dissenting:
I cannot agree with the conclusion. .As I view it, the theory upon which the action is disposed of is not involved in the case. I cannot agree that the action was brought for the purpose of compelling the respondent to comply with any order, findings, or actions of the tax commission, save the order made by it based upon the authority of the actions and order made by the state board of equalization and then only in conjunction with the latter board’s actions and order. To sustain this view I call attention to the orders of both boards, copies of which are set forth in the alternative writ; they are as follows:
“Denver, Colorado, October 22,1913.
Mr. Clair J. Pitcher,
Assessor of City and County of Denver,
Denver, Colorado.
We, the undersigned members of the State Board of Equalization, hereby certify:
That at a meeting of the State Board of Equalization, held on the 20th day of October, 1913, which meeting was held for the purpose of examining the abstracts of assessment of the various assessors of the státe for the year 1913, as submitted to said Board by the Colorado Tax Commission, and for the purpose of taking action on said abstracts and of equalizing the valuations of the real and personal property of the counties of the state, as provided by law, and for the purpose of fixing the rate of *393tax to be levied and collected within the various counties of the state for state purpose's, the following proceedings, among others, were had:
By resolution, duly adopted, the valuation of the real and personal property of the City and County of Denver was increased from $254,755,220, the amount returned in your abstract of assessment on property assessed by you, to $356,657,308, making an increase in valuation of your assessment of $101,902,088, the rate per cent of said increase being 40%.
And by resolution, duly adopted, the rate of tax which is to be levied and collected within the counties of the state for state purposes was fixed at 1.3 mills.
Elias M. Ammons, Governor,
M. A. Leddy, State Treasurer,
Feed Faeeae, Attorney General,
James B. Peaeoe, Secretary of State,
Roady Kenehan, Auditor of State.”
“Denver, Colorado, October 22, 1913.
Mr. Clair J. Pitcher,
Assessor of the City and County of Denver,
Denver, Colorado.
Dear Sir:
The State Equalization Board, at a meeting held October 20,1913, raised the assessed valuation of the real and personal property of your county, as assessed by you, from $254,755,220 to $356,657,308, making an increase in valuation of $101,902,088, the rate per cent of said increase being 40%.
Said Board also fixed the rate of tax which is to be *394levied and collected within your county for state purposes a’t 1 3/10ths mills.
You are therefore ordered and directed to correct your assessment roll by adding the above increase in valuation and your attention is also directed to Section 3, Page 527 of the Session Laws of 1913, pertaining to your duties as assessor.
Respectfully,
The Colorado Tax Commission,
By John B. Phillips.
Attest: " ■
S. E. Tucker, Secretary.”
It is these orders that the relators seek to have the respondent comply with, and none other. The order of the tax commission says that the state board, at, etc., raised the assessed valuation, etc., of your county, etc.; you are therefore ordered and directed to correct your assessment roll by adding the above increase. Wherefore? Because the state board of equalization has ordered the value raised, etc. What increase? That made by the state board of' equalization. It appears to me there is no escape from this conclusion. This language interprets itself. That the state board of equalization thus understood it is further evidenced by the notice of the state auditor to the county clerk of the respondent’s county. This order is set forth in the alternative writ; it is as follows:
“October 20, 1913.
To Otto F.- Thum,
Commissioner of Property of the ■ t ■ City and County of Denver and Ex-officio Clerk of said City and County:
At a meeting of the State Board of Equalization, held on the 20th day of October, A. Í). 1913, which meeting was held for the purpose- of fixing the rate of tax to be *395levied and collected within the various counties of the state for state purposes, the following proceedings, among others, were had:
By resolution, duly adopted, the valuation of the real and personal property of the City and County of Denver was increased from $254,755,220.00 to $356,657,308.00, making an increase in valuation of $101,902,088.00, the rate per cent of said increase being forty per cent (40%).
And by resolution, duly adopted, the rate of tax which is to be levied and collected within the City and County of Denver for state purposes was fixed at 1.3 mills.
Boady Kenehan,
State Auditor of the State of Colorado,
Dictated by Attorney General.”
That the learned attorney general and his able assistants thus under stood it, is self-evident not only by his preparing the above notice for the auditor’s office, as it discloses, but by a reading of his briefs which • disclose that his position is, that it was made by the state board of equalization and that they had a right to so do. A portion of his opening brief reads:
“The state board of equalization, sitting as the-final arbiter to determine the valuations to be placed upon the real and personal property of the county, acted strictly within the limits of its power. It increased the valuations of the counties in such amounts and by such rates per cent as in its judgment would place the property of the state on the assessment roll at its full cash value, and under the statutes, it is the duty of said board in equalizing to take as a standard, not an average county, not any fictitious or arbitrary standard, but the true and full cash value, as its standard for equalizing valuations. Not only is this standard-the requirement of the statute, but *396by fair implication it is the requirement of the constitution. ’ ’
In his reply brief he says:
‘ ‘ The only questions, as we have previously pointed out in our original brief, properly before this court are as to the powers of the state board of equalization in equalizing the valuations of the property between the counties; that is, first, as to whether the aggregate valuations of the counties can be increased or decreased; and, second, whether, under the provisions of our laws, due process of law is afforded the taxpayers.”
The concluding paragraph of his reply brief reads:
“We feel confident that the position we have taken is the only sound one that could- be taken, and, notwithstanding the comprehensive brief prepared by the able counsel of the respondent herein, we believe our position should be sustained.”
It will thus be observed that the position which the learned attorney general says is the only sound one that could be taken, is not accepted by the majority; to analyze they say to him your position is not sound and cannot be accepted, while by having said that it is the only sound one, he, by inference, says to them that the theory upon which the case is disposed of is unsound. In this inference I agree with the attorney general. If his petition can be construed as alleging the execution of a former order by the tax commission he does not ask or seek to have it enforced; the action is not brought for that purpose, but his contention is to the contrary; the reasoning is apparent and that is because there is no statute which authorizes the commission to make such an order or any order before the state board of equalization performs its constitutional duty it must be conceded that without statutory authority such an order, if made, is a nullity.
*397In submitting what I have to say upon the subject, I shall first comment upon the position contended for by the attorney general, and upon the case brought by him. As it appears to me from the extracts in his briefs above set forth and portion of the pleadings, the relators instituted this suit to have recognized by the respondent and other county assessors certain -authority as being vested in the state board of equalization, while the theory of the decision is that the state board is not possessed with this power, which decides the case brought adversely to the position taken by the attorney general, but which also holds that another board is possessed of that power, and for that reason the writ should issue. This position, if I read the briefs of the attorney general correctly, he concedes to be unsound.
I am unable to find anything in our constitution or statutes which permits of increases of values by the state board without an attempt at equalization. As I view it, the contention that the state board ordered these increases of values as an incident,to equalization, is not supported by the record, but to _the contrary it discloses that the efforts of the board were to practically re-assess the property, in order to have it placed upon what the board says is its true cash value; its resolution so states. It also shows that the tax commission purported to determine the value of the real and personal property in the several counties in the state assessed by the county assessors. This fact is thus stated in the resolution of the state board and is followed with the declaration that it, the .state board, after having examined these abstracts, 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. The declaration in this resolution that the Colorado tax commission determined these values in the manner provided by law is, as I view it, by the pleadings, *398admitted to be incorrect. Other statements in the resolution disclose beyond contradiction that the efforts of the board were not to equalize values as between different counties, but were done as therein stated, for the purpose of placing said property on the assessment roll at its true and full cash value, that is, as determined by the board. In other words, it discloses that the state board of equalization made an effort at re-assessing the property which is not sanctioned by constitutional or statutory authority.
