prescribed by law because of any apprehension On their part that others may be injuriously affected by it, or that the statute prescribing such duties may be unconstitutional. ”
The duties of respondent, after his assessment rolls had been delivered to the county commissioners, and his abstract transmitted to the tax commission, were purely ministerial. Denver v. Pitcher, 54 Colo. 203, 129 Pac. 1015, Whatever confusion has arisen, or may arise, in
Decision en banc.
Mr. Justice Gabbert, Mr. Justice Hill and Mr. Justice Garrigues dissenting.
Dissenting Opinion
dissenting:
The state board of equalization raised the assessed valuations of property in the state about $187,000,000 above that returned by the assessors, the raise in the city and county of Denver alone being nearly $102,000,000. This action is upheld by the majority, opinion on the ground that the commission raised the valuation of the property in the counties affected by increasing the value in each of these counties to its cash value; that this was an assessment of such property, and that the board in equalizing assessed valuations among the counties of the state treated this action of the commission as a re-assessment, and therefore did not increase the assessed valuations.
Neither did the board regard the action of the commission as an assessment. From its resolution, which is the basis of this action, it appears, not that it equalized valuations returned by the assessors, or the commission, or both, but, “Has determined the amount of the valuation of the real and personal property of each county as will place said property on the assessment roll at its true and full cash value;” thus showing that its action was, in no sense, an equalization of valuations, but that it fixed the valuations in each of the counties affected, in such
The vital question, thereforé, is whether the hoard in the exercise of its functions as a board of equalization has the authority to increase the aggregate valuations returned by the assessors. This must be determined by ascertaining, first, its authority under the constitution; and, second, whether the statutory provisions to which reference was made conferred such authority as will support its action.
The power of the board as a board of equalization, under the constitution, was determined in the Lothrop case, more than 36 years ago. It was there held that to concede it the power to increase the valuations returned by the local officials made it practically a board of assessors, with authority to fix and determine values as well as to adjust valuations; that the constitution provides for the election of an assessor in each of the counties of the state, and that the intention of the people, by his provision, was to preserve local control over the valuation of property for the purpose of taxation; that the power to fix and determine the valuations of real and personal property for this purpose was lodged in the assessors and board of county commissioners of the several counties of the state;' and that when these officials had performed this duty the sum of the valuations of the several counties, as returned by them, must be taken as the aggregate valuation of all the property in the state, and was final and conclusive upon the board, and that it might, for the purpose of adjusting and equalizing, increase the valuation of one county, and decrease the valuation of another, but was without authority to increase the sum of all the valuations of the several counties of the state. In brief, it was held that the power of the board as a board of equalization was limited to reducing to a uniform basis
The next question is whether the statutory provisions to which reference has been made authorize the board to increase the aggregate valuations returned by the assessors. These provisions purport to empower the commission to determine whether the total valuation of the property in any county as returned by the assessor is the true value thereof, and, if not,.determine the increase or decrease which shall be made by such rate per cent as will place the property therein on the assessment roll at its cash value, and report this action to the board; that the board shall examine the abstracts of assessment as submitted by the commission, make a report of its action thereon, certify the same to the county assessor, who shall add to or deduct from the property in his county the per cent, and amount on the valuation thereof, “as it stands after it has been equalized by the state board of equalization.” There is not a word in either of these sections which authorizes the board to increase the aggregate valuations returned by the assessors. On the contrary, the section which directs what the board shall do, requires it to direct what per cent of increase or decrease shall be made on the valuation after it has been equalized. As pointed out, the commission is not authorized to make an assessment by a horizontal raise, or reduction; so that the only values which the .board can equalize must be those returned by the assessors.
If, however, it was the intention to confer upon the board authority to increase the aggregate valuations returned by the assessors its action is a nullity. In the Lothrop case it was claimed that by statute the board
“Let us then inquire where, under our constitution and laws, this important power of determining the valuation. of taxable property as a basis of taxation is lodged. The constitution provides (section 8, article 14) for the election in each county each alternate year of a county assessor. He is thus a constitutional officer and though his duties are left unprescribed the essential duties of an assessor must be presumed to have been contemplated. Is there not here a plain intention on the part of the people to preserve local control over the valuation of property for purposes of taxation? This local control existed under the territorial form of government under which they had been living, and is this not an effort-to secure it beyond contingency?”
True, the increase ordered by the board is based upon the action and report of the commission increasing the valuations in the different counties. The latter, however is not authorized to re-assess by a horizontal raise,— so that the increase made by the board is not based upon an equalization of assessments, but an increase in valuations made by the commission, which it is without authority to make as an assessment. This increase by the board is attempted to be upheld by the attorney-general upon the ground that the commission by its action merely collected data, and furnished a statement to the board to aid it in performing its duties; that in this respect the commission acted in an advisory capacity; that from the information thus obtained the board determined that the valuations in each of the counties affected should be raised to a sum representing the cash value of the property involved. If this was the object of the statutory provisions under consideration, and they are to be given this construction, it is apparent that thereby an attempt
In my judgment every question necessary to consider was decided in the Lothrop case adversely to the contention of petitioner here, and, following that case, the alternative writ should be quashed and the proceedings dismissed.
In effect, the construction given the constitutional provision defining the powers of the board when acting in the capacity of a board of equalization, in the Lothrop case, made it a part of the constitution. It has been acquiesced in by the people for 36 years and after this lapse of time it must be conclusively presumed that they are satisfied with its provisions as thus construed and that this expressed their intent when adopted, otherwise they would have amended it. With due deference to my learned associates, I submit that to uphold the action of the board necessarily overrules the Lothrop case and results in amending the fundamental law — a power which the people alone can exercise.
Dissenting Opinion
dissenting:
I understand the majority opinion holds that the horizontal raise, which the assessor was ordered to add
This contention to prevail, must be in harmony with the statute and the facts. In other words, there must be a statute authorizing the tax commission to assess in this manner, and the facts must show it made the assessment. It seems to me the majority opinion assumed without authority, both these points. The only statute covering the matter is found in sections 31, 32 and 33, Laws of 1911, page 623, which provide: If the tax commission shall be of the opinion that the assessor has not in his original assessment assessed the real and personal property of his county at its true cash value, it shall determine what increase, by rate per cent, will place the property on the assessment roll at its true cash value; that after it has done so, it shall transmit to the state board of. equalization its determination, with a statement specifying the amount to be added; when this statement is received by the state board of equalization, it is made its duty to then examine the abstracts of assessment of each
Thei;e is nothing in these sections authorizing tbe tax commission to add to, or to order tbe assessor to add any amount to tbe original assessment, or to make a reassessment or supplemental assessment by a horizontal raise, or in any manner, or to make any assessment of any kind, and, what is more, it did not do so. Let us follow what was actually done, and see if we can discover where tbe tax commission ordered this horizontal raise to be added, or made any assessment. In tbe opinion of tbe commission, tbe real and personal property of Denver county was not assessed by tbe assessor at its true cash value, and it found that a 40 per cent horizontal increase, if added to bis assessment roll, would place tbe real and personal property of tbe county on tbe roll at its true cash value. What did it then do ? As tbe statute required, it transmitted a statement of this finding to tbe state board of equalization, and its function in tbe premises was ended. It could do no more, and it did no more. Tbe state board of equalization then began its work of equalizing, examined tbe abstracts of assessment of tbe counties as submitted by tbe tax commission, made a record of its action on tbe abstract of eacb county, certified tbe same to tbe county assessor of Denver county, and ordered him forthwith to add 40 per cent to tbe original valuation of bis county. Now,- under this statute, and these facts, wbo made tbe supplemental local assessment, tbe tax commission or tbe state board of equalization? Evidently tbe state board that ordered it, and I think tbe bolding that it was made by the tax commission is a mere subterfuge that would not be' tolerated by tbe courts in
Dissenting Opinion
dissenting:
I cannot agree with the conclusion. .As I view it, the theory upon which the action is disposed of is not involved in the case. I cannot agree that the action was brought for the purpose of compelling the respondent to comply with any order, findings, or actions of the tax commission, save the order made by it based upon the authority of the actions and order made by the state board of equalization and then only in conjunction with the latter board’s actions and order. To sustain this view I call attention to the orders of both boards, copies of which are set forth in the alternative writ; they are as follows:
“Denver, Colorado, October 22,1913.
