Mohr v. County Court of Cabell County

115 S.E.2d 806, 145 W. Va. 377, 1960 W. Va. LEXIS 39

• Court: West Virginia Supreme Court
• Decided: June 28, 1960
• Docket: No. 11094
• Status: Published

Opinions

Calhoun, Judge:

This suit in chancery was instituted in the Circuit Court of Cabell County by E. T. Mohr, on behalf of himself and all other taxpayers and persons similarly situated in and of the County of Cabell and State of West Virginia, against The County Court of Cabell County, West Virginia, a corporation, and T. A. Cavendish, Frank Heiner and G. Y. Neal, commissioners of said court. Jim Ellis and Vinson V. DeVilbiss, subsequent commissioners of said court, William Clemin-shaw and Harvey G. Cleminshaw, partners trading and doing business under the firm name and style of The J. M. Cleminshaw Company, and Harold H. Gorman, assignee of the partnership, were subsequently made parties defendant by court decree.

The object of the suit is to prohibit the County Court of Cabell County and the several commissioners thereof from paying to The J. M. Cleminshaw Company, or its assignee, any sum under the terms of two certain contracts in writing, which are made exhibits with the bill of complaint, by the terms of which The J. M. Cleminshaw Company, for the sum of $164,750, agreed to assist the county court “in making a revaluation of real property within the limits of Cabell County, West Virginia, for assessment and tax purposes.” The revaluation has been completed, and the county court has paid The J. M. Cleminshaw Company the sum of $123,958, leaving an unpaid balance of $40,792.

The initial contract, executed on August 24, 1956, recites that the partnership “is engaged in appraisal work for public bodies”; and that it is the intent of the agreement “to provide that the completed appraisal shall serve as a basis for assessments * * *.” In the supplemental contract, executed July 2, 1957, the partnership agreed to “complete all work of appraisal and revaluation * * * on or before November 1, 1957,” for which services the county court agreed to “pay a total which when added to what has already been paid will equal One Hundred Sixty Four Thousand, Seven Hundred Fifty Dollars ($164,-750.00).”

The contract dated August 24, 1956, is lengthy, containing forty-six numbered paragraphs. After reciting that “the County Court wishes the Partnership to assist it in making a revaluation of real property within the limits of Cabell County, West Virginia, for assessment and tax purposes”, and that “the Partnership is engaged in appraisal work for public bodies and desires to assist in such revaluation”, the contract contains extensive and detailed provisions reciting methods to be adhered to in making the revaluation. Other portions of the contract are as follows:

“The Partnership will assist the County Court in appraising and making a revaluation of the real property within the limits of Cabell County in the manner hereinafter set forth:

# # #

“32. Copies of all real estate cost data and valuation tables, dwelling valuation tables and cost data covering commercial construction shall be left with the Assessor or the County Court for their use and benefit in connection with valuations of Cabell County. Instruction shall be offered in the use of said data so that the system may be maintained through future years. One current edition of ‘The Cleminshaw Appraisers’ Manual’ shall be furnished supplemental to the above cost data.

# # #

“35. Provide for full instructions to the Assessor in the use of cost and valuation tables, formulas and standards used in this revaluation.

# # #

“The County Court does hereby agree as follows:

“41. That it will render every assistance it can in securing the aid and co-operation of the Cabell County Assessor and his staff as well as the aid and assistance of all other county officials where proper and necessary in the performance of this agreement, and that it will make possible access to official records pertinent to this program.”

The bill of complaint, as amended, challenges the legality of the written contracts as follows:

“* * * Any contract by which assessment and revaluation were attempted to be accomplished by a county court was a contract that a county court had no power or authority to make, was ultra vires, and therefore, void.”

The county court and the commissioners thereof, jointly and severally demurred to and answered the amended bill of complaint, to which answer the plaintiff demurred. The answer contains the following allegations :

“I. That prior to the execution of the contracts marked in said Bill as ‘Exhibit A’ and ‘Exhibit B’ Cabell County has lost in excess of $700,000.00 in School Aid from the State of West Virginia because of alleged findings of the Tax Commissioner of the State of West Virginia that property valuations on real property within said County were not sufficient and adequate to make said County eligible for the maximum allocation of State Aid for schools, as determined and provided by Chapter 18, Article 9A, Section 1, et seq., West Virginia Code.

“That the County Court of Cabell County, a corporation, was advised by the Tax Commissioner of the State of West Virginia that, pursuant to his investigation of real property valuations in said County, which investigations were made as required by Chapter 11, Article 1, Section 2, Chapter 18, Article 9A, Section 3, et seq., West Virginia Code, it was his opinion that the County Court of Cabell County, a corporation, in accordance with the law would lie under a duty to revalue or re-appraise all real estate within said County subject to taxation, excepting public utility property, and to equalize many discrepancies in property valuation then existing.

“That the County Court of Cabell County, a corporation, acting upon such advice, and like advice from the Attorney General of the State of West Virginia and the Prosecuting Attorney of Cabell County, West Virginia, proceeded to undertake the task of obtaining competent, skilled and expert appraisers and subsequently entered into a contract for such services after first submitting such to the Tax Commissioner of the State of West Virginia, the Attorney General of West Virginia, and the Prosecuting Attorney of Cabell County, West Virginia.”

