People ex rel. Crawford v. Lothrop , 3 Colo. 428 ( 1877 )

By the Court.

At the threshold of this case we are confronted by questions of procedure arising under the Code, upon a correct solution of which will depend, in a large measure, the disposition of the demurrer interposed to the return to the alternative writ of mandamus. We are without adjudications of our own. By the Code of Civil Procedure hitherto untried in Colorado, adopted by the first State legislature, and by the recognized principles of sound pleadings and of the law not inconsistent with the provisions of the the Code, the fate of this demurrer must be determined. Section 307 of the Code (Cli. XXXII, concerning “the writ of mandamus”) provides that “ on the trial the applicant shall not be precluded by the answer of any valid objection to its sufficiency, and may controvert it by proof either in direct denial or by way of avoidance.” It is contended that as the relator in a mandamus proceeding is by this section given the right to demur ore terms at the trial, he is not at liberty to demur in advance of the trial. We cannot yield our assent to this position. If he goes to trial without demurring, he cannot afterward raise any question as to formal defects.

This section sanctions the doctrine that where the defense interposed is substantially defective the complainant is not “precluded at the trial from raising any valid objection to its sufficiency.” A proper interpretation-of this provision will not permit questions as to mere matters of form to be raised at the trial. It does not militate against the right of the complainant to demur at an earlier stage — a right elsewhere secured by the Code whose provisions are as applicable to the pleadings in a proceeding for a mandamus as to those in any action. People v. The Board of Supervisors of San Francisco, 27 Cal. 655.

A ground of demurrer going to the whole answer is that the several defenses therein set up are inconsistent with each other. Section sixty of the’Code provides “ the defendant may set forth by answer, or cross complaint, as many defenses and counter-claims or set-offs as he may have, whether the subject-matter of such defenses be such as were heretofore denominated legal or equitable, or both, they shall each be separately stated ; and -the several defenses shall refer to the causes of action which they are intended to answer in a manner by which they may be intelligibly distinguished.”

May the defendant, under this section, interpose inconsistent defenses ? It unquestionably gives him the right by his answer to set up as many defenses as he may have without any express' qualification as to whether they shall be consonant with each other. It is not doubted that each defense separately pleaded must be sufficient in itself. In determining the legal sufficiency of each defense, as a general rule reference must not be had to any matter dehors the defense itself, although it may be contained in the same answer. Each- defense separately considered must be complete. The several pleas or defenses must be examined independently of each other. If there be contained in a defense matters which are repugnant to each other, the defense is ill. But when one of several defenses in an answer is consistent with itself, yet, taken as a whole, is inconsistent with any one or all of the other defenses, is the answer bad ? Can courts, without a forced construction of the language of the section under consideration, deprive the defendant of the right which, by its natural import, it seems to confer ? This section, or a section whose provisions are quite similar, has been enacted in many of the States where the Code system prevails. Section forty-nine of the Practice Act of California, which was substantially re-enacted as section four hundred and forty-one, in the Code of Civil Procedure (1872) of that State, is almost identical with section sixty of our Code. The earlier decisions of the supreme court of that State, as to the proper construction of this provision and the true mode of reaching inconsistent defenses, if their interposition is inhibited by the section, whether by demurrer or motion to strike out, or to compel the defendant to elect by which defense he would stand, are in conflict. Young v. Bell et al., 46 Cal. 201; Klink and wife v. Cohen et al., 13 id. 623; Undias v. Morrell, 25 id. 31; Bell v. Brown, 22 id. 681; Wilson v. Cleaveland, 30 id. 200.

In the later case of Buhue v. Corbett, 43 Cal. 269, in which the question of inconsistent defenses was directly presented, Chief Justice Wallace, speaking for the court, all the judges concurring, says: “If the plaintiff desired to present that question, he should have moved to strike out the one or the other, or applied for an order compelling the defendants to elect as to which particular-one of them they would rely upon. But had he, even by motion, presented the question of the supposed inconsistency of the several defenses in the answer, we think that it would not have availed him. A party defendant in pleading may plead as many defenses as be may have. If a plea or defense separately pleaded in an answer contain several matters, these should not be repugnant or inconsistent in themselves. But the plea or defense regarded as an entirety, if it be otherwise sufficient in point of form or substance, is not to be defeated or disregarded merely because it is inconsistent with some other plea or defense pleaded. And there is no distinction in this respect between pleadings verified and unverified.”

