People ex rel. State Bd. of Equalization v. Pitcher

• Citation: 56 Colo. 343,138 P. 509
• Parties: PEOPLE ex rel. STATE BOARD OF EQUALIZATION et al. v. PITCHER, Finance Com'r. [*]
• Decision Date: 12 January 1914
• Court: Supreme Court of Colorado

138 P. 509

56 Colo. 343

PEOPLE ex rel. STATE BOARD OF EQUALIZATION et al. v. PITCHER, Finance Com'r. ^[*]

Supreme Court of Colorado, En Banc

January 12, 1914

On Rehearing, February 2, 1914.

Original proceedings in mandamus by the People, on the relation of the State Board of Equalization and another, against Clair J Pitcher, Commissioner of Finance and Ex Officio Assessor of City and County of Denver. Alternative writ made absolute.

Fred Farrar, Atty. Gen., Norton Montgomery and Frank C. West, Asst. Attys. Gen., for petitioner.

I. N Stevens and Geo. Q. Richmond, both of Denver (Benedict &amp Phelps, of Denver, of counsel), for respondent.

Rogers, Ellis & Johnson, of Denver (Pierpont Fuller, of Denver, of counsel), amici curiae.

WHITE J.

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 county 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 58 of the 63 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 property to appear on the assessment rolls at its full cash value, made and entered findings in that respect, and ordered and directed the several county assessors, including the respondent, to make the required change in their respective counties. In the city and county of Denver the increase made and ordered upon the valuation as returned by the assessor was 40 per cent., or approximately $102,000,000, and in the entire state approximately $187,000,000, over and above the valuation returned by the several county assessors. 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 return of the respondent to the alternative writ challenges the sufficiency of the facts to state a cause of action, alleges that the assessment made and certified by him is the full and true cash value of the property assessed, except that since transmitting his abstract to the Tax Commission he has increased the valuation of the assessable property within the city and county of Denver a little more than $8,000,000; that the Tax Commission and the Board of Equalization each exceeded its jurisdiction in the premises; that the valuation of the property as determined by the Commission was greatly in excess of its true value; and that the statutory provisions under which the Tax Commission and the Board of Equalization pretended to act are unconstitutional.

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 other's 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 noneffective. 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 cannot arrest acts of legislation within constitutional bounds, even though, in the judgment of the court, such acts be unwise. Newman v. People, 23 Colo. 300, 306, 47 P. 278; Wadsworth v. U. P. R. R. Co., 18 Colo. 600, 612, 33 P. 515, 23 L.R.A. 812, 36 Am.St.Rep. 309; Cooley's Const. Lim. (6th Ed.) c. 7.

In People ex rel. v. Henderson, 12 Colo. 369, 371, 21 P. 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 unheld.'

And in Ames v. People, 26 Colo. 83, 109, 56 P. 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 Constitution, we find that it commands the General Assembly to provide by law for an annual tax sufficient, with other resources, to defray the estimated expenses of the state government for each fiscal year. It declares that all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied under a plan which shall secure a just valuation for the purposes of taxation. It exempts some, and prohibits the exemption of other property, from taxation. It inhibits the General Assembly from imposing taxes for the purposes of any county, city, or other municipal corporation, but authorizes it to invest the corporate authorities thereof with the power to assess and collect such taxes, and limits the rate of taxation on property for state purposes. Const. art. 10, §§ 1 to 11, inclusive. To attain this end, it creates certain governmental agencies, and under the general power of legislation inherent in the General Assembly, as well as by express provision of the Constitution, authorizes the creation of others. A county assessor is required to be elected in each county every two years. Const. art. 14, § 8. A state board of equalization is constituted, and in each county a county board of equalization is provided for. Of these agencies, however, the state and county boards of equalization alone are expressly invested with constitutional duties, and even they may be required to perform other duties by legislative enactment. Const. art. 10, § 15.

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 section creating the State Board of Equalization and prescribing certain duties for it to perform does...