In re Opinion of Justices

• Decision Date: 16 May 1912
• Citation: 123 P. 660,55 Colo. 17
• Parties: In re OPINION OF JUSTICES.
• Court: Colorado Supreme Court

123 P. 660

55 Colo. 17

In re OPINION OF JUSTICES.

Supreme Court of Colorado, En Banc

May 16, 1912

In the Matter of the Opinion of the Justices as to the validity of Laws 1911, p. 612, creating and providing the duties of a Tax Commission.

Benjamin Griffith, Atty. Gen.

Rogers Ellis & Johnson, of Denver, amici curiae.

WHITE J.

The Governor of the state has certified that grave doubt exists as to whether the assessment of certain classes of property for the purpose of taxation heretofore assessed by the State Board of Equalization can be made by the latter body, or whether such assessment should be made by a Tax Commission appointed under the provisions of chapter 216 of the Act of the General Assembly of 1911. He has, therefore pursuant to section 3 of article 6 of the Constitution propounded to this court for its answer thereto the following questions:

'First. In view of chapter 216 of the Session Laws of 1911, has the State Board of Equalization, under existing law, power to make original assessments as heretofore made by it?

'Second. If a State Tax Commission is appointed, will it have powers, under chapter 216 of the Session Laws of 1911, to make original assessments heretofore made by the State Board of Equalization?

'Third. Is the appropriation for the Tax Commission a first-class appropriation under the laws of this state?'

As a tax levied upon property for governmental purposes has no validity unless supported by a valid assessment, and no one can make such assessment unless he be the officer, either de jure or de facto, authorized by law to do so, the public oncern in and the necessity for determining the first two questions propounded is readily apparent, and the matter falls clearly within the rules hitherto prescribed as sufficient to invoke the extraordinary jurisdiction of this court, and renders it proper to comply with the executive request.

The State Board of Equalization is created by section 15 of article 10 of the Constitution, and given the power to adjust and equalize the valuation of real and personal property among the several counties of the state, but no constitutional power of original assessment of any kind of property is conferred upon that body. The latter power heretofore existing in and exercised by it was conferred by statutory enactment (section 5630 et seq., R S.), and may in the same manner be taken away and bestowed upon another qualified to exercise it. We held in Ames v. People, 26 Colo. 83, 95, 56 P. 656, that, notwithstanding the office of county assessor is provided for in the Constitution, nevertheless, as that instrument did not specify the duties pertaining to the office, the Legislature could properly confer upon 'some other tribunal power to assess a class of property which the assessors cannot, in the very nature of things, so assess as to bring about its just valuation commanded by other constitutional provisions,' and that inasmuch as the constitutional provisions creating the office of State Board of Equalization, and defining its duties, authorized other duties to be imposed upon it by law, the General Assembly very properly bestowed upon it the power of original assessment. While the statute, there upheld, conferred the power of assessment upon a body created by the Constitution, such body was not constitutionally invested with any power of original assessment. It would, therefore, seem, on principle, that, as no constitutional restriction exists against conferring such power upon an official or body not designated in the Constitution, to follow that the legislative branch of the government, whose control over matters of taxation is supreme except as restricted by the Constitution, could lawfully take the power in that respect away from the State Board of Equalization, upon whom it conferred it, and bestow such power upon another body or official. This the General Assembly has done by Act 1911, p. 612, c. 216. The act creates the Colorado Tax Commission, invests it with certain powers to be exercised and duties to be performed, subject to the direction and approval of the State Board of Equalization. It expressly confers upon the Commission all the statutory powers and duties theretofore possessed by the State Board of Equalization, specially enumerating those pertaining to the making of original assessments for the purpose of taxation, 'provided that the powers and duties of original assessment so transferred * * * shall continue to be exercised by the State Board of Equalization until June 15, 1911, after which they shall be exercised by the Commission.' Sections 40 and 41, c. 216, Session Laws 1911, p. 612. We are clearly of the opinion that the act of 1911 has taken away from the State Board of...