an item or items of property in any given class is assessed above its true value, and it shall also appear that all other items in such class are assessed at their true value, then, in such case, and in such case only, said board shall abate the excess valuation. See section 92, Session Laws 1902, page 91. According to my construction of the statutes relating to said subject, I do not understand that the county board of equalization has the power to revise or change the assessments made by the assessor by raising the same because in the judgment of the board said assessments are too low, for, if that were done without regard to adjustment or equalization, the result would be to increase the total amount of the valuation of the property of the county set forth in the assessment roll, which the law expressly provides shall not be done. Respectfully yours, N. C. MILLER, By W. R. RAMSEY, ELECTIONS-LEGAL RESIDENCE. One does not acquire a residence in this State by the mere act of filing upon government land. He must locate or settle upon the land with the intention of making it his permanent home and continue to reside there the length of time required by law in order to become a voter. September 27, 1906. HON. MILTON SMITH, Dear Sir I am in receipt of your letter containing substantially the following statement: A number of people came into this State about a year ago and filed on government lands. After making said filing they immediately left the State, and at a period of about five or six months later they returned to make their improvements. The question presented by you, and upon which you desire an opinion, is whether or not such persons are entitled to claim residence in this State from the time they first came, and made their filings, or whether their residence dates from the time they came into the State to make improvements upon the land, and also whether such persons would be entitled to be registered and to vote. As I understand the law, it is not necessary, in order to file upon government lands, that one shall reside upon the land or within the State at the time of said filing. He may or may not so reside. The requirements of the law as to the acquisition of a homestead are given in 26 Am. and Eng. Ene of Law (2d Ed.), page 254, as follows: "A homesteader, in order to perfect his rights, must, if not settled upon the land at the time of making his entry at the Land Office, within six months thereafter establish his actual residence in a house upon the land, and must continuously reside upon, cultivate and improve the land for five years." See, also, General Circular of January 1, 1889, set forth in Copp's Public Land Laws, volume 1, page 339 et seq. In the cases mentioned by you the parties did not reside upon the land or in the State at the time of making their entry or filing at the Land Office. After filing, they did not remain in the State, but immediately thereafter left the State and did not return until five or six months later. The mere act of filing upon government land does not make one a resident upon the land, or of the State in which the land is situated. I am of the opinion that the persons you mention did not, at the time of filing, acquire a residence here, either under the government homestead laws or the laws of the State, and that their residence must date from the time when they returned to make their improvements and actually settled upon the land with the intention of making it their permanent home; and that they are not entitled to be registered and to vote, even if otherwise quali fied, until they have continued to reside in the State the length of time required by law. Trusting that the foregoing fully covers the points presented in your letter, I am, Yours truly, N. C. MILLER, Attorney General. By W. R. RAMSEY, Assistant Attorney General. EXAMINATION OF BOOKS OF DEPARTMENTS. The Governor has not the power under the Constitution and statutes of Colorado to appoint a person to examine the books of all the depart ments of the State. The law, however, authorizes him to call upon them for a written statement of the condition of affairs. December 14, 1904. HON. JAMES H. PEABODY, Governor of Colorado, Capitol Building. Dear Sir-Replying to your oral request to further consider the question as to whether or not you possess the authority to appoint a committee or board to examine into and report to you upon the present condition and management of the various offices of the Executive Department of State, and what, if any, authority such a board would possess after its appointment, I beg to say that section 1, article IV, of the Constitution provides that certain enumerated officers shall constitute the Executive Department. It has been held that the purpose of the above provision of the Constitution was to provide for such officers of the Executive Department as the members of the constitutional convention deemed absolutely indispensable, and that it is within the power of the Legislature to create new and additional executive officers. Parks vs. Soldiers' and Sailors' Home, 22 Colo., 86, 94. People vs. District Court, 29 Colo., 182, 193. Excepting, possibly, the Governor, the various officers constituting the Executive Department are, no doubt, all of equal dignity in the eyes of the law, and any authority of one to inquire into the management of the