People ex rel. Colorado Tax Commission v. Pitcher

Mr. Justice White

delivered the opinion of the court:

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 eounty 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-fifty-eight of the sixty-three 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 others 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 non-effective. 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 can not 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 Pac. 278; Wadsworth v. U. P. R. R. Co., 18 Colo. 600, 612, 33 Pac. 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 Pac. 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 upheld.”

And in Ames v. People, 26 Colo. 83, 109, 56 Pac. 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. X, §§ 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. XIV, § 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 X, § 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 perforin, does not give it power to raise tbe aggregate values previously ascertained by tbe county officers; and that tbe statutes then in force did not purpose to confer that power. Ames v. People, 26 Colo. 83, 96, 56 Pac. 656. It was further beld therein that tbe term “valuation” as found in tbe constitutional section “imports values already estimated and fixed, and must be referred for tbe measure of its force and meaning to tbe mode prescribed by law for, estimating and fixing valuations. Tbe aggregate material with which tbe board can deal is thus limited; they may adjust and equalize valuations among tbe several counties, but they cannot add to its volume.” So it follows, as beld therein and also in People v. Ames, 27 Colo. 126, 131, 60 Pac. 346, that tbe state board, in equalizing and adjusting values, must deal with tbe respective county valuations as entireties. Under this rule it necessarily follows that tbe aggregate material with which tbe several county boards of equalization can deal is also limited and confined, when exercising tbe constitutional powers imposed, to tbe values already ascertained and fixed by tbe instrumentalities provided and empowered by tbe legislature to primarily ascertain and fix such values. By this means is effectuated tbe constitutional requirement that all taxes be uniform upon tbe same class of subjects within tbe territorial limits of tbe authority levying tbe tax, and be levied under a plan which shall secure a just valuation for tbe purposes of taxation. But there is no constitutional requirement that taxes be levied under a plan which shall secure a full valuation, and, therefore, a valuation, however low, which is equal and uniform, is a just valuation and meets tbe constitutional requirement.. However, as tbe taxing power is vital to tbe functions of government, and tbe duty is constitutionally imposed upon tbe general assembly to provide by law for a state tax sufficient, with other resources, to defray the estimated expenses of the state government for each fiscal year, and the rate of taxation on property for state purposes is limited by the constitution to not exceed four mills on the dollar of valuation, it may become of imperative necessity to the very existence of the state government and its institutions that property be assessed according to its full cash value, and, unless there be a constitutional inhibition, it lies within the power of the general assembly to provide the plan necessary in its opinion to effectuate that result.

In People ex rel. v. Lothrop, supra, it was held that the statutes then in force did not purport to confer upon the state board of equalization the power to raise the aggregate values of property previously ascertained by the county officers, and that if such power was conferred by statute it would constitute that body a board of assessors with power to fix and determine values as well as to adjust and equalize valuations. At the time of that decision the statutes provided that all property, both real and personal, within the state, not expressly exempted by law, should be subject to taxation; that all taxable property should be listed and valued each year and be assessed at its full cash value; and provided a complete plan whereby county assessors should list, value and assess such property at such value. Moreover, it required each assessor to take an oath, and attach the same to his assessment rolls, to the effect that he had made diligent inquiry and examination to ascertain all the property within his county subject to taxation; that he had assessed it equally and uniformly, according to his best judgment and information and belief, at its full cash value; that he had faithfully complied with all duties imposed on the assessor by the revenue laws; that he had not imposed any unjust assessment through malice, nor allowed any one to escape a just and equal assessment through favor. § 37, Gr. L., p. 754. These statutes constituted a complete scheme whereby the county assessors primarily made the assessment in the respective counties. Nevertheless, the legislature, evidently recognizing the constitutional limitations of the state and several county boards of equalization, wisely provided (§ 38, Gr. L., p. 754), that the latter bodies, in their respective counties, should correct and complete the assessment rolls, and, to that end, might supply omissions therein, and in equalizing the same, might increase, diminish, or otherwise alter and correct any assessment or valuation. In fact, as said in People ex rel. v. Lothrop, supra, the statute “constitutes them a quasi court to hear any and all complaints of the tax payer touching the valuation or listing of his property, with full power to adjust and correct the assessment roll as in their judgment they may deem proper and right, thus adding statutory duties to their constitutional duty ‘to adjust and equalize.’ ”

Clearly, if as said on page 462 of that opinion, if the power to raise the aggregate values of property previously ascertained by the county officers was conferred by statute upon the state board of equalization, it would constitute that body a board of assessors with power to fix and determine values as well as to adjust and equalize valuations, then by % 38, Gr. L., p. 754, supra, when similar power was conferred upon county boards of equalization, they were thereby constituted boards of assessors within their respective counties. But, it is said that as a county assessor is a constitutional officer, though his duties are left unprescribed in that instrument, the general assembly is impliedly inhibited from authorizing any other officer to perform any of the duties or functions of assessment. Some courts have held that where the constitution designates an officer to be elected for a definite period without defining his duties or making specific provision therefor, and such office was known at common law, that thereby such officer acquires a right, of which the legislature may not deprive him, to the exercise of the powers which have immemorialiy attached to the office. However, the rule is by no means universal, and as far as we have been able to ascertain has been confined exclusively to well known common law officers, such as constable, coroner and sheriff. Moreover, the rule, even as to such officers, does not seem to be logically supported. In State v. Dews, determined by the superior court of Georgia, Charlton’s Reports, p. 397, this question is considered at length. The constitution of that state established the tenure of the office of sheriff, but imposed no other limitations upon the power of the legislature in relation to it, and it was held that by the silence of the constitution as to the duties pertaining to that office, it submits them “to the direction and control of that department of the government, which is invested with the power of making all laws which are not repugnant to” the constitution. Further on in the opinion, the court said:

