People ex rel. Regents of the State University v. State Board of Equalization

Chiee Justice Hayt delivered the opinion of the court. These actions are brought for the purpose of compelling the state board of equalization to correct and adjust the tax levies for the year 1894. The levies for that year, as declared at the September meeting of the board, are as follows: The foregoing levy omits a special tax of one tenth of one mill provided by the legislature for the State University, and reduces the levy for the State Normal School from five thirtieths of a mill to four thirtieths, and also reduces the amount of the stock inspection tax from one fifteenth of a mill to one thirtieth. — 227 — This action of the board was taken for the purpose of bringing the total levy within the limit fixed by the state constitution, viz: “ Sec. 11. The rate of taxation on property, for state purposes, shall never exceed four mills on each dollar of valuation.” It is claimed by petitioners that the special levies should have been made for the full amount provided by the various legislative acts, and that the reduction necessary to bring the total within the constitutional limit should have been made from the levy for general revenue. The duty of the state board in the premises is fixed by section 3849 of Mills’ An. Statutes: “ Sec. 3849. It shall be the duty of said board, in the absence of any legislation on the subject, to enter an order at its September meeting declaring what rate of taxes shall be levied for state purposes for the coming year, which in no case shall exceed the amount provided for in the constitution.” The duty of the auditor is fixed by the preceding section: “Sec. 3848. On or before the twentieth day of September in each year the said board shall complete its equalization, and the auditor.of state shall transmit to the clerk of each county a statement of the changes, if any, which have been made in the assessments, and the rate of taxes which is to be levied and collected within his county for state purposes for that year.” An examination of-the law on the subject, constitutional and statutory, discloses that primarily the state board of equalization has nothing to do with the levy of taxes. The board is created for the purpose of assessing certain property and equalizing and adjusting the valuation upon all property in the state. There is one apparent exception to the above rule. This exception has reference solely to the rate to be levied for state purposes, the legislature having provided with reference to this levy that “ there shall be levied and assessed upon the taxable real and personal property within the state in each year the following taxes: For state purposes — 228 — four mills on a dollar when no lower rate is directed by the state board of equalization.” * * * In respect to otherlevies the duty of the board is merely elérical in character. In the various arguments, oral and written, presented to this court on the part of those interested in the various special levies, it has been urged that all such levies should be accorded precedence, and the levy for general purposes be reduced to a rate to be ascertained and fixed by deducting the aggregate of the special levies from the maximum rate of four mills permitted under the constitution. The leading case upon the subject of tax levies in this state is that of The People ex rel. Thomas v. Scott, 9 Colo. 422. The principal contention in that case was whether the special levies should be considered as a part of the aggregate of four mills, beyond which the legislature could not go, or whether the legislature, in its discretion, might levy a tax of four mills for general revenue in addition to the special levies for particular purposes. Upon a careful review of the subject in the light of the constitutional provisions and statutes then in existence, it was decided that the special levies were to be taken into consideration in determining the aggregate, and that such aggregate could in no event exceed four mills upon the dollar. The action was brought by the people, at the relation of the attorney general, against.Scott, as county clerk of Arapahoe county, Scott having refused to extend a greater levy for general purposes than the rate of four mills on the dollar, less the rates required by law to be extended for the support of state institutions. In this position, he was sustained by the court. While no authorities have been cited upon the question, and none have been found by the court, we think that where excessive levies have been made, the true rule is to allow the levies precedence in the order in which they were passed, giving preference when necessary to levies for the purpose of meeting appropriations for the support of the executive, legislative and judicial departments of the government, as indicated In re Appropriations, 13 Colo. 316. — 229 — It has been urged by the attorney general with great force that the levy for general purposes is to be preferred over all others. In support of this contention he cites the opinion In re Appropriations, supra, and urges that the legislature cannot by indirection do that which it is inhibited from doing directly, but we do not find it necessary to determine the