Clark v. Ada County Board of Commissioners

LODGE, District Judge,

specially concurring, in which SCOGGIN, District Judge (Ret.), concurs.

I concur with the reasoning and conclusion of the majority opinion as to the denial of the application for the writ of prohibition. However, I believe that the statewide impact of this case forces a discussion of the constitutional and statutory relationship of the State Tax Commission with not only the Ada County Assessor and Board of Commissioners, but also with all county assessors.

A most important element in this case is framed by petitioners’ argument that the assessment duties of the County Assessor may not be taken from him because he is a constitutional officer elected by the people. Petitioners assert that the two orders of the Tax Commission did just that. They also contend that the constitutional authority of the Assessor was further eroded by the County’s contract with an outside appraisal firm authorizing that firm to conduct the reappraisal giving rise to this litigation,1 and by the “policy statement” issued by the Board of County Commissioners. In support of these contentions, petitioners rely *755on Blomquist v. Board of County Commissioners, 25 Idaho 284, 137 P. 174 (1913).

Respondents counter by asserting that at the time Blomquist was decided the State Tax Commission was a legislatively created and authorized body. Today, that Commission is a constitutionally established and authorized body as a result of a 1944 amendment to Article 7, Section 12 of the Idaho Constitution. Thus, respondents argue, the reasoning of Blomquist is no longer apposite.

I disagree with respondents’ position. An examination of Blomquist, the Constitution, and existing statutes supports the validity of petitioners’ claim.

In Blomquist, the State Tax Commission filed an original action in this court for issuance of a writ of mandate to compel the Bannock County Board of Equalization to substitute a valuation set by the Commission for a valuation set by the Bannock County Assessor. This court refused the writ after reviewing the relationship between the constitutional functions and duties of the elected county assessor and the statutory powers of the Tax Commission.

While the 1944 constitutional amendment referred to above has obviously affected the Blomquist discussion of the statutory authority of the Tax Commission, that amendment has in no way diminished the importance of the court’s holding in Blomquist that “Under sec. 6, article 18, of the Constitution, it is essential that the assessment of property located wholly within a county shall be made by the assessor elected by the voters of the county . . . .” (25 Idaho at 292, 137 P. at 176.) That holding not only remains unchanged, it has been re-enforced by the fact that since Blomquist and even subsequent to 1944, the people of Idaho have amended Article 18, Section 6 of the Constitution several times, and each time have retained the elective position of county assessor.

Nor can I find that either individual statutes or the overall scheme of Title 63 of the Idaho Code have altered the holding in Blomquist. To the contrary, both indicate an intention on the part of the legislature to implement the constitution by specifically setting forth the power of the assessor to appraise and reappraise property for purposes of taxation.

Acting pursuant to Article 18, Section 11, of the Idaho Constitution, the legislature has set forth in Idaho Code, Section 63-201, the duty of the county assessor to assess all property wholly situated within his county. And, throughout Title 63, other duties are prescribed, including the obligation to revalue on a continuing basis all property within the county: “It shall be the duty of the county assessor of each county in the state to conduct and carry out a continuing program of valuation of all properties under his jurisdiction . . . .” I.C. § 63-221.

The fact that this statute provides that the assessor shall perform his duties “pursuant to such rules and regulations as the state tax commission may prescribe,” and that the Commission is to provide the assessor with supervision and technical assistance does not detract from the fact that the duty to “conduct and carry out” the program is that of the assessor. There is not the slightest hint in § 63-221 that the legislature intended the State Tax Commission to have the power to remove this duty from the assessor and grant it to a third person.

Further evidence that the legislature has never intended to grant such authority to the Tax Commission is found in Idaho Code, Section 63-202A, the very statute which permits the Commission to order compliance with provisions of the Idaho Code and with its own rules and regulations. That statute provides that the Commission may order a county to conduct a reappraisal of all property within the county, and further provides that if the public officer affected by the order of the Commission does not comply within ten days of the service of the order, the Commission “may apply to a judge of the district court of the county in which the public officer holds office for an order ... to compel such public officer or employee to comply” with the order, or to show cause why the public officer or employee should not be so compelled.

