In re House Bill No. 250

• Decision Date: 22 April 1899
• Parties: In re HOUSE BILL NO. 250.
• Court: Colorado Supreme Court

57 P. 49

26 Colo. 234

In re HOUSE BILL NO. 250.

Supreme Court of Colorado

April 22, 1899

Question by the governor for an opinion as to the constitutionality of an act creating a state board of assessors. Opinion rendered.

Charles G. Clement and L. F. Twitchell, for the bill.

Tyson S. Dines and Rogers, Cuthbert & Ellis, against the constitutionality of the bill.

PER CURIAM.

The 12th general assembly passed, and sent to the governor for his approval, house bill No. 250, entitled 'An act to provide for the better assessment of property for revenue, to create a state board of assessors,' etc. Entertaining grave doubt of its constitutionality, the governor has transmitted a communication requesting our opinion, stating inter alia, that, to his mind, the question is 'publici juris, and one which imperatively demands judicial determination prior to the approval of the act.' Coinciding with the conclusion of the chief executive that the question is important and the occasion solemn, it becomes our duty to make answer.

Embodied in the communication is a statement from which it appears that the bill, as originally introduced, and as it passed the house of representatives, provided for the creation of a state board of assessors, to consist of all the assessors of all the counties of the state, on which should devolve the powers and duties therein specified. When it reached the senate, it was amended by providing that the several counties in the state shall be divided into five classes, according to the classification existing, for the purpose of fixing the fees to be collected by county officers. The amendment further provided that all the county assessors of the state shall meet at Denver at 10 o'clock a. m. on the first Monday of April of each and every year for the purpose of selecting from their number five assessors, to be chosen by them, one from each of said classes. And these five assessors so chosen, together with the governor, secretary of state auditor, treasurer, and attorney general, shall constitute the state board of assessors.

The specific provisions of the constitution supposed to be violated in the passage of this act are section 22 of article 5 and section 15 of article 10. The former reads as follows: 'Every bill shall be read by title when introduced, and at length on two different days in each house; all substantial amendments made thereto, shall be printed for the use of the members before the final vote is taken on the bill, and no bill shall become a law except by a vote of a majority of all the members elected to each house nor unless on its final passage, the vote be taken by ayes and noes, and the name of those voting be entered on the journal.' The latter, inter alia, creates a state board of equalization, consisting of the state officers above mentioned, whose duty shall be to adjust and equalize the valuation of real and personal property among the several counties of the state, and to perform such other duties as may be prescribed by law.

Although the governor does not declare it to be a fact established beyond doubt that the amendment offered in the senate was not printed before the bill was put on its final passage, yet he does state that he is sufficiently convinced of its correctness to assume that fact for the present. It is well here to refer to our previous decisions declaring that in these ex parte proceedings the court will not inquire into or determine for itself, disputed questions of fact. For the purposes of the opinion, and for those only, the facts, as recited or as assumed by the governor, or either house of the general assembly, may be taken as true, but are not binding upon the parties to any subsequent litigation, or upon the court itself in other proceedings, or necessarily in these ex parte proceedings. In re Casual Deficiency, 21 Colo. 403, 42 P. 669; In re Appropriations, 13 Colo. 316, 322, 22 P. 464; People v. Martin, 19 Colo. 565, 570, 36 P. 543; In re Fire &amp Excise Com'rs, 19 Colo. 482, 36 P. 234.

Assuming, therefore, with the governor, as the established practice permits us to do, and for the present purpose only, that the amendment to this bill was not printed, we proceed to consider the questions submitted: First. Is the act, as now enrolled, in that the senate amendment was not printed for the use of the members before the final vote was taken on the bill, in conflict with section 22 of article 5 of the constitution? Second. Is the act, in so far as it devolves upon the state board of assessors therein created the duty of assessing the class of property therein described, in conflict with section 15 of article 10 of the constitution, which establishes a state board of equalization and prescribes its duties? Our conclusion upon the first proposition renders unnecessary a determination of the second. The question upon which our opinion is given may thus be subdivided: (1) Is the section of the constitution mandatory? (2) Is the amendment a substantial one, in the sense of the term as employed therein? (3) Is it for the general assembly or the courts to determine whether or not a given amendment to a bill is a substantial one?

1. No case has been called to our attention in which this particular clause has been construed. In constitutions of other states, provisions like our section 22 of article 5 are found. The other clauses thereof, also like ours, have frequently been before the courts, and almost invariably have been declared mandatory upon the legislature. The language is that every bill shall be read by title and at length on two different days, and that all substantial amendments made thereto shall be printed,...