dissenting.
On rehearing the majority of the court has seen fit to recede from the former opinion appearing, ante, p. 300, 9 N. W. (2d) 306. I cannot concur in the new opinion, hence this dissent. For the purposes of this dissent the former opinion is adopted herein by reference. I feel strongly that the former opinion is correct in statement and conclusion and I shall seek to avoid repetition of either substance or literal statement therefrom so far as possible. My purpose here shall, in the main, be an effort to point out what I consider some of the fallacies of the majority opinion on rehearing :
In the sixth paragraph of the opinion is found the following: “Referring to sections 26-732 and 26-733, Comp. St. 1929, we find that the contract was not made in contravention of any statutory limitation of power and the evidence is that there were funds legally available for the payment of the claim. Therefore, it is axiomatic, since the contract was made in good faith and without collusion, fraud, or other illegality, and performed in conformity therewith, that if the county board had the power to enter into the contract, the county would be compelled to pay according to *320its terms, and neither the members of the county board nor the sureties on their officials bonds would be liable under the statutes relied upon by plaintiffs. We decide that the county board had the power to enter into the contract.” In this connection I quote section 26-732, Comp. St. 1929, in its entirety: “All contracts, either express or implied, entered into with any county board, for or on behalf of any county, and all orders given by any such board or any of the members thereof, for any article, service, public improvement, material or labor in contravention of any statutory limitation, or when there are, or were no funds, legally available therefor, or in the absence of a statute expressly authorizing such contract to be entered into, or such order to be given, are hereby declared unlawful and shall be wholly void as an obligation against any such county.”
It will readily be observed from a reading of this section that failure to find “contravention of any statutory limitation” does not furnish a county board with power to contract. In the specific terms of this section power to contract by a county board does not exist “in the absence of a. statute expressly authorizing such contract to be entered into.” The opinion nowhere points out statutory authority for such engagements as this one and with assurance I state that no such express authority can be found. The determination arrived at by the majority opinion can in nowise in whole or in part be grounded on sections 26-732 and 26-733, Comp. St. 1929. To do so is to declare the existence of a power in the face of and contrary to a specific prohibition of power.
. In fairness, if power to enter into this contract may be found it may not be found in these statutory provisions but in the statutes defining the general powers of the county board. Specifically it must be found in the third subdivision of section 26-104, Comp. St. 1929. This provision is the following: “To make all contracts and to do all other acts in relation to the property and concerns of the county necessary to the exercise of its corporate powers.”
I concede that this provision must be read and interpret*321ed with section 26-732 and that in the light of such reading and interpretation we must conclude that the county board has power to enter into such contracts as are specifically authorized by statute and such as are necessary in relation to the property and concerns of the county.
For present purposes I will assume that the board of equalization and its functions are concerns of the county as a body corporate and politic within the meaning of section 26-104. I do not so concede. It appears to me clear that all matters of assessment, equalization, and valuation are matters of legislative concern without control thereover by any official or body except as control has been delegated by the legislature. The legislature has delegated assessment to specifically designated assessment officers and equalization to specific boards. It has conferred none of these powers on counties or county boards.
Assuming therefore that the matter of equalization is a concern of the county in the exercise of its corporate powers was this contract necessary to the exercise of that power ? It cannot be contended that anything short of necessity shall be the basis for a contract not specifically authorized by statute. To my mind it was clearly not necessary within the definitions of necessity contained in the decisions cited in the majority opinion, with which definitions I am in accord.
There are several reasons why this contract may not be upheld on the ground of necessity. Its express purpose was to furnish the board of equalization, the members of which were inexperienced in valuation of property, with information whereby the property of the county could be properly evalued for taxation purposes.
In the first place, the county had a duly elected assessor, with subordinate assessors, whose duty it was, in the first instance, to properly assess all of the property in the county. There could be no presumption that he or they would not perform their duties fairly, properly and honestly.
In the second place, contrary to the suggestions of the majority opinion, if the assessment made by the assessor *322did not reflect the true value of the property to the county the board of equalization was not helpless and in a position where it would be required to rely on that assessment without recourse. It had available the assessor’s records, the records of the county surveyor and the county clerk. Moreover by specific statute it could require the attendance of necessary witnesses and the production of books, papers and documents. The legislature attended to the necessities of such situations as this.
In the third place, and though all other grounds upon which it is contended that this contract was not necessary may be disregarded this one must be conclusive, the explicit facts of this case disclose an entire and complete lack of necessity. The appraisal made by C. A. Emery was never used by the board of equalization or any other board, officer or person for any purpose whatever. Not one assessment made in Lincoln county, Nebraska, was adjusted or equalized on the basis of this appraisal. The record is conclusive on this point, and it cannot be said that it was not used because the necessity contemplated at the time the contract was entered into no longer existed when the board of equalization convened. The facts are, as disclosed by the record, that the appraisal departed materially from the assessments as they appeared at the time the contract was entered into and they remained the same after the close of the sitting of the board. The valuation of not one piece of property was equalized with relation to the Emery appraisal.
