People ex rel. Thomas v. Scott

• Decision Date: 24 December 1886
• Parties: PEOPLE ex rel. THOMAS, Atty. Gen., v. SCOTT, County Clerk Arapahoe Co.
• Court: Colorado Supreme Court

12 P. 608

9 Colo. 422

PEOPLE ex rel. THOMAS, Atty. Gen., v. SCOTT, County Clerk Arapahoe Co.

Supreme Court of Colorado

December 24, 1886

Where the constitutional limit for the total state levy has been exceeded, the relative priority of both general and special levies is fixed by the dates when the acts providing for each took effect, giving preference, however, to levies to meet appropriations for the support of the executive, legislative and judicial departments.

This is an original proceeding instituted in the supreme court for a writ of mandamus to compel the county clerk of Arapahoe county to extend on the tax-list of said county, for the year 1886, certain taxes in conformity with a notice sent him by the state auditor. The petition is presented by the attorney general, and states as grounds of application:

"That on the sixteen day of August, A.D. 1886, at a regular meeting of the state board of equalization, the said board ordered a tax levy of four mills on each dollar of valuation for state purposes; that on the thirtieth day of August, A.D. 1886, the state auditor sent to, and the defendant received, the following notice, to-wit:

" 'OFFICE OF AUDITOR OF STATE.

" 'DENVER, August 30, 1886.

" ' Hon. Charles H. Scott, Clerk of Arapahoe County --DEAR SIR: At a regular meeting of the state board of equalization, held August 16, 1886, the following tax was ordered levied for the year 1886: For state purposes, four mills on the dollar. The following taxes are levied by acts of the general assembly, vix.: For mute and blind, one-fifth mill on the dollar, (section 2444, Gen.St.;) for university, one-fifth mill on the dollar, (section 3456, Gen.St.;) for agricultural college, one-fifth mill on the dollar, (section 15, Gen.St.;) for insane asylum, one-fifth mill on the dollar, (section 2243, Gen.St.;) for school of mines, one-fifth mill on the dollar, (section 3108, Gen.St.;) for stock inspection, one-fifteenth mill on the dollar, (section 3167, Gen.St.;) for capitol building, one-half mill on the dollar, (section 2881, Gen.St.;) for military poll, one dollar upon each male inhabitant of your county not exempt by law, (Sess. Laws 1885, p. 269.0 The above rates will be charged against your county on the grand total of abstract of assessment, as certified by you to this office.

" 'Very respectfully, HIRAM A. SPRUANCE, Auditor of State.'

-- "That upon the receipt of said notice it became and was the duty of the defendant, as county clerk of Arapahoe county, in making up the tax-list, to compute and carry out in the proper column the state tax at four mills on the dollar of valuation; that it became and was the further duty of the defendant, as such clerk of Arapahoe county, in making up the tax-list for the year A.D. 1886, to combine under one head upon the tax-list for the year A.D. 1886, to combine under one head upon the tax-list, under the head of 'State Institutions,' in one column, the following taxes: For mute and blind, one-fifth mill on the dollar; for university, one-fifth mill on the dollar; for agricultural college, one-fifth mill on the dollar; for school of mines, one-fifth mill on the dollar; for insane asylum, one-fifth mill on the dollar; for stock inspection, one-fifteenth mill on the dollar,; for capital building, one-half mill on the dollar."

The petitioner then avers the extension of the four -mill rate for state purposes by the respondent, and his refusal to extend the rates levied by acts of the general assembly for the support of the state institutions, and for the capital building fund.

The answer of the respondent denies the power or authority of the state board of equalization to order the tax levy mentioned in the notice, averring, upon the advice of counsel, that the only power vested in said board with respect to a tax levy at said meeting was to reduce the rate fixed by statute for state purposes. Respondent denied that he has neglected or refused to extend upon the tax-list the rates prescribed by law for the several state institutions, but avers the extension of the same in the manner required, and admits that, in making up the tax-list for the year 1886, he only extended four mills on the dollar of valuation for all state purposes, the state institutions included. The answer then sets up, in defense of the course pursued by the respondent, in this behalf, and as further cause why a writ of mandamus should not be issued against him, that in the year 1886, the taxable property within the state amounted to more than $100,000,000, and that section 11 of article 10 of the state constitution provides that "the rate of taxation on property, for state purposes, shall never exceed six mills on each dollar of valuation; and, whenever the taxable property within the state shall amount to one hundred million dollars, the rate shall not exceed four mills on each dollar of valuation." The answer further avers that the rate of taxation for all state purposes, including the support of state institutions, for the year 1886, is limited by the constitution to four mills, and that, in so far as any statute provides for or levies a greater rate, it is null and void.

