Montana Attorney General Opinion 15-184

Opinion No. 184. Horse Herd Districts-Classification of Horses-Horses, Sale of -Sheriffs Fees and Expenses, Payment in Advance. HELD: It is the duty of the stock inspector to classify horses prior to sale under horse herd district sale. The sheriff must collect fees and ex- penses in advance of sale under hors~ herd district sale. April 28, 1933 You have submitted the following questions arising in connection with the interpretation of Chapter 57 of the OPIXIOXS O.P THE A'l.vl'ORNEY GENERAL 133 Laws of HlR::I, amending Chaptel' 110, Laws of 1931, relating to horse herd districts : "1. Is the sheriff required to pro- ceed with a classification of the ani- mals and a sale thereof pursuant to suhdivision 4 of the law, if, in his opinion, the expenses will be greater than the mlue of the animals? "2. If a sale is had, may the sheriff deduct the expenses incun-ed by him before any portion of the proceeds from the sale is paid to the party who took up the animals as dllmllge for their keeping?" The first question assumes that it is the duty of the sheriff to classify the horses. Saicl section 4, among other things, provides: "That prior to such sale the sheriff shall have said horses classified as follows: Class One shall include (a) horses not hearing a reg- istered hrand and which in the opinion of the Stock Inspector are of a value not to exceed Ten Dollars per head, and (b) horses * * * which in the opinion of the Stock Inspector are of a value not to exceed Ten Dollars per head. Class Two shall include horses hearing registered brands IIml which in the opinion of the Stock Inspector lire of a value in excess of $10.00 per head." In ,iew of the wording of this section, it is my opinion that it is the duty of the Lh'estock Inspector to clas- sify the horses as in each instance his opinion as to value is required. Section 4892 n. C. M. 1921 provides: "The officers mentioned in this chapter must not, in IIny case, perform any official serYices uniess the fees pre- scribed for such sen-ices are paid in advance- * *." Since the sheriff is one of the officers mentioned in Chapter ::15, Part IV of the Political Code, which is the chapter referred to in the abovc quoted section, he must require pay- lIlent of all fees in advance of the per- formance of any official services. In my opinion this would also apply to his sen;ces and expenses in connection with the holding of sales provided for in the above section 4. Since he must collect his fees and ex- penses in advance, the situation stated in question No.2 is not likely to arise. In case his fees and expenses are not collected in advance it would no doubt be because they were guaranteed from the procecds of the sale a nd, if so, he would have authority to deduct them fl'om the proceeds of the sale before lillY portion thereof is paid to the per- son who requested t!le sale in payment of damages and charges for the carc of the horses while in his possession.