The alternative writ set forth the resolution of the board ordering these raises which includes the valuation of the individual property in each county in the state as returned by the county assessors, the increases as ordered by the state board and the total value as fixed by them. In detail, this discloses that they have increased the values as returned by the county assessors in fifty-eight counties, leaving the values as fixed by the county assessors in five counties unchanged (there being sixty-three counties in the state). By an examination of the auditor’s report for the years 1911 and 1912 I find that the total value for the year 1912 of the property assessed by the county assessors in the five counties left unchanged by the state board amounts to $6,127,622, while the total increase for the present yéar for the other fifty-eight-counties as fixed by the state board is approximately $187,000,000 and is in excess of $100,000,000 in the county represented by the respondent. These ordered increases vary from a fraction of one per cent to as high as one hundred thirty-six per cent, varying in the different counties, being forty per cent increase in the county of the respondent, and as I read the instructions of the state board and commission embodied in their notices to him, they mean that he must add this per cent of increase upon all the taxable property in his county which has been *399assessed by him, but that it does not apply to the public utility property in his county which has been assessed by the tax commission. When these facts are taken into consideration it is apparent that the contention that these increases were ordered as an incident to equalization becomes farcical. To bétter illustrate this I have set forth a copy of that portion of the resolution of the state board adopted at its meeting upon October the 20th, covering this question. After the portion concerning the values, which is followed with the names of the counties in which no changes were made', I have set forth the value of the property assessed by the county assessor for the year 1912 in these counties, namely, Crowley, Dolores, Moffat, Park and Summit, all as follows:
“Whereas, The Colorado Tax Commission has heretofore and in the manner provided by law, determined the true value of the real and personal property in the several counties in the state and has transmitted to this board a statement of the amount to be added to or deducted from the valuation of the real and personal property of each county; and,
Whereas, This board has examined the abstracts of assessments of each' county in the state of Colorado, as submitted by the'Colorado Tax Commission; and,
Whereas, This .board, after having examined said abstracts, 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.
Be it therefore resolved, and it is hereby determined that the valuations of the various counties of the state as returned and shown by the respective abstracts of assessment of the respective assessors of the counties of the state be increased or decreased as follows.
*400 Increase Total
County. Valuation by Assessor. by State Board of Equalization. as Fixed, by State Bd. of Equalization.
Adams...... $ 17,190,930 $ 27,321 $ 17,228,251
Alamosa..... 1,061,719 1,510,626 2,572,345
Arapahoe 12,729,700 35,610 12,765,310
Archuleta____ 2,245,845 149,558 2,395,403
Baca........ 2,190,577 277,530 2,468,107
Bent........ 7,095,035 174,015 7,269,150
Boulder..... 31,609,896 1,264,396 32,874,292
Chaffee ...... 6,608,699 55,450 6,664,149
Cheyenne .... 2,506,289 2,828,230 5,334,519
Clear Creek.. 2,854,960 879,000 3,733,960
Conejos..... 5,260,901 3,904,700 9,165,601
Costilla ..... 1,924,650 2,617,120 4,541,770
Custer...... 1,740,860 553,086 2,294,046
Delta........ 12,662,290 2,181,000 14,843,290
Denver...... 254,755,220 101,902,088 356,657,308
Douglas..... 5,519,965 52,565 5,572,530
Eagle....... 2,898,079 959.680 3,857,759
Elbert....... 5,524,038 1,444,752 6,968,790
El Paso..... 53,885,620 67,942 53,953,562
Fremont..... 12,729,902 ' 3,182,475 15,912,377
Garfield..... 11,405,215 ' 155,088 11,560,303
Hinsdale _____ 643,885 2,438 646,323
Huerfano____ 7,886,436 963,570 8,850,006
Jackson -.____ 2,901,210 624,406 3,525,616
Gilpin....... 3,113,623 769.680 3,383,303
Grand ....... 2,283,156 1,175,224 3,458,380
Gunnison____ 9,292,900 87,095 9,379,995
Las Animas.. 27,369,985 165,194 27,535,179
Lincoln ...... 4,883,670 2,310,637 7,194,307
Logan ....... 10,190,960 2,061,500 12,252,460
Mesa........ 22,914,850 127,361 23,042,211
Mineral ...... 1,093,597 125,620 1,219,217
Montezuma .. 5,024,428 527,600 5,552,028
*401 Increase Total
County. Valuation by Assessor. by State Board as Fixed by State of Equalisation. Bd. of Equalisation.
Montrose — 10,823,975 123,033 10,947,008
Morgan _____ 10,418,534 2,053,680 12,472,214
Otero...... 20,953,075 89,847 21,042,922
Onray...... 5,107,376 28,008 5,135,384
Phillips .... 4,682,773 847,179 5,529,952
Pitkin...... 4,627,795 199,355 4,827,150
Pueblo..... 46,042,209 6,709,620 52,751,829
Rio Blanco.. 2,976,205 1,742,920 4,719,125
Rio Grande.. 4,118,840 4,841,160 8,960,000
Routt...... 9,787,545 44,968 9,832,513
San Juan ... 4,005,519 248,260 4,253,779
San Miguel.. 8,627,960 71,824 8,699,784
Sedgwick ... 4,145,170 53,109 4,198,279
Teller...... 14,075,740 38,085 14,113,555
Washington . 7,218,673 256,257 7,474,930
Weld....... 37,180,260 23,447,440 60,627,700
Yuma...... 7,398,195 . 113,674 7,511,869
Saguache ... 4,024,491 4,248,085 8,272,576
Jefferson ... 15,226,445 13,003 15,239,448
Kiowa...... 2,288,930 1,722,645 4,011,575
Kit Carson.. 5,407,916 2,374,354 7,782,270
Lake....... 9,712,059 2,275,000 11,987,059
La Plata____ 11,014,253 80,494 11,094,747
Larimer____ 26,165,789 1,620,100 27,785,889
Prowers---12,730,300 146,971 12,877,271
Crowley ... % Unchanged.
Dolores ----
Moffat.....
Park-..
Summit
íhe value of the property assessed by the county assessors for the year 1912, as shown by the auditor’s *402report (see biennial report state auditor 1911-1912, pages 244-245), for these last named five counties was as follows:
Crowley.........................$1,989,684.00
Dolores......................... 309,337.00
Moffat .......................... 1,247,935.00
Park.................... 1,361,309.00
Summit ......................... 1,219,357.00
Total.......................$6,127,622.00
If a proper construction of the resolution is that the state board made these increases for the purpose, as therein stated, of placing the property on the assessment roll at its full cash value as determined by the board, then there is neither constitutional nor statutory authority for its so doing. The further contention that these increases were ordered as an incident to equalization is untenable, when the record and its effect are taken into consideration; but if attempted for this purpose it is in conflict with the announcements of this court in People ex rel. v. Lothrop, 3 Colo. 428, as well as the principles announced in People v. Ames, 27 Colo. 126, 60 Pac. 346; Gale v. Statler, 47 Colo. 72, 105 Pac. 858; In re Questions of Governor, 55 Colo. 17, 123 Pac. 661, and Chase v. Boulder County, 37 Colo. 268, 86 Pac. 1011, 11 Ann. Cas. 483.
As I view it, .to sustain the action of the board for any reason set forth in the briefs would be to overrule the announcements in these former cases.
Subsequent to the Lothrop case this court in In re Assessment of Property, etc., 25 Colo. 296, 299, 53 Pac. 1056, 1057, said:
“The decision [referring to the Lothrop case] has also been acquiesced in by all- of the departments of government and the people generally; and the general as*403sembly bas not seen fit to exercise tbe power, which is claimed to be inherent, of passing a law authorizing the state board of equalization, in the discharge of its important duties, to increase the aggregate assessed valuation, as returned by the county assessors. In view of these considerations, and until the general assembly takes some action that requires it, we do not feel called upon, in this ex parte proceeding, to review our previous decision.”
This announcement was at the April, 1898, term of this court. Up to that time the legislature had made no effort to change the statutes in éxistence at the time of the announcement in the Lothrop case. Thereafter, at the special session in 1902, it enacted general sections 5764 and 5765, which read:
“5764. Meeting of state board of equalization to equalize assessment. — Sec. 237. The state board of equalization shall sit on the first Monday of October in each year, at the executive office, for the purpose of examining, adjusting and equalizing the assessments in the several counties of the state.”