These views appear to be in harmony with the letter and spirit of the section under examination.

Pomeroy’s Remedies and Remedial Rights, § 722. Under section 1, ch. LXX, concerning practice (R. S. 1868, p. 504), which is substantially the same in this respect as section sixty of the Code, any number of pleas, however inconsistent, could be interposed. Such was the uniform practice. Even if we were to follow the modified rule adopted in New York (Hopper v. Hopper, 11 Paige’s Ch. 46; Hollenbeck v. Clow, 9 How. Pr. 282), that the Code will not tolerate several defenses that are so inconsistent with each other that the proof of one would necessarily disprove the other, the defenses here interposed would not be obnoxious to that rule of construction. This ground of demurrer to the entire answer is not well taken. A question is made respecting the demurrer, that it must be taken as a demurrer to the entire answer, and cannot be treated as a separate demurrer, so that, if any one of the several defenses set up therein is sufficient, it must be overruled.

The demurrer in its commencement is stated in terms to be “to the answer of the defendant taken together” for insufficiency, and sets forth in extenso grounds of objection to each and all of the defenses interposed by the answer. Following this the relator in terms “demurs to the second answer of the defendant” for insufficiency, and sets forth grounds of demurrer to this separate defense.

In like manner he demurs separately to the third and fourth defenses.

This demurrer must be treated, not only as a demurrer to the whole answer, but as a separate demurrer to each separate defense demurred to therein.

The intention of the relator is evident to refer separately to the decision of the court, the legal sufficiency of each separate defense, as well as the legal sufficiency of the answer taken as a whole. Such is its plain language, and there is no room for any other construction. That a demurrer may be interposed to the whole answer, and to one or more of the defenses set up therein, seems to be contemplated by section sixty-one of the Code. The same section of the Code provides that so much of any pleading as may be irrelevant, redundant or immaterial may be stricken out on demurrer, and we will first consider the objections of this character made by the relator.

To the second defense it is objected (1) that the following is irrelevant, redundant and immaterial, to wit: “And this defendant denies that any such changes as appeared upon said statement were necessary to be made in the valuation of the real and personal property of said county of Arapahoe, for the year 1877, in order to equalize and adjust the valuation of the real and personal property of said county of Arapahoe, with the valuation of the real and personal property of the several counties of the State,’ ’ and (2) that the following is irrelevant, redundant and immaterial, to wit: “And that such changes were made contrary to the spirit of the Constitution and the laws of this State.”

The objections are well taken. The first denial is not in response to any allegation of the petition, nor does it tender an issue that can be considered by this court. The board was the sole judge as to what was necessary to the proper adjustment and equalization of the tax so long as it acted within its constitutional and statutory jurisdiction. This court can only inquire whether it did so act within the limits of its authority.

The second denial is the denial of a conclusion of law, which cannot form an issue capable of trial, and is not admissible under any system of pleading. Van Santvoord’s Plead, p. 416*.

The matter objected to in this defense will accordingly be stricken out.

To the third answer it is objected upon the same grounds that all after the phrase “ various counties of the State ’ ’ where it occurs in the answer, should be stricken out.

This claim is too broad and must be denied. While this portion of the answer contains much that may be deemed irrelevant matter it also contains allegations which tender an issue upon the power of the State board to increase the aggregate amount of the valuation as returned by the clerks of the several counties. In objecting to the specific matter as irrelevant, redundant or immaterial, the pleader should be careful to include in his specifications only such portions of tjie answer as are clearly obnoxious to the objection, for the reason that, if any portion of it should appear material to the defense or a proper disposition of the cause, the objection being entire, must be overruled. Van Santvoord’s Plead, p. 523*.

To the fourth defense it is objected (1) that the following is irrelevant, redundant and immaterial, to wit: “ The said David C. Crawford, auditor of State, George C. Corning, State treasurer, Archibald J. Sampson, attorney-general, do not and never did constitute a State board of equalization of the State of Colorado, and they, the said Crawford, Corning and Sampson, had no right, power or authority whatever, in the absence of the governor and secretary of State, to sit as a State board of equalization in the valuation of the real and personal property in the several counties of the State as returned by the several county clerks,” and (2) that the following is irrelevant, redundant and immaterial, to wit: “and that such changes were made with•out authority of law and were irregular, improper, null and void.”