“But it is said, that the word ‘sheriff,’ is known to, and derived from the laws of England, and that by its adoption into our constitution, the nature and character, the powers, duties and rights of that office, as it existed under those laws, became fixed and established, by the fundamental law of the state, beyond the reach of legislative alteration, and that as by the common law, and the statutes 14 Edward III, c. 10, and 19 Henry VII, c. 10, the sheriff has the custody and keeping of the jail, and of the prisoners therein, that custody is by the constitution, embraced in the office of sheriff, and cannot be separated from it by legislative act. If the premises assumed be, that the term ‘sheriff’ has been introduced into our constitution, according to its strict etymological sense, and as importing what it originally signified at common law, ‘the keeper of the county,’ with the authorities and dignities attached to the station, as the assodate of the king, the chief executive and military officer of the county, invested also with high judicial powers, whose office was purely honorary, and whose duties were gratuitously discharged, it must be obvious that they are incorrect, if in fact, they be not repugnant to the genius of. our institutions: while also, it must be equally apparent, that by parity of reason, justices of the peace will be protected, by constitutional safeguard, in the same tenure, jurisdiction, powers and incidents, which belong to those officers, in the country from which the constitution has derived their designation. And the reason why the corollary deduced from these premises is untrue, will furnish an answer to the argument that has been built upon them. It is, that they are officers created by law, whose duties, powers, and responsibilities, are, and always have been, regulated and controlled by law. * * * The administration of justice, the pursuit of rights, and the redress of wrongs; all laws which are administered through judicial tribunals, all which relate to property, to contracts, or persons; and these form the great mass of the laws of every civilized community; the whole criminal jurisprudence of the country, and every thing connected with the enforcement of civil rights, require the agency of the office of sheriff in England, or of an officer of like nature and character, in every country where laws and courts of judicature are known — and are, therefore, immediately connected with his powers and duties. If then, the powers and duties of the sheriff, as they exist in England, are surrounded by the impregnable safeguard of the constitution, the laws of that country, almost in their totality, have been inflexibly fixed upon us; they cannot be changed, since any change in them must affect the sheriff in his powers or duties, his rights or responsibilities, and make them different from what they were in England, at the period of the establishment of our constitution; and the framers of it, when ordaining a government, in which they embodied the representative principle, in order that it might reflect the sentiments of the community, and with the distinct design, that the political society, which they are organizing, should advance with the advancement of the age, and accommodate itself to the improvements of society, have, with the iron hand of an imbruted despotism, stamped inflexible immutability upon our institutions; have bound us to the notions of our ancestors, no matter how exploded by the sentiments of society, or inconsistent with the interests; and not merely limited, but abolished the power of the legislature, in the very effort to organize it. The proposition is too monstrous to be for a moment entertained.

“If it be true; the contemporaries of the constitution and those who, themselves, had an agency in framing it, have betrayed a lamentable ignorance, or been guilty of a wanton disregard of its provisions, by divesting the sheriff of the high judicial and executive powers which belonged to him in England and degrading him to the performance of unmixed ministerial services; by transferring from him the authority of presiding at elections and imposing on him the duty of attending them as a mere police officer, subject to the orders of others who preside; by depriving him of the important privilege of selecting jurors; by admitting constables, not of his nomination, to participate with him in the service of writs; by all the regulations in relation to sheriff’s sales, and by the in-forcing upon him of the duties of humanity towards prisoners whom the common law allowed ‘in the name of God’ to starve, if they could not support themselves; by requiring from him a bond, as a prerequisite to the discharge of his duties, and by numberless other interferences with his powers and privileges; nay, by the judiciary act itself, passed almost simultaneously with the constitution, and whose provisions the defendant invokes in support of his claims; — and not only by the.acts which have direct reference to his office, hut also by all those which regulate courts and their proceedings.”

However, it is said that the framers of the constitution, when they employed the term ‘ ‘ assessor, ’ ’ necessarily had in mind the officer, whom it designated, in the light in which he was known to the inhabitants of the territory. In this view we concur, but it does not follow therefrom that the duties pertaining to the office may not be changed and modified in some respects. The territorial laws recognized the assessor, from the beginning, as an agency in raising public revenue, whose duty was prescribed by legislative enactment, frequently changed, and always subject to legislative control. The employment of the term in the constitution, therefore, so far from relieving his duties rfrom the control of the legislature, imports their subjection to the legislative will in the formation and adoption of regulations that will secure a just valuation of-property for the purposes of taxation. Though the office can not be destroyed by the legislature, that agent may, nevertheless, not being restricted in this respect by the constitution, direct and provide that the work of such office may be corrected, supplemented or reviewed. While Savings and Loan Society v. Austin, 46 Calif. 415, was overruled in Houghton v. Austin, 47 Calif. 646, as pointed out in Ames v. The People, 26 Colo. 83, 92, 56 Pac. 656, certain language found in the overruled opinion is so pertinent to the question now being considered that we are constrained to adopt it. It is there said, on pages 474, 475 and 476:

“The argument for the plaintiffs is, that at the time of the adoption of the constitution, the term ‘assessor’ had a definite and well understood meaning, importing that he is an officer appointed or elected to ascertaifi and determine the value of property for the purposes of taxation ; and that in requiring such an officer to be elected in each ‘district, county, or town in which the property taxed for state, county, or town purposes is situated, ’ the interference is necessarily implied, not only that he is to make .the valuation, but that, when made, his determination as to the value is final; and that the valuation cannot be changed, altered, or in any respect modified, unless possibly by some superior board or officer, to be elected for that purpose by the electors of that district, county, or town. In support of this view, we are referred to the fact that this provision is peculiar to our constitution; and, it is claimed, was inserted ex industria in deference to the wishes of the native Californians, who were then the proprietors of large landed estates, and were apprehensive that unless the valuation for taxing purposes should be made by local assessors, to be elected by the people of the district, the burdens of taxation might be imposed chiefly on their lands and herds, to the exclusion of other property.

“Whatever weight may be due to this argument, it can hardly be deemed of such conclusive force as to preclude an examination of other provisions of the constitution in order to determine whether the construction now contended for would not or might not be subversive of one of its fundamental principles. As already stated, the governing rule ordained by the constitution — the central idea which pervades that instrument in respect to taxation — is that it shall be equal and uniform, and that property shall be taxed in proportion to its value.

“As one of the necessary steps towards ascertaining its value, local assessors must be elected, who shall make the primary valuation. But there is nothing in the instrument to indicate that this valuation was intended to be final. On the contrary, it is expressly provided that the valuation is to be ascertained ‘as directed by law’— which is an explicit recognition of the power of the legislature to provide appropriate methods for ascertaining the value, subject only to the limitation that the primary valuation shall be made by local assessors to be elected by the people of the district. It may be further observed that, when the constitution was adopted, the term ‘assessor’ was not understood as defining an officer whose valuations were to be necessarily final. On the contrary, from the earliest period in our American jurisprudence, assessors had been employed in almost every state for the purpose of making the primary valuation of property for taxation, and in none of them, so far as we are advised, was this valuation final, but was subject to correction and alteration by some supervisory board or officer. In employing the term ‘assessor’ the framers of the constitution must be understood to have used it in this its popular sense.”