“5765. Board may 'change aggregate valuation. Sec. 238. The board shall have the power to either increase or decrease the aggregate valuation of all taxable property, not to exceed in any year ten per cent of such aggregate valuation, and only as an incident to such equalization. ’ ’
These sections continued in force until 1913, when section 5765 above referred to was specifically repealed. Page 527, Session Laws 1913. And no other provision was substituted which authorizes the state board of equalization to increase the aggregate valuation, but to the contrary the legislature, at its 1913 session divested the state board of equalization of all statutory power. Page 525, *404Session Laws 1913. That the legislature never attempted to give them this right by anything contained in the acts of 1911 and 1913 is apparent not only by the acts themselves, which divested them of all statutory power, but by the further fact that during its 1913 session the legislature submitted to the people, to be voted upon at the 1914 election, a proposed amendment to the constitution giving to the state board of equalization the power to raise the valuation of the'property in the several counties. Laws 1913, p. 215. Hence, even if we were to assume as contended that the Lothrop case was based upon statutory grounds, the legislature has taken from the state board all statutory right, without substituting anything in lieu thereof. This leaves the reasoning in the Lothrop case conclusive, regardless of which theory is accepted. That it has been acquiesced in and accepted as a rule of property in this state for about thirty-six years, is not disputed.
In State v. Equalization Board, 18 Mont. 473, 46 Pac. 266, the reasoning announced in the case of the People v. Lothrop, 3 Colo. 428, was accepted as sound and followed with the declaration that the weight of authority is decidedly with its conclusion.
Wells, Fargo & Co. v. The Board of Equalization, 56 Calif. 194, and St. Joseph Lead Co. v. Simms, 108 Mo. 222, 18 S. W. 906, are therein cited as in principle sustaining the same conclusion.
For this court to now say that the state board of equalization is possessed with the power to increase the aggregate of all the counties in such an amount as they think ought to have been fixed by the county assessors, would be to amend the constitution by judicial construction, and this at a time when we have pending a proposed constitutional amendment to be voted upon at the next election, which, if adopted, will give to the state board *405the power which it is sought to have this court say that they are already possessed of. Such a decision would place the legislature in the ridiculous position of having submitted a constitutional amendment which embodies therein important questions which this court, through some process of reasoning, would now say is already a part of the constitution. This would be to accomplish by judicial construction what the legislature has sought to accomplish by an amendment to the constitution. Suppose that such a decision is given, and the people at the next election decide as they did at the last, when it was proposed to give the tax commission this power, that they do not care to grant even to the state board of equalization this extraordinary power, we would then be confronted with the ridiculous position of,iby judicial construction, having declared a certain thing as being .a part of the constitution which the people at the polls have declined to place in it, and the only way to then get rid of it would be to submit another constitutional amendment which would declare that a certain thing should come out of it, which is not in it, and which the people have declined to put in it, and which this court (about thirty-six years ago) held was not in it, and which the legislature as well as all departments of the state have recognized as not being in it until the effort which brought about this litigation was started. The condition following such results would be humorous were it not so serious a question.
In Hacker v. Howe, 72 Neb. 385, 101 N. W. 255, relied upon as supporting the position of the relators it was said:
‘ ‘ Ooricerning the contention that the state board in respect of the action taken did not equalize but reassessed the property of the several counties, raising the aggregate valuations thereof according to the percentage ap*406plied to each county, it may be said that, manifestly, the board has no power to increase valuations merely for the purpose of making such increase. The limitations of law-relative to tax levies, the fixing of valuations and the equalization thereof, cannot be nullified and rendered impotent by an attempt to increase the aggregate of the grand assessment rolls under the guise of equalization. *• * * But, in the case at bar, we think it clear that the increase resulting from the action of the state board was purely incidental to a proper equalization of the assessment of the different counties as returned to that' body. From the action taken it is fairly inferable that in 66 of the 90 counties of the state, property was found to be assessed uniformly and at its actual cash value, while, in 24 counties, the valuations placed upon property generally were relatively too low and required, in order that the rule of uniformity might be observed and equality attained, a raise of the aggregate valuation of those increased from two per cent in one instance to ten per cent in others. Surely it may not be said that, it haying been ascertained that so nearly all of the property of the different counties had been assessed at its true value, in order to properly adjust and equalize, there must be a reduction of a certain percentage in this larger number of counties and a corresponding increase and less than was ordered in the smaller number, so that the grand total of the assessment roll should not be disturbed. While a plan or method of raising the value of some of the counties and lowering others may be generally resorted to in order to bring about equality, yet it would, in the present instance, be in a measure a perversion of the law to reduce below its actual value by far the larger proportion of the property in the state subject to taxation for the purpose of avoiding an actual increase in the total valuation of all property. The statute does not limit the state board in the matter of equalization to the ag*407gregate value as shown by the returns of all the different counties. Its provisions are that the board may increase or decrease by per centum to be added to or deducted from the aggregate value of the different counties to make them conform to law. Of course, they have authority to equalize; and to equalize is to adjust differences in values so as to bring all to a common standard, and to the end that all property assessed shall bear its just proportion of the burdens of taxation. Where equalization is the main object and the increase resulting therefrom is incidental, we think the action is undoubtedly a legitimate exercise of the powers conferred upon the board. If the object appears to be to raise the aggregate of the total assessed valuation, such action would, in our judgment, have to be condemned as an unwarranted exercise of the authority to equalize.”
The court then comments upon its former opinion in Suydam v. Merrick County, 19 Neb. 155, 27 N. W. 142, and also the opinion in Bardrick et al. v. Dillon et al., 7 Okla. 535, 54 Pac. 785, pertaining to which it says:
“The rule as thus announced in the opinion cited is probably stated too broadly. The opinion apparently overlooks the fact that the valuation of property assessed for taxation is primarily for assessing officers, and that boards of equalization except as conferred by statutes are not authorized to. change the result, and then only in order to effectuate an adjustment of values so as to bring about uniformity. Our statute, we think, contemplates that the state board of .equalization may equalize valuations as between the different counties in the sense the word is usually and ordinarily understood. That is, the state board is empowered to correct and adjust inequalities in valuation to the end that all property shall relatively be valued on the same basis for purposes of taxation, as near as the same is practicable.”
*408It will be observed from the above quotations that our board has attempted to do what the supreme court of Nebraska holds cannot be done. The figures are self-evident that the object is to raise the"S^gregate of the ■total assessed valuation. The resolution states that the object was to place all property upon a full cash value. The inclusion of this statement is the exclusion of the theory that it was attempted for the purpose of equalization, but regardless of the statement the figures are self-evident that it was not done or attempted as an incident to equalization.
I cannot agree that the case of Appeal of McNeal, 35 Okl. 17, 128 Pac. 285, entirely sustains the contention of the relators. In addition to its having been rendered by a divided court of three to two, an examination of the constitution and statutes of Oklahoma will disclose that their state board of equalization is authorized to increase or decrease the value of different classes of real and personal property in order to make their valuation conform to the fair cash value thereof. They also provide for an appeal by any taxpayer from such increase. This appeal is provided for in their 1910 session laws and is recognized in this opinion, wherein, after quoting from an opinion in a former case, it is said:
“The limits expressed therein are the limits fixed by the constitution. Every taxpayer is entitled to have his property assessed equally and uniformly with the property of every other taxpayer. If his property is taxed at its fair cash value estimated at the price it would bring at a fair voluntary sale, and the property of all other taxpayers is so. assessed, then the uniformity sought by law has been attained; but if this property is assessed at less than this, and the balance of the property conforms thereto, then an injustice has been done the balance of the taxpayers and the state. This limit upon the *409assessment is the one provided for in the constitution, and is also the limit of the levy which may he assessed. * * * Beyond the limit of fair cash value, and the limit as to the rate of levy, the taxing authorities of the state cannot go; and wherever they seek to do so the law has provided every taxpayer a remedy by appeal, as provided in chapter 87, p. 173, session laws 1910.”