Each of these allegations assert nothing but a conclusion of law and will be stricken out.

The third defense, set up in the answer, proceeds partly on the assumption that the State board of equalization can only act legally when all its members attend its meetings. This defense presents the question whether, when a board is created charged by law with the duty of exercising a public function, and when all the members thereof are duly notified of the time and place of its meeting, the presence of every member of such board is necessary to the validity of its action. When an authority is granted to several persons to transact business of a private nature, the general rule doubtless is that unless they act jointly in the execution of the authority, their acts are void.

In the case of a corporation, if a corporate act is to be done, by a definite body, as by a board of directors or trustees, where the charter and by-laws are silent, a majority, at least, must be present to constitute a quorum, but a majority of that quorum may do the act. Angell and Ames on Corporations, § 502; Green’s Brice’s Ultra Vires, 458; 2 Kent’s Com. *293 (12th ed.)

The State board of equalization is not in any strict sense a corporation, yet it has in some respects the similitude of a corporation. It is termed by the Constitution which creates it a board, and by that instrument it is endued with perpetuity. The board consists of the present incumbents of the offices of governor, State auditor, State treasurer, secretary of State and attorney-general and their successors in office. Like corporations, it must, by implication at least, keep a record of its proceedings. But here the analogy ends. The members of the board are only such ex-officio. The question recurs, can an act of the board be valid, done at its stated meeting, if every member be not present ?

The respondent contends for the broad rule laid down in the opinion of Chief Justice Eyre in the case of Grindley v. Barker, 1 Bos. & Pul. 236, that “ where a number of persons are intrusted with powers not of mere private confidence, but in some respects of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole.” This, as a general proposition, cannot be questioned, but so far as the opinion inferentially announces that the act of a majority, where all are duly notified, is not the act of the whole unless all are present, it was not responsive to the question before the court.

In that case the point involved was whether a condemnation of leather made by four out of six triers who had been duly appointed pursuant to statute, the entire number having assembled and having taken part in the trying of the leather, must be regarded as a condemnation by all six —not whether, if one of the triers had refused, or neglected to meet with the others, the remaining five would not have been competent to act. The rule as broadly laid down in that case, without any qualification whatever, is not, we conceive, the universally accepted doctrine in England. Rex v. Beeston, 3 Term, 592; Witherell v. Gartham, 6 id. 383; Doe dem. Read v. Godwin, 16 E. C. L. 37.

In this country, the dictum of Chief Justice Eyre, from which the broad, unqualified rule is sought to be deduced, has been frequently cited with approval, but seldom in a case where its application was necessary to determine the controverted question.

In Greene v. Miller, 6 Johns. 39, the point decided is that, where a controversy between private parties is, by agreement, submitted to five arbitrators, it is necessary that all should concur in the award, unless the agreement otherwise provided. This is distinctly put upon the'ground that a submission to arbitrators in such case is a delegation of authority for a mere private purpose. The citation of the suggestion in Grindly v. Barker, with approval, was obiter.

In the case of Brown v. Cook, 9 Johns. 360, the question presented was not whether the act of a meeting of the commissioners of highways duly convened would be valid, if a majority only attended, but whether without any meeting the commissioners could individually act and order the removal from the highways of an encroachment thereon.

• In Ex parte Rogers, 7 Cowen, 526, the point determined was that where three persons, who, by law, were constituted a board of appraisers convened- and. conferred, but only two joined in the award, the third, although actually present, declaring himself absent and refusing to unite in the- award, the act of the majority was the act of the board. The question whether if the dissentient member, being notified, had failed to attend, the act of the majority would not have been valid, was not properly before the court. Following the dictum in the case of Grindly v. Barker, the legislature of New York, December 10th, A. D. 1828 (2 R. S., Ch. VIII, tit. XVII, § 27), enacted as follows : “Whenever any power, authority or duty is confided by law to three or more persons, and whenever three or more persons or officers are authorized by law to perform any act, such act may be done and such power, authority or duty may be exercised and performed by a majority of such persons or officers upon á meeting of all the persons so intrusted or empowered, unless special provision is otherwise made.”