Mr. Clair J. Pitcher,
Assessor of City and County of Denver,
Denver, Colorado.
We, the undersigned members of the State Board of Equalization, hereby certify:
That at a meeting of the State Board of Equalization, held on the 20th day of October, 1913, which meeting was held for the purpose of examining the abstracts of assessment of the various assessors of the státe for the year 1913, as submitted to said Board by the Colorado Tax Commission, and for the purpose of taking action on said abstracts and of equalizing the valuations of the real and personal property of the counties of the state, as provided by law, and for the purpose of fixing the rate of
By resolution, duly adopted, the valuation of the real and personal property of the City and County of Denver was increased from $254,755,220, the amount returned in your abstract of assessment on property assessed by you, to $356,657,308, making an increase in valuation of your assessment of $101,902,088, the rate per cent of said increase being 40%.
And by resolution, duly adopted, the rate of tax which is to be levied and collected within the counties of the state for state purposes was fixed at 1.3 mills.
Elias M. Ammons, Governor,
M. A. Leddy, State Treasurer,
Feed Faeeae, Attorney General,
James B. Peaeoe, Secretary of State,
Roady Kenehan, Auditor of State.”
“Denver, Colorado, October 22, 1913.
Mr. Clair J. Pitcher,
Assessor of the City and County of Denver,
Denver, Colorado.
Dear Sir:
The State Equalization Board, at a meeting held October 20,1913, raised the assessed valuation of the real and personal property of your county, as assessed by you, from $254,755,220 to $356,657,308, making an increase in valuation of $101,902,088, the rate per cent of said increase being 40%.
Said Board also fixed the rate of tax which is to be*394 levied and collected within your county for state purposes a’t 1 3/10ths mills.
You are therefore ordered and directed to correct your assessment roll by adding the above increase in valuation and your attention is also directed to Section 3, Page 527 of the Session Laws of 1913, pertaining to your duties as assessor.
Respectfully,
The Colorado Tax Commission,
By John B. Phillips.
Attest: " ■
S. E. Tucker, Secretary.”
It is these orders that the relators seek to have the respondent comply with, and none other. The order of the tax commission says that the state board, at, etc., raised the assessed valuation, etc., of your county, etc.; you are therefore ordered and directed to correct your assessment roll by adding the above increase. Wherefore? Because the state board of equalization has ordered the value raised, etc. What increase? That made by the state board of' equalization. It appears to me there is no escape from this conclusion. This language interprets itself. That the state board of equalization thus understood it is further evidenced by the notice of the state auditor to the county clerk of the respondent’s county. This order is set forth in the alternative writ; it is as follows:
“October 20, 1913.
To Otto F.- Thum,
Commissioner of Property of the ■ t ■ City and County of Denver and Ex-officio Clerk of said City and County:
At a meeting of the State Board of Equalization, held on the 20th day of October, A. Í). 1913, which meeting was held for the purpose- of fixing the rate of tax to be*395 levied and collected within the various counties of the state for state purposes, the following proceedings, among others, were had:
By resolution, duly adopted, the valuation of the real and personal property of the City and County of Denver was increased from $254,755,220.00 to $356,657,308.00, making an increase in valuation of $101,902,088.00, the rate per cent of said increase being forty per cent (40%).
And by resolution, duly adopted, the rate of tax which is to be levied and collected within the City and County of Denver for state purposes was fixed at 1.3 mills.
Boady Kenehan,
State Auditor of the State of Colorado,
Dictated by Attorney General.”
That the learned attorney general and his able assistants thus under stood it, is self-evident not only by his preparing the above notice for the auditor’s office, as it discloses, but by a reading of his briefs which • disclose that his position is, that it was made by the state board of equalization and that they had a right to so do. A portion of his opening brief reads:
“The state board of equalization, sitting as the-final arbiter to determine the valuations to be placed upon the real and personal property of the county, acted strictly within the limits of its power. It increased the valuations of the counties in such amounts and by such rates per cent as in its judgment would place the property of the state on the assessment roll at its full cash value, and under the statutes, it is the duty of said board in equalizing to take as a standard, not an average county, not any fictitious or arbitrary standard, but the true and full cash value, as its standard for equalizing valuations. Not only is this standard-the requirement of the statute, but*396 by fair implication it is the requirement of the constitution. ’ ’
In his reply brief he says:
‘ ‘ The only questions, as we have previously pointed out in our original brief, properly before this court are as to the powers of the state board of equalization in equalizing the valuations of the property between the counties; that is, first, as to whether the aggregate valuations of the counties can be increased or decreased; and, second, whether, under the provisions of our laws, due process of law is afforded the taxpayers.”
The concluding paragraph of his reply brief reads:
“We feel confident that the position we have taken is the only sound one that could- be taken, and, notwithstanding the comprehensive brief prepared by the able counsel of the respondent herein, we believe our position should be sustained.”
It will thus be observed that the position which the learned attorney general says is the only sound one that could be taken, is not accepted by the majority; to analyze they say to him your position is not sound and cannot be accepted, while by having said that it is the only sound one, he, by inference, says to them that the theory upon which the case is disposed of is unsound. In this inference I agree with the attorney general. If his petition can be construed as alleging the execution of a former order by the tax commission he does not ask or seek to have it enforced; the action is not brought for that purpose, but his contention is to the contrary; the reasoning is apparent and that is because there is no statute which authorizes the commission to make such an order or any order before the state board of equalization performs its constitutional duty it must be conceded that without statutory authority such an order, if made, is a nullity.
I am unable to find anything in our constitution or statutes which permits of increases of values by the state board without an attempt at equalization. As I view it, the contention that the state board ordered these increases of values as an incident,to equalization, is not supported by the record, but to _the contrary it discloses that the efforts of the board were to practically re-assess the property, in order to have it placed upon what the board says is its true cash value; its resolution so states. It also shows that the tax commission purported to determine the value of the real and personal property in the several counties in the state assessed by the county assessors. This fact is thus stated in the resolution of the state board and is followed with the declaration that it, the .state board, after having examined these abstracts, has determined the amount of the valuation of the real and personal property of each county as will place' said property on the assessment roll at its true and full cash value. The declaration in this resolution that the Colorado tax commission determined these values in the manner provided by law is, as I view it, by the pleadings,
The alternative writ set forth the resolution of the board ordering these raises which includes the valuation of the individual property in each county in the state as returned by the county assessors, the increases as ordered by the state board and the total value as fixed by them. In detail, this discloses that they have increased the values as returned by the county assessors in fifty-eight counties, leaving the values as fixed by the county assessors in five counties unchanged (there being sixty-three counties in the state). By an examination of the auditor’s report for the years 1911 and 1912 I find that the total value for the year 1912 of the property assessed by the county assessors in the five counties left unchanged by the state board amounts to $6,127,622, while the total increase for the present yéar for the other fifty-eight-counties as fixed by the state board is approximately $187,000,000 and is in excess of $100,000,000 in the county represented by the respondent. These ordered increases vary from a fraction of one per cent to as high as one hundred thirty-six per cent, varying in the different counties, being forty per cent increase in the county of the respondent, and as I read the instructions of the state board and commission embodied in their notices to him, they mean that he must add this per cent of increase upon all the taxable property in his county which has been
“Whereas, The Colorado Tax Commission has heretofore and in the manner provided by law, determined the true value of the real and personal property in the several counties in the state and has transmitted to this board a statement of the amount to be added to or deducted from the valuation of the real and personal property of each county; and,
Whereas, This board has examined the abstracts of assessments of each' county in the state of Colorado, as submitted by the'Colorado Tax Commission; and,
Whereas, This .board, after having examined said abstracts, has determined the amount of the valuation of the real and personal property of each county as will place said property on the assessment roll at its true and full cash value.