It is also worthy of notice that in the Oklahoma case no point was made that the equalization by the state board resulted in raising the property in the county affected above its actual cash value. On this subject the opinion states: “It is worthy of note that no point is made that the equalization of which complaint is here made has resulted in raising the property above its fair cash value.” The answer of the respondent alleges that the property of his county had been assessed at its full cash value and that this order, if followed, would place it forty per cent above that amount. According to our rules of pleading all material parts of this answer for the purposes of this case stand admitted as true. In such case were we to follow the Oklahoma decision we find that they have provided a method for appeal, so that the question of the increase or reassessment might be determined by a court of competent jurisdiction where all parties can be heard, and their statute provides that pending such an appeal the party shall not be required to pay taxes upon the property in regard to the assessment of which the appeal is taken. Our statutes provide a method whereby the tax commission are authorized, if they find any particular property to be assessed too low, to have a reappraisement upon notice to the owner, etc. Whether that portion of this act is constitutional or not is not before us. It is admitted it was not attempted to bq followed.
Another reason why the action of the state board *410should not be accepted as an effort at equalization between the different counties is because the order to raise pertains only to that portion of the property which has been assessed by the county assessors, but does not apply to the property assessed by the tax commission. The constitutional provision pertaining to the duties of the board authorizes them to adjust and equalizé the valuation of real and personal property among the several counties of the state. This court has heretofore held that they could not equalize by ordering an increase in particular classes of property’ in a county.—People v. Ames, 27 Colo. 126, 60 Pac. 346. Yet this is the result of this decision for it allows the board to increase the value of all classes of property in a county except public utilities. ’Tis true, if they were included, take railroads for instance, accepting the legal presumption that the tax commission has performed its duty in assessing them, the result would be to fix their value at $140 for each $100 of actual value in the county of the respondent, $163 for each $100 of actual value in Weld county and $236 for each $100 of actual value in Costilla county, and so on. The injustice of such a position is apparent, but this is the identical result which follows the present .order concerning the moneys of all taxpayers (other than that owned by public utility corporations) in the counties referred to as well as certain mining properties and others. When the state board formerly assessed the railroads they could fix their value in harmony with what they thought was the average for all the counties as returned by the county assessors, and when they made their equalization between the different counties, it was an effort at fixing valuations somewhere near equal upon all classes of -property, but since the power to assess the railroads has been taken away from the state board and vested in the tax commission with the additional authority given them to assess other public utility property, *411when we recognize the legal presumption that not only the commission but that the county assessors, who are constitutional officers, have complied with the law, I fail to find any authority which grants to the state board the right under the guise of equalizing between counties to simply order a raise as to certain classes of property in a county, namely, that of individuals, without making it apply to all property, and to allow them to do this as disclosed by this record would be to reverse the opinion rendered in People v. Ames, supra, as well as to, by judicial construction, read something into the constitution which is not there.
It has been intimated that in making this increase to the total valuation of his county the respondent is not required to add the forty per cent to all the property assessed by him, but can place it where he thinks it belongs the same as when making an original assessment. That a person’s property cannot be reassessed or revalued for the purposes of taxation without notice to him, I take it will not be questioned.—Gale v. Statler, 47 Colo. 72, 105 Pac. 858; Turpin v. Lemon, 187 U. S. 51, 23 Sup. Ct. 20, 47 L. Ed. 70; 1 Cooley on Taxation (3d Ed.), 626; Hagar v. Reclamation District, 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569; Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616; Bellingham Co. v. New Whatcom, 172 U. S. 314, 19 Sup. Ct. 205, 43 L. Ed. 460.
That we have no statute providing for any subsequent notice or hearing cannot be disputed, but to the contrary not only do these orders instruct the assessor to add this forty per cent to all the property assessed by him, but section 33, page 623, session laws 1911, provides that when an increase is ordered as an incident to equalization it shall be made in this identical manner. In addition the respondent has alleged (which stands undisputed) that this is the only thing he can do, and as stated *412there is no statutory method provided for his doing otherwise; there is no provision made for notice or hearing before him, or the county board of equalization by the taxpayers as to the effect of the result for the reason that prior to the receipt of these orders the time for all such has long since past.
In Hacker v. Howe, 72 Neb. 385, 101 N. W. 255, it is assumed that this is the correct method to follow where the increase has been ordered as an incident to equalization. The majority opinion, as I read it, holds that this is the only method to be followed; this precludes any assumption that it is to be done otherwise.
Had the legislature intended to give to the tax commission the power to reassess the property in a county other than public utilities, I think they would have thus stated. I fail to find anything in the acts of 1911 or 1913, which is susceptible of such a construction. The fact that section 13 of chapter 216, laws of 1911 gives to the tax commission supervisory power over the administration and enforcement of laws pertaining to the assessment, levying and collection of taxes, certainly cannot be construed to mean that it gives them the right to usurp the functions of a county assessor in the assessment of property, and in my opinion it has no bearing upon that question. Just as well contend that because the governor is the chief executive officer of the state, and by the constitution is charged with the duty of seeing that the laws are faithfully executed, that he would have the right to reassess the property in a county, or to re-perform the duty of any county officer, when he is of opinion that such officer is not complying with the law. That this section has no application is further borne out by the fact that it gives to the commission the right to require the county assessor to assess at the full cash value under penalty *413of forfeiture and removal from office. This is one method provided to reach this result.
Subdivision 6 of this section provides that whenever, in the judgment of the tax commission, property in any county or municipal subdivision thereof has not been assessed at its true and full cash value, the commission may make a reappraisement to the end that all classes of property in such district shall be assessed in compliance with law, and when ordered it shall appoint an appraiser and assistant appraisers, if necessary, who shall proceed to appraise the property in such taxing district, and who shall have all the powers and perform all duties pertaining to the appraisement of property. The seventh subdivision provides that the commission may raise or lower the assessed value of any real or personal property thus reappraised, first giving notice to the owner, and fixing a time and place for hearing any person or persons interested, and that said hearing shall be held within the county in which said property is situate. By these two subdivisions another method is provided to reach the question of full cash value. That the inclusion of one or more methods is the exclusion of others unless there is positive language to the contrary, has been recognized from timé immemorial as an elementary rule of statutory construction, as said in Pomeroy’s Municipal Law (2nd Ed.), p. 542:
“The express mention of one thing implies an exclusion of another. This is one of the fundamental rules of interpretation, and is applied especially to statutes, so as to prevent the extension of their commands or prohibitions to other things of the same class, when an enumeration of the subjects within their provisions is expressly made. ’ ’
To the same effect in principle are: In re Constitutional Convention, 14 R. I. 649; State v. Hastings, 10 Wis. *414525; Cooley’s Constitutional Limitations, p. 99; Western Union v. Railroad Commission, 120 La. 758, 45 South. 598; Page v. Allen, 58 Pa. 338, 98 Am. Dec. 272; Denver v. Hyatt, 28 Colo. 145, 63 Pac. 403; Territory v. Ortiz, 1 N. M. 12; Westbrook v. Wicks, 36 Iowa, 383; Morris v. Wrightson, 56 N. J. Law, 201, 28 Atl. 56, 22 L. R. A. 548; State v. Henry, 87 Miss. 125, 40 South. 152, 5 L. R. A. (N. S.) 340; 1 Kent’s Com. (5th Ed.) 467.
The majority opinion concedes that the commission did not act or pretend to act under the provisions of subdivisions 6 and 7, supra; that the other portions of this section containing their supervisory power, rights and duties are not susceptible to a construction which gives them this power is apparent.
In State v. Drexel, 75 Neb. 751, 107 N. W. 110, the court had under consideration an act which provides that the state board shall have general direction and control of the county assessors in the performance of their duties and shall direct the same, also that the county assessors should obey all rules and regulations made under the act and the instructions sent out by the state board. It was held that these provisions did not give the board the power to control the judgment of the assessors concerning the values of properties, for the reason among others, that if the rule were otherwise and the board by this method could direct the county assessors as to what values they should put upon property, it would thereby accomplish indirectly what it could not do directly, namely, that of reassessing, which they were not authorized to do.
