Mohr v. County Court of Cabell County

• Decision Date: 23 August 1960
• Docket Number: No. 11094,11094
• Citation: 145 W.Va. 377,115 S.E.2d 806
• Court: West Virginia Supreme Court
• Parties: E. T. MOHR, etc. v. COUNTY COURT OF CABELL COUNTY, etc., et al.

Page 806

115 S.E.2d 806

145 W.Va. 377

E. T. MOHR, etc. v. COUNTY COURT OF CABELL COUNTY, etc., et al.

No. 11094.

Supreme Court of Appeals of West Virginia.

Submitted May 4, 1960.

Decided June 28, 1960.

Concurring Opinion July 6, 1960.

Dissenting Opinion Aug. 23, 1960.

Syllabus by the Court

1. County courts possess such powers as are expressly conferred by the Constitution and Legislature, together with such as are reasonably and necessarily implied in the full and proper exercise of the powers so expressly given to them and the duties expressly enjoined upon them.

2. A county court, because of the powers expressly given to it and the duties expressly enjoined upon it by the Constitution and Legislature, has the right to enter into a written contract with a firm of appraisers, by the terms of which contract, tract, for a stated monetary consideration, the firm of appraisers agrees to revalue the taxable real estate within the county for assessment and tax purposes, it appearing from the terms of such contract that the purpose thereof is merely to aid the county officials in the performance of their duties in relation to such matters.

Russell L. Daugherty, Maxwell W. Flesher, William I. Flesher, John W. Daniel, Huntington, for appellants.

Sam R. Harshbarger, Milton, for appellees.

W. W. Barron, Atty. Gen., Henry Co. Bias, Jr., Asst. Atty. Gen., amicus curiae Bias, Jr., Asst. Atty. Gen., amicus curiae for Donald C. Carman, State Tax Commissioner for State of West Virginia.

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 Cleminshaw 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 of 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:

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'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.

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

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'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...