By a decree entered on July 11, 1958, “counsel for the plaintiff and counsel for the defendants stipulated and agreed in open court that all facts well pleaded in the said Bill of Complaint and said Joint and Several Answer were true and no proof would be submitted at the hearing on the merits of this cause unless required by the court.” The decree further provided that “the matters of law therein contained shall be decided on the pleadings filed herein.”

On May 4, 1959, the court entered a decree overruling the defendants’ demurrer to the plaintiff’s bill and amended bills of complaint; sustaining the plaintiff’s demurrer to the defendants’ answer; declaring that the two written contracts “are hereby adjudged and decreed to be null and void”; making the trial court’s written opinion a part of the record; and enjoining the county court and the several commissioners thereof “from paying any sums of money to defendants * * or to anyone on behalf of them or any one or more of them, in or about the said two contracts, * *

The petition filed in this Court embodies eight assignments of error, but counsel for the defendants agree that all of such assignments of error involve the single question of the validity or invalidity of the contracts.

The distinguished trial chancellor, as is evidenced by his written opinion, held that the county court had no legal right or authority to enter into the contracts in question in the absence of express authority and that authority to do so could not be implied, citing as authority for that proposition the following cases: State, etc. v. Shipman, 112 W. Va. 529, 165 S. E. 801; Woodyard Publications, Inc., et al. v. Lambert, 112 W. Va. 22, 163 S. E. 858; Norris v. County Court of Cabell County, 111 W. Va. 692, 163 S. E. 418; and State, etc. v. County Court of Lewis County, 110 W. Va. 533, 158 S. E. 790. The opinions in those cases refer to and are based upon a statute heretofore in existence which provided in part: “It shall be unlawful for any county court, * * to expend any money or to incur any obligation or indebtedness which such fiscal body is not expressly authorized by law to expend or incur.” (Italics supplied). Official Code, 1931, 11-8-13, (Barnes’ West Virginia Code, 1923, Chapter 28A, Section 12).

The statute referred to immediately above was repealed and reenacted on January 19, 1934, by Chapter 67, Acts of the Legislature, Second Extraordinary Session, 1933, by which repeal and reenactment the language prohibiting county courts and certain other fiscal bodies from expending money or incurring any obligation or indebtedness “not expressly authorized by law” was eliminated. We are unable to find that any provision of similar import is now to be found anywhere in the Code. Present limitations on the authority of such fiscal bodies are found in Code, 11-8-25, 26 and 27. We cannot assume that the Legislature acted unwittingly and without purpose in eliminating the statutory provision in question.

The prohibitory language in question, contained in Code, 11-8-13, until the reenactment thereof in 1934, made it unlawful for the fiscal bodies therein enumerated “to expend any money or to incur any obligation or indebtedness” not expressly authorized by law. The next sentence in the same statute dealt in a different manner with the making by such fiscal bodies of “any contract, express or implied.” The apparent result of the statutory language was that, even during the time such prohibitory language was a part of the statutory law, there remained an area in which such fiscal bodies were authorized to exercise implied authority, in the absence of express authorization. In some areas at least, county courts possessed such powers as were expressly conferred by the Constitution or by the Legislature, “together with such as are reasonably and necessarily implied in the full and proper exercise of the powers so expressly given.” (Italics supplied.) Barbor v. County Court of Mercer County, 85 W. Va. 359, syl. 3, 101 S. E. 721. See also Keatley v. Summers County Court, 70 W. Va. 267, 73 S. E. 706; Adkins v. Wayne County Court, 94 W. Va. 460, 119 S. E. 284; Old, etc. v. Commonwealth, 148 Va. 299, 138 S. E. 485. The rule relative to implied authority, as applied to boards of education, is stated in Dooley v. Board of Education, 80 W. Va. 648, 93 S. E. 766. See also State v. Rouzer, 127 W. Va. 392, 397, 32 S. E. 2d 865, 867. The rule, as it relates to municipal corporation, is stated in Law v. Phillips, 136 W. Va. 761, syl. 8, 68 S. E. 2d 452, and in numerous prior decisions therein listed.

The rule relating to implied powers of county courts, or other similar fiscal bodies for counties, apparently is applied almost universally in the absence of constitutional or statutory restriction. “It is well settled that a county hoard possesses and can exercise such powers, and such powers only, as are expressly conferred on it by the constitution or statutes of the state, or such powers as arise Toy necessary implication from those expressly granted, or such as are requisite to the performance of the duties which are imposed on it by law. It must necessarily possess an authority commensurate with its public trusts and duties.” 20 C.J.S., Counties, Section 82, pages 850-51. See also 14 Am. Jur., Counties, Section 28, page 200, and Section 40, page 209. “Explicit powers necessarily include implicit powers reasonably incidental and indispensable to their proper exercise and to accomplish the purpose of the creation and existence of the body to whom granted, and the object to be attained or achieved.” Edwards v. Logan County, 244 Ky. 296, 50 S. W. 2d 83.