The decisions in the cases of McCoy v. Curtice, 9 Wend. 18; Downing v. Rugar, 21 id. 178; The People v. Whiteside, 23 id. 9; Keeler v. Frost, 22 Barb. 400; People v. Supervisors Chenango County, 11 N. Y. 571; Doughty v. Hope, 3 Denio, 253; Lee v. Parry, 4 id. 125, cited and relied on by counsel for respondent, were rendered subsequent to the enactment, and we must believe were controlled by the provisions of this section. They, therefore, have very little authoritative force in this case. But even under this section, as mandatory as it seems to be, it is conceded that if the absent member of the board had been notified, the act of the majority would be deemed to be the act of the board.

In the case of McCoy v. Curtice, cited supra, the court says: “ There can be no doubt that a contract' made by all of the trustees and signed by two would be binding, or that two could contract against the will of the third, if he was duly notified or consulted and refused to act.”

The opinion of the court in the case of the People v. Coghill, 47 Cal. 361, to the effect that in order to the validity of the assessment made by the board of commissioners it was necessary that théy should all act, both in viewing and assessing the swamp land, was founded upon a statute which in terms declared that “the three commissioners shall jointly view and assess upon each and every acre to be reclaimed or benefited thereby, a tax proportionate to the whole expense, and to the benefits which shall result from such works,” etc. (Stat. of Cal. 1867-8, 516.) It was held that the statute which, by express language and not by implication, merely required joint action, must be pursued.

The case of Charles v. The City of Hoboken, 3 Dutcher (27 N. J.), 203, but affirms the doctrine that where an authority judicial in its character is conferred upon a body consisting of two integral parts — in that instance of a mayor and council — it cannot be exercised by either in the absence of the other.

In the State v. Pratt, 5 Halstead (10 N. J.), 161, it was held that an order of filiation must be executed by the two justices jointly, and not separately. The majority rule could not have been invoked in this case.

The general rule to which the authorities advert is to, be applied with certain important exceptions and modifications which we will hereafter indicate. That eminent jurist, Chief Justice Shaw, in Williams v. The School District in Lunenberg, 21 Pick. 75, lays down the doctrine which we conceive applicable to the State board of equalization, with clearness and precision, a doctrine in harmony with the spirit and genius of our republican government.

The question before the court was, whether an assessment made by two out of a board of three assessors, the third having been notified, was valid, a question in principle somewhat analogous to the one under consideration.

Speaking for the court, the learned chief justice says : ‘ ‘ Where a body or board of officers is constituted by law to perform a trust for the public or to execute a duty prescribed by law, it is not necessary that all should concur in the act done. The act of the majority is the act of the body, and where all have had due notice of the time and place of meeting, in the manner prescribed by law, or by the rules and regulations of the body itself, if there be any, otherwise, if reasonable notice be given, and no practice or unfair means are used to prevent all from attending and participating in the proceedings, it is no objection that all the members do not attend, if there be a quorum. In the present case all three having had an opportunity to act, the act of two is sufficient.” In the Commonwealth ex rel. Hall v. The Canal Commissioners, 9 Watts, 466, in which the question referred to' the decision of the court was, whether the act of a board of appraisers (one of whose members had resigned) in making an appraisement of the damages done to the relator’s land by reason of the construction of a canal was valid, the court, Chief Justice Gibson delivering the opinion, affirmed its validity. The court substantially says: These appraisers were constituted a board for the performance of duties of a public, deliberative and judicial nature, and it may be safely said that any duty of an aggregate organ of the government may be performed by a majority of its members where the constituting power has not expressly required a concurrence of the whole, and further, “ that it is not to be supposed that the functions of the board would be suspended, to the detriment of the public, by the loss of one of its members.” And herein lies the important distinction between a mere private agency, and a public aggregate agency charged with the duty of exercising a governmental function. If one of several persons to whom is confided the execution of a private trust refuses to join with the others, or if, after his appointment and before the execution of the trust, he dies, the business may be put off till another time. Not so with public business of a deliberative or judicial character. It cannot be deferred to a more convenient season. By necessity, prompt action is required. The law exacts it. The public weal demands it. The framers of the Constitution and the people who adopted it, we think, did not intend, by the manner in which the board was formed, to place it in the power of one member to prevent its sitting.