Be it therefore resolved, and it is hereby determined that the valuations of the various counties of the state as returned and shown by the respective abstracts of assessment of the respective assessors of the counties of the state be increased or decreased as follows.
*400 Increase Total
County. Valuation by Assessor. by State Board of Equalization. as Fixed, by State Bd. of Equalization.
Adams...... $ 17,190,930 $ 27,321 $ 17,228,251
Alamosa..... 1,061,719 1,510,626 2,572,345
Arapahoe 12,729,700 35,610 12,765,310
Archuleta____ 2,245,845 149,558 2,395,403
Baca........ 2,190,577 277,530 2,468,107
Bent........ 7,095,035 174,015 7,269,150
Boulder..... 31,609,896 1,264,396 32,874,292
Chaffee ...... 6,608,699 55,450 6,664,149
Cheyenne .... 2,506,289 2,828,230 5,334,519
Clear Creek.. 2,854,960 879,000 3,733,960
Conejos..... 5,260,901 3,904,700 9,165,601
Costilla ..... 1,924,650 2,617,120 4,541,770
Custer...... 1,740,860 553,086 2,294,046
Delta........ 12,662,290 2,181,000 14,843,290
Denver...... 254,755,220 101,902,088 356,657,308
Douglas..... 5,519,965 52,565 5,572,530
Eagle....... 2,898,079 959.680 3,857,759
Elbert....... 5,524,038 1,444,752 6,968,790
El Paso..... 53,885,620 67,942 53,953,562
Fremont..... 12,729,902 ' 3,182,475 15,912,377
Garfield..... 11,405,215 ' 155,088 11,560,303
Hinsdale _____ 643,885 2,438 646,323
Huerfano____ 7,886,436 963,570 8,850,006
Jackson -.____ 2,901,210 624,406 3,525,616
Gilpin....... 3,113,623 769.680 3,383,303
Grand ....... 2,283,156 1,175,224 3,458,380
Gunnison____ 9,292,900 87,095 9,379,995
Las Animas.. 27,369,985 165,194 27,535,179
Lincoln ...... 4,883,670 2,310,637 7,194,307
Logan ....... 10,190,960 2,061,500 12,252,460
Mesa........ 22,914,850 127,361 23,042,211
Mineral ...... 1,093,597 125,620 1,219,217
Montezuma .. 5,024,428 527,600 5,552,028
*401 Increase Total
County. Valuation by Assessor. by State Board as Fixed by State of Equalisation. Bd. of Equalisation.
Montrose — 10,823,975 123,033 10,947,008
Morgan _____ 10,418,534 2,053,680 12,472,214
Otero...... 20,953,075 89,847 21,042,922
Onray...... 5,107,376 28,008 5,135,384
Phillips .... 4,682,773 847,179 5,529,952
Pitkin...... 4,627,795 199,355 4,827,150
Pueblo..... 46,042,209 6,709,620 52,751,829
Rio Blanco.. 2,976,205 1,742,920 4,719,125
Rio Grande.. 4,118,840 4,841,160 8,960,000
Routt...... 9,787,545 44,968 9,832,513
San Juan ... 4,005,519 248,260 4,253,779
San Miguel.. 8,627,960 71,824 8,699,784
Sedgwick ... 4,145,170 53,109 4,198,279
Teller...... 14,075,740 38,085 14,113,555
Washington . 7,218,673 256,257 7,474,930
Weld....... 37,180,260 23,447,440 60,627,700
Yuma...... 7,398,195 . 113,674 7,511,869
Saguache ... 4,024,491 4,248,085 8,272,576
Jefferson ... 15,226,445 13,003 15,239,448
Kiowa...... 2,288,930 1,722,645 4,011,575
Kit Carson.. 5,407,916 2,374,354 7,782,270
Lake....... 9,712,059 2,275,000 11,987,059
La Plata____ 11,014,253 80,494 11,094,747
Larimer____ 26,165,789 1,620,100 27,785,889
Prowers---12,730,300 146,971 12,877,271
Crowley ... % Unchanged.
Dolores ----
Moffat.....
Park-..
Summit
íhe value of the property assessed by the county assessors for the year 1912, as shown by the auditor’s
Crowley.........................$1,989,684.00
Dolores......................... 309,337.00
Moffat .......................... 1,247,935.00
Park.................... 1,361,309.00
Summit ......................... 1,219,357.00
Total.......................$6,127,622.00
If a proper construction of the resolution is that the state board made these increases for the purpose, as therein stated, of placing the property on the assessment roll at its full cash value as determined by the board, then there is neither constitutional nor statutory authority for its so doing. The further contention that these increases were ordered as an incident to equalization is untenable, when the record and its effect are taken into consideration; but if attempted for this purpose it is in conflict with the announcements of this court in People ex rel. v. Lothrop, 3 Colo. 428, as well as the principles announced in People v. Ames, 27 Colo. 126, 60 Pac. 346; Gale v. Statler, 47 Colo. 72, 105 Pac. 858; In re Questions of Governor, 55 Colo. 17, 123 Pac. 661, and Chase v. Boulder County, 37 Colo. 268, 86 Pac. 1011, 11 Ann. Cas. 483.
As I view it, .to sustain the action of the board for any reason set forth in the briefs would be to overrule the announcements in these former cases.
Subsequent to the Lothrop case this court in In re Assessment of Property, etc., 25 Colo. 296, 299, 53 Pac. 1056, 1057, said:
“The decision [referring to the Lothrop case] has also been acquiesced in by all- of the departments of government and the people generally; and the general as*403 sembly bas not seen fit to exercise tbe power, which is claimed to be inherent, of passing a law authorizing the state board of equalization, in the discharge of its important duties, to increase the aggregate assessed valuation, as returned by the county assessors. In view of these considerations, and until the general assembly takes some action that requires it, we do not feel called upon, in this ex parte proceeding, to review our previous decision.”
This announcement was at the April, 1898, term of this court. Up to that time the legislature had made no effort to change the statutes in éxistence at the time of the announcement in the Lothrop case. Thereafter, at the special session in 1902, it enacted general sections 5764 and 5765, which read:
“5764. Meeting of state board of equalization to equalize assessment. — Sec. 237. The state board of equalization shall sit on the first Monday of October in each year, at the executive office, for the purpose of examining, adjusting and equalizing the assessments in the several counties of the state.”
