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

• Decision Date: 04 March 1959
• Docket Number: No. 18871,18871
• Citation: 336 P.2d 721,139 Colo. 49
• Parties: PEOPLE of the State of Colorado, ex rel. STATE BOARD OF EQUALIZATION and Colorado Tax Commission, Petitioners, v. Albert R. HIVELY (substituted for John Balleydier), Assessor of the County of Arapahoe, State of Colorado, and The District Court, In And For The County of Arapahoe, State of Colorado, and Honorable Martin P. Miller, The Judge Thereof, Respondents.
• Court: Colorado Supreme Court

Page 721

336 P.2d 721

139 Colo. 49

PEOPLE of the State of Colorado, ex rel. STATE BOARD OF

EQUALIZATION and Colorado Tax Commission, Petitioners, v. Albert R. HIVELY (substituted for John Balleydier), Assessor

of the County of Arapahoe, State of Colorado, and The

District Court, In And For The County of Arapahoe, State of

Colorado, and Honorable Martin P. Miller, The Judge Thereof,

Respondents.

No. 18871.

Supreme Court of Colorado, En Banc.

March 4, 1959.

Rehearing Denied March 30, 1959.

Duke W. Dunbar, Atty. Gen., Patricia H. Maloy, Asst. Atty. Gen., for petitioner.

J. Sherman Brown, Littleton, Robert J. Flynn and George Louis Creamer, Denver, for respondents.

DOYLE, Justice.

The section numbers which appear herein refer in every instance to Chapter, Article and Section and Sub-Section of the Colorado Revised Statutes 1953. Reference to the 'assessor' or to 'respondent assessor' means the County Assessor of Arapahoe County. We shall refer to the State Tax Commission as 'Commission' and to the State Board of Equalization as the Board. There has been a substitution of Albert R. Hively for John Balleydier, who at all times mentioned herein was Assessor of Arapahoe County.

The People of the State of Colorado have filed a petition herein seeking an alternative Writ of Mandamus addressed to the Assessor of Arapahoe County commanding the said assessor to make additions and corrections in the assessment roll of Arapahoe County for the year 1958 in order to carry out directions of the Commission and the Board. Relief is also sought against the District Court in and for the County of Arapahoe prohibiting the continuation of a certain action No. 13791 in that court in which the respondent, the assessor, together with residents of Arapahoe County, are seeking to set aside orders and directions of the Board and the Commission.

The allegations of the petition are that the assessor, acting pursuant to 137-3-42 and 137-6-30, submitted to the Commission his abstract of assessment for the County of Arapahoe for the year 1958 showing the valuation of property assessed by him and that the Commission, acting under 137-6-31, increased the valuation of real estate improvements in Arapahoe County in the sum of $10,000,000. Thereafter, the Board, acting under Article X, Section 15 of the Constitution and Section 137-7, convened on September 15, 1958 for the purpose of equalizing the real and personal property assessments and setting the state mill levy; that at said meeting the abstracts of assessment of all of the counties of Colorado, together with the report of the Commission, were presented and considered, and that during said meeting the Board considered protests presented and heard all persons appearing and desiring to be heard, including the assessor and taxpayers of Arapahoe County who appeared to protest the action of the Commission. That on September 22, 1958 the Board met and received further data from the Commission and the Arapahoe County delegation, following which a motion was made and unanimously carried that the action of the Commission be approved and that the assessed valuation for Arapahoe County be fixed at $153,523,910, and that the respondent assessor and the Commission be directed to fix the valuation in the amount set by the Board.

It was further alleged that on September 30, 1958 there was transmitted to the respective County Clerks and Recorders and County Assessors of Colorado, including the Clerk and Assessor of Arapahoe County, a notice setting forth the mill levy and the assessment for each county, including Arapahoe, as required by 137-7-7. The petition further alleges that the assessor, although fully informed of the action and decision of the Board, refused to comply with the requirements of 137-3-47 and that in lieu of certifying the valuations directed by the Board and the Commission, the respondent assessor on September 25, 1958 notified the Board of County Commissioners of Arapahoe County that the 'State Board has ordered an increase, but no official notice has been received.'

