Montana Attorney General Opinion 15-223

Opinion No. 223 Taxation-uProtested Tax Fund"- State Treasurer-Legislative Assembly. HELD: The legislature hilS no power to divert money placed in the "Pro- tested Tax Fund" into the general fund of the state, or into the "Common School Income and Interest Fund," an<l it is the duty of the State Treasurer to return such money to the owner whose protest has been upheld hy the Supreme Court. May 29, 1933. You have asked us for advice as to the course you should take ahout pay- ing the judgment which the Fruit Growers Express Company hoI d s against F. E. Williams, State Treasurer. It appears from the record that in the month of January, 1932, the Fruit Growers Express Company hrought suit ill the District Court against F. E. Wil- liams, as State Treasurer, to recover the sum of $17,080.27, being taxes paid under protest by it to him in November 1931. On or about July 5, 1932, the plaintiff was given judgment for the full amount. Recently the Supreme Court declared the statute under which the tax was exacted invalid and af- firmed the judgment. OPIXIO:,\S OF THE ATTORNEY GENERAL 157 The legislature, in anticipation, per- haps, of an unfayorahle ruling on the part of the Supreme Court, attempted to dispose of these and similar taxes heretofore paid through the passage of Chapter 134, Laws of 1933. But the State TreasUl'er placed the money in question in the "Protested Tax Fund" and it is still there. TIl{' money was and is a trust fund am} the right of the ·plaintiff thereto be- came, under the circumstances. a vested right, which the legislature could not disturb, at least as early as the enter- ing of the judgment on .July 5, 1932. by the District Court. It is our view. therefore. that the money has never found its way into the general fun<1 of the state or into the "common school income and interest fund," but is stili in the hands of the State Treasurer, and that notwithstanding Section 10 of Article XII of the Constitution he has the power, and it is his duty to return it to the owner. (Kittridge v. Boyd, 18 Pac. (2d) 563, rehearing denied 20 Pac. (2d) 811; McCullough v. Common- wealth. 172 U. S. 102, 43 L. Ed. 382; Atchison, Topeka & Santa Fe v. O'Con- nor, 22:~ U. S. 280. 56 L. Ed. 436: Scottish Union etc., CO. Y. Herriott. 80 N. W. 665: Wiard Y. Love County. 253 U. S. 17, 64 L. Ed. 751; DuBois v. Board of Commissioners, 37 N. E. 1056: Champlain Realty CO. Y. Town of Bat- tleboro, 121 Atl. 580: Board of Educa- tion ,'. Thurman, 247 Pac. 996: Ameri- can Mills Co. v. Fifer, 146 N, K 870: Ocean Grove, etc., Assn, y, Bradley ·Beach, 103 Atl. 812; Pearl River Coun- ty v. I.Alcey Lumber Co" 86 8'0. 755: German Alliance Ins. Co. v, Van Cleave. HI N. E. 94: Ettor ". City of Tacoma, 228 U, S. 148, 57 L. Ed. 773; Inter- national Paper Co, ". Burrill. 260 Fed. fl64; 61 C. J. 984; 6 R. C. IJ. 319; 1 Cooler on Taxation, Sec. 134.) It has been suggested that the Fruit Growers Express Company should file a claim for the amount of the judgment with the State Board of Examiners hefore requesting affirmative action on the part of the State Treasurer. 'I'hat mar be done with propriet~', but it is not necessary, Opinion No, 224 Clerk of Court-Guardianship Proceed- ings-Fee on Transfer of Proceedings. HELD: No fee need be paid to the clerk of the court for the filing of pa- pers on the transfer of guardianship proceedings. May 31, 19.'33. You ask for an opinion as to whether or not It fee shall be charged by a clerk of court, and if so what fee, on the transfer of guardianship procPedings. (Chapter 21 of the 1933 Session Laws.) Tn such a case, petitioners ha'-e al- ready paid a fee in the county whef(> the papers were originally filed. 'l'h(' law does not require specifically the payment of any other fee on the tram;- fer of papers to a second county. I therefore conclude tha t no fee nel'<l be paid to the clerk of court of tIl(' county to which such papers II re trans- ferred.