100 Wash. 22 | Wash. | 1918
This action was brought by appellant to enjoin the performance of a contract entered into
“This agreement made and executed in duplicate this 5th day of April, 1917, by and between Kittitas county, Washington, thru its board of county commissioners, first party, and Raymond P. Tarr, second party, Witnesseth:
“The second party agrees, at his own expense, to make a complete and accurate expert geological investigation and examination of the lands of Kittitas county, Washington, for the purpose of locating all the coal lands therein for tax assessment purposes, and to list all improvements and appliances provided for or used in mining for coal in said county, and to make and file in the office of the assessor of Kittitas county, Washington, in triplicate maps and written report, giving geological data and coal values in practical form and detail for assessment purposes, by forty-acre tracts according to governmental subdivisions, of all lands in said Kittitas county, Washington, carrying commercial coal in such quantity as to malee them valuable for general taxation purposes, and to make and give, upon demand, such additional report, data or information in connection therewith, as may be demanded by first party, said investigation to be completed and all maps and reports to be filed with said county assessor by the 15th day of July, 1917.
“That first party agrees to pay to second party therefor the sum of three thousand five hundred dollars ($3,500), as follows, to wit:
“$500 upon presentation and approval of the bond herein provided for.
“$1,000 on June 1st, 1917, upon filing by second party of data at that date acquired.
“$1,000 upon filing completed maps and reports as herein provided.
“$1,000 on January 1st, 1918.
“It is further understood and agreed that second party shall furnish on demand, as often as demanded, to the first party or to the prosecuting attorney for Kittitas county, Washington, all necessary data for evidence, together with the personal testimony of sec
“That if said data, testimony, assistance, counsel, advice or information is demanded by first party or said prosecuting attorney prior to January 1st, 1919, second party shall receive no compensation in addition . to said sum of three thousand five hundred dollars ($3,500), excepting that said second party shall receive from first party, his actual expenses necessarily expended in so furnishing the same; but if any of the said data, testimony, assistance, counsel, advice or information, is demanded by first party of said prosecuting attorney, after January 1st, 1919, then for each day actually occupied by second party in furnishing the same, the first party shall pay to second party, the sum of fifty dollars ($50) for each day necessarily occupied in furnishing the same, together with his actual expenses necessarily expended in so doing: Provided that if, after January 1st, 1919, at the time of any such demand by first party or said prosecuting attorney, the said second party be then under contract at stipulated compensation, with first party, for the valuation, revaluation, or checking of lands or of coal values of lands, in Kittitas county, Washington, no compensation additional to said compensation as stipulated in said contract, shall be paid to second party for the furnishing of said data, testimony, assistance, counsel, advice or information, excepting that second party shall receive from first party, his actual expenses necessarily expended in furnishing the same.
“It is further understood that second party shall furnish to first party, to the approval of first party, a bond in the sum of three thousand five hundred dollars ($3,500) conditioned for the faithful performance of this contract, and for the protection of first party from, and the payment of, all liens or claims of every character for labor or material used or indebtedness
“This contract shall not be in force until the approval of said bond by first party.
“In witness whereof, the parties hereto have hereunto set their hands in execution hereof, this 5th day of April, 1917. H. G. McNeil
“James Lane
“J. W. German
“Board of county commissioners of Kittitas county, Washington, first party. Raymond P. Tarr,
‘ ‘ second party. ’ ’
In some of the counties of this state, boards of county commissioners have entered into contracts with some one claiming to be expert in the measuring and valuing of timber and coal land, to the end that the value of the property may be better understood by the taxing officers. After the contract with Mr. Tarr had been entered into, Tarr asked to be, and was, appointed a deputy assessor of Kittitas county.
It is now conceded that the assessor had no right to appoint Tarr, who is a nonresident (Rem. Code, § 3973), and his right to proceed in the performance of his contract is not rested upon that ground. Counsel insists, however, that the county commissioners may, under their general powers, employ an expert to measure and determine the extent and value of property that is to be listed for taxation. The contention of the appellant is that the commissioners have no such general powers, and if so, the contract of Tarr is such that it should be overturned upon the ground of public policy.