question thus raised in this case, as the general levy must be maintained for another reason. The opinion in the Scott Case has been cited in support of the conclusion that all special levies fixed by the legislature must first be provided for. A careful reading of the opinion in that case discloses that the special levies allowed precedence were fixed by the general assembly by acts prior to the act providing a four mill levy for state purposes, and were for this reason given a priority over the levy for general revenues. The opinion will not bear a construction which militates against fixing the priorities of all levies, including that for general revenue as of the date of the taking effect of the acts providing for the same. No question of preference as to the necessary expenses of the executive, legislative or judicial departments of the state were presented or considered in that case. It is conceded that the power of the legislature in the premises is plenary, except as limited by the constitution. It being restricted to a levj' of four mills, the question arises as to what levies shall be eliminated where, as here, an excessive levy has been made. The legislature having power to levy taxes aggregating four mills in amount, its mandates must, if not contrary to other constitutional requirements, be enforced until the four mill limit is reached. The power being then exhausted, further levies cannot be made. When the total levies aggregate more than four mills on the dollar, it is the plain duty of every officer connected with the levy and collection of the revenue to refrain from doing any act which falls within the inhibition of the state constitution. In re Appropriations, supra; People ex rel. Thomas v. Scott, supra. The levy for state purposes is as much a legislative levy as — 230 — the levy for any special purpose. It is a levy of four mills when no lower rate is directed by the state board of equalization. This, therefore, is to be treated as an absolute levy of four mills, subject to two conditions: First, that all prior levies, if not repugnant to constitutional requirements, shall be respected; second, a reservation of power in the state board of equalization to reduce the general levy. This levy is fixed by the legislature subject to the right of the state board of equalization to reduce the rate to an amount sufficient merely to meet appropriations, should the assessment justify such reduction. In determining the rate the board has only to take the appropriations and the assessment into consideration and fix a rate that will produce the required revenue. The tax thus levied is of primary importance. It is specially provided for by the state constitution in the following unmistakable language : “ The general assembly shall provide by law for an annual tax, sufficient with other resources to defray the .estimated expenses of the state government for each fiscal year.” Art. X, sec. 2. ' It is made the imperative duty of the legislature under this section to provide by law a tax sufficient to defray the estimated expenses of the state government for each fiscal year. Speaking of this provision this court has said: “ Considering the great care, thus taken to secure and guard such appropriations, we cannot doubt that the ordinary expenses of the legislative, executive and judicial departments of the state are the expenses primarily intended to be provided for by section % article X.” In re Appropriations, supra. Aside from the character given to this levy by the constitution, we find that it is prior in point of time to many of the levies designated as “special'levies.” It is a mistake to suppose that this levy is to be given a date as of the act of 1891. It goes back at least to the year 1885. The former act provided that “ there shall be levied and assessed upon taxable real and personal property within this state in each year, the following taxes: For state purposes four mills on a dollar, — 231 — when no lower rate is directed by the state board of equalization.” Session Laws of 1885, p. 318. The act of 1891, which purports to be an amendment of the above, is an exact rescript thereof, in so far as this levy is concerned. It must, therefore, be treated as a confirmation and continuance of 'the former act, and as having priority from the date of that act. The form of making amendments by declaring that a section shall be amended so as to read in a particular way has been a favorite one with our legislature since the organization of the state government. By it, obscurity and confusion are avoided, and the legislature is presented with the amendment and the previous act together, and intelligent action therebj' aided. Of such amendments Denio, C. J., in Ely et al. v. Holton, 15 N. Y. 595, says: “ The portions of the amended sections which are merely copied without change, are not to be considered as repealed and again enacted, but to have been the law all along.” See, also, Sutherland on Statutory Construction, see. 133. The same is true of the act providing for a special levy of one half of a mill for capítol building purposes. A levy for this purpose first appears in the Session Laws of 1883. The erection of a state, capítol building suitable for the purposes of