Weidenhaft v. Board of County Commissioners

Mr. Justice Holland

dissenting.

I believe the following should be the opinion of the Court:

Plaintiffs, now plaintiffs in error, are the owners of real property situated in the county of El Paso- on which is located a dwelling house and an apartment house. In the year 1951 the property was assessed by the county assessor for a total valuation of $14,400.00-on which a tax of $943.78 was levied.

For the year 1952 the assessed value of the property was $34,930.00, and the tax lexied thereon was $1,545.65, on a 44.25 mill levy. The 1952 assessment was made by the county assessor upon the direction of the Colorado Tax Commission and according to the standards and formula set up by the commission. Insisting that the tax was illegal, plaintiffs, on March 12, 1953, paid the tax levied under protest, and the tax receipt is so marked.

March 16 following, plaintiffs brought suit in the district court of El Paso county against the Board of County Commissioners of said county under section 281, chapter 142, ’35 C.S.A., by which they attacked the legality of the assessment made against their property and asked for a judgment for the amount of the tax paid under protest, or such part thereof as the court might determine to be illegal. In substance, the grounds for the relief sought are that the Colorado Tax Commission, in carrying out *448the so-called “Colorado Re-appraisal Program,” usurped the functions of the county assessor, particularly through its orders and resolutions and its pricing manuals and the standards for 'assessment set up by the commission and it is alleged that in fact the assessment of the property for the year 1952 actually was made by the tax commission and not by the county assessor and was in violation of section 8, Article XIV of the Colorado Constitution.

Because of the challenge laid against the tax commission and the constitutionality of the state statute creating same, the Attorney General moved to intervene and, after hearing, intervention was allowed and the tax commission, the individual members thereof, and the Attorney General, and each of them were permitted to come in 'as parties defendant. In due course, all defendants joined in an answer, which, in substance, is as follows:

After formal denials and admissions it was alleged that the assessments, of which complaint is here made, for the year 1952 were duly and lawfully made by the assessor of El Paso county as'provided by law; that the act providing for appropriations for a resurvey by the tax commission was regularly passed; that the moneys were expended in accordance with said Act; and it is admitted that under the authority of the Act the commission caused a. taxing 'and building description and value calculation guard or manual to be prepared and issued to the several county assessors of the state; that all of the acts done by the assessor in connection with the assessment were required of him by law; that the assessor and the board of county commissioners published notices fixing a day certain for hearing of grievances of taxpayers; that plaintiffs did not appear before either the assessor or the board of county commissioners and did not avail themselves of the administrative remedies afforded by the Act as amended prior to the institution of this suit. *449Plaintiffs contend that by defendants’ answers it was admitted that the “pricing manual” was based on a supposed reproduction cost of structures; that the market Value of such property did not enter into such valuation; that the tax commission presumed to order and require every county assessor to use said “pricing manual” and not to deviate from it and not to use any individual judgment in assessing property.

The case was tried December 18, 1953, and the testimony of only one witness was received. The evidence consisted largely of documentary exhibits admitted by agreement of counsel. Among such exhibits were tax receipt marked “Paid under protes't,” and a copy of the appraisal manual and instructions.

The trial court on December 31 entered its findings of fact and conclusions of law. The findings of fact contained twenty sections of carefully prepared findings, the material substance of which is, that the county assessor made the assessment according to the law then controlling and did so on his own volition and without coercion by the tax commission; further, that plaintiffs did not avail themselves of the administrative remedies; and finally, that the reappraisal program as provided by the Act does not violate the State Constitution, and more particularly section 8 of Article XIV; that the complaint fails to state a claim against defendants; that upon application of the law to the facts, defendants should have judgment against plaintiffs, and it was therefore so ordered and a motion for new trial was dispensed with.

To secure a review of this judgment plaintiffs have procured the issuance of a writ of error and now contend:

1. That the correct procedure was to p'ay the tax and sue for its recovery, and that it was unnecessary to make application for the administrative relief since the assessment and the tax levied thereon is illegal.

2. That the court’s findings of fact that no coercion on the part of the tax commission existed is erroneous *450and contrary to the admissions in the pleadings and to the evidence.