The power of the board of county commissioners to make such a contract has been passed upon in the Federal district court for the western district of Washington, southern division, and the Federal district court
It must be admitted that the law, in so far as we find it in existing statutes, and as it may be gathered from a consideration of our political system as it is revealed in the constitution, proceeds upon the theory that the county assessor is a competent and qualified person to make assessments upon any and all kinds of property, either by his own act, or through the instrumentality of competent persons whom the law gives him a right to select and qualify as deputies. It may also be admitted that, with the development of the resources of our state, undeveloped coal and timber lands have become of great value; that the average man is not qualified to fix a value upon property where such valuation rests in expert opinion, and that such expert opinion cannot be obtained at a cost equal to a deputy’s salary.
The office of county assessor is created by law, Bern. Code, § 3971. The duties of the assessor are not defined specifically in the act creating the office, but generally in the chapter devoted to the subject of taxation, Bern. Code, title LXXYI. The assessor is enjoined to, and makes undertaking that he will “diligently, faithfully and impartially perform the duties enjoined on him by law,” Bern. Code, § 3972, and when he “deems it necessary to enable him to complete the listing and valuation of the property of the county within the time prescribed by law, may appoint one or more well-qualified citizens of his county to act as his assistants
It is not contended that the county commissioners have been given any express authority to employ experts to value property for the purposes of taxation, but it is insisted that the board, irrespective of any specific grant of power, has a general power, as the business and fiscal agents of the county, to make such a contract. The general powers of the commissioners have been outlined by the legislature. The only part of the statute upon which any argument can be advanced is subdivision 6 of § 3890 of Bemington’s Code. “The board shall . . . have the care of the county property and the management of the county funds and business . . . and [have] such other powers as are or may be conferred by law.” Under this section of the statute, the power of the board to make a contract with a private party to pay five per cent for making a list of all the delinquent taxes in the county was sustained. Martin v. Whitman County, 1 Wash. 533, 20 Pac. 599. The employment of an expert alienist to assist the prosecuting attorney in a criminal case was upheld. Williams v. Snohomish County, 64 Wash. 233, 116 Pac. 675. On the other hand, it has been held that
Boards of county commissioners are creatures of the statute. They must pursue and exercise the powers conferred upon them in strict compliance with the statute. Green v. Okanogan County, 60 Wash. 309, 111 Pac. 226, 114 Pac. 457; Osborne, Tremper & Co. v. King County, 76 Wash. 277, 136 Pac. 138. That the expert valuation of property does not pertain to county funds or county business within the meaning of the statute is evident, for not only is the power of the commissioners to obtain such valuations not granted by any express provision of the law, but the duty of valuing property is put by positive, independent statute upon the county assessor. Neither is there any statute giving power to the commissioners to furnish information to the assessor, nor does any statute
“Our attention is called to Smith v. Lamping, 27 Wash. 624, 68 Pac. 185; Mather v. King County, 39 Wash. 693, 82 Pac. 121, and McElwain v. Abraham, 58 Wash. 26, 107 Pac. 832, to support tbe county’s contention; but a reading of these cases will show that in each one tbe commissioners were attempting to provide something at tbe county’s expense in addition to that which tbe law had specially provided for in tbe particular matter involved.”
