Pritchard & Abbott v. McKenna

• Decision Date: 03 October 1961
• Docket Number: No. A-8297,A-8297
• Citation: 350 S.W.2d 333,162 Tex. 617
• Parties: PRITCHARD & ABBOTT et al., Petitioners, v. Patrick H. McKENNA et al., Respondents.
• Court: Texas Supreme Court

Page 333

350 S.W.2d 333

162 Tex. 617

PRITCHARD & ABBOTT et al., Petitioners, v. Patrick H. McKENNA et al., Respondents.

No. A-8297.

Supreme Court of Texas.

Oct. 3, 1961.

Rehearing Denied Nov. 8, 1961.

Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, B. J. Bradshaw, Houston, with above firm, for Pritchard & Abbott and others.

Markwell, Stubbs, Decker & Dalehite, Galveston, Graves, Dougherty & Gee, Austin, for Galveston County and others.

Tramonte & Urbani, Galveston, and Leo Brewer, San Antonio, for Patrick H. McKenna et al.

CULVER, Justice.

This suit was brought by McKenna and certain other taxpaying citizens of Galveston County praying that a certain contract entered into by and between Galveston County acting through its Commissioners Court and the partnership of Pritchard & Abbott, and appraisal firm, be declared void and that the Commissioners Court and each member thereof be enjoined from paying to Pritchard & Abbott any sums of money that might be due under the terms of the contract. The trial court held the contract null and void and issued the injunction as prayed for.

The Court of Civil Appeals affirmed, 343 S.W.2d 752, 754, holding (1) that the Commissioners Court in entering into this contract usurped the functions, duties and prerogatives of the County Assessor and Collector and therefore that the contract is ultra vires the powers of the Commissioners Court; (2) that under the contract Pritchare & Abbott were employed to provide 'a system for the tax assessor' as defined by Article 7264a, Vernon's Annotated Civil Statutes, and since the contract was not joined in or approved by the State Comptroller as required by that article it is invalid.

Admittedly the Commissioners Court is not expressly clothed with constitutional or statutory authority to contract for the services detailed in this agreement, but we think that authority is implied from the powers that have been expressly granted to and the duties imposed upon this body by law.

Section 18, Article V, State Contitution, Vernon's Ann.St., provides in part: 'The County Commissioners as chosen, with the County Judge as presiding officer, shall compose the County Commissioners Court, which shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed.' The Constitution also provides that 'Taxation shall be equal and uniform. All property in this State, whether owned by natural persons or corporations, other than municipal, shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.' Section 1, Article VIII. The County Commissioners Court is constituted as a board of equalization for the County. Section 18, Article VIII, State Constitution.

The law places upon the County Equalization Board a heavy responsibility and of necessity it must be given considerable power to carry out this responsibility. The Board is charged with the inspection, correction, equalization and approval of assessments made by the County Assessor. The Board is expressly authorized to require the production of relevant books and papers and to summons persons and examine them under oath in order to ascertain the value of the taxable property and to raise or lower the same as may be warranted. Article 7206. The statute requires that when the Commissioners Court convenes as a board of equalization each member of the court, including the County Judge, shall take an oath that he will faithfully perform the duties imposed upon him to see that all property subject to taxation shall stand on the tax rolls at its true cash market value, Article 7215, and if any member of that Board shall knowingly fail or refuse to fix the value of property rendered for taxation in compliance with the laws of the State that failure or refusal shall constitute malfeasance in office and shall be cause for his removal. Article 7216.

Respondents say the contract calls for and results in taking over the functions of the Tax Assessor by the Commissioners Court and that this conclusion is borne out by the evidence introduced in the case.

So far as the consideration of the evidence introduced in the case is concerned the Court of Civil Appeals, we think, correctly reviewed the provisions of the contract as being clear and free of ambiguity. That being true its validity vel non is to be determined from an inspection of that document alone without the aid of any other evidence and without taking into account any acts and conduct of the parties in attempting to comply with the terms of the agreement. The following cases cited by the Court of Civil Appeals do not hold otherwise. Lone Star Gas Co. v. X-Ray Gas Co., 139 Tex. 546, 164 S.W.2d 504; Gulf Coast Water Co. v. Hamman Exploration Co., Tex.Civ.App., 160 S.W.2d 92, writ refused, and City of Athens v. Andrews, Tex.Civ.App., 231 S.W.2d 928, writ refused.

