City & County of Denver v. Pitcher

54 Colo. 203

• Court: Supreme Court of Colorado
• Decided: January 15, 1913
• Docket: No. 7981, No. 7982
• Status: Published

Opinion

Mr. Justice Gabbert

delivered the opinion of the court r

The main contention on the part of the respective plaintiffs in error is, that the defendant, in making the ten per cent, horizontal reduction, is committing an act which the statutory provisions prescribing his duties do not authorize, and that in so doing he is acting directly contrary to such provisions; while on the part of the defendant the claim is made that he is performing an act of a governmental and executive nature, which the courts are without authority to control. Which of these contentions is correct turns upon the consideration of the constitutional, statutory and charter provisions above quoted, or to which reference has been made, and applicable to the facts stated in the complaints.

An assessor is a constitutional officer, but his duties are prescribed by statutes, which provide that he shall list and value property in his county for the purpose of táxation. The statutes evidently contemplate that this shall be completed before the first Tuesday in August of each year, as on that date all county assessors are required to; meet at the state capítol for the purpose of comparing their assessments before making affidavit thereto, when, if any assessor is satisfied that the value of any class of property in his county is too high or too low, it is made his duty to correct the same. When such correction is made, if necessary, or if it is found a correction is not required, then the assessment roll is considered completed, for we find the next step required is that when the assessment roll is completed, each assessor, on or before the first day of September in each year, shall make an affidavit thereto before the state auditor, to the effect that in such roll he has assessed all the taxable property in his county at its true value. Immediately thereafter, each assessor is required to make in duplicate an abstract of the assessment in his county, showing the amount, kind and value of the property therein assessed, one copy of which shall forthwith be transmitted to the auditor of state. The state board of equalization is required to convene on the first Monday in October, in each year, for the purpose of examining, adjusting and equalizing the assessments in the several counties, which it does by an examination and comparison of the abstracts furnished by the county assessors. If, from such examination, or from any other source, the board is satisfied that taxable property in any county has been omitted, or property assessed too low, then the board, upon reasonable notice to the delinquent assessor, may require him to forthwith make such corrections as will make the assessments in his county conform to the statutes, and unless the assessor so directed desires to appeal from such order, he shall at once make the corrections necessary to comply with the directions of the state board of equalization.

In its logical order, the next, and final, act of the state board of equalization consists in a compliance with the statute which requires this board, on or before the third Monday of October, in each year, to transmit to the clerk of each county a statement, which, among other things, shall state the rate of tax to be levied in each county for state purposes. This-statute makes it the duty of the assessor of each county, in making up the tax list, to compute and carry out, in the proper column, a state tax at the rate certified by the board. The evident purpose of the statutory provisions so far considered is two-fold: First, to secure a uniform valuation of property in the state upon which to levy a tax for state purposes in compliance with the constitution, which requires that taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax; an$l next, to furnish the state authorities with the total assessed valuation of the taxable property in the state, so they may be advised as to what tax rate is necessary in order to raise sufficient revenue for state purposes.

In 1911 (Session Laws of that year, p. 612 et seq.), the general assembly passed an act entitled “Tax Commission,”' but, so far as advised from the briefs of counsel, no changes were made affecting any question involved in this case, although, the tax commission is now vested with some of the powers formerly possessed and exercised by the state board of equalization. They do not appear to be antagonistic to any of the sections' which we have quoted, or to which we have referred, but are merely additional, or impose upon the commission some of the duties which the state board of equalization was theretofore required to perform; but, as stated, our attention has not been directed tg any of the provisions of the act which could in any manner affect the cases under consideration, except that by sections 13, 15 and 36 general supervision over the administration of assessing officers is conferred upon the commission, and to this end, the commission is empowered to enforce all laws for the assessment, levying and collecting of taxes, and may cause to be instituted such proceedings as will remedy improper or negligent administration of the tax laws of the state, and may compel compliance with the provisions of the act and with the orders of the commission by proceedings in mandamus, injunction, or other proper civil remedies.

We now come to the duties and functions of the assessor and county commissioners of each county, in connection with the assessment and the levy of taxes. The statute makes it the duty of the assessor to submit to the county commissioners of his county, on the first day they meet as a board of equalization, the complete assessment of his county. These officials constitute the county board of equalization for the purpose of equalizing and adjusting assessments among the taxpayers of their respective counties. They are required to hold two meetings each year, one commencing on the first Tuesday in September, and the other on the third Tuesday of the same month. By reference to the time when each assessor is required to transmit the auditor of state an abstract of the assessment in his county, it will be seen that the assessor is required to submit his assessment to the county commissioners of his county at substantially the same time. This board shall require the assessor to supply any omissions in the assessment roll which may come to their notice, but except as an incident of equalization, they have no authority to' make any increase or decrease of the total valuation of the property of the county, as exhibited by the assessment roll furnished them by the assessor.