affairs of another department must be sought either in the Constitution or the statutes of the State. Section 2, article IV, of the Constitution provides that: "The supreme executive power of the State shall be vested in the Governor, who shall take care that the laws be faithfully executed." "The Constitution makes it the duty of the Governor to 'take care that the laws be faithfully executed;' but the Governor, in performing this duty, has no arbitrary power; he must proceed according to law." Hanley vs. Wetmore, 6 Atl. (R. I.), 777, 780. The Governor is referred to by the Supreme Court as the head of the Executive Department, in People vs. District Court, 29 Colo., 182, 192. Section 5, article IV, of the Constitution provides that: "He shall have power to call out the militia to execute the laws." "Under this provision of the Constitution, the phrase 'to execute the laws' contemplates the enforcement of a judicial process —that is, the enforcement of a right or remedy provided by law and judicially determined and ordered to be enforced, and not an arbitrary enforcement by the executive of what he may consider the law to be." In re Fire and Excise Commrs., 19 Colo., 482, 503. The powers and duties of the Governor, as well as those of other executive officers, must be sought for in the Constitution and statutes of the State. Section 8, article IV, of the Constitution provides: "The Governor may require information, in writing, froi the officers of the Executive Department, upon any subject relating to the duties of their respective offices, which information shall be given under oath whenever so required; he may also require information in writing at any time, under oath, from all officers and managers of State institutions, upon any subject relating to the condition, management and expenses of their respective offices and institutions. The Governor shall, at the commencement of each session, and from time to time by message, give to the General Assembly information of the condition of the State, and shall recommend such measures as he shall deem expedient." "And, conversely, it is your duty to require such information whenever the circumstances seem to you to demand such requisition." Report of Atty. Gen. Jones (1889-'90), page 26. Section 17, article IV, of the Constitution provides: "The officers of the Executive Department, and of all public institutions of the State, shall, at least twenty days preceding each regular session of the General Assembly, make full and complete reports of their actions to the Governor, who shall transmit the same to the General Assembly." Section 1806 of M. A. S. provides that the Governor shall semi-annually appoint a committee of three to examine the books and accounts of the State Treasurer. Sections 1843 to 1846 provide that, upon the death or resignation of the State Treasurer, or upon a vacancy in that office from any other cause, the Secretary of State and two persons to be appointed by the Governor shall take charge of the moneys and papers in the Treasurer's office, prepare an inventory thereof and safely keep the same until another Treasurer shall be appointed. A Territorial statute, still in force, and applicable to the State Auditor and Treasurer, provides that: "The Governor of the Territory may at any time examine all the public books, papers, accounts and vouchers of the Territorial Auditor and Treasurer; and for such purpose the said officers are required to give the Governor full and free access to their said books, papers, accounts and vouchers, whenever notified by him that he desires to make such examination." 1 M. A. S., section 1834. This statute applies only to the offices of the Auditor and Treasurer and does not extend to other executive officers or departments. While the Auditor is made the chief officer of the Insurance Department, yet the statute expressly declares that the Insurance Department shall be a separate and distinct department. 1 M. A. S., sections 2201-2202. The governor of Rhode Island, having officially advised the Supreme Court of that state that representations had been made to him of malfeasance and nonfeasance in the management of the state prison and some of the other penal institutions of the state under the charge of the board of state charities and corrections, and of the inconvenience, if not impossibility, of his making a personal inquiry into the truth of the charges, requested the opin ion of that court as to his power to appoint and commission persons to make inquiry into the truth of such representations. It was held by the court that the governor had power to ap: point or employ persons to make the inquiry for him and to report the facts; that the persons so appointed had no power to administer oaths, summon witnesses, compel them to testify or punish for contempt, and that the report of the commission of the facts elicited by them would be regarded as a privileged communication, and as such would not be actionable without proof of express or actual malice. In re Investigating Committee, 16 R. I., 751; 11 Atl., 429. Randall vs. State, 16 Wis., 340. Section 8, article XII, of the Constitution authorizes the District Court of the county wherein the seat of government may be to appoint committees to investigate the official accounts and affairs of the State Treasurer and Auditor of State. |