The equalization officers by the • organic law are constituted a board eo nomine. They act as a board, as an aggregate body, and not as individuals. If the legitimate operations of the fiscal department of the State can be defeated by one member of the State board, either through obstinacy, sickness or for mere partisan or other purposes, then indeed does our revenue system, so far as relates to the equalization and adjustment of State taxes, rest upon a precarious foundation. Nothing less than the clear, express intention of the law-making powers, in the silence of the Constitution, that all the members of the board must meet and confer, would, in our opinion, warrant us in holding that the action of the majority of the whole number is not the action of the board where every member had an opportunity by due notice to attend its meeting. Authorities, in addition to those above cited, are not wanting to show that where a public duty is cast by law upon a board a majority may act. Caldwell v. Harrison, 11 Ala. (N. S.) 755; Sprague v. Bailey, 19 Pick. 436; Commissioners v. Lecky, 6 Serg. & Rawle, 165; Jewett v. Alton, 7 N. H. 253; Cooley v. O’Connor, 12 Wall. 398.

Were all the members of the board duly notified ? The statute requiring the board to sit at the office of the secretary of State at the capital, on the second Monday of August of each year, was notice to all the members of the board. Section 2281, General Laws.

The respondent failing to deny, except inferentially, in the third defense admits that the subsequent meetings were held pursuant to adjournment. At an adjourned meeting any business may be transacted- that might have been transacted at the stated meeting. It is, in fact, but a continuation of the stated meeting. Dill, on Mun. Corp. 223, 224, 225.

As all the members of the board were notified and a majority attended, the action- of that majority was not invalid on account of the failure -of- other members to attend.

We come -now to the consideration of a question which vitally affects- the public welfare. The answer alleges in substance that the auditor of State, State treasurer and attorney-general, assuming tó be and to act as the State board of equalization, increased the aggregate valuation of the real and personal property, over and above the valuations as returned by the clerks of the following counties as follows:

The county of Arapahoe................... $960,255 90

The county of Bent......................... 224,038 45

The county of Boulder......................• 630,654 70

The county of Douglas..................... 305,389 60

The county of Elbert........................ 409,008 95

The county of El Paso..................... 383,818 90

The county of Gilpin....................... 55,025 00

The county of Huerfano.................... 12,538 14

The county of Jefferson.................... 547,979 05

The county of Lake.........■............... 272 85

The county of La Plata . ................... 5,962 50

The county of Larimer.....-................. 305,330 85

The county of Las Animas.................. 24,648 93

The county of Park........................ 11,303 00

The county of Pueblo....................... 644,332 70

The county of Bio Grande.................. 2,694 50

The county of Boutt........................ 49,206 50

The county of Saguache.................... 28,568 73

The county of Summit...................... 408 72

The county of Weld........................ 889,545 20.

$5,490,993 32

That at the same time the board diminished the aggregate valuations of the following counties, as follows :

The county of Conejos........................ $1,852 20

The county of Costilla......................... 5,287 00

The county of Custer.......................... 28,834 05

The county of Fremont....................... 15,617 00

$49,590 85

That they made no changes of the valuation of the property of the other counties of the State.

That the net increase of the aggregate valuation of all the counties of the State above the aggregate valuation as returned by the clerks of the several counties was five millions four hundred and forty-one thousand four hundred and two and 47-100 dollars ($5,441,402.47).

Was it in the power of the board of equalization to thus increase the aggregate valuation of the real and personal property of the State above the aggregate valuation as returned by the clerks of the several counties!

Taxes are defined as being the enforced proportional contribution of persons and property levied by authority of State for the support of the government and for all public needs.

They are the property of the citizens demanded and received by the government, that it may be enabled to perform its essential functions. The demand is founded on the reciprocal duties of protection and support existing between the State and its citizens. Protection of life, liberty and property is the citizen’s return. The sovereignty of the State within its limits secures their enforcement. Their levy and collection is one of the highest acts of supreme power, in that it takes the property of the citizen by processes of necessity more or less summary and but gwcm-judicial.

History is full of its abuses, and American constitutions, statutes and decisions show with what jealous solicitude and care the power has been viewed and guarded. Limited by the people in their Constitution to specified purposes and within fixed rates, the mode and manner of its exercise prescribed and settled by statutory enactment,' the power wherever found, whether in constitution or statute, must still be strictly construed by the j udiciary. Thus at this point of danger to the citizen, the genius of our laws has stationed the triple guard of constitutional limitation, statutory regulation and judicial interpretation.

Any injury, then, involving the legality of a tax proceeding must be conducted in reference to these general principles, keeping in view that revenue is essential to the existence of the State, and that its collection in accordance with the mode prescribed by law, and in that mode only, is essential to the preservation of the rights of the citizen.