“5765. Board may 'change aggregate valuation. Sec. 238. The board shall have the power to either increase or decrease the aggregate valuation of all taxable property, not to exceed in any year ten per cent of such aggregate valuation, and only as an incident to such equalization. ’ ’
These sections continued in force until 1913, when section 5765 above referred to was specifically repealed. Page 527, Session Laws 1913. And no other provision was substituted which authorizes the state board of equalization to increase the aggregate valuation, but to the contrary the legislature, at its 1913 session divested the state board of equalization of all statutory power. Page 525,
In State v. Equalization Board, 18 Mont. 473, 46 Pac. 266, the reasoning announced in the case of the People v. Lothrop, 3 Colo. 428, was accepted as sound and followed with the declaration that the weight of authority is decidedly with its conclusion.
Wells, Fargo & Co. v. The Board of Equalization, 56 Calif. 194, and St. Joseph Lead Co. v. Simms, 108 Mo. 222, 18 S. W. 906, are therein cited as in principle sustaining the same conclusion.
For this court to now say that the state board of equalization is possessed with the power to increase the aggregate of all the counties in such an amount as they think ought to have been fixed by the county assessors, would be to amend the constitution by judicial construction, and this at a time when we have pending a proposed constitutional amendment to be voted upon at the next election, which, if adopted, will give to the state board
In Hacker v. Howe, 72 Neb. 385, 101 N. W. 255, relied upon as supporting the position of the relators it was said:
‘ ‘ Ooricerning the contention that the state board in respect of the action taken did not equalize but reassessed the property of the several counties, raising the aggregate valuations thereof according to the percentage ap*406 plied to each county, it may be said that, manifestly, the board has no power to increase valuations merely for the purpose of making such increase. The limitations of law-relative to tax levies, the fixing of valuations and the equalization thereof, cannot be nullified and rendered impotent by an attempt to increase the aggregate of the grand assessment rolls under the guise of equalization. *• * * But, in the case at bar, we think it clear that the increase resulting from the action of the state board was purely incidental to a proper equalization of the assessment of the different counties as returned to that' body. From the action taken it is fairly inferable that in 66 of the 90 counties of the state, property was found to be assessed uniformly and at its actual cash value, while, in 24 counties, the valuations placed upon property generally were relatively too low and required, in order that the rule of uniformity might be observed and equality attained, a raise of the aggregate valuation of those increased from two per cent in one instance to ten per cent in others. Surely it may not be said that, it haying been ascertained that so nearly all of the property of the different counties had been assessed at its true value, in order to properly adjust and equalize, there must be a reduction of a certain percentage in this larger number of counties and a corresponding increase and less than was ordered in the smaller number, so that the grand total of the assessment roll should not be disturbed. While a plan or method of raising the value of some of the counties and lowering others may be generally resorted to in order to bring about equality, yet it would, in the present instance, be in a measure a perversion of the law to reduce below its actual value by far the larger proportion of the property in the state subject to taxation for the purpose of avoiding an actual increase in the total valuation of all property. The statute does not limit the state board in the matter of equalization to the ag*407 gregate value as shown by the returns of all the different counties. Its provisions are that the board may increase or decrease by per centum to be added to or deducted from the aggregate value of the different counties to make them conform to law. Of course, they have authority to equalize; and to equalize is to adjust differences in values so as to bring all to a common standard, and to the end that all property assessed shall bear its just proportion of the burdens of taxation. Where equalization is the main object and the increase resulting therefrom is incidental, we think the action is undoubtedly a legitimate exercise of the powers conferred upon the board. If the object appears to be to raise the aggregate of the total assessed valuation, such action would, in our judgment, have to be condemned as an unwarranted exercise of the authority to equalize.”
The court then comments upon its former opinion in Suydam v. Merrick County, 19 Neb. 155, 27 N. W. 142, and also the opinion in Bardrick et al. v. Dillon et al., 7 Okla. 535, 54 Pac. 785, pertaining to which it says:
“The rule as thus announced in the opinion cited is probably stated too broadly. The opinion apparently overlooks the fact that the valuation of property assessed for taxation is primarily for assessing officers, and that boards of equalization except as conferred by statutes are not authorized to. change the result, and then only in order to effectuate an adjustment of values so as to bring about uniformity. Our statute, we think, contemplates that the state board of .equalization may equalize valuations as between the different counties in the sense the word is usually and ordinarily understood. That is, the state board is empowered to correct and adjust inequalities in valuation to the end that all property shall relatively be valued on the same basis for purposes of taxation, as near as the same is practicable.”
I cannot agree that the case of Appeal of McNeal, 35 Okl. 17, 128 Pac. 285, entirely sustains the contention of the relators. In addition to its having been rendered by a divided court of three to two, an examination of the constitution and statutes of Oklahoma will disclose that their state board of equalization is authorized to increase or decrease the value of different classes of real and personal property in order to make their valuation conform to the fair cash value thereof. They also provide for an appeal by any taxpayer from such increase. This appeal is provided for in their 1910 session laws and is recognized in this opinion, wherein, after quoting from an opinion in a former case, it is said:
“The limits expressed therein are the limits fixed by the constitution. Every taxpayer is entitled to have his property assessed equally and uniformly with the property of every other taxpayer. If his property is taxed at its fair cash value estimated at the price it would bring at a fair voluntary sale, and the property of all other taxpayers is so. assessed, then the uniformity sought by law has been attained; but if this property is assessed at less than this, and the balance of the property conforms thereto, then an injustice has been done the balance of the taxpayers and the state. This limit upon the*409 assessment is the one provided for in the constitution, and is also the limit of the levy which may he assessed. * * * Beyond the limit of fair cash value, and the limit as to the rate of levy, the taxing authorities of the state cannot go; and wherever they seek to do so the law has provided every taxpayer a remedy by appeal, as provided in chapter 87, p. 173, session laws 1910.”
It is also worthy of notice that in the Oklahoma case no point was made that the equalization by the state board resulted in raising the property in the county affected above its actual cash value. On this subject the opinion states: “It is worthy of note that no point is made that the equalization of which complaint is here made has resulted in raising the property above its fair cash value.” The answer of the respondent alleges that the property of his county had been assessed at its full cash value and that this order, if followed, would place it forty per cent above that amount. According to our rules of pleading all material parts of this answer for the purposes of this case stand admitted as true. In such case were we to follow the Oklahoma decision we find that they have provided a method for appeal, so that the question of the increase or reassessment might be determined by a court of competent jurisdiction where all parties can be heard, and their statute provides that pending such an appeal the party shall not be required to pay taxes upon the property in regard to the assessment of which the appeal is taken. Our statutes provide a method whereby the tax commission are authorized, if they find any particular property to be assessed too low, to have a reappraisement upon notice to the owner, etc. Whether that portion of this act is constitutional or not is not before us. It is admitted it was not attempted to bq followed.
Another reason why the action of the state board
It has been intimated that in making this increase to the total valuation of his county the respondent is not required to add the forty per cent to all the property assessed by him, but can place it where he thinks it belongs the same as when making an original assessment. That a person’s property cannot be reassessed or revalued for the purposes of taxation without notice to him, I take it will not be questioned.—Gale v. Statler, 47 Colo. 72, 105 Pac. 858; Turpin v. Lemon, 187 U. S. 51, 23 Sup. Ct. 20, 47 L. Ed. 70; 1 Cooley on Taxation (3d Ed.), 626; Hagar v. Reclamation District, 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569; Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616; Bellingham Co. v. New Whatcom, 172 U. S. 314, 19 Sup. Ct. 205, 43 L. Ed. 460.
