
    CONTRACTS — TAXATION.
    [Franklin (2nd) Circuit Court,
    November, 1911.]
    Rockel, Dustin and Allread, JJ-.
    State ex rel. Manufacturers’ Appraisal Co. v. F. M. Sayre, Aud.
    1. City Board of Real Estate Assessors not Authorized to Adopt Somers System of Realty Valuations.
    The employment of “expert assistants” provided by. Gen. Code 5545 is placed upon the board of real' estate assessors of a city and cannot be delegated to a nonresident corporation. Hence, a contract with such a corporation to furnish “appraisers” and “to install and superintend” in and for a city, the operation of wliat is known as “Somers System of Realty Valuations,” though beneficial to the board, is a delegation, of the functions of the board and constitutes a plan of valuation inconsistent with the statute.
    2. Official Acts of City Real Estate Assessors Exceeding Exercise of Discretion, SuEject to Review.
    Official acts of a city board of real estate assessors, exceeding the bounds of its discretion, in making a contract, at least, partly illegal, are reviewable; hence, a county auditor may properly refuse to issue bis warrant in payment of obligations created by reason of such contract.
    [Syllabus approved by the court.]
    .Mandamus.
   ALLREAD, J.

The relator seeks by mandamus to compel the auditor of Franklin county to issue vouchers for $8,000 as provided for in two certain contracts made by relator with the board of assessors of the city of Columbus to install and put in operation the so-called “Somers System of Realty Valuation.”

The contracts and claims for services thereunder are said to be upheld by force of Gen. Code 5545, which provides:

“ If a board of real estate assessors in a city deems it necessary to enable it within the time herein prescribed, to complete the proper listing and valuation of the real property within such city, it may employ a'chief clerk and appoint such expert assistants as it may deem necessary, and fix their compensation.”

The term “assistants” used in the act of March 12, 1909, was by amendment of January 31, 1910, changed to “assistance.” The general code which was then pending before the general assembly and adopted on March 23, 1910, retained or rather employed the original word “assistant.”

This confusion or. interchange of words is not of serious consequence, particularly in view of the fact'that the first contract was executed before the amendment of January, 1910, and the other after the adoption of the general code.

•It may be noted, however, in a perusal of the statute, that the use of the term “appoint” ih the clause authorizing “expert assistants” and the pronoun “their” in the compensation clause may well raise a grave doubt whether the legislature contemplated a “lump sum” contract without specifying persons or duration of employment.

Gen. Code 5545, must be read and construed with the other sections of the act. The scope of employment is intended to conform to the manifest scheme of the entire act. Gen. Code 5554 provides that:

"The assessor, in all cases, from actual view, and from the best sources of information within his reach, shall determine, as near as practicable, the true value of each separate tract and lot of real property in his district, according to the rules prescribed by this chapter for valuing real property.”

Gen. Code 5560 provides that,

"Each separate parcel of real property shall be valued at its true value in money.”

The commissioners and auditor are required to furnish certain abstracts, maps and plats describing each tract.

The owner may be required to furnish certain information.

The board of assessors may also act under Gen. Code 5545, and secure "expert assistants.”

Gen. Code 5565, provides:

"An assessor who deems it necessary to enable him to complete, within the time prescribed, the listing and valuation of the property, moneys, and credits of his district, township, or ward, with the approbation of the county auditor, may appoint a qualified citizen of his county or township as an assistant, and assign to him such portion of his district, township, or ward, as he thinks proper. An assistant so appointed * * * after giving bond and' taking oath, as prescribed by law, shall perform all the duties enjoined upon, vested in, or imposed upon assessors by the provisions of law.”'

By Gen. Code 5567, assessors and assistants are made liable criminally for neglect or misfeasance in office.

Gen. Code 5543, provides that the words "assessor” and "assessor of real estate” wherever used in the chapter shall include the board of assessors- in cities.

It is urged that Gen. Code 5545, conferring upon boards of assessors in cities authority to appoint "expert assistants” supersedes as to cities the authority conferred by Gen. Code 5565. In our view, however, both sections are consistent and may be harmonized.

The general assembly was, no doubt, of the opinion that the complex influence affecting values in the cities justified the employment of experts. These experts are to be assistants, not appraisers. The appraisement is finally to be made by the official assessors residing in the city acting under bond, the influence of official oath, and the restraint of criminal responsibility. These are safeguards which the legislature has seen fit to prescribe and can not be ignored in the execution of the law.

How, then, stands the relator’s contract and the services of its experts thereunder ?

One general feature of the contract under consideration is that the relator, the Manufacturers’ Appraisal Company, furnish the necessary “expert appraisers” of realty and structures.

The duty and responsibility of appointing the “expert assistants” is placed by statute upon the board of assessors and to delegate that important function to a nonresident corporation is not justified by public policy and is contrary to the manifest spirit of Gen. Code 5545.

The contract designates the experts to be furnished by the relator as “appraisers,” and from the whole contract and the evidence, it is manifest that the term was correctly and advisedly used. Clearly there is- no statutory sanction for the appointment even by the board of unofficial “expert appraisers” and, a fortiori, there is none for the delegation of that power ,to others.

The first and chief obligation assumed by the relator under the contracts was “to install and superintendent in and for the city >of Columbus,' Ohio, the operation of what is known as the “Somers System of Realty Valuations.” The Somers System of ground valuations is based upon units or prime factors from which values of specific tracts are arrived at through certain rules and tables. The unit upon each block must be fixed as a basis and to fix the unit value of a block is an act of appraisement, not capable of being delegated by the assessors. The fact that the board of assessors may have reviewed the valuations so made and adopted them may and-most probably does establish their validity as against collateral attack, yet it does not validate any expenses illegally created.

Buildings and structures were valued under the Somers system upon information secured by employes of the board of appraisers by the card system. The cost of reproduction was estimated and a deduction made of a certain percentage of depreciation according to age. This system of structure valuation is a departure from that prescribed by statute.

The unit of valuation fixed by statute is the specific tract and the rulé of valuation is actual value to be determined by actual view. The Somers valuation is an approximation to actual value by a scientific method adopted by Mr. Somers based upon experiences in the larger cities. '

While we do not doubt that some features of this contract were beneficial to the legitimate performance of the board’s duties, yet we can riot escape the conclusion that the contracts, for most part, constituted a delegation of the functions of the board of assessors to the relator and the performance by its experts of duties resting exclusively upon the assessors and involved a plan inconsistent with the statute,. That some features were beneficial to the board and were actually used in making the assessment does not validate the contract as a whole. The contract price is presumed to include the illegal as well as the legal features.

It is urged by the relator that the discretion confided to the board of assessors can not be reviewed, and that the auditor had no right to refuse the warrant.

That view is correct, no doubt, in cases where the officer having discretion acts within the legal limits of the discretion and without fraud or gross abuse. Here, however, the board exceeded the bounds of its .discretion and made a contract partly, at least, illegal.

The defendant acting as auditor was justified in refusing a warrant for the amount of the contracts and the writ of mandamus is, therefore, refused.

Rockel and Dustin, JJ., concur.  