this growing young commonwealth has been kept steadily in mind by each succeeding legislature, and levies for this purpose have been made at the same rate annually since the passage of the original act. The reasoning in connection with the levy for state purposes applies with equal force to the levy for the state capitol building, and this levy must, stand as of the date of the original act in 1883. The priority of the general levy for state purposes and the special levy for the state capitol building being thus ascertained under the principles announced, the standing of other special levies must be fixed as of the date of the taking effect of the several acts, and those levies which the legislature has attempted to authorize after the constitutional limit of four mills was reached fall under the constitutional inhibition and must be treated as void. Of these, the last in point of time — 232 — is the special levy of one tenth of a mill for the State University ; the act attempting to authorize this having been approved April 8, 1893. Session Laws of 1893, p. 475. The next in point of time is the act of 1891, entitled: “An Act to Provide for the Assessment, Levy and Collection of a State Tax, for the Support and Maintenance of Certain State Educational Institutions, Mentioned Therein; to Define the Duties of the County Treasurer in Connection Therewith; to Provide for the Election of a Treasurer of Each of Said Institutions, Define His Duties and to Repeal all Acts and Parts of Acts Inconsistent Therewith.” Acts of 1891, p. 338. By this act a levy of one sixth of one mill is provided for each of the following institutions: Agricultural College, School of Mines, Normal School and Institute for the Mute and Blind. As authority for a levy for these purposes is given in one and the same act, we cannot assume that the legislature intended to favor one of these institutions in preference to another, in the absence of words indicating such intent, but rather that all should stand on an equality; hence such reduction as may be found necessary to bring the total levy for all purposes within four mills should be made from these several levies fro rata. We shall not attempt to determine the constitutionality of this act at this time, as several of the beneficiaries under it are not now before the-court, and the necessity for an early opinion upon the other questions presented is of the greatest importance, as the time fixed for the certification of the levy has already passed. Moreover, the constitutional objection urged applies with greater force to the appropriations than to the levy, and may properly be considered hereafter, should it be presented in some appropriate proceeding. The stock inspection tax being one of the first provided for the legislature, the board was in error in reducing the levy for this purpose from one fifteenth of one mill to one thirtieth. No justification for this reduction has been offered, — 233 — and we are unable to sustain the action of the board in respect thereto. Our conclusion upon the other questions presented is : 1. That the action of the state board of equalization in fixing a rate of two and nine thirtieths mills for the levy for general revenue for the year 1894 was within the discretion of the board and cannot be changed by any court. 2. That the omission of the one tenth of a mill special tax for the State University was necessary in order that the total tax should be kept within the limit fixed by the constitution. 3. That it was proper to reduce the levy for the State Normal School, but that the reduction necessary should fall equally upon the four institutions named in the act, and not alone upon one. These conclusions have not been reached without difficulty. The revenues of the state have been sadly crippled by reason of the great financial panic that has seized upon the nation, and the loss may not fall where the public interests will be injured the least. It is not, however, for the courts to correct this inequality, but to construe the various statutes according to established legal principles, and where all cannot he given effect, to at least bring order out of the confusion by determining which are entitled to preference under the law. Fortunately, the time for the biennial meeting of the legislature is near at hand, when an adjustment may be had, if found advisable. The legislative department of the state has for many years made appropriations-in excess of the limit permitted by the state constitution. As a result, confusion and litigation have followed, and the credit of the state has thereby suffered. The plan of levying special taxes for particular purposes adds to, rather than lessens the difficulty. If the legislature would marshal the assets of the state and estimate the revenue necessary to run the state government, and levy a tax in gross sufficient with the revenue derived from other sources to meet all demands upon the state treasury, the matter would be greatly simplified. — 234 — In the case of the State University, No. 3440, the peremptory writ will be denied and the proceeding dismissed. In that of the State Normal School, No. 3441, a peremptory writ of mandamus will issue in accordance with this opinion.' No ordered.