That we have no statute providing for any subsequent notice or hearing cannot be disputed, but to the contrary not only do these orders instruct the assessor to add this forty per cent to all the property assessed by him, but section 33, page 623, session laws 1911, provides that when an increase is ordered as an incident to equalization it shall be made in this identical manner. In addition the respondent has alleged (which stands undisputed) that this is the only thing he can do, and as stated
In Hacker v. Howe, 72 Neb. 385, 101 N. W. 255, it is assumed that this is the correct method to follow where the increase has been ordered as an incident to equalization. The majority opinion, as I read it, holds that this is the only method to be followed; this precludes any assumption that it is to be done otherwise.
Had the legislature intended to give to the tax commission the power to reassess the property in a county other than public utilities, I think they would have thus stated. I fail to find anything in the acts of 1911 or 1913, which is susceptible of such a construction. The fact that section 13 of chapter 216, laws of 1911 gives to the tax commission supervisory power over the administration and enforcement of laws pertaining to the assessment, levying and collection of taxes, certainly cannot be construed to mean that it gives them the right to usurp the functions of a county assessor in the assessment of property, and in my opinion it has no bearing upon that question. Just as well contend that because the governor is the chief executive officer of the state, and by the constitution is charged with the duty of seeing that the laws are faithfully executed, that he would have the right to reassess the property in a county, or to re-perform the duty of any county officer, when he is of opinion that such officer is not complying with the law. That this section has no application is further borne out by the fact that it gives to the commission the right to require the county assessor to assess at the full cash value under penalty
Subdivision 6 of this section provides that whenever, in the judgment of the tax commission, property in any county or municipal subdivision thereof has not been assessed at its true and full cash value, the commission may make a reappraisement to the end that all classes of property in such district shall be assessed in compliance with law, and when ordered it shall appoint an appraiser and assistant appraisers, if necessary, who shall proceed to appraise the property in such taxing district, and who shall have all the powers and perform all duties pertaining to the appraisement of property. The seventh subdivision provides that the commission may raise or lower the assessed value of any real or personal property thus reappraised, first giving notice to the owner, and fixing a time and place for hearing any person or persons interested, and that said hearing shall be held within the county in which said property is situate. By these two subdivisions another method is provided to reach the question of full cash value. That the inclusion of one or more methods is the exclusion of others unless there is positive language to the contrary, has been recognized from timé immemorial as an elementary rule of statutory construction, as said in Pomeroy’s Municipal Law (2nd Ed.), p. 542:
“The express mention of one thing implies an exclusion of another. This is one of the fundamental rules of interpretation, and is applied especially to statutes, so as to prevent the extension of their commands or prohibitions to other things of the same class, when an enumeration of the subjects within their provisions is expressly made. ’ ’
To the same effect in principle are: In re Constitutional Convention, 14 R. I. 649; State v. Hastings, 10 Wis.
The majority opinion concedes that the commission did not act or pretend to act under the provisions of subdivisions 6 and 7, supra; that the other portions of this section containing their supervisory power, rights and duties are not susceptible to a construction which gives them this power is apparent.
In State v. Drexel, 75 Neb. 751, 107 N. W. 110, the court had under consideration an act which provides that the state board shall have general direction and control of the county assessors in the performance of their duties and shall direct the same, also that the county assessors should obey all rules and regulations made under the act and the instructions sent out by the state board. It was held that these provisions did not give the board the power to control the judgment of the assessors concerning the values of properties, for the reason among others, that if the rule were otherwise and the board by this method could direct the county assessors as to what values they should put upon property, it would thereby accomplish indirectly what it could not do directly, namely, that of reassessing, which they were not authorized to do.
I agree with the majority that the manifest purpose of chapter 216, laws 1911, creating the tax commission was to place in a central body authority to aid in bringing about and maintaining a standard of values for the purposes of taxation, but it is elementary that in so doing
The fact that the tax commission were given the powers and duties referred to, which, if performed will of necessity cause the gathering of general information pertaining to taxation matters, and the relative values of the different counties, is convincing to my mind when considered in connection with the language used that their duties as prescribed in sections 31 and 32 of the act of 1911 were for the express and only purpose of advising the state board of equalization of what, in their opinion, were the relative values of the different counties, and how much each was above or below its full cash value, and to relieve that board, which is composed of the executive officers of the state, of at least a portion of such detail work in gathering data, etc., in order to ascertain the relative values for the purpose of performing their constitutional duty of equalizing.'
The mere statement that a statute, means so and so proves nothing; persuasive reasoning is best presented by a consideration of the language used. Section 31 reads:
/ “Section 31. Duty of the Commission. The commis'sion shall, on or before the first day of October following, determine whether the real and personal property of the several counties in the state shall have been assessed at its true and full cash value, and if, in the opin*417 ion of the said commission the real or personal property within any connty in the state as reported by said connty assessor to the said commission is not on the assessment roll at its true and full cash value, the said commission shall determine the increase or decrease in the valuation in such county by such rate per cent, or such amount as will place said property on the assessment roll at its true and full cash value.”
Do we find in this section any language which says or can be construed to mean that the commission shall reassess the property, and if so when such an effort shall be attempted, or any date or dates when they shall sit for that purpose, or when they shall hear any county citizens, collectively or otherwise, concerning such questions? Is there anything to be found which says that the commission shall directly, indirectly or otherwise change, alter or amend, or order to be changed, altered or amended the abstract of assessment transmitted to them by the county assessor? I think not. It provides that they shall make a finding as to the relative values of the different counties, the benefit of such must be for the board which has power to equalize, but the commission is not possessed with that power. As I view it the reason why it makes no provision for hearings, fixes no dates for anything other than when it shall finish this work, and makes no provisions for orders to the assessor or for changes in his schedule, etc., is because it was never intended that their findings should bind any one, or be other than a recommendation in the way of a report to the state board of equalization. This position is borne out by what follows and what becomes of this finding. Section' 32 following reads:
. “Section 32. Statement to the State Board of Equalization. When the commission has determined the true value of the real and personal property in the several*418 counties, the commission shall transmit to the state board of equalization a statement of the amount to be added to or deducted from the valuation of the real and personal property of each county, specifying the amount to be added to or to be deducted from the valuation of the real or personal property.”
The substance of this section is that they shall send to the state board of equalization a statement concerning the result of their findings, what then happens? Section 33 following reads:
“Section 33. Duty of State Board of Equalization. It shall be the duty of the state board of equalization to examine the abstracts of assessment as submitted by the state tax commission and the state board of equalization shall forthwith examine the abstract of assessment of each county as submitted by the state tax commission and make a record of its action on the abstract of each county and certify the same to the county assessor, and the county assessor shall forthwith add to or deduct from each tract or lot, and its improvements, of real property and all personal property in his county the required per cent, or amount on the valuation thereof as it stands after it has been equalized by the state board of equalization, adding or deducting in each case any sum less than five dollars so that the value of any separate tract or lot and its improvements shall be ten dollars or some multiple thereof.”
Do we find anything in this section which says or can be construed to mean (if it could be authorized) that the state board should accept the findings of the tax commission, or that they should make this increase to the abstract of the county assessor or order the assessor or the tax commission to do so? Not at all. But to jthe contrary, it says that they shall forthwith examine the abstracts of assessment of each county, as submitted by
The fact that all its statutory duties have been taken away and transferred to the tax commission can in no wise change the result, and does not change the language in these sections, neither can it strip the state board , of any of the powers and duties imposed upon it by the constitution. It will'be observed that section 33 does not say what the state board shall do with these abstracts other than examine them, make a record of its action, and certify the same to the assessors. The reason is apparent and that is that their action thereon is the constitutional duty to adjust and equalizé; it is for that purpose they are sent to them; that they are to be thus sent is not changed by the act which takes from them their statutory duties, and vests it in the tax commission. The most that can be contended for section 33 in this respect would be that the tax commission should certify to the different county assessors the result of the action of the state board of equalization and this is just what the commission did.