I submit on the record, moreover, that it could not be used except surreptitiously or in violation of evidentiary rules for any purpose except descriptively by the board or in court. The report contained descriptions and set opposite the properties were valuations. Undoubtedly if Emery had been called he could have testified to the descriptive features of his report but substantially beyond that he could not have gone. He could not have given testimony as to values since his testimony in the record before us discloses that he was not acquainted with the values of real es*323tate in the communities wherein he made his appraisals.
With what reason, justification and logic may it be said that a contract was necessary when toward the accomplishment of the necessity contemplated by the contract the service performed under the contract was never employed?
In paragraph 12 of the majority opinion appears the following : “A county board of equalization as such, therefore, has no authority to enter into any contract to obtain the information, knowledge or evidence necessary to equalize valuations.” I am in accord with the statement that the board of equalization is without power to contract to obtain evidence, but I am not in accord with the implication that because of this the board of equalization is without power to obtain evidence. Sections 77-1703 and 77-1704, Comp. St. 1929, provide means for securing evidence.
In paragraph 13 the opinion states the following: “We find that the only authority to contract for such services is specifically placed in the county board.” The majority opinion makes no reference to the statute making this specific placement of authority in the county board and I am unable to find any such provision, I think there is none.
In paragraph 16 appears the following: “An applicable rule in the case at bar is that, unless prohibited by statute, a county board may adopt such means as in its judgment shall be necessary in assisting county officers properly to discharge the duties of their offices.” This is so clearly wrong when applied to this case as does the majority opinion that it hardly calls for comment. The Nebraska cases cited in the opinion and the statutes cited are all to the opposite effect.
Attention is directed to paragraph 18 of the majority opinion. The paragraph is in part the following: “The statutes of this state, with certain specific exceptions therein provided, confer upon the county board plenary jurisdiction of, and authority to make, all contracts for the county, on any subject within the scope of the powers of such county acting as a body corporate or politic.” This, I think, is an unwarranted interpretation and extension of statutory *324language, language which is clear and specific and not subject to the given interpretation. As has already been pointed out, the statute (sec. 26-104, Comp. St. 1929) says that the power to contract is dependent, not upon the scope of powers of the county, but upon necessity in the exercise of corporate powers. There is a vast difference between the two terms. As one of many illustrations which could be given, the county board has many functions which can only be performed by the board or the members thereof. Contracts may not be entered into for their performance. They are within the scope of the powers of a county acting as a body corporate and politic.
In paragraph 19 of the opinion it is stated: “Previous decisions of this court have been in conformity with these views, and in this respect the theory of separate entities has not been material in controlling our judgment since the power to bind the county by contracts within the scope heretofore stated rests with the county board whether or not it involves another office, agency or entity.” Eight Nebraska cases are cited in support of the statement. I respectfully submit that an examination will disclose that none of the Nebraska cases turns on the theory of separate entities, and further that each turns on the question of necessity in the performance of duties definitely of concern to the county as a body corporate and politic.
■ The latest case cited is Campbell v. Douglas County, 142 Neb. 773, 7 N. W. (2d) 764. That case supports in nowise the majority opinion.
In that case Campbell brought action to recover for services rendered in making an audit and report in conformity with a request by a grand jury. The position taken by the county there, which is pertinent to the inquiry in this case, was that the county had power to require the audit but that it lacked power to contract with an outside party for the service. I quote from the opinion: “Defendant here does not question the power of the board to require that the audit and investigation be made, but takes the position that the law has imposed the performance of these duties upon *325the state auditor and county comptroller, and that the defendant is without authority to contract with a private person to perform tasks which the law requires be performed by a public official.” This court did not sustain the contention that the county lacked power to contract for the audit. To the contrary as to the state auditor it said: “We conclude that the legislature has not directly nor by implication by the acts cited taken from the counties the power of examination of their own records, nor placed the power to make a comprehensive examination, audit or investigation of county officials, or the county treasurer’s office, exclusively in the auditor of public accounts.” As to the county comptroller it was stated: “At no place do we find specific requirements that the county comptroller make an audit or examination of the scope and for the purpose of the one here undertaken. Without undertaking to define the outside limits of the duties of the county comptroller, it is patent that the legislature did not place upon that official the duty of making the examination for the defendant’s board, which they and the grand jury deemed necessary in the public interest.
“We do not find in the acts cited any authority vesting in the county board any power to require of either named official that they make such examination as defendant’s board here determined to have made, nor do we find any direction to those officials to comply with such a request if made.”
The sum total of the opinion on this subject is that there was power to order the audit, but there was no public official who was required to make it, hence a contract by the county for the audit was a valid and enforceable obligation. It was one of the necessities contemplated by the grant of power to counties as bodies corporate and politic.
For a discussion of the policy involved in a determination of this case and of division of powers I refer again to the opinion reported, ante, p. 300, 9 N. W. (2d) 306, and I respectfully submit that the opinion there is correct and that the one lately setting it aside is erroneous.