Montana Attorney General Opinion 15-172

Opinion No. 172 Sheriffs-Counties-Ta.~ Sales. HELD: The sheriff of the county where -the property of the delinquent taxpayer is located is the proper offic- er to seize property in a civil action. April 14, 1933. You request our adyice on the fol- lowing: "Maya Sheriff acting as del)- uty county treasurer, under Section 2239 R. C. M. 1921 as amended by Ch. 102, Laws of 1923, go outside of hiR county to seize property to sell for de- linquent personal taxes and whether a court writ is necessary in order to le\'Y on the property, other than a statement. of the county treasurer of the amounts due for taxes?" "A sheriff as a general rule has no authority to serve process beyond the limits of his county * * *." 57 C. .J. 775--Note. "W11en the law confers upon a person powers that he, as a natural person, doe'> not possess, that. power cannot accompany his person be- yond the bounds of the sovereignty which has conferred the power, * * *." 46 C. J. 1082. "The sheriff is without authority to make seizure in replevin outside his county." DuRant v. Bro\yn Motor Co., 144 S. E. 705. "A sheriff eannot sen'e a subpoena outside his county." \Vashoe County y. Humbolt County, 14 Nev. 123. "A sheriff or constable who seizes property outside of the territory O\'er which his author· ity extends is to be regarded as though he were a stranger having no writ, and is liable ill trespass to the owner." 57 C. J. 821. See also: Hill v. Haynes, 54 N. Y. R 158; Goetchius Y. White, 75 S. E. 674; Stephenson v. Wright, 20 So. 622. "A sheriff's duties are de fined by statute and exceptions to such duties cannot be enlarged beyond what the plain language imports." State v. Clemens, 40 Mont. 567; 5f) C. J. f)84. There are exceptions, however, to the general rule, relating chiefly to 124 OPIl'HONS OF THE ATTORNEY GENERAL criminal matters. (Sections 11736 and 11737, R. C. M. 1921.) Such excep- tions, howe\'er, do not in our opinion contemplate civil actions, nor furnish any remedy in such actions, hut one who has remo\"(~d property subject to execution from the county for the pur- poses of avoiding a lien for taxes may be got on a misdemeanor charge under Section 11433, R. C. M. 1921. Under Section 11737 your sheriff may be au- thorized to arrest the party if found anywhere in the state and return him to your county for trial. If convicted the penalty is provided by Section 1072.3, H. C. ;\1. H)Z1. On a misdemean- or charge, ~'our action must be com- menced within one yea I' from the time of the commission of the offense, (11931) but defendant need not be present either at the trial nor when verdict is rendered. (12018). It is our opinion that if you desire to seize this property in a civil action such seizure would have to he made hy the sheriff of the county where prop- erty of the delinquent taXllayer is lo- cated.