3. That the reappraisal violates section 8, Article XIV of the Colorado Constitution, and that the assessment, while nominally made by the assessor was in fact made by the Colorado Tax Commission, a duty which the Constitution vests solely in the assessor.

4. That the reappraisal was contrary to law and not based on market value.

The substance of the summary of argument presented by defendants in error is that this is not a class action, but is one by plaintiffs to obtain for themselves the repayment for the year 1952, which they paid under protest in 1953; and further, that since they did not attempt to avail themselves of their administrative remedies, they are bound by our decisions in Bordner v. Board of County Commissioners, 92 Colo. 81, 18 P. (2d) 323; Miller v. Board of County Commissioners, 92 Colo. 425, 21 P. (2d) 714; and Citizens Committee v. Warner, 127 Colo. 121, 254 P. (2d) 1005.

“Each county is responsible to the state for the full amount of tax levied for state purposes, excepting such amounts as are certified to be unavailable, double or erroneous assessments, as provided in the revenue law of 1902, and in all cases where any person shall pay any tax, interest or cost, or any portion thereof, that shall thereafter be found to be erroneous or illegal, whether the same be owing to erroneous assessment, to improper or irregular levying of the tax, or clerical or other errors or irregularities, the board of county commissioners shall refund the same without abatement or discount to the taxpayer.”

Section 114, chapter 142, ’35 C.S.A., provides that if in the opinion of any taxpayer his property has been twice assessed, or if the property exempt from taxation has been assessed, or if personal property has been assessed of which said person was not possessed at the time of the assessment, or if any property has been assessed *451too high, or if any property has been otherwise illegally assessed, he may appear before the assessor and make known the facts and if the assessment is erroneous the assessor shall correct the same. Further provision is made for the assessor to fix a day for such hearings and mail notice to each taxpayer whose property has been assessed at a valuation other than that given in the schedule filed by the taxpayer.

Section 116, chapter 142, ’35 C.S.A., provides that if the objections made to the assessor are overruled in whole or in part, the assessor shall state in writing the grounds of his refusal and the taxpayer may appeal from such decision to the board of county commissioners of the county wherein the property is assessed on or before the first Monday in January following the assessment. The county commissioners shall act upon the complaint at the next regular session of the commissioners, at which time the board shall grant or refuse the prayer of the complaint in whole or in part as may seem just and proper and the board may in their judgment correct any error or mistake in such assessment made by the assessor whenever in their judgment justice and right may so require.

Plaintiffs, contending that the assessment and tax were illegal, paid the tax under protest and admit that they did not make application for relief either to the assessor or the board of county commissioners, because they were not required to do so in the case of an illegal assessment and tax. The cases above cited by defendants in error are abundantly clear on the proposition that application for relief from an erroneous assessment and tax must first be made to the administrative officials before an action in court could be maintained; however, it is said in our latest pronouncement, Northcutt v. Burton, County Assessor, 127 Colo. 145, 254 P. (2d) 1013, that the administrative remedies apply where the property has been twice assessed; is exempt; assessed when not possessed; assessed too high; or other*452wise illegally assessed because of error capable of adjustment.

The protest here made by the taxpayer was of itself a notice to the treasurer that the taxpayer regarded the tax as illegal and that the taxpayer intends,.if need be, to enforce his right by appropriate proceeding. Board of County Commissioners v. Cutter, 3 Colo. 349.

“Where, however, the tax is illegally laid or, because of some unlawful act of the authorities is erroneous in its entirety, requiring not adjustment, but refund, a demand for which is denied, pursuant to section 281, suit may be brought to compel proper reimbursement. The term ‘erroneous assessment’ as used in this section implies more than mere over-’assessment and refers to a tax levy that for any reason is wholly illegal or invalid.” Norcutt v. Burton, supra.

According to our determination as above recited, as to what, instances the taxpayer must resort to the administrative remedies it is abundantly clear that the Act gives no authority to'the county assessor or to the board of county commissioners to test the legality of a tax when the grounds of illegality are constitutional. This is a ground beyond the power or authority of the administrative officers to adjust. The taxpayers here contend that the tax commission invaded the province of the assessor, and that is a question which the assessor could not decide, therefore resorting to the administrative bodies for relief would have been an empty gesture. Again I say that an excessive or erroneous tax requires pursuit of 'administrative remedies, but such pursuit is not required where the tax is claimed to be illegal. The administrative authorities do not possess judicial powers.