I agree with the majority that the manifest purpose of chapter 216, laws 1911, creating the tax commission was to place in a central body authority to aid in bringing about and maintaining a standard of values for the purposes of taxation, but it is elementary that in so doing *415they must proceed in the manner provided by statute; I cannot agree that a method was prescribed in section 31 giving them the right to reassess the property of a county upon the lump sum basis by adding a per cent to the value fixed by the assessor, or at all. Neither can I agree! that the method provided by subdivisions six and seven! of section 13 (if constitutional) attempts to take from v the county board any statutory rights pertaining to equalization. As I read these subdivisions they substitute a reappraisement by commissioners appointed by the tax commission, in lieu of the work of the county assessor, leaving the equalization to be made by the county board as theretofore. By other portions of the act, as an aid to carry out their supervisory power in seeing that the tax laws are enforced, they are given the right to prepare forms, to issue orders to the different taxing officers as will best carry into effect the provisions of law concerning taxation. It is provided that such officers, generally speaking, shall follow their instructions and shall be subject to penalty for violating them, they are given authority to prescribe a uniform system of procedure, to fix the form for tax schedules, rolls, warrants, notices and forms furnished to taxpayers, to call for reports from state, county and local officers, and to investigate the work of assessors, boards of county commissioners, equalization and county treasurers concerning the question of taxation, etc. For these purposes it is provided that one or more of their members shall visit at least half the counties of the state annually, and each county at least once in two years; they are authorized to summons assessors to appear before them to be examined under oath, to annually hold a meeting of the county assessors ; to call groups of two or more together to appear in courts concerning questions of taxation; to pass upon the remission of taxes; to hear certain classes of complaints when made concerning taxation matters; to in*416spect books and make investigations; to require the production of documents, and many other duties, but none of which includes the reassessment of property save and except subdivisions six and seven of section 13 under which it is admitted they did not proceed. The act having thus prescribed their powers and duties in detail which do not contain any provision for reassessment except as provided in subdivisions six and seven the rule of construction which I have heretofore referred to is unquestionably applicable.
The fact that the tax commission were given the powers and duties referred to, which, if performed will of necessity cause the gathering of general information pertaining to taxation matters, and the relative values of the different counties, is convincing to my mind when considered in connection with the language used that their duties as prescribed in sections 31 and 32 of the act of 1911 were for the express and only purpose of advising the state board of equalization of what, in their opinion, were the relative values of the different counties, and how much each was above or below its full cash value, and to relieve that board, which is composed of the executive officers of the state, of at least a portion of such detail work in gathering data, etc., in order to ascertain the relative values for the purpose of performing their constitutional duty of equalizing.'
The mere statement that a statute, means so and so proves nothing; persuasive reasoning is best presented by a consideration of the language used. Section 31 reads:
/ “Section 31. Duty of the Commission. The commis'sion shall, on or before the first day of October following, determine whether the real and personal property of the several counties in the state shall have been assessed at its true and full cash value, and if, in the opin*417ion of the said commission the real or personal property within any connty in the state as reported by said connty assessor to the said commission is not on the assessment roll at its true and full cash value, the said commission shall determine the increase or decrease in the valuation in such county by such rate per cent, or such amount as will place said property on the assessment roll at its true and full cash value.”
Do we find in this section any language which says or can be construed to mean that the commission shall reassess the property, and if so when such an effort shall be attempted, or any date or dates when they shall sit for that purpose, or when they shall hear any county citizens, collectively or otherwise, concerning such questions? Is there anything to be found which says that the commission shall directly, indirectly or otherwise change, alter or amend, or order to be changed, altered or amended the abstract of assessment transmitted to them by the county assessor? I think not. It provides that they shall make a finding as to the relative values of the different counties, the benefit of such must be for the board which has power to equalize, but the commission is not possessed with that power. As I view it the reason why it makes no provision for hearings, fixes no dates for anything other than when it shall finish this work, and makes no provisions for orders to the assessor or for changes in his schedule, etc., is because it was never intended that their findings should bind any one, or be other than a recommendation in the way of a report to the state board of equalization. This position is borne out by what follows and what becomes of this finding. Section' 32 following reads:
. “Section 32. Statement to the State Board of Equalization. When the commission has determined the true value of the real and personal property in the several *418counties, the commission shall transmit to the state board of equalization a statement of the amount to be added to or deducted from the valuation of the real and personal property of each county, specifying the amount to be added to or to be deducted from the valuation of the real or personal property.”
The substance of this section is that they shall send to the state board of equalization a statement concerning the result of their findings, what then happens? Section 33 following reads:
“Section 33. Duty of State Board of Equalization. It shall be the duty of the state board of equalization to examine the abstracts of assessment as submitted by the state tax commission and the state board of equalization shall forthwith examine the abstract of assessment of each county as submitted by the state tax commission and make a record of its action on the abstract of each county and certify the same to the county assessor, and the county assessor shall forthwith add to or deduct from each tract or lot, and its improvements, of real property and all personal property in his county the required per cent, or amount on the valuation thereof as it stands after it has been equalized by the state board of equalization, adding or deducting in each case any sum less than five dollars so that the value of any separate tract or lot and its improvements shall be ten dollars or some multiple thereof.”
Do we find anything in this section which says or can be construed to mean (if it could be authorized) that the state board should accept the findings of the tax commission, or that they should make this increase to the abstract of the county assessor or order the assessor or the tax commission to do so? Not at all. But to jthe contrary, it says that they shall forthwith examine the abstracts of assessment of each county, as submitted by *419the tax commission, and make,a record of its action on the abstract of each county and certify the same to the county assessor, etc. It will thus be observed that the only object in having the commission gather this data and make these findings is for the information of the state board of equalization in the performance of its constitutional duty.
The fact that all its statutory duties have been taken away and transferred to the tax commission can in no wise change the result, and does not change the language in these sections, neither can it strip the state board , of any of the powers and duties imposed upon it by the constitution. It will'be observed that section 33 does not say what the state board shall do with these abstracts other than examine them, make a record of its action, and certify the same to the assessors. The reason is apparent and that is that their action thereon is the constitutional duty to adjust and equalizé; it is for that purpose they are sent to them; that they are to be thus sent is not changed by the act which takes from them their statutory duties, and vests it in the tax commission. The most that can be contended for section 33 in this respect would be that the tax commission should certify to the different county assessors the result of the action of the state board of equalization and this is just what the commission did.
Whether the construction given to section 31 of the act of 1911 by the majority would make it unconstitutional, in my opinion, is unnecessary to consider, as I cannot conceive that it is susceptible to such a construction. The reasoning presented to support it is about as convincing to me as the assertion would be that the word “no” means ££yes.’’ By the holding of the majority as I understand it a county can be re-valued and reassessed for all taxation purposes by the method pre*420scribed in subdivision 6, supra, or under section 31, eliminating tbe constitutional question of notice and opportunity to be heard under the latter section, the conclusion must follow that the county assessor, although a constitutional officer, could by the same process of reasoning be supplanted in all matters pertaining to local assessments; if not where is the line to be drawn? It appears to me that this position is in conflict with former declarations of this court. In Taxation of Mining claims, 9 Colo. at page 636, 21 Pac. 476, it is said:
“Before taxes can be levied upon any article of property, it must be assessed, that is to say, valued for taxation. This, in general, is the province of officers whose title of office indicates their duties, to-wit, assessors. The constitution has created this office, and requires that an assessor shall be elected biennially in every county of the state.”
While in a later case, that of Ames v. The People, 26 Colo. 83, it was said that this language was not necessary to the decision; it was not stated that it was unsound when applied to local property situate in the county, such as mining claims which were the subject for assessment under consideration in the former case.
The latest case by this court upon this subject is In re Questions of the Governor, 55 Colo. 17, 123 Pac. 660, wherein we sustained the constitutionality of that portion of the act creating the tax commission, but we expressly called attention to the fact that we could not approve a construction of any portion which would contravene the constitutional authority of county assessors. That portion of the opinion reads:
“If provisions of the act can properly be construed as permitting the tax commission to do things in the matter of local assessments which would contravene the *421constitutional authority of county assessors, such provisions are necessarily non-effective.”
