Speer v. Kratzenstein

Yeager, J. This is an action by Harry W. Speer and D. E. Martin as taxpayers of Lincoln county, Nebraska, plaintiffs and appellees, against Ed U. Kratzenstein, a county commissioner of Lincoln county, Nebraska, and St. Paul Mercury Indemnity Company of St. Paul, a corporation, his bondsman, New Amsterdam Casualty Company, a corporation, bondsman for Virgil Thayer, a county commissioner who had resigned his office before commencement of this action, Roy Hungerford, a county commissioner, and the American Bonding Company of Baltimore, a corporation, his bondsman, and the County of Lincoln, defendants and appellants. By the action no recovery is sought against the county of Lincoln. It was joined as a defendant because of its failure to bring the action. The action is by taxpayers for the benefit of the county. The action is to recover from the county commissioners and their bondsmen, on behalf of the county, $1,025 alleged — 302 — to have been paid out of the funds of Lincoln county, Nebraska, to one C. A. Emery upon an alleged illegal and unauthorized contract and agreement entered into between the county commissioners and the said C. A. Emery for the appraisal of the real estate in the incorporated cities, towns and villages in Lincoln county, Nebraska. The judgment was in favor of the plaintiffs and the defendants have appealed. The controlling facts are not in dispute. In September, 1937, a contract was entered into between C. A. Emery and the county commissioners of Lincoln county, Nebraska, on behalf of the county whereby Emery was engaged or employed to make an appraisal of all of the real estate in the incorporated cities, towns and villages in the county within a given period for $3,000. The work was performed in accordance with the terms of the agreement and the compilation of the appraisal was delivered to the county clerk who was also the county assessor. On January 3, 1938, which was before the completion of the work but in accordance with the requirements thereof, Emery filed his claim for $1,000 against the county for partial payment. The claim was allowed, a warrant drawn and subsequently paid with an additional $25 on. June 23, 1938. The additional $25 appears to have been interest on the warrant. It is this $1,025 which is the basis of this action. The plaintiffs contend in their petition, and the district court found, that the contract and agreement was void for the reason that it was beyond the power of the county board to enter into such contract or to bind the county for the purposes contemplated therein, and that in consequence the county commissioners and their bonds are chargeable as for misapplication of funds for the amounts of money paid out thereunder. The assigned grounds for reversal are numerous but analyzed there are but three important ones. They are, the court erred in holding (1) that the agreement contemplated an abandonment of an assessment by the regularly constituted authorities and a substitution therefor of the — 303 — appraisal by Emery, (2) that the contract was one beyond the power of the county board to enter into on behalf of the county, and (3) that Emery failed to establish the value of his service. As to the first, it becomes necessary to conclude that the district court was in error since the record is devoid of anything except the most vague inference that this appraisal was to take the place of a regular assessment, while on the other hand all witnesses having a knowledge of the facts testified to the contrary. The undisputed evidence is that the sole and only purpose for which the county commissioners intended the appraisal made by Emery would or should be used was as a basis for ascertainment and. fixing of values in the incorporated cities, towns and villages by the board of equalization. On the third one of these propositions all parties agree that the contract was entered into and Emery testified to the value of the service. This testimony was in no wise rebutted, therefore, the value of the service must be considered as having been established. The purpose of the appraisal having been limited, the consideration by this court is limited to the question of whether or not the county board had the express or implied power to enter into a contract for this purpose and to charge the county therefor in anticipation of difficulties which might confront the county board of equalization. That there is no express power in the statutes to enter into such undertakings as this is not questioned by the parties. If the power may be found to be implied this must be done agreeable to the rule that county commissioners are clothed with the powers expressly conferred upon them by statute and also such powers as are requisite to enable them to discharge the official duties devolved upon them by law. Emberson v. Adams County, 93 Neb. 823, 142 N. W. 294; Cheney v. County Board of Supervisors, 123 Neb. 624, 243 N. W. 881. Among the express powers of the county board Is found none which confers any right to make, supervise or in any — 304 — wise control the valuation of the real estate or other property in the county for assessment purposes. It follows that there being none expressed, there can be no implied power in this particular connection, since there can only be implied power where there is a necessity to make effective that which is expressed. It is the contention of the defendants that this contract •came within the implied powers of the county board on the theory that the board, having membership on the county board of equalization, which board is charged with equalization of real and personal property assessments in the county, had implied power to provide data and information which would facilitate the board of equalization in the performance of its functions. The county board of equalization and the county board are not one and the same entity. The board of equalization is composed of the county board, the county assessor and county clerk. Comp. St. 1929, sec. 77-1701. The board of equalization has various functions all of which deal with and are limited to assessment and review of assessment and the securing of information pertinent to assessment and review. Comp. St. 1929, secs. 77-1702, 77-1703, 77-1704. Among the functions as defined in section 77-1702 are the following: To equalize the valuation of personal property; to equalize the valuation of real property at regular intervals; in cases of evident error or gross injustice as to value of real estate