It is true that plaintiffs here alleged that the tax paid in 1953 was higher than the tax paid in 1952. As I read the complaint and study the contentions of plaintiffs, I am inclined to the view that this allegation was not a claim of excessive valuation, but rather a statement showing basis of their right to attack the assessment and tax *453as illegal. Finally, I conclude that for the relief here sought, no administrative remedies were afforded them whereby their claim could thus be determined; and contrary to the contention of defendants in error, plaintiffs were, and are, free to bring and maintain this action without any showing that they had applied for and exhausted the administrative remedies as in other cases made and provided.

A part of the trial court’s findings of fact is as follows: “That the assessor of El Paso county in using said formula and pricing manual as aforesaid, did so of his own volition and without coercion and usurpation by the said Colorado Tax Commission.” It is contended by plaintiffs that this finding is directly contrary to the allegations of the complaint which were admitted by defendants. It is alleged in the complaint that the commission instructed the assessors of the state to take an inventory of every dwelling, building or structure in their counties and calculate the reproduction costs of such building using the figures appearing in the pricing manual prepared and sent to them by the commission, and that all such values were to be based upon a supposed reproduction cost and that the market value of such property would not enter into such valuations; that the commission sent supervisors to the various counties to ascertain whether or not the assessors were following the method of appraisal established by said commission in the pricing manual; and that the commission presumed to order and require every assessor to use the pricing manual and not to deviate from it and not to use any independent judgment as to the value of the property; and further, that the commission imposed this manner of assessment through the means of coercion based upon the penalties prescribed in the Act. The answer admitted these acts of the commission but averred that they were done in furtherance of the things required of it to be done by law; and denied that the acts were unlawful, but they were done pursuant to the authority invested in the commission by law. At the outset, counsel *454for plaintiffs stated this situation as appearing from the pleadings and counsel for defendants stated, “That is correct.” There are exhibits which substantiate these averments and admissions, and among the exhibits is the reappraisal system. The meaning of the exhibits and the order surely is beyond question and is unmistakable to the effect that the commission did order and require the assessor to adopt the system of assessment set forth in the manuals, and further supervised the assessors to the end that that system was applied.

The next contention of counsel for plaintiffs is that the reappraisal program as applied to the property of plaintiffs violates section 8 of Article XIV of the Colorado' Constitution in that the Constitution provides for a county assessor to assess the property in his county for taxation; that the action here questioned substituted an assessment made by defendant commission for that made by the county assessor; and finally, that the assessment imposed is contrary to law because it is based on a reproduction value and not on the market value of the improvements assessed.

The problem before us originates not from any weakness or defect in the act creating the tax commission and prescribing its powers and duties, but from the interpretation put upon the Act and the power assumed therefrom by the commission. The Act, known as Article 5, chapter 142, ’35 C.S.A., has, by this Court, been held to be constitutional in that the commission is properly invested with full power to supervise all county assessors to the end that all taxable property in each county shall be taxed at its full cash value. People ex rel. Tax Commission v. Pitcher, 56 Colo. 343, 138 Pac. 509. This holding clearly defines the power and duties of the commission, and confines the authority of the commission within the limits thus inferred. Any act of the commission that can be said to be more than supervisory in having all taxable property in each county taxed at its full value, is an assumed authority and illegal. The supervisory authority *455granted of course includes the power of the commission to make all proper adjustments toward -equalization of valuations to promote uniformity of taxation. The commission is empowered to prescribe uniform systems of procedure in the various assessors’ offices, and to prescribe forms of returns to be made by the assessors to the tax commission office, and it is empowered to transmit such instructions as the commission deems conducive to the best interests of the state upon any subject affecting taxation, and finally, it is given the right to give a workable construction of any statute affecting taxation, the execution of which devolves on any county assessor.