Code, 7-1-3, lists numerous powers expressly conferred on county courts and contains the following language: “They shall * * * have the superintendence and administration of the internal police and fiscal affairs of their counties * * * with authority to lay and disburse the county levies.” Code, 7-1-5, as amended, imposes upon county courts numerous duties, including the duty “to review and equalize the assessments made by the assessor; to inspect and review the lists of property, both real and personal, made up by the assessor and his deputies for taxable purposes, and to point out to the assessor any property, real or personal, which the said assessors of their respective counties may have overlooked or omitted to place on said tax lists; * * * to * * * supervise the general management of the fiscal affairs and business of each county; * * *.” Code, 11-3-24, as amended, contains the following language:

“The county court shall annually, not later than the fifth day of July, meet for the purpose of reviewing and equalizing the assessment made by the assessor. * * * The court shall proceed to examine and review the property books, and shall add on the books the names of persons, the value of personal property and the description and value of real estate liable to assessment which was omitted by the assessor. They shall correct all errors in the names of persons, in the description and valuation of property, and they shall cause to be done whatever else may be necessary to make the valuation comply with the provisions of this chapter. * * * If the court determine that any property or interest is assessed at more or less than its true and actual value, it shall fix it at the true and actual value. * * * When it is desired to increase the entire valuation in any one district by a general increase, notice shall be given by publication in two newspapers published in the county, once each week for two consecutive weeks, and completed at least five days prior to the increase in valuation.”

While the specific question here involved has not been considered and decided by this Court heretofore, similar questions have been decided by appellate courts of other jurisdictions. In the case of Federal Royalty Co. v. State, (Tex. Civ. App.), 42 S. W. 2d 670, a firm of experts had been employed on behalf of Pecos County to make a survey and report of real estate to aid the board of commissioners sitting as a board of equalization in determining proper values to be fixed for tax assessment purposes and in equalizing such values. The assessor accepted the valuations thus determined without personal knowledge of the facts and the valuations were accepted in like manner by the board of equalization. A taxpayer challenged the legality of the assessment. In holding that the assessment was proper the Court said (42 S. W. 2d at page 674): “The aid contracted for is in the exercise of the powers and duties imposed by law upon the assessor of taxes and the commissioners sitting as a board in the matter of listing and assessment of property for taxation in the county where situate. Where, as in this state, no express authority is given to employ such expert aid, the power to do so is implied, and the expedience of doing so is within the discretion of the commissioners’ court.”

The situation in the case of Haley & Co. v. McVay, 70 Cal. App. 438, 233 P. 409, was similar to that in the instant case. In the California case the board of supervisors of Del Norte County had employed Haley & Company to make an investigation of real estate and a report of its findings to aid the board of supervisors, sitting as a board of equalization, in the equalization of tax assessments within the county. In holding that the contract was valid and legally enforceable, the Court stated (233 P. at page 411): “The data contracted to be furnished was for the purpose of enabling the supervisors intelligently to perform their duties as a board of equalization. It is true that the assessor may make use of such data in assessing property during succeeding years, but he may likewise make a similar use of any adjustment made by the board in the equalization of assessments, whatever the data may be upon which such adjustment may be made. It may be presumed that the assessor will be guided by the adjustments made by the board rather than by the data upon which such adjustments are based. ’ ’ Similar cases and similar decisions are found in Speer v. Kratzenstein, 143 Neb. 310, 12 N. W. 2d 360, and Arnold v. Custer County, 83 Mont. 130, 269 P. 396. On February 6, 1946, Ira J. Partlow, attorney general, rendered a formal opinion upholding the validity and legality of a contract such as that in question herein. See Forty-first Biennial Report and Official Opinions of the Attorney G-eneral of the State of West Virginia, 1945-46, pages 147 and 150.

We are not concerned with the expediency of the contracts in question, nor with the wisdom exercised by members of the county court in entering into them. We do note, however, the allegations of the answer of the county court, which allegations are accepted as true in the light of the demurrer thereto, that prior to the making of such contracts Cabell County lost in excess of $700,000 in school aid from the State of West Virginia “because of alleged findings of the Tax Commissioner of the State of West Virginia that property valuations on real property within said County were not sufficient and adequate to make said County eligible for the maximum allocation of State Aid for schools, as determined and provided by Chapter 18, Article 9A, Section 1, et seq., West Virginia Code.”

The Court holds that because of the broad and comprehensive nature of powers expressly granted to and duties expressly imposed upon the county court by the Legislature, the county court had implied power and authority to enter into the written contracts in question in this case; and that, therefore, such contracts are valid, binding upon the parties thereto and legally enforceable. In holding that the contracts are valid and enforceable, we note that the valuations fixed by the partnership under the terms of such contracts are designed merely to serve as a guide to the assessor and to the county court in the performance of the duties imposed upon them by law; and that such contracts do not impose a mandatory obligation upon the assessor and county court to accept such valuations for tax purposes.

For the reasons stated herein, the judgment of the Circuit Court of Cabell County is reversed and the case is remanded to that court with direction to dissolve the injunction granted as a part of that judgment.

Reversed and remanded with direction.