dissents:
I can not agree with the conclusion of this court that the judgment of the District Court was wrong; nor am I willing that some of the statements in the court’s opinion, as to the effect of our former adjudications which are used as premises for the conclusion, go unchallenged. In the court’s opinion, in discussing the 6 mill levy, it is said that “under the doctrine announced in the Pitcher case, 56 Colo. 359,138 Pac. 509, it [the legislature], — “could make the Tax Commission the instrumentality of the legislature in determining, as a condition precedent, whether there existed a necessity for an increase, by providing that there could be no increase without' the consent of the Tax Commission.” The case cited is. thus made the basis of holding, without discussion, that section 12 of chapter 137, Laws of 1918, is valid. . '
*341Accepting the law laid down in that case solely because it has been so announced by this court, I am unwilling that its application should be extended beyond the facts there presented for determination. A careful reading of the majority opinion in that case, and of the three dissenting opinions, shows that section 12 of the law of 1913 was not considered or even mentioned. That case involved only the matter of assessments.
The question being still open for determination it should be decided upon due consideration as a grave constitutional question. According to the genius of our institutions local affairs are to be managed by local officers, and to empower a state commission, not recognized by the Constitution, to determine so important a question as that of the amount of taxes that a county may levy, is contrary to the whole theory of democratic government.
It is not sufficient to say that “the act does not give the Tax Commission power to levy taxes.” True, it does. not do so in express terms, but the effect is, beyond question, to give it that power. If that be not so, why the discussion as to effect of the commission’s order in this case? If the excess of the levy beyond 2.7 mills is valid only by reason of the act of the commission, then that act in legal effect, constituted the levy. The most that can possibly be said for it is that the Tax Commission and the County Commissioners, acting jointly, made the levy. Sec. 35 of art. V. of the Constitution clearly prohibits interference by special commissions or other bodies therein named with local affairs, including the levying of taxes. It is true that the legislature may fix a lirnit of levy, but it can not delegate that power to any board or commission. In my opinion, .section 12 of the law under consideration, is void as an attempt to delegate legislative power to the Tax Commission, and the excess levy above 2.7 mills is also void. I am further unable to accept the conclusion that the levy is merely irregular because the assessment was made under a wrong construe*342tion of a fixed rule. I am at a loss to understand how it can be said that the assessor followed the correct rule, since it is admitted that he did not make a correct valuation under the law as construed by this court.
Decided April 5, A. D. 1915. Rehearing denied June 7, A. D. 1915.The law provides for the furnishing to the assessor of specified data, and the valuation of producing mines for assessment purposes, is then a mere matter of mathematical calculation. The rule consists in the prescribed method of making these computations. When that method is not used, the rule is not used. So, when the assessor in this case applied to the data in hand a method of computation not recognized by the law he did not use the rule prescribed by law. Once he had departed from the lawful method he might as well have applied one system of computation as another. In short, he was making his own rule, and not merely putting a wrong construction on some minor feature of the assessment procedure. An assessment thus made is no assessment, and a tax levy under it is void.
The judgment of the District Court was therefore correct, and should be affirmed.