The question here presented is one touching the powers of the State board of equalization. Section 15, article 10 of the Constitution provides as follows : “ There shall be a State board of equalization, consisting' of the governor, State auditor, State treasurer, secretary of State, and attorney-general. * * * The duties of the State board of equalization shall be to adjust and equalize the valuation of real and personal property among the several counties of the State.”

The purpose of the creation of this board is imported in its title ; its duties, as stated in terms in the Constitution, are to '■'•adjust and equalize the valuation .of real and personal property among the several counties of the State.” Perfect equality in the assessment of taxes is unattainable, approximation to it is all that can be had.

The object of the provision is'to apportion as equitably as may be the burthen of the State government among the several counties, to prevent a. disproportionate share of the State tax from being thrown, upon any county or' counties by reason of the action of the local assessors. The grossest inequality might prevail in the valuations in the different counties, and possibly with reference to escaping a fair proportion of the State tax, and without a power lodged somewhere to adjust and equalize the several county valuations, the greatest injustice might be done, and there would be a practical annulment of the constitutional provision that “all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” It was to meet this difficulty and accomplish this end that the State board of equalization was created with powers to adjust and equalize. For this purpose the board is required by statute (General Laws, § 42, p. 756) to “ examine the various assessments as far as regards the State tax, and equalize the rate of assessments in the various counties whenever they are satisfied that the scale of valuation has not been adjusted with reasonable uniformity by the different assessors.” By section 43, the board is required to ascertain whether the “valuation of real estate in each county bears a fair relation or proportion to the valuation of all other counties of the State, and on such examination they may increase or diminish the aggregate valuation of real estate in any county as muchas in their judgment may be necessary to produce a j ust relation between all the valuations of real estate in the State, but in no instance shall they reduce the aggregate valuation of all the counties beiow the aggregate valuation as returned by the clerks of the several counties.” Under these sections it is claimed that the board has the power to increase the aggregate valuation of the real and personal property of the State over and above the aggregate valuation as returned by the clerks of the different counties.

This claim if well founded makes them practically a board of assessors, with power to fix and determine values as well as to adjust and equalize valuations.

In all cases of taxes by valuation an assessment is indispensable and primary. It lies at the foundation of the proceeding. The term as commonly employed embraces both the listing of taxable property and the determination of its value. This assessment is not only indispensable, but in making it the provisions of the statute under which it is made must be observed with particularity. If this were not compulsory; if the officers were at liberty to disregard important provisions of the statute in this initiatory step, the chief protection which the law has intended for individuals in tax cases would be removed. Cooley on Taxation, p. 259-60.

Our statutes provide (G-eneral Laws, p. 742, § 4) that “ all property, both real and personal, within the State, not expressly exempt by law, shall be subject to taxation.” They further provide (G-eneral Laws, p. 747, § 14) that “ alJL taxable property shall be listed and valued each year, and shall be assessed at its full cash value.” Let us then inquire where, under our Constitution and laws, this important power of determining the valuation of taxable property as a basis of taxation is lodged.

The Constitution provides (§ 8, art. 14) for the election in each county, each alternate year, of a county assessor. He is thus a constitutional officer, and though his duties are left unprescribed, the essential duties of an assessor must be presumed to have been contemplated. Is there not here a plain intention on the part of the people to preserve local control over the valuation of property for purposes of taxation ? This local control existed under the territorial form of government under which they had been living, and is this not an effort to secure it beyond contingency ? In view of this provision and of other constitutional limitations it may be gravely doubted whether it is competent for the legislative authority to take from county assessors the substantial control of valuations of property for State taxation, and vest it in a central authority. The question here presented is not what the legislative authority could do in this respect, but what it has done.

Following the provisions of the Constitution our statutes (General Laws, § 121, p. 247) provide for the election of a county assessor in each county of the State who shall give bond to the people of • Colorado and subscribe an oath for the faithful performance of his duties as assessor.

Section 25 (General Laws, p. 750) requires the county commissioners of each county to furnish the assessors suitable blank forms for assessment, and suck instructions as shall be necessary to secure full and uniform assessments and returns.

Section 21 (General Laws, p. 749) requires the assessor to leave with each resident of his county, etc., a notice requiring him to make out and return to the assessor a list of his property subject to taxation, and to leave him a blank form upon which the list may be made. This return by an. other section is to be under oath.

