State Ex Rel. Blair v. Kuhr , 86 Mont. 377 ( 1930 )

This is an action in mandamus to compel the respondent, as county attorney, to institute an action against the board of county commissioners of Hill county to recover money alleged to have been unlawfully expended by it and to restrain further expenditures under the terms of an alleged contract entered into on the twenty-eighth day of August, 1928, with J. M. Clemenshaw Company of Cleveland, Ohio, by the terms of which the board agreed to pay the sum of $2,425 to that company for reclassifying, re-appraising, and revaluing all real property in the city of Havre, together with improvements thereon, under the terms of which contract the board of county commissioners has already allowed and paid claims from public funds aggregating $2,283.42. It is alleged in the petition of the relator: "That the statutes of Montana have created the office of County Assessor, have set forth the duties of his office with great particularity, have prescribed the ``mode of his procedure' in placing a value upon all property, have imposed upon his office the duty of listing and placing a value upon city real property and the improvements thereon, for the purposes of assessment and taxation, that this power is vested in the office of county assessor and is exclusive, and may not be assumed by another nor delegated by the assessor, that the expenditures made by the board of county commissioners of Hill county, Montana, under the said contract with the J. M. Clemenshaw Company as herein set out was without authority of law." Issue being joined by answer and reply, the cause was regularly brought on for trial before the court without a jury, at the conclusion of which the court denied the writ. Judgment was entered accordingly, and the relator has appealed.

Based upon the pleadings and evidence submitted, the court found as facts, and there is no dispute concerning them: That "F.M. Cowan and Leon McNicol as members of the board of county commissioners of the county of Hill, * * * in special meeting, entered into a contract with J. M. Clemenshaw Company, of Cleveland, Ohio, wherein and whereby in consideration of the sum of $2,425 to be paid by said Hill County to said Company, said Company agreed to revalue all of the real property in the city of Havre, Montana, together with all of the buildings and improvements thereupon situated, and to make a personal inspection and examination of each and all of the said lots and parcels of real property, together with each and all of the buildings and improvements thereupon situated, and to obtain particular details as to size, dimensions, age, condition, construction and such other data and information as might enter into the estimate of the cash value thereof, and to report the result of such work, valuations, examinations and inspections to the Board of County Commissioners of said County, using for such purpose a complete card system containing and giving all of such information; that pursuant to such agreement and contract, said J. M. Clemenshaw Company did make a personal inspection and examination of each and all of the lots and tracts of real estate in the said City of Havre, together with all of the buildings and improvements thereupon situated and has supplied to the said Board of County Commissioners of said County, for the use of said County of Hill, complete reports in the form of a card system of said work, such reports containing, among other things, specific and detailed information relative to the size, dimensions, construction, condition and age of the various tracts of real property of said City of Havre, together with all buildings and improvements thereon, together with an estimate of the said Company of the value thereof; that the data and information so furnished by the said J. M. Clemenshaw Company to the said County of Hill, was and is intended for the use of the County Commissioners of said County while sitting as a County Board of Equalization in the year 1929 and succeeding years, and that the same is reasonably necessary for such purpose; that the major portion of such information and data is not such as the law requires a county assessor of said County to secure and furnish, to the Board of County Commissioners thereof, sitting as a County Board of Equalization or otherwise; * * * that the County of Hill has received the benefits of all work and services rendered pursuant to said contract by said J. M. Clemenshaw Company, and that subsequent to August 28th, 1928, and prior to the time of the trial herein, the Board of County Commissioners of said County of Hill have paid and caused to be paid to the said Company, under the terms of said contract, the total sum of $2,061.25." No question is raised as to the propriety of the action, a decision being desired on the merits; and in determining the question involved, nothing herein contained is to be construed as approving this character of procedure.

The only question involved is whether the board of county commissioners, in entering into the contract, acted within the scope of its authority.

The Constitution provides that the legislative assembly "shall levy a uniform rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property." (Sec. 1, Art. XII.) Pursuant to such authority, the legislature, in outlining the duties of county assessors has provided that "the assessor must prepare an assessment book with appropriate headings, alphabetically arranged, unless otherwise directed by the state board of equalization, in which must be listed all property within the county, and in which must be specified in separate columns, under the appropriate head: * * * 3. City and town lots, naming the city or town, and the number of the lot and block, according to the system of numbering in such city or town, and improvements thereon. * * * 7. The cash value of city and town lots. 8. The cash value of improvements on city and town lots." (Sec. 2048, Rev. Codes 1921.)

Under the provisions of this enactment, are the duties of the assessor exclusive in the valuation of town property for the purpose of taxation so that the board of county commissioners may not conduct independent investigation of the subject in its aid while sitting as a board of equalization?