Until now this Court has not expressed approval or disapproval of the manner in which tax reappraisals have been carried forward; however, full determination of ths case at bar requires resolution. Counsel for plaintiffs says the reappraisal violates the Constitution. I believe this to be an intentional overstatement when so tersely made. I am inclined to believe counsel intended to say that the reappraisal as ordered, directed, and enforced by the commission is illegal and unconstitutional. I have herein mentioned the overall powers and duties of the commission as prescribed by section 157, chapter 142, ’35 C.S.A. However, we find from a copy of the minutes of said commission as of February 11, 1948, the following:

“Your attention is directed to Section 2, Chapter 111, Session Laws of Colorado, 1947, relating to- an appropriation for reappraisal, providing that moneys appropriated by the Legislature shall be used by the Colorado Tax Commission in carrying out a reappraisal. Further reference is made to the terms of Section 157, chapter 142, 1935 Colorado Statutes Annotated, wherein the Colorado Tax Commission is given full power and authority to implement assessment procedure by prescribing standards of assessments fo-r both real and personal property, and also methods and forms whereby assessments may be made uniform in the several assessment jurisdictions in Colorado.”

*456It thus appears that the commission determined that under Section 157, chapter 142, supra, that the legislature gave the commission full power and authority to implement assessment procedure by prescribing standards of assessment. No such authority can be found in the section referred to. It is one thing to exercise supervision over the county assessors to the end that all assessment of property be just and uniform and at its true full cash value and to prescribe forms of return for use of such assessors, but an entirely different thing to prescribe standards of assessment. This strikes at the very vitals of the primary assessing authority. It is true according to an exhibit in the case that on October 30, 1951, the commission directed the assessor of El Paso county to assess the taxable property in their county at its full cash value for the year 1952. Why should such direction be necessary in view of the statutory and constitutional provisions to that end, both of which are mandatory in the matter of property assessment. It is admitted by the record that the commission is not empowered by any statute to assess property. It also is admitted that the commission issued three manuals which set upi a system of assessment and the method of calculating values based on either square footage or cubic volume and on reproduction costs; that all structures in the county were assessed according to the data provided in the manuals, and that the market value did not enter into such assessments; that the commission sent supervisors into the different counties to ascertain whether or not the reappraisal system was being followed; that the commission ordered every assessor to follow the pricing manual without deviation and not to use any independent judgment as to the value of the property; and that this reappraisal program valued all property based on reproduction costs as of 1941; and that the commission in referring to full cash value in the order dated October 26, 1951, was as to the 1941 value and not the present-day market value.

No further detail of the record is necessary to convince *457that the commission thus assumed unto itself authority no place extended to it by the statutes. Argument is unnecessary to demonstrate that the values of 1941 were not the values of 1952, and disclosed no relation to the market value at the time of the assessment, and is wholly unrelated thereto, all in violation of the constitutional and statutory provisions. Neither does it require argument or demonstration to disclose that the method prescribed and forced to be followed by the commission completely deprives the constitutional and duly elected assessors of the counties of any judgment whatsoever. Section 8, Article XIV of the Constitution provides for the election of one county assessor in each county, that means that the electors of each county select an assessor presumably for the purpose of assessing their property and exercise the powers such assessing officers were performing at the time the Constitution was adopted. This Court in an early case, Chase v. Boulder County, 37 Colo. 268, 86 Pac. 1011, said that the powers and duties of such an officer were well defined at the time the Constitution was adopted and it is presumed that the framers of the original Act intended to invest them alone therewith, except as otherwise limited in that instrument. With this constituional provision and limitation, the legislature is not vested with authority to take this function of the county assessor and vest it in a central state authority, particularly as to the matter of primary or original assessment, except in cases where the local county assessor could not by the nature of things properly make an assessment, such as railroad property, for example. When the commission, as here, goes beyond mere correction, supplemental or review of a primary assessment, it is exceeding its authority and acting illegally, and is an interference with the constitutional duty imposed upon the county assessor.

The matter of the primary assessment being conferred by the Constitution upon the assessor elected in each county permits of no infringement by the state tax commission as is here disclosed. It follows that 'the assess*458ment of plaintiffs’ property in accordance with, the enforced direction of the tax commission according to its formula of assessment is not the true assessment of the county assessor and is therefore illegal, and plaintiffs are entitled to recover the taxes paid based upon an illegality.