32 A.L.R. 82 | N.D. | 1924
In March, 1923, the board of county commissioners of Burleigh county adopted the following resolution:
“Whereas, it has been brought to our attention that large anumnts of taxable property are alleged to have escaped taxation during the last year and previous thereto, and,
“Whereas, one F. O. Ilellstrom has been instrumental in calling this matter to our attention and has compiled and brought certain data before us in relation thereto,
“Therefore, be it resolved that the said F. O. ITellstrom be employed to assist the state’s attorney in investigating said matter, not only those who are now affected by the data now brought before us by him, but all property that has escaped taxation regardless of individuals or corporations affected, and that he receive a retainer of $200 and ten percent of all taxes actually collected from any taxable property placed on the tax lists through his efforts, but in case the ten percent shall equal the sum of $200, then and in that case said retainer foe shall be deducted from said ten percent allowance.”
Thereafter and pursuant to said resolution, the defendant Ilellstrom entered upon the performance of the acts provided for in the resolution. The plaintiff thereupon brought this action to enjoin the defendants herein from carrying out the contract purported to have been entered into by virtue of this resolution.
The plaintiffs in their complaint set out that they are residents and taxpayer's of Burleigh county; that the resolution above quoted was passed by the board of county commissioners of Burleigh county; that the same constitutes a pretended contract between Burleigh county and the defendant Hellstrom; that Ilellstrom has entered upon the performance of such contract and is incurring expenses thereunder; that the defendant officers of Burleigh county are about to carry out their part of said contract; that Burleigh county has a full complement of county officials duly qualified and acting, whose duty it is to do all
Thereafter the defendants answered, admitting that the plaintiffs are residents and taxpayers of Burleigh county; that the resolution set out in the complaint was passed, and that the defendant Iiellstrom is doing the acts as required thereby; that what is being done thereunder is done by and under the supervision of the state’s attorney of Burleigh county, is a matter of public importance and concerns the public welfare; that the employment of a special assistant to the state’s attorney is necessary; that the regular county officers and clerks are taxed to the extent of their ability to perform the regular duties of their office; that the employment of defendant Hellstrom as a special assistant state’s attorney is a lawful exercise of the power and duty vested in the board of county commissioners, and was done by and with the advice and consent of the state’s attorney.
The complaint was verified by one of the plaintiffs on information and belief. A notice of motion for a temporary restraining order was served with the summons and complaint. No affidavit "was made and served as a basis for injunctive relief. Prior to the day on which such motion was heard the defendants answered. The district court, after a consideration of the motion, made its order restraining the further carrying out of the contract in any manner whatsoever pending the final disposition of the action. This matter is now here on appeal from such order.
Appellants first urge that the court erred in issuing the temporary order subsequent to the joining of issue and before the matter was heard on its merits. We think that there is no ground for this position. The hearing was not ex parte. There was a motion and notice to,the defendants and the defendants appeared and were heard in the matter. See Comp. Laws, 1913, § '7531.
Appellants further contend that the court erred in not requiring the plaintiffs to make and submit a showing by affidavit. It is sufficient to say that it does not appear that there was any objection raised
The appellants also predicate error because no undertaking 'was furnished by the plaintiff or required by the court precedent to the issuance of the temporary order. The respondents contend that the provisions of the statute, § 7532, Comp. Laws, 1913, as to security upon an injunction, are directory only and not mandatory. They do, however, offer to furnish such undertaking in case the same is required. We are of the opinion that the statute is mandatory, and that an undertaking should have been required. However, the purpose of the statute will be subserved, and the appellants fully protected by an undertaking furnished at this time. The respondents should be afforded an opportunity to comply with this requirement. We deem it proper, therefore, to proceed to a consideration of the propriety of the order appealed from upon the merits.
The respondents’ position is grounded on the propositions that the purported contract as made and entered into between the board of county commissioners and the defendant Hellstrom is contrary- to a sound public policy and wholly beyond and outside of the authority of the board, and therefore, void. On the other hand, the appellants contend that in the absence of express authority, the power is implied in the board of county commissioners to enter into and perform a contract such as is here in question, and that furthermore, there' is express authority for its so doing by virtue of subsection 9 of § 3370, Oomp. Laws; 19.13.