Whether the construction given to section 31 of the act of 1911 by the majority would make it unconstitutional, in my opinion, is unnecessary to consider, as I cannot conceive that it is susceptible to such a construction. The reasoning presented to support it is about as convincing to me as the assertion would be that the word “no” means ££yes.’’ By the holding of the majority as I understand it a county can be re-valued and reassessed for all taxation purposes by the method pre
“Before taxes can be levied upon any article of property, it must be assessed, that is to say, valued for taxation. This, in general, is the province of officers whose title of office indicates their duties, to-wit, assessors. The constitution has created this office, and requires that an assessor shall be elected biennially in every county of the state.”
While in a later case, that of Ames v. The People, 26 Colo. 83, it was said that this language was not necessary to the decision; it was not stated that it was unsound when applied to local property situate in the county, such as mining claims which were the subject for assessment under consideration in the former case.
The latest case by this court upon this subject is In re Questions of the Governor, 55 Colo. 17, 123 Pac. 660, wherein we sustained the constitutionality of that portion of the act creating the tax commission, but we expressly called attention to the fact that we could not approve a construction of any portion which would contravene the constitutional authority of county assessors. That portion of the opinion reads:
“If provisions of the act can properly be construed as permitting the tax commission to do things in the matter of local assessments which would contravene the*421 constitutional authority of county assessors, such provisions are necessarily non-effective.”
As it looks to me this is the result, of the conclusion of the majority and is in effect an overruling of this declaration, for if by this method the property in a county can be locally re-assessed and re-valued for the purposes of taxation for city and county purposes, as well as state, as here held, then the office of county assessor becomes one in name only, and it would be a useless expenditure of public moneys for any assessor to go through the form, as it will be only a form, of assessing property, and it will be a useless expenditure of time'" and money for county commissioners to sit as a board of equalization, for all their efforts will avail nothing, if without investigation and without the adoption of any method the valuation of property can be admittedly fixed at grossly inadequate sums or at a sum largely in excess of it's true cash value.
I cannot agree with the correctness of the statement “that it is not conceded that the property assessed as valued by the county assessor is at its full cash value.”
In his answer the respondent alleges certain facts, the substance of which are that the property in his county, assessed by him, was assessed at its full cash value; that the tax commission in making its estimate did not make an investigation and did not visit the several counties of the state, as by law they are required to do, and did not pursue a uniform method or test for the purpose of ascertaining whether in truth and iff fact the value of real and personal property had been assessed at its full cash value, but that they arbitrarily, and without ascertaining the truth as to whether the respondent assessed the property in his county at its true cash value, proceeded to determine that he had not made a full and true cash value thereof, and that they, in an arbitrary
Neither can I agree to the statement by the majority that “It is conclusively presumed, however, that as between individual property owners within the county there has been a just value placed thereon, that is a value relatively equal,” unless it is likewise to be conclusively presumed that all property in the county has been assessed at its full cash value. As I view it under the law the one presumption is entitled to as much weight as the other; there are many reasons why it should be so. Take for instance the value to be placed upon producing mines, the assessor has no discretion in fixing their value. The act of 1913 provides that for the purposes of taxation the assessor shall value them at a sum equal to one-half of the gross proceeds, plus all of the net proceeds, and it provides a method whereby these proceeds are to be accurately ascertained. The provisions of this act are mandatory, and the assessor has no right to do other than follow its mandates. The county board of equalization as held by the majority, would likewise have no authority to change the valuations thus fixed in the manner
The majority misconstrue respondent’s position pertaining' to the reason of the legislature in submitting the proposed amendment to section 15 of article X of the constitution, which the people rejected at the 1912 election. It is not claimed that it was done because the legislature was of the opinion that the act passed by them was unconstitutional, and that they thereby sought to correct it by submitting a constitutional amendment, but to the contrary, it was submitted at the same session (1911) when the act creating the tax commission was adopted, and was thereby a legislative construction, not that they thought any portion of the act was unconstitutional, but because they construed their own act to mean they had not given to the tax commission any authority tó assess, value, reassess or revalue counties as a whole by per cent or otherwise, except as provided in subdivisions six and seven of section 13, supra. Had they intended giving to the tax commission this power in the act creating it which we agree they must assume was constitutional, why would they have inserted the identical powers in a constitutional amendment submitted at the same session? I do not care to charge the legislature with the doing of useless and unnecessary things; to my mind the submission of the constitutional amendment is a legislative declaration that they did not construe their own act to include this power. But regardless of this legislative construction, and in disregard of the fact that the-people have declined to grant to this commission this power even by constitutional ■amendment a majority of this court now say that nevertheless they have the right to exercise it.
The theory that a tax commission can re-assess or revalue a county as a whole, upon a per cent basis, or in a lump sum for the purposes of taxation for all local taxes as here held, as before stated is not claimed in the briefs, and no authorities have been cited which refer to such a statute. The cases cited pertain to equalization boards, or to reassessments of particular properties where notice is given, etc.
In State ex rel. Hessey v. Daniels, 143 Wis., 649, 128 N. W. 565, the opinion in addition to being rendered by a divided court has no application. The result of that decision was to sustain the validity of chapter 259, Wisconsin laws 1905, which provides that upon complaint made after notice, hearing, etc., it is made to appear, etc., that the assessment in any district is not in compliance with law, etc., the commission may order a reassessment and a new equalization and for that purpose shall name persons to make the reassessment and others the equal
The case of Wisconsin ex rel. Brown County v. Myers, Judge, 52 Wis. 628, 9 N. W. 777, was upon the same theory as the later case in the 143 Wisconsin. The difference being that the contention in .the earlier case was limited to the appointment of commissioners to review the aggregate equalization made by the county board, in order, as the opinion states, to produce a just relation between all the valuations of the taxable property of the county. By the earlier statute this commission was appointed by the circuit judge. The reasoning is similar to that in the latter case concerning the question of review, and, while not having the time to investigate the earlier statute, it is fair to assume that the constitutional rights of the taxpayer concerning notice, hearing, etc., were fully protected. The opinion further discloses that the appointed board was without authority to in
The case of Board of State Tax Commissioners v. Board of Assessors, 124 Mich. 491, 83 N. W. 209, sustains the validity of .the Michigan act of 1899 creating a board of state tax commissioners and giving them supervisory authority in the matter of the assessment of property. It has no application to the views of the majority, but to the contrary it is in harmony with our views in In re Opinion of Justices, 123 Pac. (Colo.) 669,'which opinion, as I take it, is in part overruled by the conclusion reached by the majority.
The case of Spalding v. Hill, 86 Ky. 656, 7 S. W. 27, sustains the validity of the Kentucky act creating the state board of equalization with the right to equalize as between counties and nothing more. I am unable to appreciate its application to the facts here. The substance of the opinion in Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Backus, Treasurer, 133 Ind. 513, 33 N. E. 427, 18 L. R. A. 729, is to sustain the validity of an act authorizing the state board of tax commissioners to assess railroad property. This is in harmony with the views of this court.