In Ames v. The People, supra, these California cases were reviewed and Houghton v. Austin was held inapplicable as an authority under our constitutional provisions. Moreover, while the doctrine of Savings and Loan Society v. Austin was not directly approved, it was held that in this state “the sole power of fixing values is not vested in the assessors by the constitution.” While we. there declined to say how far the general assembly might go in taking from county assessors the power to assess property for taxation, we did hold, substantially, that construing § 8 of art. XIV, creating the office of county assessor, in connection with § 3 of art. X of the constitution, which enjoins upon the general assembly the duty of providing 'by general law such regulations as shall secure a just valuation for taxation of all property, and bearing in mind that § 7 of the same article expressly permits the general'assembly to vest in corporate and municipal authorities power to assess and collect taxes for all their purposes, the general 'assembly was not inhibited from enacting laws authorizing the assessment of certain classes of property by some other tribunal or board, if, in its wisdom, it determines that thereby a just valuation of such property may best be secured, and if the act on its face is not palpably ineffectual to accomplish that object. The same rule that the sole power of fixing values is not lodged by the constitution in county assessors is also recognized in People ex rel. v. Lothrop, supra. As the statutes then existed it was pointed out that the only exception to the power of the county assessor and the county boards of equalization in respect to assessment, was the express statutory provision, for the assessment of railroad property by the state board of equalization. And it is said: “For this, in the opinion of the legislature, there was, doubtless, an obvious necessity and authority.” So here, we decline to hold how f.ar the general assembly may go in that respect. Nevertheless, in view of the constitutional provisions hereinbefore mentioned and to which reference will again be made, we are .certain the legislature may adopt a plan whereby the work of assessors may be corrected, supplemented, added to or changed. Thereby that which the assessors were previously authorized to do by law need not be taken away, but those agencies may still be left free to perform those functions. Furthermore, this view is strengthened by the legislative construction long acquiesced in as evidenced by the act imposing upon county boards of equalization the powers and duties, as hereinbefore pointed out, of raising or lowering valuations returned by the assessor, even though it may greatly augmént the total valuation of the county.

Peculiarly applicable on this point is certain language from an opinion of the court of appeals of Kentucky in a case determined under a constitutional provision requiring the election of a county assessor for a definite period, but silent as to his duties. In that case, Spalding v. Hill, 86 Ky. 656, 660, 7 S. W. 27, 28, it is said:

“The constitution of the state requires that a county assessor shall he elected every four years; but his duties are not prescribed by that instrument; his duties were wisely left to be prescribed by law. It is conceded that, ‘in all cases of taxes by valuation, an assessment is indispensable and primary; it lies at the foundation of the proceeding.’ But the action of the assessor in making the assessment is not necessarily final. His action is ex parte. It is true that the law authorizing the assessment may make his action final; but it is not necessarily final by virtue of his office. Prom the earliest history of the state, assessors have been employed for the purpose of making the primary valuation of the property in the several counties of the state; but at no period in the history of the state has the action of the assessors been regarded by the law making power as necessarily final; for laws have been passed time and again, creating county boards of supervisors, with the power to increase or decrease the value placed upon the citizens’ property by the assessor.”

And equally applicable is that from. State of Wisconsin ex rel. Brown County v. Meyers, Judge, etc., 52 Wis. 628, 632, 9 N. W. 777, 778, where, in considering a statute authorizing the appointment of three discreet freeholders, not residents or owners of real estate in the county, to review the aggregate valuations made by the county board of the taxable property in the several towns, villages, and cities of the county, it is said:

“The law is evidently in furtherance of justice and fairness in the equalization of values, and does not seem open to any constitutional objection; for this whole matter is within the control of the legislature, which, doubtless, might abolish the present system and create a state board for the assessment and equalization of the value of the taxable property of the state. At all events, such a law would be within the constitutional power of the legislature. Therefore the legislature may change the existing method and adopt one better calculated to insure greater uniformity and fairness in the assessment and equalization of the taxable property of the state, when such a method can be devised. A fair valuation of property constitutes the very basis for the apportionment of a tax, and is the main object to be secured in all legislation upon the subject.”

In Board of State Tax Commissioners v. Board of Assessors, 124 Mich. 491, 494, 496, 83 N. W. 209, 210, the constitutionality of a statute creating a tax commission to supervise the assessment roll of the assessors, was under consideration. The court therein used the following pertinent language, to-wit:

“It gets down, then, to the question whether the exclusive agency for making such assessments is, under our constitution, some officer of the municipality, whose acts are final and conclusive as well to the state as to the municipality; for it is to be kept in view that, both at the time of the adoption of the constitution and at the present, the taxes levied for state purposes are based on the same assessment as are those collected for local use. * * * The state is concerned in the proper assessment of property, not only as to its own interests as they are affected by the collection or failure to collect the funds necessary to carry on government, but, as the supreme authority in the state, the legislature , is required by section 12, art. 14, of the constitution, to see to it that assessments be made on property at its real value. We think that the authority of the legislature is not so restricted as to preclude the use of a state board in carrying into effect this important constitutional’provision. * * * . It is suggested that inasmuch as section 13, art. 14 provides for a state board of equalization, this excludes the right to authorize such a board as the board of state tax commissioners. This is based upon- the claim that the board of equalization is in one sense an assessing board; but an examination of this act discloses that none of the duties of the state board- of equalization are interfered with in any way. ’ ’

In the light of these decisions, and bearing in mind the constitutional duty imposed upon the general assembly to provide by law for a state tax sufficient, with other resources, to defray the estimated expenses of the state government for each fiscal year, the constitutional limitation of the rate of taxation on property for state purposes, the necessity for uniformity, and the constitutional /mandate that taxes shall be levied under a plan which ; shall secure a just valuation for the purposes of taxation, ; it would seem that there should be no doubt as to the i power of the general assembly to create a central body, ^ and empower it with the duty of performing those func- ! tions of assessment, in each county, essential to bring j the property therein for taxation purposes to its full cash Í value, the standard by it prescribed to insure a just valua- ; tion. Such law would in no wise interfere with the con- * stitutional powers of the state or county boards of equalization, and would be, in effect, the same power previously conferred by statute, § 38, G. L., supra, upon county boards of equalization.

