Montana Attorney General Opinion 15-214

Opinion No. 214 County Commissioners-Poor Tax- Road Tax-Cancellation-Refund -County BMrd of Equalization. HELD: The power of the board of county commissioners to refund taxes illegally or erroneously collected, or to order the cancellation of illegal speCial poor and road assessments is inde- pendent of the powers of the board ,,;tting as a county board of equaliza- tion and may be exercised at any time. 150 OPINIONS OF THE ATTOHXEY GENERAL May 20, 1933. You haye submitted the following questions: "1. Does the hoard of county com- missioners have the power and authol'- ity to order cancellations of special poor and road assessments for the CUI'- rent year (1933) that are legally ex- empt from such assessment at this time, or can such cancellations only he made when the commissioners sit as a board of equalization? "2. Does the board of county COIll- missioners have the legal light to re- fund erroneous collections for 1n33 speCial poor and road tax collections at this time or must such actions be made after the completion of the tax roll ?" Answering your second question first, r call your attention to Section 22'22, reading as follows: "Any taxes, per centum, and costs paid more than once or erroneously or illegally collected, may, by order of rhe board of count~' commissioners, be refunded by the county treasurer, * * *" The Supreme Court of California in Hayes v. Los Angeles County, 33 Pac. 766. in con- struing a similar statute, held that the word "may" meant "shall"; in other words, that it is the duty of the count~­ commissioners to order the county treas- urer to refund taxes illegally collected. In my opinion such refund should be made by the county commissioners whenever demand is made therefor after the illegal or erroneous collection of the tax and such power is not de- pendent upon the powers of the hoard of equalization. This would be only equitable and there appears to be no sound reason for waiting until after the completion of the tax roll. Since it is the duty of the county com- missioners to refund taxes illegally col- lected, they must necessarily have the power to order the cancellatiQn of il- legal special poor and road assessments, at any time, as there would be no pur- pose or equity in collecting illegal taxes and then ordering a refund. This is a duty of the county commissioners. The board of equalization is not concerned with the cancellation of assessments or refunding of taxes illegally collected. That board meets "to examine the as- sessment book and equalize the assess- ment of property in the county." (See Section 2113. R C. ~I., 1U21.) I n the following section as amended b~' Chap- ter 187, Laws of 1933, the power of the board of equalization is stated to be: ". * * to increase or lower any assess- ment contained in the assessment book. so as to equalize the assessment of thc property contained therein, and make the assessment conform to the true yalue of such property in money, • • *." In none of the sections of the code dealing with the board of equalization is any power given to that board to cancel assessments illegall~' made, or refund taxes illegally or erroneously collected. These are duties of the boarel of county commissioners and are not dependent upon the powers of the board of equalization.