Upon further reference to our statutory provisions, it is found that the county board of equalization is given power "to increase or lower any assessment contained in the assessment book, so as to equalize the assessment of the property contained therein, and make the assessment conform to the true value of such property in money" (sec. 2114, Rev. Codes 1921; see, also, Chapter 110, Laws 1927), and the board of county commissioners is constituted the county board of equalization (Id., 2113). The board of county commissioners is clothed with power: "1. To supervise the official conduit of all county officers, and officers of all districts and other subdivisions of the county, charged with assessing, collecting, safe keeping, management, or disbursement of the public revenues; see that they faithfully perform their duties; direct prosecutions for delinquencies; and, when necessary, require them to renew their official bonds, to make reports, and to present their books and accounts for inspection, * * * 25. To perform all other acts and things required by law not in this title enumerated, or which may be necessary to the full discharge of the duties of the chief executive authority of the county government." (Id., 4465.) And when acting as a board of equalization, it is vested with power and authority to "subpoena such witnesses, hear and take such evidence in relation to the subject pending, as in its discretion it may deem proper" (Id., 2117), and "the board of county commissioners must use the abstract and all other information it may gain from the records of the county clerk or elsewhere, in equalizing the assessment of the property of the county." (Id., 2119.)

The fundamental rule is recognized that counties are subdivisions of the state of purely statutory creation, and when they assume to exercise a power, authority therefor must be found in the statute conferring power upon them, or necessarily implied in order to carry out an express power. And whenever a power is conferred upon the board of county commissioners, but the mode in which the authority is to be exercised is not indicated, the board in its discretion may select any appropriate mode or course of procedure. (Fisherv. Stillwater County, 81 Mont. 31, 261 P. 607; Arnold v.Custer County, 83 Mont. 130, 269 P. 396.) Here we find the duty imposed upon the assessor to make the assessment of property in the first instance, and subsequently the board of county commissioners is required to increase or lower any assessment contained in the assessment-book prepared by the assessor, so as to equalize the assessment of property listed in such book. The board cannot intelligently perform this duty imposed upon it without reliable independent information as to the value of the property. To constitute the board of county commissioners ex officio a county board of equalization, require it as such to adjust and equalize assessments as made by the assessor, and then deny it implied power to contract with specialists so as to enable it to obtain necessary data of character to enable it to act intelligently, would be equivalent to a complete nullification of the power expressly conferred. The board of equalization in the matter of the assessment of property is constituted a reviewing body which must pass upon the work done by the assessor, and it would be strange indeed if the board in the performance of its duty was deprived of recourse to independent sources of information. If the powers of the board were so limited, then, when the assessor was content with the valuation by him made, there would be nothing before the board upon which to base an increase, although with propriety it should be made. It would be functus officio, in performance of this very important duty imposed upon it by law. Valuations as made by the assessor, however unscientific or arbitrary, would be final. But, on the other hand, if the powers of the board are not so restricted, it may legally enter into bona fide contracts for such service as is provided for in the contract under consideration. (Maurer v. Weatherby, 1 Cal.App. 243, 81 P. 1083.) And necessarily the board of county commissioners must be held to be vested with implied power to enable it intelligently to apply its judgment and discretion when sitting as a board of equalization in performance of the duty imposed upon it by the statute to adjust and equalize the assessment of property within the county as made by the assessor in the performance of his independent duty; and the courts should not interfere, unless it is apparent that the service contracted has no relation to the proper performance of its duty. (Skidmore v. West,186 Cal. 212, 199 P. 497.) The legislature, in conformity with the requirements of the Constitution, has prescribed regulations calculated to bring about a just valuation of all the property for the purpose of taxation, and every aid and encouragement should be afforded the officers designated in the intelligent performance of this important function. Thus the authority conferred finds root in the Constitution itself. Of course, the board cannot be permitted to enter into such a contract as would deprive the assessor of the duty independently imposed upon him, or to relieve him of his official obligation, and nothing said herein is to be so construed.

The recent decision by this court in the ease of Arnold v.Custer County, supra, presents a situation somewhat similar to the case now before us, and the conclusion therein reached is in accordance with our present views as to the implied authority of a board of county commissioners here applicable. We are of opinion that the board of county commissioners was possessed of authority to enter into the contract in question, and therefore that no duty rested upon the respondent county attorney to institute action to recover back money paid out under the contract or to enjoin further expenditures thereunder.

The court was not in err or in denying the writ, and the judgment is affirmed.

MR. CHIEF JUSTICE CALLAWAY and MR. JUSTICE MATTHEWS concur.

MR. JUSTICE ANGSTMAN, being disqualified, takes no part in the foregoing decision.