Section 23 (General Laws, p. 750) provides for the valuation of- certain property by the owners.

Section 32 (General Laws, p. 753) provides that all property shall be valued by the assessor, except such as may be required to be valued by the owner, in section 23 of the act.

Section 11 (General Laws, p. 744) provides that the assessor shall assess all personal property situate or being in his county.

Section 27 (General Laws, p. 751) provides for the assessor to assess in case of failure of owner to give in his list according to law.

Section 33 (General Laws, p. 753) provi4es for the delivery of the assessment roll by the assessor to the county clerk.

Section 37 (General Laws, p. 754) provides an oath to be taken by the assessor and attached to the assessment rolls, to the effect that he has ma4e diligent inquiry and examination to ascertain all property within his county subject to taxation ; that he has assessed it equally and uniformly according to his best judgment and information and belief at its full cash value; that he has faithfully complied with all duties imposed on the assessor by the revenue laws ; that he has not imposed any unfair assessment through malice nor allowed any one to escape a just and equal assessment through favor.

Section 38 (General Laws, p. 754) provides that the county commissioners of each county shall constitute a board of equalization for the correction and completion of the assessment rolls, with power to supply omissions in the assessment rolls, and,for the purpose of equalizing the same, to increase, diminish or otherwise alter and correct any assessment or valuation. It provides in case of change of the assessment of any tax payer, that he shall be notified and have a hearing before the board. It constitutes them a quasi court to hear any and all complaints of the tax payer touching the valuation or listing of his property, with full power to adjust and correct the assessment roll as in their/ j udgment they may deem proper and right, thus adding statutory duties to their constitutional duty “ to adjust and equalize.” Other sections of the law might be cited, but those mentioned suffice for our purpose. We find here a complete system with well-defined and minutely prescribed rules and regulations guarding the property right of the citizen ; guarding equally the revenue necessities of the State, acting through the instrumentalities of owners and the assessors chosen by the electors of the several counties, listing, valuing, and returning taxable property under the sanction of an oath, with the board of county commissioners acting as a board of appeal and review, all for the one purpose of ascertaining, determining and fixing the value of taxable property in each county of the State as a basis of taxation. The statute provides for the transmission of these assessment rolls of the county to the board of equalization and contemplates that one assessment shall be made for both State and local taxes.'

The only exception to this that we find is the express provision for the assessment of railroad property by the State board of equalization. For this, in the opinion of the legislature, there was, doubtless, an obvious necessity and authority, found in the last clause of section 15, article 10 of the Constitution, which provides that the board shall perform such other duties as shall be prescribed by law. The assessor is thus made an integral part of the revenue system which not only thus specifies and defines his duties, but assigns to other officers and boards equally well-defined and separate duties. The assessor shall list and value. The board of commissioners shall equalize, adjust, increase and diminish, supply omissions and correct errors and hear complaints. The county clerk shall prepare assessment rolls and compute and extend the tax therein. The State board of equalization shall adjust and equalize valuations, and lastly, the county treasurer shall collect the tax. In seeking for legislative intent, reference must be had not only to the form and phraseology of the particular section under consideration, but any part must be viewed in connection with the whole, so if possible to harmonize and give effect to the whole.

Looking then to the provisions of the Constitution and the statute, we are clearly of the opinion that the power to fix and determine the valuation of taxable property is lodged by them in the assessor and the board of county commissioners of the several counties of the State, and that when they have under the law performed this duty and exercised •this power, that the sum of the valuations of the several ■counties so by them found must be taken as the aggregate valuation of all the property in the State, and is conclusive .and final as against the State board of equalization. The State board may, for the purpose of adjusting and equalizing, increase the aggregate valuation of one county, and decrease the aggregate valuation of another, but they have no power to increase the sum of all the valuations of the several counties of the State. That aggregate valuation has been found for them, and fixed by the authority and in the mode prescribed by the law. This view is not only sanctioned by the force of the general provisions of the statute ■considefed as a whole, but also by the phraseology of the ■sectious under consideration. The board is to adjust and ■.equalize the valuation. This term valuation here imports values already estimated and fixed and must be referred for íthe measure of its force and meaning to the mode prescribed by law for estimating and fixing valuations. The aggregate material with which the board can deal is thus limited ; they may adjust and equalize it among the several counties, but they cannot add to its volume.