In tbe Lamping case, tbe authority to contract was denied because “tbe duty of making [tbe indices] devolves upon tbe county auditor,” and because tbe law bad “provided tbe manner and method of making and keeping tbe indexes to tbe county records.”- In tbe Mather case, tbe power to employ a stenographer was denied because “tbe duties, powers and offices of a grand jury are specifically defined by statute,” tbe logic of this decision being that tbe county commissioners cannot exercise authority over, or become party to, tbe conduct of tbe business of other officers or bodies having duties and powers defined by law. It is thus made plain by our own decisions that tbe general powers of tbe commissioners do not give them tbe right of control over other county officers having definite powers and duties, nor in any case unless the business to be done can be referred to some express power, or some necessary implication arising out of an express grant of power. Clearly tbe power to appoint a deputy assessor, or to furnish tbe assessor witb expert information, is not within tbe general powers of
“Even if the commissioners would have been authorized to procure said books for such purpose . . . The use of a horse might have been necessary to enable the assessor to travel around more speedily, or within the time required, and the assessor unaided might have been unable to procure one, yet it would scarcely be contended that this would afford ground sufficient to authorize the commissioners to provide one, or to base a charge upon against the county if the commissioners should refuse to, and yet such charge could be sustained if the one in this action could be, for they stand upon the same ground. ’ ’
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
It is here that we think Judge Neterer’s opinion is at fault. It seems to us that he has failed to notice that the board of equalization is a quasi-judicial body having no administrative powers independent of the act creating it. 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 the 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 the Lamping case, it is said:
“The new method may be more convenient and more in accordance with the enlightenment and enterprise of the times, but, until the legislature has authorized its adoption and conferred upon the county commissioners power to expend public money for that purpose, we think it must be held that it .is beyond their power to so expend the county’s funds.”
It is further urged that no one is to be legally bound by the report of the expert; that it may be used in fixing or equalizing values, or it may be rejected entirely. If the reason for entering into the contract is that the county assessor is incompetent to fix values
“It is not suggested by the plaintiff that the reports would constitute competent evidence in any statutory proceeding or judicial hearing. That being so, the board of equalization could not properly weigh them as against a proper showing made by a taxpayer in his effort to reduce or prevent the increase of a proposed valuation of his property. It would seem, 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. Thus indirectly the cruise, if found to be reasonably accurate, would be of some assistance to the commissioners in the per
This reasoning would seem to be indisputable, for the contracting party is neither stimulated nor restrained by an oath such as is usually taken by public officials, or held to a fair and impartial performance of duty by a bond such as is usually given by those who have to deal with the affairs of the citizen.
In the final analysis, this case comes down to one question: Whether the county commissioners, however necessary a thing may seem to be, have the power to appoint a private individual to do a thing, or perform a duty, which the law imposes upon one of the regular county officers—one who is charged with the doing of the very thing sought to be accomplished by independent contract with a stranger to the county.
If this contract were to be upheld, the county commissioners might, by entering into one or many contracts, entirely usurp the powers of the county assessor and the functions- of his office, on the theory that he or they were incompetent to make valuations on any one or all classes of property; or it would enable them, under the guise of their powers as members of the board of equalization, to gather information and fix values independent of the assessor. If they would have such power, they would have power to enter into a contract permitting the assessor and treasurer each to obtain an expert opinion and a valuation, so that each member of the board of equalization could act independently and upon his own advices. It would enable the board, if it conceived the notion that the assessor, being a farmer, had no personal knowledge of
“Now, what reason can be assigned for ignoring this method, and, by resorting to the one here employed, depriving the taxpayers of the statutory right to be heard? Admittedly no sudden emergency had arisen. Assuming that a cruise was needed, why could it not as well have been made under the direction of the assessor, by qualified deputies appointed for that purpose? Possibly the assessor was not himself an experienced cruiser; but neither was Nease. Presumably, in appointing his deputies and clerks, the assessor selects persons qualified for the particular duties to which they are assigned. One man may be expert in the valuing of farm lands, and another may have'had experience exclusively with the values of city property. The assessor in this particular case was an intelligent business man, a banker, and, so far as appears, was qualified to select competent clerical assistance, and experienced cruisers as deputies. There would thus have been no motive for slighting the work, ■and no occasion for conferences with large taxpayers as it progressed. And when it was completed the result would have had the sanction of law and a legal
Our assessment laws are crude. They are fashioned after forms obtaining when the problems which now beset us had not become acute, but they are the rules for our guidance; and the county commissioners, as well as this court, are bound by the law as it is. The remedy for the wrong, if any, should be sought in the legislature, and not in contract with private parties.