To this answer the attorney general demurs on the ground of insufficiency to constitute a defense to the application.

T.H. Thomas, Atty. Gen., for the People.

Wm. B. Mills, Co. Atty., and Sullivan & May, for respondent.

BECK C.J.

We deem in unnecessary, for the purposes of the present case, to discuss the powers of the state board of equalization, for the reason that it appears from an examination of the laws in force levying state taxes that all the levies sought to be enforced by the peremptory writ prayed for were made by the legislature, and not by the state board of equalization. It is averred in the petition that the four-mill rate for state purposes was levied by the state board of equalization, but these taxes were in fact levied by the fifth general assembly, and no change in the rate so prescribed was made by the state board. Laws 1885, p. 318, § 3. The same is also true of the rates levied for the support of the state institutions. A separate act was passed in each instance, fixing a rate to be levied annually on all taxable property within the state for the support of each of these institutions. Some of these laws were enacted at the first session of the general assembly of the state, and some at later session, thereof, but all prior to the session of 1885. These laws remain in force, and must be regarded as standing levies of the rates prescribed, and as authorizing an extension of the taxes therein provided for. 1 Desty, Tax'n, 468; Davis v. Brace, 82 Ill. 542. The legislature has so regarded these levies, as appears from amendments made to some of the acts fixing the same; and while they were understood to be levies for legitimate state expenses, and duly authorized by the constitution, yet they were evidently not understood to be covered and included in the constitutional provision which limited the rate of taxation "for state purposes." This is shown by the whole course of legislation bearing on the subject.

At every regular session of the legislature since the adoption of the state constitution a rate of taxation has been prescribed "for state purposes." In the same section of these several acts, up to and including the year 1883, the county clerk of each county has been required to extend these taxes in a separate column of his tax-list. The language of these several acts is as follows: "The clerk of each county, in making up the tax-list required by this act, shall compute and carry out, in the proper column, a state tax at the rate aforesaid." Laws 1877, p. 756, § 44; Laws 1879, p. 152, § 1; Laws 1881, p. 208, § 1; Laws 1883, p. 247, § 1. The amendments of April 7, 1885, adopts the same provision, by reference to section 70, Gen.St. (Laws 1885, p. 318, § 3.)

The form of the first tax-list prescribed by the legislature exhibits the same intent. It provides a column for state taxes, for one deaf-mute tax, and indicates, by a blank column and foot-note, an intent that other columns are to be added for other special state levies. Gen.Laws, 758. By the first section of an act approved February 4, 1876, which is still in force, it was provided that "all taxes for state institutions in each year shall be combined under one head, and entered by the clerk of each county of this state upon the tax-list, under the head of 'State Institutions,' in one column." Gen.St. p. 837, § 3868.

That it was the legislative intent to make separate provisions for the support of the state institutions from that provided for defraying the expenses of the different departments of the state government is further shown by the acts of 1881 and 1883, above cited. The first provides "that for the years 1881 and 1882, the rate of taxation shall be, for state purposes four mills on the dollar, and for the purpose of establishing a fund for a capital building one-half of one mill on the dollar, unless the state board of equalization shall fix a lower rate." Laws 1881, p. 208. The act of 1883 provides "that for the years of 1883 and 1884, and annually thereafter, the rate of taxation shall, for state purposes, be three and one-half mills on the dollar, and for the purpose of establishing a fund for a capital building one-half of one mill on the dollar, unless the state board of equalization shall fix a lower rate." Laws 1883, p. 247. The capitol fund, in these act provided for, has no reference to the "interest fund," or the "capitol sinking fund," provided for by the act of February 11, 1883. The understanding of the legislature that the rates levied for the state institutions should be in addition to the rate levied for the...