In State v. Thomas, 16 Utah 86, 50 Pac. 615, the opinion discloses that the constitution and statutes of Utah are different from ours. Under theirs the state board of equalization has the right to change the value of certain classes of property allowing other classes to remain unchanged. In that case the attempted effort to raise all classes was declared invalid. The question of lack of notice to the individual taxpayer as a denial of the equal protection of the law, or as taking property
“It was also defective because it included money in its operation. It clearly cannot be held operative as to money, for, as appears from the record, each dollar of the relators, on the assessment roll, is valued at a dollar; and, when money is so valued, no board or officer can add 5 per centum or any per centum to it. This is so under the constitution, which makes money the standard of valuation for all taxable property. The value of all property, however, cannot be determined in the same way. Because of its dissimilarity, the process by which the judgment is formed must vary, and probably as to all property, except money, perfect equality in valuations and assessments is unattainable, owing to the fallibility of the human judgment. The value of a dollar may be determined by ascertaining that it is what it purports to be.—Porter v. Railroad Co., 76 Ill. 594.
“The legal value of a dollar in money is a dollar, and therefore to value and assess it at more than a dollar*428 cannot be a valuation and assessment, ‘according to its value in money. ’ This being so, the court will take notice, as matter of law, that money cannot be assessed for more than its legal value. Hence, from the nature of things, the state board cannot change the valuation of money on the assessment roll already assessed at its legal value, and thereby make it cease to conform to the mandate of the constitution. ”
By the use of this language it is evident that the Utah court means that their state board cannot order all property in a county to be raised a certain per cent when such an order would mean to raise some above its true cash value.
Applying the declarations in the Utah case to' the facts here, coupled with the legal presumption which must prevail that the method provided for fixing the value of mines, money, etc., was adhered to, what is the result when tested by section 3 of article XX of our constitution pertaining to the uniformity of taxation? To do this it should be borne in mind that by authority of chapter 133, Session Laws 1913, the tax commission assesses and fixes the value upon the property of all public utility corporations in any county. They are not assessed by the county assessors, and this increase of forty per cent applies only to the property assessed by respondent, and not to the public utility property, which we will assume has been assessed at its fair cash value.
To illustrate, take the person who has $100 in money and who malíes a sworn statement of that amount and of the value of $100; money has only one value and is the standard of values. The respondent assessor, as provided by law, has under his oath assessed it at the value of $100, but by this order he is compelled to raise its value to $140, and this without opportunity to the owner to be heard before the body which has ultimately fixed the
Unless we are to ignore our rules of pleading and the legal presumption to which every officer is entitled, that he has performed his duty, and assume that about all of our assessors are open violators of the law, and that the great mass of people in Denver who have subscribed to their returns are criminals, this raise means that the individual taxpayer’s property in Denver will be valued for taxation purposes at forty per cent higher than that of the public utility. To better illustrate, it means that every little home in this city of the value of $1,000, and which has been assessed at that amount by the assessor, and which by the pleadings is conceded to be only of that value, must pay taxes upon an arbitrary .valuation as fixed by this order at $1,400. A citizen with property of the value of $100,000 must pay upon a valuation of $140,-000, and so on. When applied to the statute which provides the method for ascertaining the value of producing mines it means that the results ascertained thereunder are to be disregarded, and the values as thus fixed by law
The constitution of the United States provides that no state shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Our constitution provides that no person shall be deprived of life, liberty or property without due process of law. In my opinion it is very questionable if the action of the state board in this respect does not violate these provisions.
In Londoner v. Denver, 210 U. S. 386, 52 L. Ed. 1103, 28 Sup. Ct. 714, it was said:
“It must be remembered that the law of Colorado denies the land owner the right to object in the courts to the assessment, upon the ground that the objections are cognizable only by the board of equalization.
“If it is enough that, under such circumstances, an opportunity is given to submit in writing all objections to and complaints of the tax to the board, then there was a hearing afforded in the case at bar. But we think that something more than that, even in proceedings for taxation, is required by due process of law. Many requirements essential in strictly judicial proceedings may be dispensed with in proceedings of this nature. But even here a hearing, in its very essence, demands that he who is entitled to it shall have the right to support his allega*431 tions by argument, however brief; and, if need be, by proof, however informal.”
While this opinion refers to a special assessment yet, if I understand our present statutes correctly, they attempt to provide a complete system for the assessment of property for taxation, including the fixing of its value by special tribunals provided for that purpose, namely, the county assessor, county board of equalization as to certain property, the tax commission, and the state board of equalization. Certain times and places have been provided whereby certain taxpayers can present their grievances to certain of these tribunals concerning the valuation of their property; in certain instances appeals are provided to the court, but in order to secure them certain steps must be taken at certain times, and in case the taxpayer neglects to do so he is denied the right to object in the courts for the reason that the objections must in the first instance be considered by the special tribunals, and their ruling except in case of appeals provided by statute are intended to be final. |As I read it the majority opinion sustains these conclusions, but by holding that section 31 of the act of 1911 gives to the tax commission the right to re-assess the property in the county theretofore assessed by the county assessor, it leaves the taxpayer, whose property is thus re-assessed and raised, without any right to be heard before the tribunal which the majority holds has the right to make the increase. Neither is there any provision for subsequent hearing before the county assessor or county board, pertaining to such increase; the times provided by statute for hearings before them or their right to act has gone by. That such a hearing may be given before any of these bodies as a matter of favor instead of being provided by statute as a matter of right, is not sufficient.—Security Trust Co. v. Lexington, 203 U. S. 323, 27 Sup. Ct. 87, 51 L. Ed. 204; Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289; Weyer
I cannot agree that the principles applicable to the state board of equalization apply with like force to the tax commission when attempting to make a reassessment of property. Assuming arguendo that section 31, supra, empowers the commission to add to or deduct from the valuation of all the property in the various counties there is nothing in the section which provides for hearing, notice, etc., or certain times fixed for so doing; no dates are fixed for anything other than when they shall finish their labors, other times are uncertain and indefinite. If an assessor makes his return before the first Monday in September, which he- is permitted to do, the commission could commence to work on it at any time. I fail to find anything in any portion of this act which can be construed to mean as fixing any time or place for hearing upon this question by the individual taxpayer, or by a county’s representatives. The reason, in my opinion; is apparent, namely, that the information thus gathered and findings made are advisory only'to the state board and the holding otherwise, probably, presents a case of the taking of property without due process of law. I cannot agree that section 15 of the act has any application to matters to be acted upon by authority of section 31. Its language indicates to the contrary; it reads:
“Section 15. Complaints. The commission may receive. complaints and carefully examine into all cases where it is alleged that property subject to taxation has not been assessed or has been fraudulently or for any reason improperly or unfairly assessed, or the law in any manner evaded or violated, and may cause to be insti*433 tnted such proceedings as will remedy improper or negligent administration of the taxation laws of the state.”
It is self-evident that nothing in this section can be construed as pertaining to any hearing concerning any reassessment of the entire property of the county by the tax commission; but to the contrary it means as it says, that upon complaint which alleges that the property subject to taxation has not been assessed, or has been fraudulently, or for any reason improperly or unfairly assessed, or the law evaded or violated, they may cause to be instituted such proceedings as will remedy, etc., some of which proceedings have heretofore been pointed out. It is not claimed, that in making their findings under section 31 the commission acted upon the complaint of anyone. Subdivisions 6 and 7 of section 13 contain provisions for notice to the taxpayer, and provide for a hearing when the value of his property is to be raised, hence, it is proper to assume that had the legislature intended that the value of his property separately or in conjunction with the entire property in the county could be revalued and the value increased by the commission under the provisions of section 31, it would have provided some method for notice to him or the officials of his county, or have fixed some particular time for so doing and for the hearing of complaints..