Indeed, almost every state in the union has provisions, either in its constitution or statutes, authorizing some central body to examine into the assessment of the several counties, and in case the assessment of one or more counties is found to be relatively higher or lower than other counties, to increase or dimish such assessment, even though the effect be to greatly increase the aggregate of the total assessments from all counties.— Wallace et al. v. Bullen, 6 Okla. 17, 52 Pac. 954, and on rehearing, p. 757, overruling Gray v. Stiles, 6 Okla. 455, 49 Pac. 1083; State ex rel. v. Thomas, 16 Utah 86, 50 Pac. 615.

Indiana has a state tax commission law very similar to ours. A number of cases have been tried there involving the constitutionality of the act, and it has been uniformly upheld. In C. C. C. & St. Louis R. W. Co. v. Backus, 133 Ind. 513, 536, 33 N. E. 421, 428, 18 L. R. A. 729, it is said:

“As to the latter .clause of the section of the constitution providing that the general assembly ‘ shall prescribe such regulations as shall secure a just valuation for taxation,’ it leaves it to the legislature to prescribe the mode by which the valuation of all property shall be ascertained, enjoining upon them the one obligation to provide such regulations as shall secure a just valuation.”

The state of Arkansas has also, by statute, created a state tax commission and conferred upon it the general supervision of the assessment and collection of taxes, and over the county assessors and other officers, and given it the power to revise the action of such officials. The constitutionality of the act has been sustained. See Bank v. Tax Commission, 92 Ark. 492, 123 S. W. 754.

We find nothing in our constitution, either directly or by necessary implication, which inhibits the legislature from creating such a body and investing it with such power, nor do we find anything in the decisions of our courts to prevent it. While in People ex rel v. Lothrop, supra, it was said, in view of the fact that a county assessor is a constitutional officer, and of other constitutional provisions, that “it may be gravely doubted whether it is competent for the legislative authority to take from county assessors the substantial control of valuations of property for state taxation, and vest it in a central authority,” the matter was not determined. On the contrary, the court expressly said, that “The question here presented is not what the legislative authority could do in this respect, but what it has done.” And In re Assessment of Property, etc., 25 Colo. 296, 53 Pac. 1056, wherein we had under consideration certain interrogatories propounded to the court, including one as to the power of the state board of equalization to increase the aggregate assessed valuation as returned by the county assessors, we expressly stated that as the general assembly had not seen fit to exercise the power claimed to be inherent, by passing a law authorizing the state board of equalization to perform such functions, we would not review the powers of that board as determined in the Lothrop decision. However, when the In re Assessment case was before us, Judge Elliott, who had previously* for many years, been an honored and able member of this court, filed a brief as amicus curiae, and in discussing the doubt expressed in the Lothrop case, as to the authority of the general assembly, under the constitution, to create and invest a central body with power to increase the aggregate valuations returned by the several county assessors, said:

“While in this brief no special effort is made to controvert the doubt thus expressed in the Lothrop case, for the reason that the legislature has not attempted such legislation, we do not for one moment doubt the powder of the legislature to pass general laws which shall be effectual to secure ‘a just valuation for taxation of all property, real and personal,’ even though the result might be the increasing of the average valuation of the county assessors. It would be a strange conclusion to hold that the legislature has not the power to pass such laws and prescribe such regulations as the constitution expressly provides shall be passed to carry into effect its essential guaranties.” Supreme Court Briefs, vol. 166.

Nor do we consider that what was determined, or the language found in Taxation of Mining Claims, 9 Colo. 635, 21 Pac. 476, in any wise militates against the views herein expressed. As pointed out in Ames v. The People, supra, the only question in that case was as to the constitutionality of certain hills before the general assembly for taxing mining claims, and the only’point calling for a decision was whether or not the general assembly itself could assess, property for the purposes of taxation. In holding that it could not the court added that, in general, the valuation of property for taxation must he ascertained by the county assessors. But it is further said in the Ames case that, “The remark of the court that, in general, property is to be assessed by the county assessors, was not at all necessary to the decision, nor was there any intention to announce the rule that railroad property was to be assessed by them only.”

Having determined that the general assembly may create a central body and confer upon it general supervision of the assessment and collection of taxes, and likewise over officers authorized by statute to perform such functions, we will advance to a consideration of the pertinent provisions of the statutes of this state creating and defining the Colorado tax commission under which, if at all, the increase ordered in the assessed valuations here involved can he upheld.

Chapter 216 of the Laws of 1911 created the Colorado tax commission and. defined its duties. This act in some particulars was amended in 1913, S. L. p. 525. Subdivision 1, § 13 of the act of 1911, p. 615, purports to invest the tax commission with authority to cause all property of every kind or character to be assessed at its actual and full cash value, and, to that end, confers upon it general supervision over the administration and the enforcement of all laws for the assessment, levying and collection of taxes, and like supervision over the county officers, boards of county commissioners, county boards of equalization, and all other officers and boards of assessment, levy and collection. The supervisory power here conferred can, of course, not be exercised to the extent of unduly interfering with constitutional duties imposed upon any such officers or boards, and if any clause of the statute can not be so construed, it is necessarily invalid in that respect, but this would not overturn its other provisions. It can not be doubted that the primary and manifest purpose of the act is to place in a central body authority to bring the valuations of taxable property to the legislative standard of full cash value. In the exercise of the power conferred at least two methods are prescribed whereby the central body may bring about the desired result. One method is provided for by subdivision 6 of § 13, supra, and the other by § 31 of the act. By the former method certain statutory powers of county boards of equalization are necessarily taken away, for the tax commission is authorized thereby to reappraise classes of property within counties; to increase or diminish the values placed thereon by county assessors; and to require omitted property therein to be placed upon the assessment roll. Indeed, § 5638, R. S. 1908, pertaining to the increase or decrease of valuations by county boards of equalization, was expressly repealed by § 12, chap. 134, S. L. 1913. By the other method the tax commission may deal with the aggregate values of the several counties as primarily fixed by the county assessors or equalized by the county boards of equalization. The method prescribed by subdivision 6 of § 13, supra, is to be applied to the- property of individual taxpayers, and is evidently intended to be exercised when the tax commission is of the opinion that the primary assessment made by the assessor has omitted property subject to taxation or has placed upon the property of certain individuals a value higher or lower respectively than that placed upon the property of other individuals and is unwilling to leave the matter solely subject to the action of the county board of equalization. On the contrary, the method pre-f scribed by § 31 is to be applied to, and upon, the aggregate value of all the property in the county, and is evidently intended to be exercised when the tax commission is of\ the opinion that the primary assessment and valuation'^ of property made and fixed by a county assessor is reía- 1 tively equal as among the property owners therein, or will be corrected, in that respect, .by the county hoard of equalization, in whom is vested final power in that regard. Moreover, the power invested by subdivision 6 of § 13 can only be exercised prior to the action of the county hoard of equalization, to the end that it may perform its constitutional duties to adjust and equalize the property values within the county as between classes of property therein and owners thereof. But, as that board has only the constitutional power to adjust and equalize, but not to increase the aggregate values within the county, it would seem that it is wholly immaterial whether the action of the tax commission, under the method prescribed by the latter section, was exercised before, or after, the action of the county, board of equalization. In any event, the rate of increase and the relative effect on property owners would he the same. This would also seem to he the legislative view as evidenced by the dates prescribed for the different meetings of the county hoard of equalization, and the limited time in which the tax commission may exercise the power conferred upon it by § 31.

