MacGinnis v. Denver Land Co.

• Decision Date: 19 December 1931
• Docket Number: 12992.
• Citation: 6 P.2d 919,90 Colo. 72
• Parties: MacGINNIS, State Auditor, et al., v. DENVER LAND CO.
• Court: Colorado Supreme Court

6 P.2d 919

90 Colo. 72

MacGINNIS, State Auditor, et al., v. DENVER LAND CO.

No. 12992.

Supreme Court of Colorado, En Banc.

December 19, 1931

Error to District Court, City and County of Denver; E. V. Holland Judge.

Action by the Denver Land Company against William D. MacGinnis State Auditor, and another. To review an adverse judgment defendants bring error.

Reversed and remanded, with instructions.

Clarence L. Ireland, Atty. Gen., and Fred A. Harrison, Deputy Atty. Gen. (John R. Wolff, of Boulder, and Thos. A. Nixon, of Greeley, of counsel), for plaintiffs in error.

Grant, Ellis, Shafroth & Toll and Erl H. Ellis, all of Denver, for defendant in error.

ALTER J.

The Denver Land Company, a corporation, defendant in error, hereinafter referred to as plaintiff, brought an action in the district court to secure a permanent injunction enjoining William D. MacGinnis, auditor of the state of Colorado, and John E. Davidson, secretary of the state board of equalization, plaintiffs in error, hereinafter referred to as defendants, from certifying and transmitting to the several county assessors and other county officials in Colorado a resolution of the state board of equalization adopted and approved on October 19, 1931, on the ground that the resolution of the state board of equalization was void. A temporary restraining order was issued, and, upon trial, the court issued a permanent injunction as prayed by plaintiff. Defendants prosecute this writ, assigning as error the action of the court in granting its injunction because the resolution was valid and within the power and jurisdiction of the state board of equalization.

The state board of equalization, consisting of five designated elective officials, is created by section 15, article 10, of the Constitution of the state of Colorado, and its duty, as therein defined, is to adjust, equalize, raise, and lower the valuation of real and personal property of the several counties, and the valuation of any item or items of the various classes of property, to the end that all taxable property within the state shall be assessed at its full cash value; but the board is expressly prohibited from making original assessments. Section 7463, C. L. 1921, provides that the state board shall meet on the first Monday in October, in each year, for the purpose of examining, adjusting, and equalizing the assessments in the several counties in the state. Section 7465, C. L. 1921, provides that the state board must complete its equalization on or Before the third Monday in October in each year, and that the state auditor shall transmit to the county clerks of the several counties a statement of the changes, if any, made in the assessments. Section 7351, C. L. 1921, provides that county assessors shall, on or Before the first Monday in September, in each year, make and transmit to the state tax commission an abstract of the real and personal property in his county, and the value thereof. Section 7352, C. L. 1921, provides that the state tax commission shall, on or Before the first day of October, in each year, determine whether the taxable property in each county has been assessed at its full cash value, and, if not, the state commission shall determine the percentage, or the amount necessary to the added or subtracted, which will place the taxable property on the assessment rolls at its full cash value.

Section 7353, C. L. 1921, provides that, when the state tax commission has determined the true value of the taxable property in the several counties, it shall transmit to the state board of equalization a statement of the amount to be added to or subtracted from the valuations of each county. Section 7354, C. L. 1921, provides that the state board of equalization shall examine the abstracts of assessment, as submitted by the state tax commission, and shall examine the abstracts 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. The resolution, of which plaintiff complains, was adopted on or Before the third Monday in October, 1931, but the original abstracts of assessment, prepared by the several county assessors, were not Before the state board of equalization. The state board of equalization did not make the record on the abstract of each county, and the state auditor did not transmit to the county clerks the changes made in the assessments, in the various counties, on or Before the third Monday in October, 1931.

The undisputed evidence is that the state board of equalization had Before it certain 'comparative sheets' prepared for its use by the state tax commission from the several abstracts of assessment returned by the county assessors, and that these comparative sheets were full, complete, and accurate, and were transcripts taken from the original abstracts of assessment of the various county assessors, as the same were filed in the office of the state tax commission, and they contained all the detailed information necessary for the state board's consideration in the performance of its duties. It is also undisputed that the state board did not make, and has not made, as yet, any record of its action on the abstract of assessment of each county, and that the state auditor did not, on or Before the third Monday in October, 1931, transmit to the several county clerks a statement of the changes made by the state board in the assessments in their counties.

Plaintiff contends that the above provisions are mandatory, and that, by reason of the failure to comply with the provisions of the statutes, the resolution became void; while defendants contend that, if the provisions of the statutes are as contended for by plaintiff, the statutes are nevertheless directory, and a failure to comply therewith is not fatal. Plaintiff makes no attempt to show that it was prejudiced or injured by the state board's failure to adopt its construction of the statutes. In Tallon v. Vindicator Co., 59 Colo. 316, 328, 149 P. 108, approved in Colorado & S. Ry. Co. v. Boulder County Board of Commissioners, 70 Colo. 8, 11, 196 P. 331, and also in People v. Pitcher, 61 Colo. 149, 174, 156 P. 812, Ann.Cas. 1918D, 1185, the rule was announced that whether a statute prescribing the preliminaries incident to the levy of taxes is mandatory or directory depends upon whether the particular provisions are for the benefit of the taxpayer, and that a statute prescribing the time of levy or the delivery of the tax warrant is not mandatory but directory, and a failure, under these circumstances, to observe statutory requirements, is a matter of which the taxpayer cannot complain. Upon principle and reason, the rule therein announced is applicable to the facts in this case, and the resolution was not void by any such action or inaction of the state board of equalization or its members.

The resolution adopted by the state board of equalization, the validity of which is challenged, is:

'It was moved by Secretary of State Armstrong that the Board order a reduction of 20% on the valuation of all farm lands primarily used for agriculture and grazing, and that this reduction be based on the valuations placed thereon for the year 1930.' (Unanimously carried.)

'It was moved by Secretary of State Armstrong that the Board order a reduction of 20% on the valuation for assessment purposes of all improvements on agricultural and grazing lands except improvements used for manufacturing or mercantile purposes, which said improvements are

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