As I view it the taxpayer, the value of whose property has been raised by this reassessment, or his county’s representative, is not given an opportunity to be heard before the body which has made the raise, to-wit, the tax commission. Two other members of the court concur in this conclusion, four to the contrary. In case No. 8208, The State Board of Equalization v. The Bi-Metallic Investment Company et al., which is a suit brought by a taxpayer to enjoin the respondent from extending this increase upon its property, and which case was argued with
To go into the question of due process of law, etc., in detail would be to unnecessarily extend this opinion. The question was not involved in the Oklahoma case because their statute gives to the taxpayer this protection. The Utah court found it unnecessary to consider it upon account of their decision being against the state board for other reasons. The Nebraska court, without going into the fact in detail, intimates that the taxpayer whose money has been assessed at more than its actual cash value might be entitled to a hearing and secure relief in a court of equity, when and for any reason that would ■not be in conflict with their ruling in sustaining the validity of the action of their state board is not disclosed, but these cases and others cited are all on the question of equalization. No cases on re-assessment are cited wherein such a notice and hearing has not been provided. If I read history correctly, one of the main grievances of our forefathers was the fact that there was imposed upon them the burden of taxation without representation; per
When the difference between the rights, duties and privileges of the corporation which owns the public utility and other taxpayers is considered, it is questionable whether the method which the majority approves, is not aL_denial toTSUiMmdualTiaxpayer of the equal protect tion of the law. It will be observed that he is given a hearing before the assessor or the county board of equalization concerning the value of his property, and as compared with that of certain other property assessed by the county assessor, but this does not apply to the public utility because his county board has no jurisdiction over that; he is not given any hearing before the tax commission concerning the valuation of his property as compared with the public utility, or as to the re-valuing of it for any purpose, while the corporation is given hearings before them concerning both these questions; besides, a hearing before this body under section 31 would, do him no good, for as construed by the majority the section does not permit of their doing otherwise than re-assessing the property in his county upon the per cent basis as a whole. After the raise is ordered he is not entitled to any hearing before his county assessor or county board, for
Unquestionably some property in Denver, as well as other counties, has been assessed too low, as has likewise unquestionably some public utility property, but these are no reasons why former decisions should be overruled or constitutional provisions ignored, and this at a time when a proposed amendment has been submitted to be voted upon at the next election, for the purpose of amending the constitution upon this subject. Were the question one which involved the state tax alone it would not be so serious in its results, but when we consider that the question of equalization between the corporate property defined as public utility, and the property of individuals applies as well to all county, city, school and other
Public records disclose that the tax levies in Denver for 1913 were made upon November 24th, and for state, county, city and ordinary school purposes (all of which apply equally throughout the city and county) were fixed at fifteen mills, when the company is held to have accepted the value fixed by the county assessor. This levy upon the increased value which it offered to prove its property was not worth, will amount to $4,812, and if my conclusion as to what the majority opinion means is correct, the company has no recourse elsewhere,, and if the allegation of its complaint is true, which it offered to prove, it appears to me that this is a taking of this much of its property without due process of law. When we accept the legal presumption that this respondent and his county board have performed their duty in assessing the property at its full cash value (which fact they have offered to prove), considered with the pleadings by which this fact stands admitted as to all other property in his county assessed by the respondent, the result means that the individual taxpayers therein are to pay $1,528,531.32 in excess of their proportion of taxes for all purposes in the city and county of Denver for 1913, upon account of this inequality between the relative values of their properties and that of the public utility. The fact that upon account of this increase they may or can reduce the amount of their local levies as has been intimated (a question concerning which I express no opinion) will not
Rehearing
On Petition for Rehearing.
delivered the following opinion:
By the majority opinion unrestrained power is now vested in the tax commission to increáse the valuations of each county by horizontal raise above the valuations returned by the assessors. By this means the aggregate valuation of the local officials has been enormously increased. There does not seem to be any limit to the increase which the commission may make. They say that this increase only brings the property in the several counties up to its cash value, but they are the sole judges of what constitutes such value. The control which the people have heretofore exercised over valuations through their local officials, which has never been questioned since the decision in the Lothrop case in 1877, is swept away, and unlimited power to increase valuations vested in a central appointed body. It is only necessary to refer to one provision of our constitution to demonstrate that the general assembly can not confer upon the tax commission the power which the majority opinion says it may exercise. The constitution provides that the rate of taxation for state purposes shall never exceed four mills on the dollar. The object of this is to protect the people from being burdened with state taxes beyond a fixed limit; but. with unrestrained power vested in a central body to increase the valuations returned by the county assessors all that is necessary for them to do in order to avoid and
In my opinion the general assembly can not confer upon a central body the power to assess the real and personal property in the several counties. It may confer supervisory power upon such body, but the majority opinion goes to the full extent of holding that the unqualified power of assessment is conferred upon the tax commission. It is also my opinion that the authority of the state board of equalization is limited to reducing to a uniform basis the valuations returned by the local officials. If these assumptions are correct then a great injustice results to the taxpayers in the 58 counties where the valuations have been increased. This increase amounts to nearly $187,000,000. The state tax which will be realized from this great increase must be paid by the owners of real and personal property in these counties, while the public utility corporations, which includes all corporations like railroads, water, street railways, gas, telephone and telegraph companies, and all utility corporations having a continuity of business in two or more counties, whose property is assessed by the tax commission escape paying any portion of the tax resulting from such increase. Had the board of equalization equalized the valuations returned by the local officials, without adding to their volume, then in order to raise the same revenue for state purposes which the present rate would bring in it would have been necessary to increase the percent of the rate, but in that event the utility corporations would have been required to pay their proportion of the
A rehearing should be granted and judgment rendered quashing the writ and dismissing the proceedings.
Dissenting Opinion
Since filing my dissenting opinion, advance sheet No. 1, vol. 137, Pacific Reporter, dated January 19th, has been received. Beginning at page 174 is reported the case of Idaho Tax Commission v. Board of Commissioners of Bannock County, wherein the supreme court of Idaho has held that by the language used in their act creating a tax commission and defining its duties, it was not intended to deprive any officer or board of the duties imposed upon them by the implied provisions of the constitution, or that the commission should usurp or perform the duties of the assessor or county board of equalization; that since their constitution provides a scheme or framework for the administration of their revenue laws the legislature cannot submit another or different scheme or method therefor; that to give the act this construction, as contended for by the commission, would make it unconstitutional ; that since the constitution provides a method or system for the assessment of property with the object and purpose of arriving at a uniformity of valuation, and has designated certain officers to perform the duties relative thereto, it is beyond the power of the legislature to take from such officers such- duties; that the words “assessor,” and county “board of equalization,” as used in their constitution, carry with them the powers usually conferred on officers or boards of like names. These conclusions are in harmony with the former declarations of this court.—In re Taxation of Mines, 9 Colo. 635, 21 Pac. 476, and In re Questions of the Governor, 55 Colo. 17, 123 Pac. 660.
The construction which I have contended should he given to section 31 of our act of 1911 relieves it of the constitutional objection pointed out by the Idaho court; while the construction given it by the majority makes it unconstitutional when tested by the reasoning in the Idaho case. As a further confirmation of the correctness of my former views sustained by the reasoning of the Idaho court, I call attention to the similarity of the provisions of their constitution and statutes and ours concerning the powers and duties of the assessor, the county and the state board of equalization.