As it looks to me this is the result, of the conclusion of the majority and is in effect an overruling of this declaration, for if by this method the property in a county can be locally re-assessed and re-valued for the purposes of taxation for city and county purposes, as well as state, as here held, then the office of county assessor becomes one in name only, and it would be a useless expenditure of public moneys for any assessor to go through the form, as it will be only a form, of assessing property, and it will be a useless expenditure of time'" and money for county commissioners to sit as a board of equalization, for all their efforts will avail nothing, if without investigation and without the adoption of any method the valuation of property can be admittedly fixed at grossly inadequate sums or at a sum largely in excess of it's true cash value.
I cannot agree with the correctness of the statement “that it is not conceded that the property assessed as valued by the county assessor is at its full cash value.”
In his answer the respondent alleges certain facts, the substance of which are that the property in his county, assessed by him, was assessed at its full cash value; that the tax commission in making its estimate did not make an investigation and did not visit the several counties of the state, as by law they are required to do, and did not pursue a uniform method or test for the purpose of ascertaining whether in truth and iff fact the value of real and personal property had been assessed at its full cash value, but that they arbitrarily, and without ascertaining the truth as to whether the respondent assessed the property in his county at its true cash value, proceeded to determine that he had not made a full and true cash value thereof, and that they, in an arbitrary *422way. and without warrant, in fact, declared and determined that they would increase the valuation of said real and personal property in his county to the extent of $101,902,088, making the rate of increase forty per cent in excess of its full and true cash value. He further alleges that their action in this respect was fraudulent in so far as it affects the owners of real and personal property in his county. The relators have demurred to this answer, for which reason all material parts for the purposes of the case stand admitted as true, and I cannot corn cede that the performance of the duties of the tax commission in the manner provided by statute is immaterial, or that the allegations concerning the real value of the property in the county of the respondent is to be ignored, when by the opinion as I understand it, the taxpayer is to be precluded hereafter from raising it anywhere.
Neither can I agree to the statement by the majority that “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,” unless it is likewise to be conclusively presumed that all property in the county has been assessed at its full cash value. As I view it under the law the one presumption is entitled to as much weight as the other; there are many reasons why it should be so. Take for instance the value to be placed upon producing mines, the assessor has no discretion in fixing their value. The act of 1913 provides that for the purposes of taxation the assessor shall value them at a sum equal to one-half of the gross proceeds, plus all of the net proceeds, and it provides a method whereby these proceeds are to be accurately ascertained. The provisions of this act are mandatory, and the assessor has no right to do other than follow its mandates. The county board of equalization as held by the majority, would likewise have no authority to change the valuations thus fixed in the manner *423provided by statute; other illustrations could be given. The presumption must of necessity follow that all other property in the county has been likewise assessed or equalized to this value; so that when it comes to legal presumptions the one is equally entitled to as much weight as the other.
The majority misconstrue respondent’s position pertaining' to the reason of the legislature in submitting the proposed amendment to section 15 of article X of the constitution, which the people rejected at the 1912 election. It is not claimed that it was done because the legislature was of the opinion that the act passed by them was unconstitutional, and that they thereby sought to correct it by submitting a constitutional amendment, but to the contrary, it was submitted at the same session (1911) when the act creating the tax commission was adopted, and was thereby a legislative construction, not that they thought any portion of the act was unconstitutional, but because they construed their own act to mean they had not given to the tax commission any authority tó assess, value, reassess or revalue counties as a whole by per cent or otherwise, except as provided in subdivisions six and seven of section 13, supra. Had they intended giving to the tax commission this power in the act creating it which we agree they must assume was constitutional, why would they have inserted the identical powers in a constitutional amendment submitted at the same session? I do not care to charge the legislature with the doing of useless and unnecessary things; to my mind the submission of the constitutional amendment is a legislative declaration that they did not construe their own act to include this power. But regardless of this legislative construction, and in disregard of the fact that the-people have declined to grant to this commission this power even by constitutional ■amendment a majority of this court now say that nevertheless they have the right to exercise it.
*424Another reason why the legislature never intended that the tax commission should have the right to raise the total by counties as ascertained by the county assessors is its enactment at its last session of the so-called limitation levy act, wherein it is sought by limiting the amount of the levy imeach county to compel the assessor, in order to get sufficient revenue for county purposes, to assess all property therein at its actual cash value. If it was intended as contended that the commission has the right to increase the aggregate, then it is pertinent to ask why the necessity of any limitation of the levy for county purposes. Why not allow the commission to fix the value of each county, regardless of the value fixed by the taxpayers and the county assessors? The question to my mind answers itself and is self-evident that the legislators never intended by any act of theirs to grant this power.
The theory that a tax commission can re-assess or revalue a county as a whole, upon a per cent basis, or in a lump sum for the purposes of taxation for all local taxes as here held, as before stated is not claimed in the briefs, and no authorities have been cited which refer to such a statute. The cases cited pertain to equalization boards, or to reassessments of particular properties where notice is given, etc.
In State ex rel. Hessey v. Daniels, 143 Wis., 649, 128 N. W. 565, the opinion in addition to being rendered by a divided court has no application. The result of that decision was to sustain the validity of chapter 259, Wisconsin laws 1905, which provides that upon complaint made after notice, hearing, etc., it is made to appear, etc., that the assessment in any district is not in compliance with law, etc., the commission may order a reassessment and a new equalization and for that purpose shall name persons to make the reassessment and others the equal*425ization. The act provides that the parties thus named shall take the oath, etc., give all the notices and go through all the formalities required by the assessor and board of equalization whose work they are to do over. It provides that any owner of taxable property in such district shall have the right to examine such reassessment, and shall have all the rights ánd privileges in respect to such reassessment that are given by law in respect to any original assessment. It will thus be observed that the right to be heard before all tribunals passing upon the value of his property, is, by the Wisconsin statute, given to the taxpayer the same as in the first instance. This would have been the result here had the commission acted under the sixth subdivision of section 13, supra, but it is admitted that they did not attempt to do so, but to the contrary the pleadings disclose that they in fact made a re-assessment without investigation, and without any effort at ascertaining the value of the property to be thus assessed, leaving it to pure guesswork.
The case of Wisconsin ex rel. Brown County v. Myers, Judge, 52 Wis. 628, 9 N. W. 777, was upon the same theory as the later case in the 143 Wisconsin. The difference being that the contention in .the earlier case was limited to the appointment of commissioners to review the aggregate equalization made by the county board, in order, as the opinion states, to produce a just relation between all the valuations of the taxable property of the county. By the earlier statute this commission was appointed by the circuit judge. The reasoning is similar to that in the latter case concerning the question of review, and, while not having the time to investigate the earlier statute, it is fair to assume that the constitutional rights of the taxpayer concerning notice, hearing, etc., were fully protected. The opinion further discloses that the appointed board was without authority to in*426crease the entire aggregate valuation of the taxable property of the county as previously fixed, so that when it comes to equalization its conclusions are in harmony with the announcement of this court thirty-six years ago; it has no application to the facts here.
The case of Board of State Tax Commissioners v. Board of Assessors, 124 Mich. 491, 83 N. W. 209, sustains the validity of .the Michigan act of 1899 creating a board of state tax commissioners and giving them supervisory authority in the matter of the assessment of property. It has no application to the views of the majority, but to the contrary it is in harmony with our views in In re Opinion of Justices, 123 Pac. (Colo.) 669,'which opinion, as I take it, is in part overruled by the conclusion reached by the majority.
The case of Spalding v. Hill, 86 Ky. 656, 7 S. W. 27, sustains the validity of the Kentucky act creating the state board of equalization with the right to equalize as between counties and nothing more. I am unable to appreciate its application to the facts here. The substance of the opinion in Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Backus, Treasurer, 133 Ind. 513, 33 N. E. 427, 18 L. R. A. 729, is to sustain the validity of an act authorizing the state board of tax commissioners to assess railroad property. This is in harmony with the views of this court.