to correct such errors in other than regular real estate assessment years; in case of transfer of real estate to apportion values of property divided by transfer; to ascertain whether the valuation of one township, precinct or district bears a just relationship to other townships, precincts or districts and to make proper equalization; to adjust assessments for the county by raising or lowering the assessment of any person to secure a listing of the property at its actual value; and to add to the assessment rolls any taxable property not included. For the purpose of the performance of its designated functions the board of equalization may require the attend — 305 — anee of any taxpayer whose listing is brought into question. Comp. St. 1929, sec. 77-1703. Also the board may compel the attendance of witnesses. Comp. St. 1929, sec. 77-1704. From these powers and functions of the board of equalization the implied power of the county board to enter into such contracts as this one and to charge the county therefor must flow, if the contention of the defendants is to be sustained. This matter has not been previously passed upon by this court. It has, however, been dealt with in a number of other jurisdictions. The decisions are not uniform. Some of them support the contention of the plaintiffs and others that of the defendants. In State v. Kuhr, 86 Mont. 377, 283 Pac. 758, the court considered a case in nearly every respect like the one we are considering here. The statute defining the powers and duties of the county board is almost identical with ours and a contract similar to the one being considered here was under consideration. The only substantial difference was that in that state the county board wás ex officio the board of equalization, whereas in Nebraska, the board of equalization is a separate entity. In upholding the right of the board to make the contract and of recovery thereon, the court held that by statute the board of county commissioners was required to use the abstract of assessment and all other information it might gain from the records of the county clerk or elsewhere, in equalizing the assessment of the property of the county, and in consequence it had implied power to contract for appraisals to aid in the equalization. In Simpson v. Silver Bow County, 87 Mont. 83, 285 Pac. 195, on the power of the county board to contract for assistance to the board of equalization, the court said: “The power to ‘examine’ the assessment-books and review the work of the assessor includes, and grants, the power to oversee the assessment of all property which should be upon the assessment-books and to determine whether the rolls — 306 — include all of the assessable property of the county.” Announcing a similar rule is Maurer v. Weatherby, 1 Cal. App. 243, 81 Pac. 1083. In a statement too lengthy to be quoted here, the court concluded that the power so to contract must be implied since to impose a duty upon the board to equalize valuations and to limit the inquiry to the information obtainable from the functionary making the assessment would defeat the purpose of equalization. To the same effect is Haley & Co. v. McVay, 70 Cal. App. 438, 233 Pac. 409. In Roper v. Hall, 280 S. W. (Tex. Civ. App.) 289, which is similar to the one being considered here the court said: “The general powers so given to the commissioners’ courts are of little practical value without the further authority to use adequate means to insure the proper, intelligent and effective exercise thereof.” Other decisions tending to support the position of the defendants herein are, Skidmore v. West, 186 Cal. 212, 199 Pac. 497; Skidmore v. Dambacher, 6 Cal. App. (2d) 83, 43 Pac. (2d) 1110; Wingate v. Clatsop County, 71 Or. 94, 142 Pac. 561; Haynes v. Police Jury of Ouachita Parish, 139 La. 101, 71 So. 244; Von Rosenberg v. Lovett, 173 S. W. (Tex. Civ. App.) 508; Pacific Timber Cruising Co. v. Clarke County, 233 Fed. 540. In none of the cases referred to was the point presented or discussed that the equalizing entity was a different entity from that which entered into the contract on behalf of the county as is true in this state. On the other side of the proposition and in consideration generally of the question of the 'implied power of a county to enter into contracts for valuation of property for the use of boards of equalization, as well as such implied power where the county board and the board of equalization are separate entities, we direct our attention first to the case of Northwestern Improvement Co. v. McNeil, 100 Wash. 22, 170 Pac. 338, which deals with a situation where the county board and the board of equalization are separate entities. In dealing with the power of the county board to con — 307 — tract for information to be used by the board of equalization the court said: “It is urged that, because the board of county commissioners sit as members of the board of- equalization, it has power to seek such information as would be obtained under the contract in order to fairly judge the value of property. The answer to this is that the board of county commissioners, as such, is not an assessment body. It is not a board of equalization. It is in no way connected with, nor is it in theory interested in, the assessment of property; that is a business put by law upon another and wholly independent board. It is true that the members of the board of county commissioners sit with other officers— the county assessor and the county treasurer — and with them make up a board of equalization * * * ; but it is an independent body having duties and privileges specifically defined by law.” The court, in commenting upon the practical effect of the conclusion arrived at in the same opinion, stated: “We may grant that, in a given case, the assessor is incompetent to fix values, and that the commissioners, when called upon to sit with the board of equalization, cannot intelligently perform their duties, but this furnishes no legal reason for contracting away a duty which the law has imposed upon the presumption of their fitness. Such a situation may call for legislative action, or the election of others having necessary qualifications; but the courts are powerless to afford a remedy without trenching the province of the legislative body. Neither necessity nor convenience give ground for the sanctioning of such a contract.” In that case as here it was not contemplated that the appraisement was to be binding on anybody. The court in that connection observed: “For, if the assessor