The Constitution, § 172, provides that the fiscal affairs of a county shall be transacted by a board of county commissioners. The board has “power to institute and prosecute civil actions in the name of the county» for and on behalf of the county.” Oomp. Laws, 1913, § 3273. It is required to “superintend the fiscal affairs of the county-, supervise the conduct of the respective county offices and . . . ,” Comp. Laws, 1913, § 3276. Section 3376, Comp. Laws 1913 enumerates the
Appellants contend that by virtue of this last provision, the resolution and contract here in question were properly made and entered into; that the matter of taxation is a matter of public importance; and thar, therefore, with the consent of the state’s attorney, it was proper for the board to enter into such contract. "We think, however, that the appellants have misconstrued this statute. It must bo borne in mind that the attempted employment of the defendant, Hellstrom, while ostensibly as a special assistant to the state’s attorney, was in fact an employment as a so-called tax-ferret, that is, he was employed on a percentage basis to search out, discover and report for assessment such property as had escaped taxation and aid in the collection of the taxes imposed. There is no contention that the action of the board here challenged was an exercise of the power of appointment of an assistant to the state’s attorney under the provisions of chapter 52, Laws 1921. Nor do we pass upon the power of the board under that statute. The duties that Hellstrom was to perform might or might not require the giving of legal advice, the preparation of cases, or the trial thereof; such duties might in the main be performed by one wholly without legal qualifications. He might discover a vast amount- of property subject to taxation, and which was escaping. Such property might be entered on the assessment roll by the auditor, and taxes bo extended against it, and yet there be no case. It is true that the matter
Has the board of county commissioners the implied power to enter into such a contract ? Can it be said, considering the powers and duties expressly given the board that they are such as to warrant the implication that in exercising these powers and performing those duties it may enter into such a contract? The rule is that such board has only such implied powers as are reasonably necessary to enable it to exercise and perform those powers and duties which are expressly granted to
It is true that the board as a board is charged with the superintendence of the fiscal 'affairs of the county and is, therefore, interested in the collection of taxes. It likewise is trae that it is charged with the supervision of the conduct of the county officials, and it is true that it is the right and duty of the board to institute and defend any and all suits in which the county may be a party or be interested. But on the other hand, it, as a board, is charged with no duty insofar as the assessment of such taxes is concerned, nor with the collection of such taxes. The law expressly reposes in the various local officers the duties pertaining to the assessment of property, and places in the county treasurer the power and duty to collect such taxes as may bo assessed 'and levied. See Comp. Laws, 1913, § 2156. The board of county commissioners fixes the amount of the levy for county purposes only, and while it sits as a board of equalization and review, it can only equalize as between classes of property, excepting in unorganized portions of its county. The duty to correct false 'and incorrect tax lists and to place property escaping taxation upon the assessment roll is the duty of the auditor and no other officer can place such property upon the assessment roll. And the statute provides that the State Tax Commissioner must require him to do this. See Laws 1919, chap. 213. The auditor has power to issue process and compel the attendance before him of persons having knowledge of the facts for examination under oath. See Comp. Laws, 1913, §§ 2216 and 2217. And since the county auditor is expressly given this power, the duty to exercise it is implied. The board of county commissioners is charged with the supervision of the conduct of the county officials, but it has no right to perform their duties or to exercise their prerogatives, and it has no right to delegate to others authority which it cannot itself exercise. So far as the board itself is concerned, there is under the statute, no duty imposed on it or its members individually to search out property which has escaped taxation. If it or its members individually have notice of the fact that property has escaped taxation, then the obligation may rest upon it or them to advise the county auditor to the end that that officer properly charged with the duty may
The contract here sought to lie vindicated by the appellants is a contract■ purporting to provide for legal assistance to the state’s attorney for the purpose of doing that which neither the board of commissioners nor the state’s attorney has the power to do. It is not a contract purporting to furnish assistance to the county auditor to enable him to perform the duty which the law charges him with. The duties to be performed by Hellstrom under tlie contract are plainly duties imposed by law on other public officers. We must, therefore, hold the contract to be beyond the implied power of the county board to enter into, and therefore, void. Storey v. Murphy, supra; Grannis v. Blue Earth County, 81 Minn. 55, 83 N. W. 495; Stevens v. Henry County, and Chase v. Boulder County, supra; State ex rel. Coleman v. Dickinson County (State ex rel. Coleman v. Fry) 77 Kan. 540, 16 L.R.A.(N.S.) 476, 95 Pac. 392; Pierson v. Minnehaha County, 28 S. D. 534, 38 L.R.A.(N.S.) 261, 134 N. W. 212; State ex rel. Workman v. Goldthait, 172 Ind. 210, 87 N. E. 133, 19 Ann. Cas. 737; Whittinghill v. Woodward County, 68 Okla. 320, 11 A.L.R. 910, 174 Pac. 489.
It also appears to ns that there is another and additional reason in itself sufficient to require us to hold that this contract is void. While the hoard of county commissioners is charged with the superintendence of the fiscal affairs of the county and with certain duties with reference to tax matters, and while it has authority generally to enter into contracts on behalf of the county, and though it be conceded that it has the authority to enter into a contract to employ. a special assistant to the state’s attorney to the end that property unlawfully escaping taxation may bear its just proportion of the tax burden, nevertheless it has no authority to enter into a contract such as that here in question for the reason that such contract provides that a fixed proportion of such taxes as might be collected through the efforts of the defendant Hellstrom under the contract shall he devoted to Hellstrom as compensation. It has been held that contracts of this
The order appealed from will, therefore, be affirmed, on condition, however, that the respondents, immediately upon the filing of the remittitur herein in the district court, shall enter into and file an undertaking in compliance with the provisions of § 7532, Comp. Laws, 1913, in such amount and with such surety as the trial court may or: der.