In State v. Thomas, 16 Utah 86, 50 Pac. 615, the opinion discloses that the constitution and statutes of Utah are different from ours. Under theirs the state board of equalization has the right to change the value of certain classes of property allowing other classes to remain unchanged. In that case the attempted effort to raise all classes was declared invalid. The question of lack of notice to the individual taxpayer as a denial of the equal protection of the law, or as taking property *427without due process of law, was not gone into. I gather this from the concluding statement in the opinion which reads: ‘ ‘ The order cannot be upheld as a proper exercise of authority, and is therefore void. Having reached this conclusion, it is unnecessary to discuss any other question presented in this case.” While it is true under their constitution and statute it was held that as an incident to equalization the state board had power, if necessary, either to raise or lower the total valuation of the property of any county fixed by the county assessor, even though it might by such action raise or lower the aggregate valuation of all counties of the state, it was expressly held that it was beyond the power of the board to raise the value of money in any county for the reason, as stated in the opinion, which, when referring to this order calling for the general raise of all property in the county, says:
“It was also defective because it included money in its operation. It clearly cannot be held operative as to money, for, as appears from the record, each dollar of the relators, on the assessment roll, is valued at a dollar; and, when money is so valued, no board or officer can add 5 per centum or any per centum to it. This is so under the constitution, which makes money the standard of valuation for all taxable property. The value of all property, however, cannot be determined in the same way. Because of its dissimilarity, the process by which the judgment is formed must vary, and probably as to all property, except money, perfect equality in valuations and assessments is unattainable, owing to the fallibility of the human judgment. The value of a dollar may be determined by ascertaining that it is what it purports to be.—Porter v. Railroad Co., 76 Ill. 594.
“The legal value of a dollar in money is a dollar, and therefore to value and assess it at more than a dollar *428cannot be a valuation and assessment, ‘according to its value in money. ’ This being so, the court will take notice, as matter of law, that money cannot be assessed for more than its legal value. Hence, from the nature of things, the state board cannot change the valuation of money on the assessment roll already assessed at its legal value, and thereby make it cease to conform to the mandate of the constitution. ”
By the use of this language it is evident that the Utah court means that their state board cannot order all property in a county to be raised a certain per cent when such an order would mean to raise some above its true cash value.
Applying the declarations in the Utah case to' the facts here, coupled with the legal presumption which must prevail that the method provided for fixing the value of mines, money, etc., was adhered to, what is the result when tested by section 3 of article XX of our constitution pertaining to the uniformity of taxation? To do this it should be borne in mind that by authority of chapter 133, Session Laws 1913, the tax commission assesses and fixes the value upon the property of all public utility corporations in any county. They are not assessed by the county assessors, and this increase of forty per cent applies only to the property assessed by respondent, and not to the public utility property, which we will assume has been assessed at its fair cash value.
To illustrate, take the person who has $100 in money and who malíes a sworn statement of that amount and of the value of $100; money has only one value and is the standard of values. The respondent assessor, as provided by law, has under his oath assessed it at the value of $100, but by this order he is compelled to raise its value to $140, and this without opportunity to the owner to be heard before the body which has ultimately fixed the *429value of Ms $100 at $140. If in Weld county for Ms $100 the owner would pay taxes on $163, if in Costilla county on $236, and in fact a different value would by this method be fixed for $100 in money in nearly every county in the state. While 5n the other hand the public utility corporation returns its sworn statement of moneys to the tax commission which fixes the value of its $100 at $100, and has it thus assessed properly so. The corporation has had the additional advantage of being heard before the body which makes the assessment. We thus have the corporation’s $100 assessed at the value of $100 by the state tax commission, with full right to be heard before that body, while the value of the private citizen’s $100 is fixed at a value of $140 if in Denver, $163 if in Weld, or at $236 if in Costilla county, and so on without any right, before, at or after it is thus fixed, to be heard before the tribunal which has thus fixed its value.
Unless we are to ignore our rules of pleading and the legal presumption to which every officer is entitled, that he has performed his duty, and assume that about all of our assessors are open violators of the law, and that the great mass of people in Denver who have subscribed to their returns are criminals, this raise means that the individual taxpayer’s property in Denver will be valued for taxation purposes at forty per cent higher than that of the public utility. To better illustrate, it means that every little home in this city of the value of $1,000, and which has been assessed at that amount by the assessor, and which by the pleadings is conceded to be only of that value, must pay taxes upon an arbitrary .valuation as fixed by this order at $1,400. A citizen with property of the value of $100,000 must pay upon a valuation of $140,-000, and so on. When applied to the statute which provides the method for ascertaining the value of producing mines it means that the results ascertained thereunder are to be disregarded, and the values as thus fixed by law *430are to be changed ont of proportion to their actual cash value to the same extent as the illustrations heretofore given concerning money will disclose. To better illustrate, say for the purposes of taxation that the value of a mine in Costilla county has been fixed at $10,000 by the statutory method concerning which the assessor has no discretion, yet by this order of the tax commission it is raised to $23,600 with no possible method of relief pointed pout by the majority to the owner.
The constitution of the United States provides that no state shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Our constitution provides that no person shall be deprived of life, liberty or property without due process of law. In my opinion it is very questionable if the action of the state board in this respect does not violate these provisions.
In Londoner v. Denver, 210 U. S. 386, 52 L. Ed. 1103, 28 Sup. Ct. 714, it was said:
“It must be remembered that the law of Colorado denies the land owner the right to object in the courts to the assessment, upon the ground that the objections are cognizable only by the board of equalization.
“If it is enough that, under such circumstances, an opportunity is given to submit in writing all objections to and complaints of the tax to the board, then there was a hearing afforded in the case at bar. But we think that something more than that, even in proceedings for taxation, is required by due process of law. Many requirements essential in strictly judicial proceedings may be dispensed with in proceedings of this nature. But even here a hearing, in its very essence, demands that he who is entitled to it shall have the right to support his allega*431tions by argument, however brief; and, if need be, by proof, however informal.”
While this opinion refers to a special assessment yet, if I understand our present statutes correctly, they attempt to provide a complete system for the assessment of property for taxation, including the fixing of its value by special tribunals provided for that purpose, namely, the county assessor, county board of equalization as to certain property, the tax commission, and the state board of equalization. Certain times and places have been provided whereby certain taxpayers can present their grievances to certain of these tribunals concerning the valuation of their property; in certain instances appeals are provided to the court, but in order to secure them certain steps must be taken at certain times, and in case the taxpayer neglects to do so he is denied the right to object in the courts for the reason that the objections must in the first instance be considered by the special tribunals, and their ruling except in case of appeals provided by statute are intended to be final. |As I read it the majority opinion sustains these conclusions, but by holding that section 31 of the act of 1911 gives to the tax commission the right to re-assess the property in the county theretofore assessed by the county assessor, it leaves the taxpayer, whose property is thus re-assessed and raised, without any right to be heard before the tribunal which the majority holds has the right to make the increase. Neither is there any provision for subsequent hearing before the county assessor or county board, pertaining to such increase; the times provided by statute for hearings before them or their right to act has gone by. That such a hearing may be given before any of these bodies as a matter of favor instead of being provided by statute as a matter of right, is not sufficient.—Security Trust Co. v. Lexington, 203 U. S. 323, 27 Sup. Ct. 87, 51 L. Ed. 204; Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289; Weyer*432haueser v. Minnesota, 176 U. S. 550, 20 Sup. Ct. 485, 44 L. Ed. 583; Kentucky Tax Cases, 115 U. S. 344, 6 Sup. Ct. 57, 29 L. Ed. 414; Cook v. Lasher, 73 Fed. 701, 19 C. C. A. 654; Spencer v. Merchant, 125 U. S. 356, 8 Sup. Ct. 921, 31 L. Ed. 763.
