Hutchinson v. Herrick , 70 Colo. 534 ( 1921 )

Mr. Justice Burke

delivered the opinion of the court.

A portion of section 5763 R. S. 1908 (L. 1902) reads as follows:

“When any livestock is driven into a county for the purpose of grazing therein, at any time in any year, it shall be liable to be assessed for all taxes leviable in that county for that year, the same as if it had been in the county at the time of the annual assessment, and it shall be lawful for the county assessor in each county of the state of Colorado, to assess cattle, sheep and horses, as of any date such assessor may desire, providing that the same shall be assessed as of some day between the first day of January and the thirty-first day of December in each year.”

This clause was held unconstitutional by this court. Carbon Co. S. & C. Co. v. Routt Co., 60 Colo. 224, 152 Pac. 903. Prior to the decision in that case the section had been amended by re-enacting the clause above quoted and adding thereto a “proviso” of which the following is a part:

“Provided, that cattle, sheep or horses that range or are kept or herded in one county a part of the year and range or are kept or herded in another county the remaining part of said year shall be assessed and taxed in either of said counties, and such taxes shall be divided between said counties in proportion to that part of the year said stock remained in each countyChap. 191, L. 1911, p. 553.

Section 5608 R. S. 1908, reads:

“Except as otherwise provided herein, personal property shall be listed and assessed in the county where it shall be on the first day of April in the then current year.”

It appears from the complaint in this case that on April 1, 1916, plaintiff resided in Delta County, Colorado, where all his livestock was situated and had been duly assessed for the year; that thereafter, on the ground that some of this livestock ranged in Gunnison County during a portion of the year, it was likewise assessed there, under authority of the act of 1911; that a similar situation occurred in 1917, 1918, 1919 and 1920; that the treasurer of Gunnison County issued his distress warrant for the taxes so assessed, and, by virtue thereof, the sheriff has seized certain of plaintiff’s livestock and advertised the same for sale. Plaintiff prays that the assessment be held void, that the sale be prohibited, and that further proceedings in this, and similar cases in the future, be enjoined. Defendants demurred to this complaint on the ground, inter alia, of insufficient facts. The demurrer was sustained. Plaintiff elected to stand on his complaint, and to review the judgment thereupon entered against him he brings error.

It was agreed below, in open court, that if the act of 1911 was unconstitutional judgment should be entered for plaintiff, if constitutional for defendants. The demurrer was argued and submitted solely upon this ground.

In support of the constitutionality of the act of 1911, it is contended that the so-called “proviso” can, and should be, upheld as an independent act; that so considered, the title is sufficient; that the purported amendment of an invalid act is not, of necessity, void; that the new portion of the act contains none of the objectionable features which rendered said section 5763 R. S. 1908, unconstitutional; that it is complete and independent in itself and every presumption is in favor of its constitutionality. For the purposes of this case all these are admitted. The fact remains that the livestock in question was subjected to a double assessment and that the assessment in Gunnison County was contrary to said section 5608, R. S. 1908. The sole authority for both is to be found in that portion of the act held unconstitutional in the Carbon County case, supra. The judgment is accordingly reversed with directions to the trial court to enter judgment herein for plaintiff.

Mr. Chief Justice Scott not participating.