It is claimed that in that the statute prohibits the board from decreasing “the aggregate valuation of all the counties below the aggregate valuation as returned by the clerks of the several counties” (General Laws, p. 756, §43), the power to increase must be implied.

A power so vast and important, involving the integrity of constitutional limitation, cannot be founded on an implication of law. A statute in derogation of the rights of property, or which takes away the estate of the citizen, must be strictly construed. Sharp v. Spier, 4 Hill, 76; Bloom v. Burdick, 1 id. 130.

Section 11 of the Constitution is as follows : “The rate of taxation on property for State purposes shall never exceed six mills on each dollar of valuation, and whenever the taxable property within the State shall amount to one hundred million dollars, the rate shall not exceed four mills on each dollar of valuation, and whenever the taxable property within the State shall amount to three hundred million dollars, the rate shall never thereafter exceed two mills on each dollar of valuation, unless a proposition to increase such rate, specifying the rate proposed, and the time during which the same shall be levied, be first submitted to a vote of such of the qualified electors of the State as in the year next preceding such election shall have paid a property tax assessed to them within the State, and a majority of those voting thereon shall vote in favor thereof in such manner as prescribed by law.”

If this claim of power on behalf of the State board to increase the valuation be admitted, why limit in the Constitution the per cent that it may levy? It matters little whether the limitation be one mill or ten, if increase of valuation be unrestrained. Limited upon the one hand, it is unlimited upon the other. We may neither calculate its extent nor challenge its pretensions. Over five million dollars increase this year — it may be over fifty million dollars increase the next.

Under this construction of the statute the efforts of the people to establish and maintain legitimate restraints on the power to tax will have been unavailing, and the checks and guards which they have embodied in their Constitution to that end, cease to be of practical force or value. The spirit of the law and not “the letter which destroys” must prevail. We cannot believe that any such grant of power to the State board of equalization was within the intent of the legislative authority.

We are, therefore, of the opinion that the board of equalization in making the increased valuation acted without authority of law, and that their action in this', respect is void.

Every county, the aggregate amount of whose valuation was increased, must be presumed to have been assigned some portion of this added burthen of taxation. The county of Arapahoe comes within this class, and the defense of the respondent must be held good.

Upon the question of the levy of the State tax by the board of county commissioners before the county clerk could be called upon to compute and carry out the tax on his rolls, upon which counsel were heard at chambers after the argument in chief, we are of the opinion that no levy was necessary on the part of the board of commissioners. ■Section 2283 (General Laws, p. 756) provides that “ on or before the first day of September, in each year, the auditor shall transmit to the clerk of each county a statement of the changes, if any, which have been made in the assessment, and the rate of State tax which is to be levied and collected within his county, which, however, shall not exceed three mills on a dollar of the valuation, and when the board fixes no different rate, or if, for any reason, the board fail to sit, or the county clerk should fail to receive the statement of the rate of tax ordered by them, that rate shall be deemed to be levied, and the clerk of each county, in making up the tax list required by this act, shall compute and carry out, in the proper column, a State tax at the rate aforesaid; provided, however, that for the year 1877, the rate of taxation shall he for State purposes five mills on the dollar, unless the State board of equalization shall fix a different rate.”

In this section the intention of the legislature is evident, to provide against contingencies that might defeat and leave unprovided the State revenues. The force of the section is to levy, by legislative declaration, a State tax for the year 1877, of five mills on each dollar .of valuation in any one or more of the following cases: (1) Where the board fixes no different rate; (2) where, for any reason, the board fail to sit, or what, in our opinion, is the same thing, where for any reason its sitting shall prove ineffectual ; (3) when the county clerk shall fail to receive the statement of the rate of tax ordered by the board.

Upon the happening of any one or all of these contingencies the law intervenes and makes the levy, and it becomes the duty of the clerks of the several counties in making out the tax list, in the language of-the statute, to “ compute and carry out in the proper column a State tax ’ ’ at the rate fixed by law. As the record discloses that no different rate was fixed by the board, and as in our mind no v,alid changes were made by it in the valuations of the different counties, this levy must be computed upon the valuations as returned by the clerks of the several counties as the basis of the tax.

Whether if a different rate had been fixed by the board, it would have been necessary, in view of the provisions of section 2284, for the board of county commissioners to make a levy, it is not necessary for us to determine.

The demurrer, except as to the irrelevant, redundant and immaterial matter of the answer, which we have ordered stricken out, is overruled.

Demurrer overruled.