This view is further fortified by other provisions of the act. Subdivision 7 of § 13 provides for the giving of notice to the owner of property and fixing a time and place for a hearing. This notice, however, applies only in cases where the tax commission is exercising its power , under the procedure prescribed- by subdivision 6 of the I section, and does not apply when a horizontal increase or ;j decrease by a designated rate per cent or amount to be i added is ordered by the tax commission under the provisions of § 31.' This is conceded by all parties to the controversy, and it is upon this assumption that respondent has interposed, as a defense, the constitutional provisions inhibiting the taking of property without due process of law. To this contention there are many sufficient answers: As said in Turpin v. Lemon, 187 U. S. 51, 57, 58, 47 L. Ed. 70, 23 Sup. Ct. 20, 28:

“Exactly what due process of law requires in the assessment and collection of general taxes has never yet been decided by this court, although we have had frequent-occasion to hold that, in proceedings for the condemnation of land under the laws of eminent domain, or for the imposition of special taxes for local improvements, notice to the owner at some stage of the proceedings, as well as an opportunity to defend, is essential. * # * But laws for the assessment and collection of general taxes stand upon a somewhat different footing and are construed with the utmost liberality, sometimes even to the extent of holding that no notice whatever is necessary

Moreover, under the law as it existed prior to the adoption of the act of 1911, and as it now is, the state board of equalization is required to meet at a certain place, on a certain day, and to complete its labors'by another day. It has never been questioned that such board has the right, without further notice than that implied by the law, to equalize valuations of the property among the counties by raising the valuation in one or more and reducing it in others. The only question that has been raised is as to whether the aggregate valuation of the counties might be increased. But whether the aggregate is increased or not, the same legal principle is involved, because equalizing under any system, if there be change at all, necessarily raises the valuations ih some county or counties. 'This affects the valuation of the individual property owner, yet at no time in the history of the state was it ever provided or assumed that/ he was entitled to a specific notice or hearing. However, the rule is settled by numerous authorities that actual notice to the individual taxpayer is not required as a condition precedent to action by state boards of equaliza-f tion, notwithstanding such boards may exercise the power; of increasing or decreasing the aggregate valuations as1, returned from the respective counties. The rulé is equally well settled that the only notice necessary in such cases is the law which fixes the time and place of the holding of the meetings of such boards. McGehee on Due Process of Law, pp. 232, 238; Cooley on Taxation (3rd ed.), pp. 53, 55; (State v. Armstrong, 19 Utah 117, 56 Pac. 1076; State Railroad Tax Cases, 92 U. S. 575, 23 L. Ed. 663; Territory v. Bank, 10 N. M. 283, 65 Pac. 172; McMillen v. Anderson, 95 U. S. 37, 41, 24 L. Ed. 335; Hagar v. Reclamation Dist., 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569; Kelly v. Pittsburg, 104 U. S. 78, 79, 26 L. Ed. 658; Kentucky Railroad Tax Cases, 115 U. S. 321, 6 Sup. Ct. 57, 29 L. Ed. 414; Carrico v. Crocker (Okl.) 133 Pac. 181.

In State Railroad Tax Cases, supra, in speaking upon this subject, it is said :

‘ ‘ The main function of this board is to equalize these assessments over the whole state. If they find that a county has had its property assessed too high in reference to the general standard, they may reduce its valuation; if it has been fixed too low, they raise it to that standard. When they raise it in any county, they necessarily raise it on the property of every individual who owns any in that county. Must each one of these have notice and a separate hearing? If a railroad company is by law entitled to such notice, surely every individual is equally entitled to it. Yet, if this be so, the expense of giving notice, the delay of hearing each individual, would render the exercise of the main function of this board impossible. _ The very moment you come to apply to the individual the right claimed by the corporation in this case, its absurdity is apparent. Nor is there any hardship in the matter. This board has its time of sitting-fixed by law. Its sessions are not secret. No obstruction exists to the appearance of any one before it to assert a right of redress a wrong; and, in the business of assessing taxes, this is all that can be reasonably asked.”

So in Suydam v. Merrick Co., 19 Nebr. 1551, 27 N. W. 142, Mr. Justice Cobb, speaking for the court, said:

“When complaint is made that a certain individual is assessed too low, then it is a condition precedent to action thereon by the board, that such individual owner have notice of such proceeding. But the increase of the assessment of a precinct is not made upon anyone’s complaint, but arises in the official mind and judgment of the commissioners, upon an inspection and comparison of the assessment rolls of the severa\ precincts. The law has designated no officer or person upon whom notice could be served, or to represent the precinct at such equalization. The county commissioners themselves are the only and proper representatives of the precinct, and, as they constitute the board of equalization, no notice need be served on them. ’ ’

In Pittsburg, etc., Ry. Co. v. Backus, 154 U. S. 421, 425, 38 L. Ed. 1031, 14 Sup. Ct. 1114, 1116, Mr. Justice Brewer, speaking- for the court, said:

“It is contended specifically, that the act fails of due process of law respecting the assessment, in that it does not require notice by the state board at any time before the assessments are made final, and several authorities are cited in support of the proposition that it is essential to the validity of any proceeding by which the property of the individual is taken that notice must be given at some time and in some form, 'before the final adjudication. But the difficulty with this -argument is that it has no foundation in fact. The statute names the time and place for the meeting of the assessing board, and that is sufficient in tax proceedings; personal notice is unnecessary. In State Railroad Tax Cases, page 610, 23 L. Ed. 663, are there words, which are also quoted with approval in the Kentucky Railroad Tax Cases:

“ ‘This board has its time of sitting fixed by law. Its sessions are not secret. No obstruction exists to the appearance of anyone before it to assert a right, or redress a wrong; and, in the business of assessing taxes, this is all that can be reasonably asked. ’ ’ ’

In Territory v. First National Bank, 10 N. M. 283, 303, 65 Pac. 172, it is said:

“The statute relating to the assessment of property within the county requires, that where the board of equalization or the assessor increases the valuation of property as returned by the taxpayer that notice of such increase shall be given the taxpayer affected, and the object of this notice is to give the taxpayer an opportunity to object to the altering of the assessment and to appeal if he so desires, but there is no such provision in regard to the action of the territorial board of equalization. This failure to provide for such notice was, no doubt, intentional on the part of the legislature, because it would be both expensive and burdensome; in fact, it would be practically impossible to notify all individual taxpayers whose assessments might be affected by the territorial board of equalization, in their effort to secure the reasonable uniformity required by law. Indeed, it might happen that almost all the taxpayers of a county or the territory might be affected by the action of the board of equalization, and it would be unreasonable to require a notice to be served upon all who might be affected by the action of such territorial board of equalization. It is reasonable to believe that the legislature in fixing a specified date upon which this board should meet, clothed with territorial jurisdiction for the purpose of equalizing the valuations of the property of the territory, deemed this a sufficient notification to all parties interested to attend the meetings of such board, and there to look after any interests liable to be affected by the action of the board within the scope of its powers, and for that reason made no further provision for notice.”

In McMillen v. Anderson, 95 U. S. 37, 24 L. Ed. 335, it is said:

“It seems to be supposed that it is essential to the validity of this tax that the party charged should have been present, or had an opportunity to be present, in some tribunal when he was assessed, but this is not, and never has been, considered necessary to the validity of a tax. ’ ’

The same doctrine was announced and affirmed in the Kentucky Railroad Case, 115 U. S. 321, 29 L. Ed. 414, 6 Sup. Ct. 57. It would seem, therefore, that where such a notice has not been provided for in the laws of the state, the courts hold that the failure to provide for or give the taxpayer a specific notice, does not affect the validity of. the tax. The principle declared in these cases, as to the sufficiency of notice essential to‘authorize equalization boards to act, applies with like force to the tax commission when proceeding under the provisions of § 31, supra. The latter body is empowered by the legislature to cause to be added to or deducted from the valuation of the various counties the amount necessary to place upon the assessment rolls of the state the taxable property therein at the true and full cash value. Its place and time of holding meetings, like the state hoard of equalization, are fixed by statute. It is required to be in continuous session, and its meetings to be open to the public. Moreover, the assessors have until the first Monday of September in which to transmit to the commission their respective abstracts of assessment, and the latter body is required to act under § 31 on or before October 1st. So, it necessarily follows that the time in which the tax commission may exercise the power under the section is limited to a few days. §§ 9, 30 and 31, S. L. 1911, pp. 612, 622, 623.

Furthermore, the tax commission, by § 15 of the act, is expressly authorized to receive complaints, and carefully examine into all cases, where it is alleged that property, subject to taxation, has not been assessed, or has been fraudulently or for any reason improperly or unfairly assessed, etc. Here is an express provision for an opportunity to be heard which, with the notice given by the statute of the time and place of the meeting of the tax commission, surely constitutes due process of law. We think respondent does not properly interpret Gale v. Statler, 47 Colo. 72, upon which he relies. While in that case it was held that notice and an opportunity for hearing must be given a taxpayer when the assessor raises the valuation of his property, the case involved the placing upon the rolls property that had been omitted, and the statute in relation thereto expressly provides that notice must be given. So, under the tax commission statute, when complaint is made or knowledge comes to the tax commission that the property of a certain individual in any county is assessed improperly, too high, or too low, then it is a condition precedent to action thereon by the commission, that such individual have actual notice, and an opportunity to be heard as provided by the act. But, paraphrasing the language of Mr. Justice Miller in the State Railroad Tax Cases, supra, the increase in the assessment of an entire county is not made upon anyone’s complaint, but arises in the official mind and judgment of the commission upon an inspection and comparison of the assessment rolls of the several counties, and the law has designated no officer or person upon whom notice can be served, or to represent the county at such equalization. Whosoever will, whose rights are affected, may appear at the time and place fixed by law, and be heard if he is not precluded therefrom by prior legal proceedings in the premises. Moreover, after the tax commission completes its labors, and transmits its assessment to the state board of equalization, the latter body meets in regular session, at a place and time designated by statute to perform its constitutional duty of equalizing the valuations among the several counties. In that respect it is supreme, except that it can not change the aggregate of the total valuation of all the counties. It may decrease the valuation of one or more counties by raising the valuation in others and correct any inequalities in that respect.

As to the contention that all property in the city and county of Denver was valued by the county assessor at its full cash value, and that the proposed increase ordered by the tax commission, and confirmed by the state board of equalization, will result in an over-valuation of property, and therefore operate as a discrimination against the taxpayers of the district, in that it compels them to pay taxes on property they do not possess, in violation of the constitutional rule requiring taxation to be uniform and according to a just valuation, it is sufficient to say, that it is not conceded that the property assessed as valued by the county assessor is at its full cash value. It is conclusively presumed, however, that as between individual property owners within the county, there has been a just value placed thereon, that is, a value relatively equal. If the latter has not been done the fault lies, in the first instance, npon the assessor of the county who neglected his duty in that regard, and, secondly, upon the tax commission, hut, finally and conclusively, upon the county board of equalization, possessed of supreme power in that respect. The values placed on property listed with, and assessed by the county assessor, are not conclusive and binding on the tax commission as being the true cash values thereof. Under the constitution and statute values of property on which taxes are to be levied, are to be determined not by. the county assessor alone, but only in conjunction with other officers, and boards provided for the purpose of correcting errors and inequalities in valuations as fixed by the assessor and to bring all property values to the legislative standard. The local officers are in no wise unlawfully deprived of the right to exercise their functions. As said in State v. Daniels, supra:

“It must be remembered that, so long as the local officers obey the laws of the state they are not meddled with and their functions are in no way curtailed, and it is only when they violate the law which they are bound to obey that the state undertakes to interfere. * * * The state has a vital interest in insisting that its laws pertaining to taxation be honestly and fairly administered, to the end that the burden of taxation may be equitably distributed. * * * In order to make an equal distribution of the county and state taxes it is essential that all taxable property that can be discovered be placed upon the tax rolls and that a uniform basis for valuation be adopted and adhered to. So long as the practice prevails of assessing property in different localities at figures varying from twenty-five to one hundred per cent or more of its true value, and of doing the same thing locally for that matter, so long are we liable to have gross inequalities in the distribution of the tax burden. So the state in endeavoring to enforce the requirements of the law in regard to the assessment and equalization of property, is not acting as a mere interloper, exercising a paternalistic function for the purpose of exploiting its right so to do, but is attempting in good faith to perform a duty in which its citizens generally have something more than a passing interest. All the state has undertaken to do is to review the work done by local officers when its proper agencies are satisfied that the law has been violated. In such a contingency the law in substance and effect provides for a reassessment of the property of the local municipality.”

Any one. familiar with the. history of taxation in this state can readily realize the purpose and necessity of the legislature enacting chapter 216 of the Session Laws of 1911. All the statutes, adopted previous to this law, had proven inadequate to coerce the assessors to fix a full cash value, as required by law, upon the taxable property within the county. Moreover, they had likewise failed to place a relatively equal value upon the same class of property within their respective counties, and county commissioners and boards of equalization had not corrected the evil. It, no doubt, became apparent to the general assembly that the assessment of property could not be entrusted solely to the local assessors and local boards, for the reason that such officials continually assessed property far below its real value, justifying their acts in that respect on the assertion that other counties did likewise. Indeed, history discloses that such has been the experience of many of the states of the union, and imperative necessity, there as- here, has required the creation of central bodies with power to correct assessment rolls, and increase or lower the valuations placed upon property for taxation purposes by the local authorities.

It also became apparent to the legislature, no doubt, that in order to enable the state to secure sufficient revemíe to carry on its functions of government, and to support its public institutions, a new method must be adopted; a method which would not only secure a just valuation as between the taxpayers of the state, but also a valuation that would be just to the state itself. Accordingly, it became manifest that full cash value is the only standard that is just and uniform, and whereby each citizen can be required to contribute to the support of government according to the value of his property. For, so long as the prevailing practice of assessing property in different localities at figures varying from twenty-five to one hundred per cent of its cash value, there will be gross inequalities in distribution of the tax burden. Valuation of property for taxation is made only to secure a basis for levying taxes; and if values are raised to conform to the standard which the law has fixed, the tax levy should be correspondingly reduced. There is a common impression that increase of ' valuation necessarily increases the amount of taxes to be paid, and that the raise made by the tax commission for the year 1913 will greatly add to the tax burden of the community. This is clearly a misapprehension of the effect of the law, and of the acts of the commission. As a concrete example, we take notice that the total valuation of property in and for the city and county of Denver, under the assessment returned for 1912, was $133,835,040. The state mill rate for that year, including the specially authorized 1/18 mill, was 41/18 mills, and produced a state revenue of $542,775-04. For the year 1913 the total valuation for that district, as fixed by the tax commission, was $402,205,614, while the state mill rate is fixed at 1.3 mills, producing a revenue of $522,867.03, or $19,908.02 less for state purposes than for the preceding year. So, it is readily seen that it does not follow that an enforcement of the rule of full cash value as the standard for assessment necessarily increases the amount of taxes to be paid. On the contrary, it rather demonstrates that the only correct theory of taxation is to fix values at the full cash standard, the only really just and equitable one, followed by a low rate of levy. It may be true that in counties which have paid less than their just proportion of taxes to the state in the past, an increase will be required, and it is equally true that in those counties which have paid more than their proportion of state taxes, a reduction will follow, a result eminently fair and proper. The constitution limits the maximum of the levy for general state purposes to four mills on the dollar, and the tax levying authorities for that purpose may make it as much less as in their judgment they deem proper. What is true as to state revenue is equally true in relation to local taxation. Local officers and boards under the discretion vested in them have power to fix levies for local purposes, subject to the limitations placed upon them by law. Therefore, as valuations are increased in any district, to bring them to the true standard, proportionate reductions in levies should be made, and the burden of taxation for local purposes should not be increased. Local officers and boards are directly responsible to the people who have chosen them to carry out this important function of government. It i will not be presumed, therefore, that in raising the standfard of value above that which has prevailed in practice |in the past, they will betray their trust by seeking to praise more revenue than will meet the needs of local government. Should this be attempted the responsibility is solely with the local authorities,- and the remedy is with the people. Equality and uniformity are essential to the constitutionality of taxation, and no one should complain of a law which has this for it's primary and controlling object. It is, perhaps, true that in any change from one system to another some injustice and hardship will, for the time being, be imposed in certain cases. But unless the standard which is provided by law, the full cash value, thus the just value demanded by the constitution, be enforced, the same unfortunate, unequal and unjust conditions which have heretofore existed in this state, will continue indefinitely.

That an unsuccessful effort was made in 1912 to amend § 15 of art. X of the constitution, so as to create thereby a central body under the name of “The Colorado Tax Commission,” and vest it with power to adjust, equalize, raise or lower the valuation of real and personal property among the several counties of the state, and to constitute for each county a county board of equalization, with like powers within their, respective counties, their work, subject, however, to revision, change and amendment by the aforesaid central body, in no sense affects the validity of the statute, nor constitutes a legislative interpretation thereof. Surely, no court will assume that the legislative power enacted a law, believing it to be unconstitutional, and sought to correct its efforts at legislation in that regard by submitting a proposed constitutional amendment to a vote of the people. Neither will it assume that, because the people refused to create a central constitutional body and invest it with both constitutional and statutory powers previously invested respectively in distinct bodies, one constitutional and the other statutory, that thereby they placed a legislative construction upon a statute creating such statutory body and defining its duties. There is a vast and important difference between lodging these powers in one or two bodies. Moreover, that which the people might be willing to do by statutory enactment they might be wholly unwilling to do by constitutional pronouncement.

