People ex rel. Colorado Tax Commission v. Pitcher

Garrigues, J.,

dissenting:

I understand the majority opinion holds that the horizontal raise, which the assessor was ordered to add *390 Íto Ms original assessment, is a local assessment.; also it concedes that under the constitution the state board of equalization is prohibited from making local assessments, that its power is limited to equalizing between the counties ; but in the exercise of this power, it cannot increase the aggregate value of all the counties. To escape this inhibition and uphold the action of the state board of equalization, the majority opinion is based upon the theory that the tax commission, and not the state board of equalization, added this horizontal raise, and the local assessment consists of the original assessment, plus the horizontal raise; that is, in amount the local assessment 1 is the assessor’s original assessment, plus the added hori- ' zontal raise, and the state board of equalization adopted as a means or incident of equalization, but did not make this assessment; therefore it neither made a local assessment nor increased in amount the aggregate of all the assessments.'

This contention to prevail, must be in harmony with the statute and the facts. In other words, there must be a statute authorizing the tax commission to assess in this manner, and the facts must show it made the assessment. It seems to me the majority opinion assumed without authority, both these points. The only statute covering the matter is found in sections 31, 32 and 33, Laws of 1911, page 623, which provide: If the tax commission shall be of the opinion that the assessor has not in his original assessment assessed the real and personal property of his county at its true cash value, it shall determine what increase, by rate per cent, will place the property on the assessment roll at its true cash value; that after it has done so, it shall transmit to the state board of. equalization its determination, with a statement specifying the amount to be added; when this statement is received by the state board of equalization, it is made its duty to then examine the abstracts of assessment of each *391 county submitted to it by tbe tax commission, and make a record of tbe board’s, not the commission’s action, on eacb abstract, and certify tbe samé to tbe assessor, who is required forthwith to add to tbe valuation of the' real and personal property of bis county tbe increase ordered, after it has been equalized by tbe state board.

Thei;e is nothing in these sections authorizing tbe tax commission to add to, or to order tbe assessor to add any amount to tbe original assessment, or to make a reassessment or supplemental assessment by a horizontal raise, or in any manner, or to make any assessment of any kind, and, what is more, it did not do so. Let us follow what was actually done, and see if we can discover where tbe tax commission ordered this horizontal raise to be added, or made any assessment. In tbe opinion of tbe commission, tbe real and personal property of Denver county was not assessed by tbe assessor at its true cash value, and it found that a 40 per cent horizontal increase, if added to bis assessment roll, would place tbe real and personal property of tbe county on tbe roll at its true cash value. What did it then do ? As tbe statute required, it transmitted a statement of this finding to tbe state board of equalization, and its function in tbe premises was ended. It could do no more, and it did no more. Tbe state board of equalization then began its work of equalizing, examined tbe abstracts of assessment of tbe counties as submitted by tbe tax commission, made a record of its action on tbe abstract of eacb county, certified tbe same to tbe county assessor of Denver county, and ordered him forthwith to add 40 per cent to tbe original valuation of bis county. Now,- under this statute, and these facts, wbo made tbe supplemental local assessment, tbe tax commission or tbe state board of equalization? Evidently tbe state board that ordered it, and I think tbe bolding that it was made by the tax commission is a mere subterfuge that would not be' tolerated by tbe courts in *392 any ordinary business transaction. I therefore am of the opinion that the state board of equalization attempted to make local assessments in the 58 counties of the state, and that it increases the aggregate assessed valuation of all the property of the state by $178,000,000, in round numbers, both of which it is prohibited from doing, and in which respects its action was and is void.