I cannot agree that the principles applicable to the state board of equalization apply with like force to the tax commission when attempting to make a reassessment of property. Assuming arguendo that section 31, supra, empowers the commission to add to or deduct from the valuation of all the property in the various counties there is nothing in the section which provides for hearing, notice, etc., or certain times fixed for so doing; no dates are fixed for anything other than when they shall finish their labors, other times are uncertain and indefinite. If an assessor makes his return before the first Monday in September, which he- is permitted to do, the commission could commence to work on it at any time. I fail to find anything in any portion of this act which can be construed to mean as fixing any time or place for hearing upon this question by the individual taxpayer, or by a county’s representatives. The reason, in my opinion; is apparent, namely, that the information thus gathered and findings made are advisory only'to the state board and the holding otherwise, probably, presents a case of the taking of property without due process of law. I cannot agree that section 15 of the act has any application to matters to be acted upon by authority of section 31. Its language indicates to the contrary; it reads:
“Section 15. Complaints. The commission may 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, or the law in any manner evaded or violated, and may cause to be insti*433tnted such proceedings as will remedy improper or negligent administration of the taxation laws of the state.”
It is self-evident that nothing in this section can be construed as pertaining to any hearing concerning any reassessment of the entire property of the county by the tax commission; but to the contrary it means as it says, that upon complaint which alleges that the property subject to taxation has not been assessed, or has been fraudulently, or for any reason improperly or unfairly assessed, or the law evaded or violated, they may cause to be instituted such proceedings as will remedy, etc., some of which proceedings have heretofore been pointed out. It is not claimed, that in making their findings under section 31 the commission acted upon the complaint of anyone. Subdivisions 6 and 7 of section 13 contain provisions for notice to the taxpayer, and provide for a hearing when the value of his property is to be raised, hence, it is proper to assume that had the legislature intended that the value of his property separately or in conjunction with the entire property in the county could be revalued and the value increased by the commission under the provisions of section 31, it would have provided some method for notice to him or the officials of his county, or have fixed some particular time for so doing and for the hearing of complaints..
As I view it the taxpayer, the value of whose property has been raised by this reassessment, or his county’s representative, is not given an opportunity to be heard before the body which has made the raise, to-wit, the tax commission. Two other members of the court concur in this conclusion, four to the contrary. In case No. 8208, The State Board of Equalization v. The Bi-Metallic Investment Company et al., which is a suit brought by a taxpayer to enjoin the respondent from extending this increase upon its property, and which case was argued with *434this, the district judge was of the opinion that such a hearing had not been provided, and that to allow the increase to be added would be the taking of property without due process of law, so that thus far the official expressions by the judiciary of this state upon this question stand equally divided. ’Tis true, the trial judge who rendered this decision is not a member of this court, but an examination of the session laws will disclose that for a long time he has been upon the district bench and was one of its judges as early as 1889, and while his conclusion has not the same effect as that of a member of this court, his long period of service and record is such as to entitle his opinion to great respect, and if this point could be disposed of by the reasoning in former opinions of this court, I am confident that they sustain the conclusion that such a hearing has not been provided in the method followed.
To go into the question of due process of law, etc., in detail would be to unnecessarily extend this opinion. The question was not involved in the Oklahoma case because their statute gives to the taxpayer this protection. The Utah court found it unnecessary to consider it upon account of their decision being against the state board for other reasons. The Nebraska court, without going into the fact in detail, intimates that the taxpayer whose money has been assessed at more than its actual cash value might be entitled to a hearing and secure relief in a court of equity, when and for any reason that would ■not be in conflict with their ruling in sustaining the validity of the action of their state board is not disclosed, but these cases and others cited are all on the question of equalization. No cases on re-assessment are cited wherein such a notice and hearing has not been provided. If I read history correctly, one of the main grievances of our forefathers was the fact that there was imposed upon them the burden of taxation without representation; per*435sonally I am unable to appreciate any difference between taxation without representation, and taxation without the right to be heard concerning the value of the property upon which the tax is, to be imposed,. In my opinion the inequity following the-results is about as near equal in the one case as in the other. Upon this question of due process of law concerning taxation matters, I call attention to the following cases: Central Ry. Co. v. Wright, 207 U. S. 127, 28 Sup. Ct. 47, 52 L. Ed. 134, 12 Ann. Cas. 463; Security Trust Co. v. Lexington, 203 U. S. 323, 27 Sup. Ct. 87, 51 L. Ed. 204; Hovey v. Elliott, 167 U. S. 409, 17 Sup. Ct. 841, 42 L. Ed. 215; Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914; Gale v. Statler, 47 Colo. 72, 105 Pac. 858.
When the difference between the rights, duties and privileges of the corporation which owns the public utility and other taxpayers is considered, it is questionable whether the method which the majority approves, is not aL_denial toTSUiMmdualTiaxpayer of the equal protect tion of the law. It will be observed that he is given a hearing before the assessor or the county board of equalization concerning the value of his property, and as compared with that of certain other property assessed by the county assessor, but this does not apply to the public utility because his county board has no jurisdiction over that; he is not given any hearing before the tax commission concerning the valuation of his property as compared with the public utility, or as to the re-valuing of it for any purpose, while the corporation is given hearings before them concerning both these questions; besides, a hearing before this body under section 31 would, do him no good, for as construed by the majority the section does not permit of their doing otherwise than re-assessing the property in his county upon the per cent basis as a whole. After the raise is ordered he is not entitled to any hearing before his county assessor or county board, for *436the time for all hearings before them has gone by, and if they granted it they conld afford him no relief. This, in substance, as I construe the opinion, means that the corporation can be heard before the body which makes its assessment, with the right to present evidence, data, etc., concerning the valuation of its public utility, and a comparison as to the relative value between it and other property, and that the commission, without investigation, can make a guess at or arbitrarily fix the valuation of the individual taxpayer’s property, by re-assessing a county in lump under section 31, and without the right of a hearing upon his part or even by his county’s representatives. In my opinion this presents a rather one-sided star-chamber system of procedure in favor of the corporation upon the question of taxation. As it looks to me it includes the trial and in this instance the conviction of the little fellow without his having an opportunity or right to be heard, or even to be present during the trial of his case, or at any time afterwards. Upon this question I call attention to County of San Mateo v. R. R. Co. (C. C.), 13 Fed. 722, cited by this court with approval in U. P. Ry. Co. v. De Busk, 12 Colo. 302, 20 Pac. 752, 3 L. R. A. 350, 13 Am. St. Rep. 221.
Unquestionably some property in Denver, as well as other counties, has been assessed too low, as has likewise unquestionably some public utility property, but these are no reasons why former decisions should be overruled or constitutional provisions ignored, and this at a time when a proposed amendment has been submitted to be voted upon at the next election, for the purpose of amending the constitution upon this subject. Were the question one which involved the state tax alone it would not be so serious in its results, but when we consider that the question of equalization between the corporate property defined as public utility, and the property of individuals applies as well to all county, city, school and other *437taxes, the gravity of the situation is apparent. In the Bi-Metallic Investment Company case, supra, brought in the district court for the purpose of preventing the respondent from adding this increase, it was alleged that its property was not of the value of $802,000, which amount had been fixed by the respondent assessor; that the forty per cent increase ordered of $320,800 would make the total not less than $500,000 in excess of its real and full cash value.
Public records disclose that the tax levies in Denver for 1913 were made upon November 24th, and for state, county, city and ordinary school purposes (all of which apply equally throughout the city and county) were fixed at fifteen mills, when the company is held to have accepted the value fixed by the county assessor. This levy upon the increased value which it offered to prove its property was not worth, will amount to $4,812, and if my conclusion as to what the majority opinion means is correct, the company has no recourse elsewhere,, and if the allegation of its complaint is true, which it offered to prove, it appears to me that this is a taking of this much of its property without due process of law. When we accept the legal presumption that this respondent and his county board have performed their duty in assessing the property at its full cash value (which fact they have offered to prove), considered with the pleadings by which this fact stands admitted as to all other property in his county assessed by the respondent, the result means that the individual taxpayers therein are to pay $1,528,531.32 in excess of their proportion of taxes for all purposes in the city and county of Denver for 1913, upon account of this inequality between the relative values of their properties and that of the public utility. The fact that upon account of this increase they may or can reduce the amount of their local levies as has been intimated (a question concerning which I express no opinion) will not *438change conditions concerning the comparison of values referred to, as any reduction in the levies will apply equally upon all values in the county as fixed by this method, which includes this increase upon the property of the private citizen, but adds nothing to the public utility property of the corporation.