People ex rel. Colorado Tax Commission v. Pitcher

Mr. Justice Gabbert

dissenting:

The state board of equalization raised the assessed valuations of property in the state about $187,000,000 above that returned by the assessors, the raise in the city and county of Denver alone being nearly $102,000,000. This action is upheld by the majority, opinion on the ground that the commission raised the valuation of the property in the counties affected by increasing the value in each of these counties to its cash value; that this was an assessment of such property, and that the board in equalizing assessed valuations among the counties of the state treated this action of the commission as a re-assessment, and therefore did not increase the assessed valuations.

*385The act creating the state tax commission (see Session Laws 1911, chapter 216) does not confer power on the commission to assess the property in any county in a lump sum by a horizontal raise above the valuations returned by the assessors. Section 13 specifies in what circumstances the commission may re-assess or reappraise the property in any county. Whether the authority thus conferred can be legally exercised is not involved, for the reason that the action of the commission which the majority opinion says was a. re-assessment was not based upon these provisions. The commission and board claim to have raised the valuations above that returned by the assessors by Virtue of the provisions of sections 31, 32 and 33 of the act. There is not a word in either of these sections which directly or indirectly authorizes the commission to re-assess the property in any county by determining its true cash value, or requires the board to treat any such action of the commission as a re-assessment. The act, as stated in section 13, does purport to authorize the commission to re-assess or re-appraise property in any county, in specified instances, and, clearly, had it been the intent to confer upon the commission, under sections 31 and 32, power to re-assess property by a horizontal raise, or any additional power to assess, and that the board, by section 33, was to treat such raise as an assessment, it would have been so stated.

Neither did the board regard the action of the commission as an assessment. From its resolution, which is the basis of this action, it appears, not that it equalized valuations returned by the assessors, or the commission, or both, but, “Has determined the amount of the valuation of the real and personal property of each county as will place said property on the assessment roll at its true and full cash value;” thus showing that its action was, in no sense, an equalization of valuations, but that it fixed the valuations in each of the counties affected, in such *386sum as would place the property therein on the assessment roll, at its cash value.

The vital question, thereforé, is whether the hoard in the exercise of its functions as a board of equalization has the authority to increase the aggregate valuations returned by the assessors. This must be determined by ascertaining, first, its authority under the constitution; and, second, whether the statutory provisions to which reference was made conferred such authority as will support its action.

The power of the board as a board of equalization, under the constitution, was determined in the Lothrop case, more than 36 years ago. It was there held that to concede it the power to increase the valuations returned by the local officials made it practically a board of assessors, with authority to fix and determine values as well as to adjust valuations; that the constitution provides for the election of an assessor in each of the counties of the state, and that the intention of the people, by his provision, was to preserve local control over the valuation of property for the purpose of taxation; that the power to fix and determine the valuations of real and personal property for this purpose was lodged in the assessors and board of county commissioners of the several counties of the state;' and that when these officials had performed this duty the sum of the valuations of the several counties, as returned by them, must be taken as the aggregate valuation of all the property in the state, and was final and conclusive upon the board, and that it might, for the purpose of adjusting and equalizing, increase the valuation of one county, and decrease the valuation of another, but was without authority to increase the sum of all the valuations of the several counties of the state. In brief, it was held that the power of the board as a board of equalization was limited to reducing to a uniform basis *387the valuations made by the local officials, so that the burden of taxation for state purposes would be apportioned equitably among the several counties of the state. The constitutional provision involved is no different now from what it was when the Lothrop case was decided.

The next question is whether the statutory provisions to which reference has been made authorize the board to increase the aggregate valuations returned by the assessors. These provisions purport to empower the commission to determine whether the total valuation of the property in any county as returned by the assessor is the true value thereof, and, if not,.determine the increase or decrease which shall be made by such rate per cent as will place the property therein on the assessment roll at its cash value, and report this action to the board; that the board shall examine the abstracts of assessment as submitted by the commission, make a report of its action thereon, certify the same to the county assessor, who shall add to or deduct from the property in his county the per cent, and amount on the valuation thereof, “as it stands after it has been equalized by the state board of equalization.” There is not a word in either of these sections which authorizes the board to increase the aggregate valuations returned by the assessors. On the contrary, the section which directs what the board shall do, requires it to direct what per cent of increase or decrease shall be made on the valuation after it has been equalized. As pointed out, the commission is not authorized to make an assessment by a horizontal raise, or reduction; so that the only values which the .board can equalize must be those returned by the assessors.

If, however, it was the intention to confer upon the board authority to increase the aggregate valuations returned by the assessors its action is a nullity. In the Lothrop case it was claimed that by statute the board *388was authorized to make such increase. Speaking to that point, the court said:

“Let us then inquire where, under our constitution and laws, this important power of determining the valuation. of taxable property as a basis of taxation is lodged. The constitution provides (section 8, article 14) for the election in each county each alternate year of a county assessor. He is thus a constitutional officer and though his duties are left unprescribed the essential duties of an assessor must be presumed to have been contemplated. Is there not here a plain intention on the part of the people to preserve local control over the valuation of property for purposes of taxation? This local control existed under the territorial form of government under which they had been living, and is this not an effort-to secure it beyond contingency?”

True, the increase ordered by the board is based upon the action and report of the commission increasing the valuations in the different counties. The latter, however is not authorized to re-assess by a horizontal raise,— so that the increase made by the board is not based upon an equalization of assessments, but an increase in valuations made by the commission, which it is without authority to make as an assessment. This increase by the board is attempted to be upheld by the attorney-general upon the ground that the commission by its action merely collected data, and furnished a statement to the board to aid it in performing its duties; that in this respect the commission acted in an advisory capacity; that from the information thus obtained the board determined that the valuations in each of the counties affected should be raised to a sum representing the cash value of the property involved. If this was the object of the statutory provisions under consideration, and they are to be given this construction, it is apparent that thereby an attempt *389was made by the general assembly to confer authority upon an intermediary body to arbitrarily increase the aggregate valuations returned by the assessors, and by having it transmit a report of this action to the board confer that authority upon the latter. The general assembly can not by indirection accomplish that which the constitution directly inhibits. It can not authorize another body to increase the aggregate valuations as returned by the assessors with the requirement that this body report its action to the board, and thus vest the latter with power to do that which the constitution inhibits. It might just as well have undertaken to vest this authority in the state board in the first instance.

In my judgment every question necessary to consider was decided in the Lothrop case adversely to the contention of petitioner here, and, following that case, the alternative writ should be quashed and the proceedings dismissed.

In effect, the construction given the constitutional provision defining the powers of the board when acting in the capacity of a board of equalization, in the Lothrop case, made it a part of the constitution. It has been acquiesced in by the people for 36 years and after this lapse of time it must be conclusively presumed that they are satisfied with its provisions as thus construed and that this expressed their intent when adopted, otherwise they would have amended it. With due deference to my learned associates, I submit that to uphold the action of the board necessarily overrules the Lothrop case and results in amending the fundamental law — a power which the people alone can exercise.