The fiscal year of each county commences on the first day of January of each year. It is the duty of the board of county commissioners, and within the last quarter of each fiscal year, and at the same time the annual tax levy is made, to pass what is termed the annual appropriation resolution for the next fiscal year, by which there shall be appropriated such sums as may be deemed necessary to meet and defray the necessary expenses and liabilities of the' county for the next fiscal year. This resolution shall specify the object for which the appropriations are made, the amount appropriated for each purpose, and further appropriations at any other time within, such fiscal year are expressly inhibited. The board is authorized to levy taxes, and this authority may be exercised on the first Monday in November in each year by the levy of the requisite tax for school and other county purposes, or earlier,, if the rate of tax to be levied for state purposes has been received from the auditor. The purpose of these-provisions is-to secure a uniformity of' taxation in each county for county-purposes, and also- to enable the commissioners in each county to determine what rate of tax is necessary to meet the county expenses for the ensuing fiscal year. As soon as practicable-after the taxes have been levied by the commissioners, and not later than January first, each year, it is made the duty of the assessor to- extend the taxes on the assessment roll, and deliver the same to the county treasurer. By the charter provisions of the city and county of Denver, the board of supervisors are required to perform the acts and duties by boards; of county commissioners, as a board of equalization, and the assessor, the acts and duties of a county assessor. It is also-made the duty of the assessor, as soon as the assessment roll' is' ready in each year, for the extension of taxes, in accordance with the general law, to certify the total value of the property assessed within the limits of the city and county of Denver to-the city council. The fiscal year of the city and county begins on the first day of January, and ends December 31st, each year. The mayor is required, on or before the first day of December, each year, to present to the city council a detailed statement of the amount necessary to defray the expenses of the city and county government for the ensuing fiscal year; and! also, the amount necessary to raise, by taxation, with which to pay interest on bonded indebtedness, and to provide for sinking funds. The council shall then meet in joint session between the first and third Mondays in December of each year,, and make a budget of the estimated amounts required to pay the expenses of the city and county for the next ensuing fiscal, year, based upon the mayor’s budget, and for other purposes, required by the charter. After this estimate is made, it is-signed by the mayor and clerk and filed in the office of1 the auditor. Appropriations shall then be made by ordinance for the ensuing fiscal year, to the several purposes named. The-necessary taxes are then levied to meet these appropriations, including state, school and special levies, which are then certified to the assessor, who is then required to extend the-same upon the tax roll, and deliver to the treasurer for collection. The purpose of these several provisions are the same-as stated in considering the duties and acts of commissioners- and assessors, in assessing the property in counties and the-levy of taxes upon property therein. In this connection, it should be noted, that in the city and county of Denver the-total amount appropriated in any one year shall in no- case exceed ninety per cent, of the anticipated revenues for that year, as estimated upon the’tax levied on the assessor’s valuation,, and from other sources of revenue, and that the council is inhibited from ordering the payment of money for any purposes-in excess of the amount appropriated for the current year, and that any liability incurred in any one fiscal year shall' not-be a charge upon, or paid out of the income or revenue of, any other fiscal year.

According to the averments of the respective complaints-the defendant made the assessment required by law; thereafter met with the assessors of the counties of the state; compared his assessment with the assessments of property in other counties, but did not change his assessment; that he prepared" ah áb'stract of the assessment made by him, and delivered it to-the state auditor; that this abstract was delivered to the state board of equalization; that no changes were made therein by this body; that it was certified to the proper officials; that he certified the total assessment made by him to the city council; that the board of equalization of the city and county of Denver made no changes; and that thereafter the taxing authorities of that municipality levied a tax for the ensuing year based upon the valuation certified by the defendant. By the complaint on behalf of the tax commission, it is not expressly averred that the state authorities have levied a state tax; but as the time for doing so had expired when the commission brought its action, and as it is averred that state officials have issued warrants based upon and in anticipation of the revenue to be derived from taxes collected upon property of the city and county of Denver, it will be assumed that such tax was levied. According to the respective complaints, the reduction in the assessed valuation of property was proposed, and attempted, to be made after all these steps had been taken; so that the next question to consider, in connection with these facts, is, the changes in the assessment roll which an assessor is authorized to make, after delivering the abstract of assessment to the state auditor.

The statutes bearing on this subject require him to make such changes as the state board of equalization direct, to supply omissions in the assessment roll as may come to the notice of the board of county commissioners of his county, and necessarily perform the same act when directed by the board of supervisors of the city and county of Denver in their capacity as a board of equalization. He may also, on the application of a taxpayer whose property has been twice assessed, or whose property has been assessed which is exempt, or of which the taxpayer was not possessed when assessed, or has been assessed too high, correct such assessment; but these applications must be made ánd hearings thereon concluded before the first day of the meeting of the county board of equalization. He may also supply omissions and correct errors or defects in the tax roll when it can be ascertained therefrom what was-intended, at any time before the return of the assessment roll to the treasurer; but these corrections are merely clerical. This, embraces all the changes he is authorized to make after the abstract has been delivered to the state auditor, so that it is-evident he is'not authorized by statute, either directly or indirectly, to make the horizontal reduction complained of; andf hence, it must logically follow, that except in the particulars, above mentioned, his roll is deemed complete upon delivery of the abstract of assessment to the state auditor. If the defendant assessor desired to make uniform reduction on the valuation of property in the city and county of Denver, the time for him to have done so was when he was vested with that power, which was after meeting with the county assessors,, and before he delivered his abstract to the state auditor, for after such act, according to the statutes, his assessment roll1 was completed, and he could make no change thereafter, except as specifically authorized. That other changes than those mentioned are inhibited, is made manifest by the fact that a board of county commissioners (and in the city and county of Denver, the board which performs its functions) is expressly-inhibited from making any change in the way of increasing or decreasing the total valuation of the property of a county, as-exhibited by the assessment roll furnished by the assessor, except as an incident of equalization, and that any changes which the assessor is authorized to- make, on the application of1 a taxpayer, must be made before the first meeting of the county board of equalization.