or the board of equalization are not to be bound, there can be no legal excuse for making the contract, for the commissioners and assessors ground their defense upon a plea of inability to fix values. Being so unable, it follows that they could not measure the report when made with any degree of accuracy or understanding. They could not tell whether — 308 — it be a true valuation, or whether it be arbitrary, or one resting in ill-founded opinion.” In Stevens v. Henry County, 218 Ill. 468, 75 N. E. 1024, in dealing with the power of the county to contract with regard to information to be supplied to the board of equalization the court said: “If it should be conceded that the statute does not require the board of review to hunt for and endeavor to discover secreted, omitted property for taxation, we would still adhere to our position that the county, in the absence of a grant of power to do so, would have no authority to make the contract in question. Such situation might well be deplored and the necessity be apparent for a law charging some person or persons specifically with the duty or authorizing the county board or some competent authority to employ persons capable of such work; but if such should be the case it would be a suitable matter to call to the attention of the legislative department, and cannot be reached by the unauthorized action of county boards or other local governmental bodies who have no such powers granted them.” In State v. Stone, 236 Ala. 82, 181 So. 281, speaking of power in such circumstances the court said: “The matter of adjustment of tax valuation rested with the Board of Review. Neither the county nor its Board of Review were delegated any duty or authority in relation thereto. Incidentally, of course, the county had an interest. But there was no duty imposed concerning this adjustment.” It further said: “There being no duty imposed or authority conferred in relation to the work before the Board of Review, no implied power can follow, and the trial court correctly so ruled.” In Dexter Horton Trust & Savings Bank v. Clearwater County, 235 Fed. 743, the court dealing with an Idaho contract concluded that an unofficial appraisement such as was contemplated by the contract in the case at bar was invalid for the reason, among others, that it was without value since it was not an assessment and could not be used as a basis for assessment. The court said: “It would seem, — 309 — therefore, that the reports could be legitimately used only for the purpose of suggesting the possible need of investigation; that is, if they differ materially from the valuations which the assessor has been or is placing upon certain lands, the discrepancy may justify the board of equalization in making an investigation for the purpose of ascertaining the facts.” The plaintiffs contend further that the situation is controlled by the general proposition that a county board is. without authority in the absence of grant to perform the duties which are a part of the official duties of other officials or boards. The authorities generally sustain this contention. People v. Harding, 333 Ill. 384, 164 N. E. 827; State v. Field, 24 N. M. 168, 172 Pac. 1136; Fancher v. Board of Commissioners, 28 N. M. 179, 210 Pac. 237; State v. Board of County Commissioners, 77 Kan. 540, 95 Pac. 392; State v. Board of County Commissioners, 150 Kan. 143, 91 Pac. (2d) 2; Decatur County v. Roberts, 159 Ga. 528, 126 S. E. 460; Chase v. Board of County Commissioners, 37 Colo. 268, 86 Pac. 1011. In the light of our statutes, the decisions from other jurisdictions and what we consider sound reasoning and a due and proper regard for division of the powers of government, we are inclined to, and do adopt, the view that the county board was without power to enter into the contract in question and that such contract is void. The service .contemplated by the contract may well have been of value to Lincoln county and it may have been well worth while and well worth its costs in the interest of expediency In assessment and equalization of values of real estate, but we may not determine the question on the basis of expediency or value of the appraisement for the purpose or purposes for which it was intended but solely on the basis of existence or nonexistence of power, express or implied. The legislature has set up the methods for assessment and equalization of values of real and personal property for the purposes of taxation and those methods are exclusive. — 310 — They may be found to be inefficient and unsatisfactory and, moreover, we might conclude that other methods or measures could be adopted which would effectuate a higher degree of justice and equality, yet the judicial department of government is without power to impose such methods or measures. That is a matter that pertains to the legislative department. The following opinion on motion for rehearing was filed December 21, 1943. 'This being an unlawful and void contract it is wholly void as an obligation against Lincoln county. Section 26-732, Comp. St. 1929, which is controlling in the present case, is in part as follows: “All contracts, either express or implied, entered into with any county board, for or on behalf of any county, * * * in the absence of a statute expressly authorizing such contract to be entered into, * * * shall be wholly void as an obligation against any such county.” In the case of audit, allowance, payment, or authorization of payment by an official or officials under a void contract the purpose or effect of which is to charge the county, by statute, action may be maintained by a taxpayer for recovery on behalf of the county against any such official or officials, and the surety or sureties on the official bond or bonds of such official or officials. Declaring this right is section 26-733, Comp. St. 1929, as follows: “Any public official, or officials who shall audit, allow, or pay out, or cause to be paid out, any funds of any county for any article, public improvement, material, service, or labor, contrary to the provisions of the next preceding section, shall be liable for the full amount so expended, and the same may be recovered from any such official or the surety upon his official bond by any such county, or any taxpayer thereof.” See, also, Holt County v. Tomlinson, 98 Neb. 777, 154 N. W. 537. For the reasons herein stated, the judgment of the district court is affirmed. Affirmed. — 311 — Heard before Simmons, C. J., Paine, Carter, Messmore, Yeager, Chappell and Wenke, JJ.