On September 29, 1958 (according to further allegations) respondent assessor caused to be served on the members of the Board a 'Notice of Appeal' of their decision increasing the valuation and on September 29 a civil action (No. 13791) was filed in the District Court in and for the County of Arapahoe wherein the assessor and the Board of County Commissioners of Arapahoe County, together with T. W. Anderson and L. E. Clarida, property owners--objectors, appeared as plaintiffs and sought relief in the nature of certiorari, declaratory judgment and temporary and permanent injunction. On the basis of this complaint the district court issued, ex parte, an Order to Show Cause and to Certify the Record on or before October 8, 1958. The complaint, together with the Order, was served and the Board and the Commission filed a Motion to Dissolve the Order to Show Cause, which motion raised the question whether the district court of Arapahoe County had jurisdiction to hear the controversy under 137-7-5. The District Court of Arapahoe County ruled that 137-7-5 gave it jurisdiction to hear the cause.

The petition finally alleges that the District Court of Arapahoe County lacked jurisdiction to proceed for the reason that 137-7-5 permits appeals only as to original assessments wherein the Board finds that the assessor has been delinquent in his duties by omitting taxable property from his abstract or by palpably and manifestly assessing property below its true value or by failing to verify his return, and where the delinquency operates as a fraud upon state revenues; that the complaint of respondents does not bring the case within this provision, but alleges irregularities in the proceedings before the Commission and the Board; that the Commission and Board acted pursuant to 137-6-31 and Article X, Sec. 15 of the Colorado Constitution.

The petition further alleges that the Board and the Commission acted within the jurisdiction conferred by the Constitution and the Statutes of Colorado and that the respondent assessor has no standing to obtain a review of the decision in the district court.

A further allegation is that following the institution of the suit in the District Court of Arapahoe County the County Commissioners of Arapahoe County petitioned the Commission for permission to increase the mill levy for county purposes basing such request on the valuations originally submitted by respondent assessor. Further allegations are that unless relief is here granted the Arapahoe County levies will be based on the assessor's original assessment and future mill levies set by the Board will be imposed on the original assessment of the respondent contrary to the Constitution and the Statutes of Colorado.

The action in the district court, No. 13791, with respect to which the prohibition is here sought, alleges in substance that during the year 1958 the Commission made appraisals of houses in Arapahoe County called the 'Broadway Estates' following which said Commission recommended lowering the classification of the said homes; that the reclassification of these and similar homes resulted in a decrease of valuation of $3,006,760; that other reclassification and adjustments resulted in decreases of $784,250 and $2,288,000 and that allowable depreciation resulted in a decrease in valuation of $1,688,191, annexation to the City and County of Denver resulted in a reduction in the total valuation in the amount of $14,710; that the decreases were offset by valuation of new improvements amounting to $7,831,010. It is alleged that there was no basis on which greater valuation (than that fixed by the assessor) can be assessed. It is also alleged that the Arapahoe County Commissioners completed their function as a Board of Equalization and that the assessor has submitted the abstract required by law, but that the Commission failed to examine this without delay as required by C.R.S. 137-3-44 and failed to act upon it for a period of 5 weeks; that on September 8, 1958 said Commission notified the assessor that the valuation had been increased on real estate improvements in the amount of $10,000,000. The complaint further alleges that the increase in valuation ordered by the Commission was not in accordance with the requirements of 137-6-12, which section required that there be reappraisement, that the increase in valuation was made by the Commission without the giving of a notice or the holding of a hearing and that this increase, affecting as it does individual property owners, is invalid and contrary to Sec. 137-6-12(7), and in violation of the Fourteenth Amendment to the Constitution of the United States and Article II, Sec. 25 of the Constitution of the State of Colorado.

Further allegations are to the effect that the Board acted invalidly in approving the increase in valuations of the Commission in that information and data supporting the increase in valuation was not submitted by the Commission as required by 137-6-32. The procedure of the Board is also alleged to have been irregular and invalid in that during the hearing (on September 15, 1958) the Chairman ordered the assessor and the taxpayers to confer with the Commission to ascertain the basis of the increase. It was alleged that such a meeting was held, but that no facts were provided and that on September 22, 1958 the Board reconvened and at least part of their session was held in private, contrary to 137-7-2; that no records were kept of the private proceedings. It is alleged that the exclusion of the participants from the meeting violated the statute (137-7-2) and also constituted a violation of the Fourteenth Amendment of the Constitution of the United States and Article II, Sec. 25 of the Constitution of Colorado.

Complaint is also made that following its 'secret session' the Board adopted a Resolution adding the sum of $10,000,000 to the assessed valuation in ...