*756If the Commission elects not to pursue the judicial determination provided in Section 68-202A, it may proceed under an alternative approach provided by the legislature in Section 63-513(19). That statute provides that the Commission shall have the power and duty:

“To examine and test the work of county assessors at any time and to have and possess all rights and powers of such assessors for the examination of persons ■and property, and for the discovery of property subject to taxation; and if it shall ascertain that any taxable property is omitted from the assessment rolls or is not assessed or valued according to law, it shall bring the same to the attention of the assessor of the proper county in writing, and if such assessor shall neglect or refuse to comply with the request of the tax commission to place such property on the assessment rolls, or correct such incorrect assessment or valuation, the tax commission shall have the power to prepare a supplemental roll, which supplement shall include all property required by the tax commission to be placed on the assessment roll and all corrections to be made. Such supplement shall be filed with the assessor’s assessment roll, and shall thereafter constitute an integral part thereof to the exclusion of all portions of the original assessment rolls inconsistent therewith, and shall be submitted therewith to the county board of equalization.” (Emphasis added.)

Neither the power to prepare a supplemental assessment roll (Section 63-513(19)) nor the authority to seek a court order compelling compliance with an order to reappraise property (Section 63-202A), authorizes or permits the Commission to direct that some party other than the assessor perform the appraisal duties.

Moreover, the legislative history of Section 63-221 shows that the grant of such power to the Commission is not intended. The original text of that statute, as enacted in 1955, obligated the county assessor to undertake and complete a county-wide revaluation within six years of the passage of the act. The statute authorized the Tax Commission to provide supervision and technical assistance, and to “commence, continue, and complete such revaluations in counties where such revaluations have not been commenced by 1961.” (Emphasis supplied.) S.L.1955, Ch. 101, Sec. 1. Disregarding for the moment the lack of legislative authority to remove from a constitutional officer even a portion of the characteristic duties belonging to that office (see Wright v. Callahan, 61 Idaho 167, 99 P.2d 961 (1940) and Blomquist, supra) it is clear that under the original enactment of Section 63-221 the Commission was permitted to perform a revaluation in a county where the law had been ignored. In 1969, however, that section was replaced by the present statute, S.L.1969, Ch. 455, Sec. 10, which does not contain an authorization for the Commission to “commence, continue and complete” revaluations not carried out by the counties. Instead, it directs the Commission “to promulgate rules and regulations for the implementation of this program, and to provide any such county assessor with such supervision and technical assistance as may be necessary.” Moreover, this new statute directs the board of county commissioners to “furnish the assessor with such additional funds and personnel as may be required to carry out” the revaluation program. I believe that these statutory changes clearly show that the legislature did not intend that the Commission have the power to conduct county-wide reappraisals or to order them conducted by a third party, but rather intended that the Commission, and the county commissioners, provide necessary assistance to the county assessor for his conduct of such reappraisal. These changes argue compellingly against the existence of any authority in the Commission to order a county to employ a third party to carry out a reappraisal.

I find nothing in Title 63, or in the legislative history of Section 63-221 that casts doubt on the continued viability of this court’s holding in Blomquist as to the constitutional authority of the county assessor elected by the people to conduct assessment functions as to all property situated wholly with the county.

*757Another important point of contention in this case is presented by petitioners’ argument that Blomquist forbids the Board of County Commissioners to interfere with the Assessor’s functions by establishing the independent data processing audit office and by transferring to that office funds which are budgeted to the Assessor. Respondents argue the propriety of the Board’s actions on the basis of I.C. § 31-802, which provides county commissioners with the power to “supervise the official conduct of all county officers . . . charged with assessing, collecting, safekeeping, management or disbursement of the public moneys and revenues” and to “see that they faithfully perform their duties . . . .”

Again, I cannot agree with respondents’ position. I agree that Section 31-802 may permit the Board to set up an audit division as part of its own administrative staff, but only with funds budgeted to the commissioners for their staff. Creation of a new county office, and diversion to it of funds budgeted to the assessor would appear to violate Article 18, Section 6 of the Constitution, which prohibits the establishment of any county offices other than those named in the Constitution, and this court’s decision in Meller v. Board of Commissioners, 4 Idaho 44, 35 P. 712 (1894), which held that the commissioners lack the authority to establish a new office unknown to the Constitution and endow it with functions already affixed by law to another office.

- On the issue of whether or not the Board of County Commissioners may enter into a contract with a third party for performance of assessment duties, the cases of Dexter Horton Trust & Sav. Bank v. Clearwater County, 235 F. 743 (D.Idaho 1916), aff’d 248 F. 401 (9th Cir. 1918), and Meller v. Board of Commissioners, supra, suggest there is no present authority for such a proposition.

. As to the petitioner-Assessor this position seems untenable in light of his actual participation in the execution of the contract between the County and the outside appraisal firm, Max P. Arnold and Associates.