The fact that petitioner has sought to sustain the acts here involved upon the theory that they were performed by the state board of equalization, and that the performance of them by the tax commission was only advisory to that board, is not controlling. The matters involved pertain to grave governmental functions, invested by the legislative power of the state in a particular board, and cannot be affected by the admissions of some public official or citizen, when the relief adjudged only sustains the lawful acts of that agency, and is clearly within, and warranted by, the pleadings. That such is the scope of the pleadings is manifest from an inspection of the alternative writ and the return thereto. Subdivision 6 of the former sets forth: “that the assessors of the Various counties of the state on or before September 1, 1913, transmitted to The Colorado Tax Commission their various abstracts showing the real and personal property assessed by them in their respective counties and the value thereof.” Subdivision 7 of the alternative writ alleges:

“That the Colorado tax commission, after receiving the" abstracts of the various assessors of the state as aforesaid, examined each and all of said abstracts for the purpose of determining whether the real and personal property of the several counties of the state had been assessed at its true and full cash value, and that after having examined all of said abstracts and after having secured information for the purpose of determining the true and full cash value of the real and personal property of the counties of the state, said commission, on, to-wit, the first day of October, 1913, found and determined the amount of increase or déerease in the valuation of said real and personal property of the respective counties which would place said property on the assessment roll at its true cash value, and on said day issued an order to said Pitcher as assessor of the city and county of Denver, ordering and directing him to add to his valuation of property within said city and county of Denver, the amount of $101,902,088 so found necessary to be added in order to place said property on the assessment roll at its full and true cash value; and that after said commission had determined upon the true value of the real and personal property of the several counties, it made a report of its actions and findings and transmitted the same to the state hoard of equalization, which said statement showed the amount to be added or deducted from the valuation of the real and personal property of each county, and which statement specified the amount to be added to or be deducted from the valuation of such real and personal property, and that said commission in determining the valuation to be placed on the real and personal property of the various counties of the state, proceeded in all respects according to the provisions of the law in such cases made and provided.”

And in subdivision 13 of the alternative writ appears the command of this court as follows:

“Wherefore, we command you, .the said Clair J. Pitcher, commissioner of finance and ex-officio assessor of the city and county of Denver, Colorado, your successors, deputies, assistants and subordinates, immediately upon receipt or service of this alternative writ of mandamus, to make such additions or corrections in your assessment and assessment roll and in the assessment and assessment roll of said city and county of Denver for the year 1913 as is or may be necessary to carry out the directions of the state board of equalization and the Colorado tax commission, as you are bound to do under the constitution and laws of the state of Colorado,” etc.

Turning to § 32 of the statute, we find that the things I herein set forth as having been done and performed by f the tax commission are the acts and things which that ! body is authorized and required to do, and are, therefore,' primarily its acts. However, as that which the tax commission orders done in the premises may be changed by the state board of equalization in adjusting and equalizing valuations among the counties, the order of the former does not and can not become finally effective until the latter has acted. And, in that sense, that which may be enforced is the act of the state board of equalization. So, strictly and technically speaking, the theory of petitioner is correct, as it is the order of the state board of equalization as the result of the exercise of its constitutional power to adjust and equalize, that is enforced by | this proceeding. In other words, the valuations made by | a county assessor, supplemented and modified by the act. ) of the tax commission and equalized by the county board '/ of equalization, constitute the assessment of all the prop- | erty situate exclusively therein for taxation purposes, as ¡i made and returned by the officers and agents duly author-i ized by law so to do; and it is the values, so fixed and determined, as returned from each county, that consti-Hrate the units upon which the state board of equalization acts in performing its constitutional function of adjusting and equalizing among the several counties. If it approves the several returns constituting the units aforesaid, as it did in the case at bar, it has discharged its duty in that respect, and when that is done the assessment of such property is complete. Moreover, it readily appears why the order of the tax commission in making a horizontal raise of the valuations in a county, should not be enforced until after equalization of values by the state board. Should it be done prior thereto it would be an expensive and useless thing, for it might be in that particular county the state board of equalization would lower such valuation and make a corresponding increase in another county or counties. Why change the values by a horizontal increase or decrease until it is known there will be no further like change required? It is claimed, however, that as § 1 of the act requires the tax commission to exercise its powers and perform its duties, subject to the direction and approval of the state board of equalization, and § 33 thereof requires the latter body to examine the abstracts of assessment as submitted by the tax commission, and “make a record of its action on the abstract of each county and certify the same to the county assessor,” etc., the tax commission is only an agency of the state board of equalization. We are clearly of the opinion that the language in relation to that which the state board of equalization shall do, and its supervisory powers over the tax commission pertains to the exercise by the former body of its constitutional power to adjust and equalize. But, be that as' it may, the force of the claim is deflected by the fact that the act of 1913, p. 525, amending the act of 1911, purports to confer upon the tax commission all statutory powers, duties and privileges theretofore exercised by the state board of equalization.

This case only demonstrates anew the wisdom of the general rule that public officials, whose duty it is to carry out statutory directions, should not be permitted to raise the constitutionality of statutes. People v. Leddy, 53 Colo. 109, 111, 123 Pac. 824. As said in Ames v. The People, supra:

“The reasons for this rule are apparent. Public policy and public necessity require prompt and efficient action from such officers, and when intrusted with the assessment of taxes and the collection and disbursement of the revenue, they have no right to refuse to perform ministerial duties prescribed by law because of any apprehension On their part that others may be injuriously affected by it, or that the statute prescribing such duties may be unconstitutional. ”

The duties of respondent, after his assessment rolls had been delivered to the county commissioners, and his abstract transmitted to the tax commission, were purely ministerial. Denver v. Pitcher, 54 Colo. 203, 129 Pac. 1015, Whatever confusion has arisen, or may arise, in the extension and collection of taxes growing out of the questions here involved, and whatever injustice exists between individual taxpayers, if any, by the assessment under consideration, must be attributed, ultimately, to the fact that local public officers have failed and refused to obey the mandate of the entire people of the state expressed through, and directed by, their legislative will. And were it not that the questions here determined are publici juris, we probably would'not have permitted respondent to present the alleged unconstitutionality of the statute set up in his return to the alternative writ. We are of the opinion that the tax commission acted within the authority conferred upon it by statute, and that the statute, as to the matters here involved, is valid. The alternative writ should, therefore, be made absolute, and it is so ordered.

Decision en banc.

Mr. Justice Gabbert, Mr. Justice Hill and Mr. Justice Garrigues dissenting.