The opinion
Mr. Justice Knous
dissenting in part.
While I do not oppose a reversal herein, I am unable to concur in the disposition made by the majority opinion.
In the case at bar the taxpayer was of the opinion that “his property had been assessed too high” (§114, с. 142, ’35 C.S.A.) for the year 1938, and that the assessment was not uniform with that “upon other similar assessable property similarly situated.” §115, c. 142, ’35 C.S.A. He, therefore, protested the assessment, “appeared before the assessor and made known to the assessor the facts in the premises.” §114, supra. In effect the assessor admitted that the taxpayer’s property was assessed too high, but overruled the protest *353 upon the basis that it was impracticable and inconvenient at the time to revalue all of the downtown property in Denver which he said, of necessity, would have to be done before relief could be afforded this individual taxpayer. The taxpayer then “appealed to the district court.” §115, supra; §49, c. 45. It would seem obvious that under section 115, supra, the first function that tribunal should perform was to determine whether the assessment, concerning which the appeal was taken, was “manifestly excessive, fraudulent or oppressive.” If one or more of these factors entered into the valuation fixed by the assessor, it then was the duty of the court to fix the “true” or “just” or “full cash value” of the property in order that it might properly adjudge the amount of the refund to which the taxpayer was entitled. The district court, after consideration of all the evidence, found as a fact that the 1938 assessment was “manifestly excessive.” Under the record I am unable to understand how the finding on this issue of the case could have been otherwise, since, as has been mentioned, the assessor practically conceded that the valuation on the property here involved was excessive for that year and in 1939 voluntarily reduced the assessment on this identical property more than twenty-five per cent and at the same time reduced the assessment about fifteen per cent on all properties within the “Fifteenth Street District,” and this, notwithstanding all witnesses agreed that the conditions of the area were approximately the same in 1938 as in 1939. Commendable as was this act of alleviation of further injustice, it also was a confession that such existed in the previous year. Nevertheless, and without regard to these admissions and the unchallenged finding that the 1938 assessment on the property of the taxpayer was “manifestly excessive,”' the majority opinion remands the cause with “directions to dismiss the complaint.” If the conclusions of the majority opinion are sound, at the most the cause should be remanded for retrial to deter *354 mine the amount of refund of the excessive tax to the taxpayer. In other words, even if the trial court did adopt an erroneous formula in fixing the valuation for the determination of the amount of the refund properly due the taxpayer, concerning which I am in doubt and because thereof would concur in a simple reversal, it would seem certain that the taxpayer finally should not be precluded from relief because of that circumstance.
I do not believe, however, the court erred in receiving evidence of the net income of the property here involved and concerning other comparable properties. Net income is one of the factors properly to be considered in fixing value for ad valorem taxation. See §66, c. 142, ’35 C.S.A.; Fellows v. Grand Junction Sugar Co., 78 Colo. 393 , 242 Pac. 635 ; Tax Commission v. Midland Terminal Ry. Co., 93 Colo. 108 , 24 P. (2d) 745 .
I am also convinced that other falacious theories permeate the majority opinion, which if followed as precedents in future cases in the determination of these questions will jeopardize the efforts of taxpayers suffering from excessive, fraudulent or oppressive assessments in attempting to secure relief through the procedure adopted by the taxpayer in the present case.
The majority opinion recites that one of the controlling questions involved in a case of this character is: “Was the action taken by the assessor in overruling the objections arbitrary?” It then proceeds to demonstrate that in denying the protest of the taxpayer, made under section 114, supra,, the assessor did not act so. As I view the matter this question, while possibly pertinent of consideration where fraud is charged, is in no manner controlling in a controversy such as that before us where the honesty of no one is challenged. The matter of which the taxpayer was complaining, both at the hearing before the assessor and in the district court, was the alleged excessiveness of the original valuation. If it is violative of the Constitution and statutes, relief to the 'taxpayer must follow regardless of the attitude taken by the as *355 sessor at the protest hearing. At that time the restrained conduct of the assessor may not validate an excessive assessment previously made. Nor in such case is the convenience of the assessing authority a good ground for denying immediate relief.
Next, where no actual fraud is charged, I am unable to conceive how the good faith of the assessor in making the original assessment can have any relation to the question of whether such valuation was manifestly excessive. It seems to me that an excessive assessment, even though made in the best of faith, would be just as oppressive to the taxpayer and certain to effect the confiscation of his property as if maliciously imposed.
Further, as I understand the majority opinion, more threatening than all others is the promulgated theory that the excessive assessment of a given property may be justified by the circumstance that other property of similar character in the same area also is admittedly likewise excessively valued for taxation purposes. This declaration purportedly is based upon the uniformity clause of the Constitution. Art. X, §3; see, also, section 115, supra. Under this doctrine where an individual taxpayer appeals, as was done in the case at bar, notwithstanding he might conclusively establish an excessive valuation, he could be denied relief on a showing by the taxing authorities that other property similar to his in the same area likewise was assessed on the same erroneous basis. I cannot believe the uniformity clause was designed to justify any such conclusion.
I am, therefore, of the opinion that the case should be remanded with directions to the district court to proceed to determine, in accord with section 115, supra, the amount of refund to which the taxpayer is entitled.
Mr. Justice Francis E. Bouck and Mr. Justice Young concur in this dissenting opinion.