We are fully in accord with respondents in pointing out, as they do, that the County and the County Commissioners Court are not synonymous nor are they one and the same. We quite agree that the County Commissioners Court is not charged with the management and control of all of the County's business affairs. Each of the various elected officials, including the Assessor-Collector, has the sphere that is delegated to him by law and within which the Commissioners Court may not interfere or usurp. But that is not to say that the functions of the Board of Equalization and those of the Assessor-Collector are so diverse that information may not be lawfully contracted for and obtained by the Equalization Board because it may likewise be of aid to the Assessor in the performance of his duties. It is the duty of the Assessor as well to determine the value of all taxable property in the county.

The statutory procedure outlined in Article 7206 is that the Commissioners Court shall convene as a board of equalization on the second Monday in May of each year or at least before the first day of June. At that time the Assessor is to bring before the Board his assessment list for inspection and correction if necessary. After the Board has examined, corrected and approved the Assessor's list, the Assessor prepares the tax roll and furnishes copies to the Tax Collector, the State Comptroller and to the County Clerk.

Many thousand pieces of real property are located in Galveston County, including residential and business structures of various kinds, vacant lands, harbor facilities, oil properties and installations and other types. Without expert assistance the Board could not begin to carry out its functions and sworn obligations and a thorough appraisal of all taxable property is a task that would necessarily involve months of preparation. We think it is of no moment that the contract called for this work to be done prior to the meeting of the Equalization Board and to the presentation to the Board of the assessment list made up by the Assessor.

The contract is set out in full in the opinion of the Court of Civil Appeals and will not here be duplicated. Actually the opening paragraph of the contract sets forth the substance of the services to be rendered by Pritchard & Abbott as well as the benefit to be gained by the County from those services as follows:

'That, Whereas, the County of Galveston, State of Texas, acting by and through its Commissioners' Court, has determined that there is a necessity for, and that it will be to the best interest of said County and its citizens generally, to employ experts, skilled in the appraisal and valuation of oil and/or gas producting properties, industrial properties, and lands and buildings, and to make a permanent record of all lands and buildings within the County, so that all properties may be properly valued for the purpose of taxation and values thereof equalized'.

Respondents seem to concede that if this contract were restricted to the appraisal of oil and gas or other properties that required special skill and experience 'not possessed by the ordinary person' the contract would not be invalid. This would be true, they say, because as a matter of 'sheer necessity' in that field skilled appraisers must be employed. We do not agree with that reasoning. The matter of skill required to appraise different kinds of property is one of degree. The appraisal function not only requires an expert in the field of oil and gas, but also an expert in the field of what may be said to be ordinary real estate values. 'The ordinary person' is no more qualified to value real estate than he is to value oil and gas properties. Each requires special training, experience and qualifications.

The fact that there may be more qualified experts in the field of ordinary real estate values than in that of oil producing properties and installations cannot be material in determining the power of the Board of Equalization to retain expert advice. To say that the Board may hire experts in one field but not in another is borne out neither by logic nor by the authorities.

In Roper v. Hall, Tex.Civ.App., 280 S.W. 289, 291, no writ history, the Commissioners Court was held to have implied power to contract with an individual for compilation of data for its use while sitting as a board of equalization in determining the taxable value of oil and gas properties in the county. The court held 'The services contracted to be rendered called for information and experience not possessed by the ordinary person. So far as they affected the discovery, assessment, and valuation of unrendered oil properties, they could not have been performed by the County Assessor unless he possessed extraordinary information and experience along the required lines'. Respondents say this rule should not be extended so as to cover all of the real estate in the county. This apparently parently is based on the theory that the Tax Assessor is always to be considered as a qualified...