The wisdom of these provisions is evident. The assessors meet at the state capítol for the purpose of comparing assessments, so that there may be a uniform valuation of property of the same classes in the state. If such uniformity does not exist, they make the corrections which will bring about this result. The abstracts of assessment are then delivered to-the state auditor. The state board of equalization may order changes if they find the ■ different classes of property in the state have not been uniformly assessed. Upon the total valuation as shown by the abstracts of assessment, a state tax is levied. Upon the total valuation of the assessments in each county, the county authorities levy taxes for county purposes; and should the assessors, after these levies are made, have the authority to make a horizontal reduction in the total assessed valuation of their respective counties, the revenues which the state and county authorities are required to provide by specific rate of taxation, would be reduced accordingly. The defendant has no authority to do this. If the taxes are too high for state purposes, or too high for the city and county of Denver, the fault lies with the taxing authorities, who, alone, are responsible to the people for this result, and he cannot correct these mistakes if they have been made, by doing an act which the statutes do not require him to do, but which they inhibit him from doing. Wfe reiterate, that the time for him to1 have made the reduction he is now attempting to make, if justified at all, was when he met with the county assessors.

The next question to determine, is, whether a court can inhibit the defendant from making the proposed reduction. It is true, as contended by counsel for defendant, that the judicial department of the state has no power by an injunction to control an official in the exercise of his official functions of a governmental and executhe nature — People v. District Court, 29 Colo. 182 — but that is not this case. On the contrary, it clearly appears that defendant is violating the Taw relating to assessments by doing, or proposing to do, an act which the law inhibits him from doing, and with respect to which he has no authority or discretion, whatever. In other words,, he is attempting to undo a completed act. After an assessment has been completed, the assessor may not alter or change it unless he has express statutory authority to do so. Cooley on Taxation, 3rd Ed. 765. In applications for relief by injunction against the acts of public officials, the material question, generally speaking, is, whether they are acting within the scope of their authority, or whether they are transcending that authority. If they are doing the latter, and the resulting injury is not susceptible of reparation by proceedings at law, they may be enjoined from the commission of such illegal act.— High on Injunctions, 4th Ed., secs. 1308-1309.

It is manifest that an action at law cannot give the plaintiffs adequate relief, or any relief whatever, and that an injunction to restrain the defendant 'is the only remedy which will prevent the wrongful acts of the defendant, and give plaintiffs the relief to which they are entitled, for the obvious reason that it is the duty of the defendant to extend the levy upon the assessment acted upon by the officials authorized to levy such tax, and deliver the tax roll, as thus completed, to the treasurer for collection. This is a duty imposed on the defendant by law with respect to which he has no discretion, and is, therefore, ministerial, and hence, a duty which a court can compel him to perform. — Cooley on Taxation, 3rd Ed., 1359.

Counsel for defendant contend that a statutory remedy is provided, and that, therefore, the actions at bar cannot be maintained. This contention is based on ssection 5636, R. S., which provides that if, in the opinion of the state board of equalization, any county assessor has assessed the property of his county manifestly below its true value, that then the board, upon reasonable notice to the delinquent assessor, may require him to make it conform with the statutes. In our opinion, this section does not apply to an assessor who' is making a horizontal reduction in a completed assessment, but covers a case where the valuations of property assessed, as originally returned and from which the abstract of assessment is compiled, that is lodged with the state auditor, when it appears that such assessment does not, for any of the reasons enumerated in the section, comply with the statute.

It is also urged on behalf of defendant that there is no allegation of facts in either complaint from which it appears that irreparable injury will result to plaintiffs or either of them, by the act of the defendant in reducing the assessed valuation, • in that it is not charged upon the part of either the state or city that they will not have sufficient revenue to‘ pay the expenses and debts of' the several departments of government. That question is in no sense involved, as the case turns entirely upon the proposition, that the proposed reduction by defendant is, ipso facto, illegal, for the reason that the law inhibits him from making it.'

The judgments of the district court are reversed and the causes remanded, with directions to- overrule the demurrers, and for such further proceedings as will harmonize with the views expressed in this opinion.

Reversed and Remanded with directions.

Decision en banc.