Northwestern Imp. Co. v. McNeil

• Decision Date: 31 January 1918
• Docket Number: 14268.
• Parties: NORTHWESTERN IMPROVEMENT CO. v. McNEIL et al.
• Court: Washington Supreme Court

170 P. 338

100 Wash. 22

NORTHWESTERN IMPROVEMENT CO. v. McNEIL et al.

No. 14268.

Supreme Court of Washington

January 31, 1918

Department 2. Appeal from Superior Court, Kittitas County; John Davidson, Judge.

Action by the Northwestern Improvement Company against H. G. McNeil and others. From a judgment sustaining demurrer to the complaint, plaintiff appeals. Judgment reversed, with directions to overrule the demurrer.

See also, 167 P. 115.

Geo. T Reid, J. W. Quick, L. B. da Ponte, and C. A. Murray, all of Tacoma, for appellant.

Arthur McGuire, of Ellensburg, and H. G. Rowland, Dix Rowland, and Harry E. Phelps, all of Tacoma, for respondents.

CHADWICK J.

This action was brought by appellant to enjoin the performance of a contract entered into between one Raymond P Tarr and the county of Kittitas. The contract is as follows:

'This agreement made and executed in duplicate this 5th day of April, 1917, by and between Kittitas county Washington, through 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 make 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 ($3,500.00), as follows, to wit:

'$500.00 upon presentation and approval of the bond herein provided for.

'$1,000.00 on June 1st, 1917, upon filing by second party of data at that date acquired.

'$1,000.00 upon filing completed maps and reports as herein provided.

'$1.000.00 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 second party, together with such assistance, expert counsel and advice, and all information in possession of second party, necessary, expedient or valuable, in sustaining the valuations so made by second party, in event of any suit or action involving the valuation for taxation purpose, of said lands so valued by second party for coal.

'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 ($3,500.00), 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 ($50.00) 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 to 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 ($3,500.00, 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 incurred in the performance of this contract by second party, first party to pay premium on said bond if approved.

'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 R. 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 duputy assessor of Kittitas county.

If 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 of Idaho. Judge Neterer upheld a similar contract in Pacific Timber Cruising Co. v. Clark County (D. C.) 233 F. 540, finding warrant for his holding in the general powers of the commissioners (Rem. Code, subd. 6, § 3890), and in the fact that the commissioners sit as a board of equalization (Rem. Code, §§ 9200-9207). Judge Dietrich having a similar contract, and a statute to all intents and purposes the same as our own, held the contract to be ultra vires.

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. Rem. Dode, § 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. Rem. Code, title 76. The assessor is enjoined to and makes undertaking that he will 'diligently, faithfully and impartially perform the duties enjoined on him by law' (Rem. Code, § 3972), and when he 'deems it necessary to enable him to complete the listing and the valuation of the property of his county within the time prescribed by law, may appoint one or more well-qualified citizens of his county to act as his assistants or deputies.' The deputies are required to make oath that they will 'perform all the duties enjoined upon, vested in or imposed upon assessors.' Rem. Code, § 3973. The assessor and his deputies are given full power to administer oaths, and to make all due inquiry to lead to a proper understanding of the value of property of every kind. Rem. Code, §§ 9102 1/2, 9105, 9129, 9130. Whatever may be the fault of the system, it is certain that it was adopted by the Legislature as a complete and supposedly ample system and with no intent of dividing the duty imposed upon the assessor with the board of county commissioners or of granting the commissioners a supervisory control over the assessor.

It is no 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...