Montana Attorney General Opinion 15-388

Opinion No. 388 County COll1ll1issioners-Ta.x Deeds- Delinquent Ta..'(es HELD: : 'When a county is the holder of a certificate of sale and the time for redemption has expired, a board of county commissioners may at any time within three (~) years after the time for redemption has expire<1. order the county Clerk to apply to the county treasurer for a tax deed. The hoard cannot he coerced hy the court into so doing, but mandamus may be invoked after the three (3) years ha ,'e expired. Noyember 15, 1933 You have asked us fo\' an opinion on the power of a board of county com- miSSioners, under Chapter -l\), Laws of 193:{, to order the county clerk to ap- OPINIOXS OF THE ATTORNEY GE:\ERAL ply to the county treasurer for the is- ;mance of a tax deed to the county for property sold to it for delinquent taxes. Section 1, Chapter 02, Laws of 1927, reads as follows: "'Vhene,-er a coun- ty, city or town has become the pur- chaser of property sold for delinquent taxes, and is the holder of the cer- tificate of saie when the time for re- demption expires, the Board of County Commissionel's, city or town cOllncil or commission. at any time thereafter deemed proper, may order and direct the count~1 clerk, city or town clerk. to apply to the COUIlty, city' or town treusurer, us the 'case may be, for the issuance to the county, city or town, of a tax deed for such property, and it shaH then be the duty of the county qerk, city or town clerk, to give or post and cause to be published, the proper notice of the application for such tax deed and to make the proper proof thereof. all in the manner re- quired by Section 2209 Revised Codes of Montana .1H21." The supreme court in State ex reI. lIialott Y. Board of COunty Commis- sioners, 86 Montana 595, held that the phrase, "at any time thereafter deemed proper", found in the section, did not Yest the board of county commission- t'rs with discretion when it came to directing the county clerk to apply for the issuance of a tax deed, and stated till' principle of law applicable to such eases as follows: "Although the lan- guage of the statute is in form per- missive as to when tax deeds in fa,-or of the county shall be applied for, yet, since it concerns the rights of thc puhlic and of third persons, it must he construed as mandatory. 'l.'he rec- ot:nized rule is that, where a public hody or officer has been clothed by fltatute with power to do an act which concerns the public interest or the rights of third persons, the execution of -the power may be insisted upon as a duty, although the phraseology of the statute be permiSSi'-e and not man- datory." The section has been amended by section 1, Chapter 49, Laws of 1933, hy the insertion of the words "or here- a fter become" after the words "bas become", and the addition of the words "provided .. howe"er, that the Board of County Commissioners, City or Town Council, or Commission, cannot be c(,mpelled to order and direct the County Clerk, City or Town' Clerk, to apply to the County, City or '.rown '1'reasurer, as the case may be, for the issuance of a tax deed within three YE'II rs after the time for redemption hns expired, unless the Board of Coun- t.,- Commissioners, City or Town Coun- cil or Commi'ssion, deems it proper to do so." ' It is apparent that the legislature in amending section 1 of Chapter 92 ill tended to accomplish two things, namely, to place purchases made by a (,OUIlty after the passage of the amend- ment in the same position as purchase;; made by a county hefore the passage (If the amendment and to modify·. the rule laid down by the supreme court in the lIIalott case. As' the law stands now, when a county is the holder of the certificate of sale and the time fOi' redempti()n has expired, a lJoard of county com- missioners may' at any time within three years after the time for redemp- tion has expired order the county c1ei'k to appl~' to the county treasurer for a tax deed, but it ca'nnot he coerced h~- the court into so dOing. If the hnnrd remain inacti\:e until after the lapse of the three-year period man- dnmus may then be invoked against it. The words "unless the board of county commissioners, city or town ('()unci! or comm'ission, deems it prol~r 10 do so" are meaningless, or if not meaningless, perhaps invalid as an en- croachment on the powers of the ju- diciary. If the board of county com- llIissionersdeem it proper in the first im,tance to make the order, it should 1I0t lie necessary to drag it into court to force it to do so. , We .find this paragraph in your let- tel': "There may also: be nnother ques- !"ion on the whole propOSition and that is as to whether the Board has author- ity to grant deferments of applica- t,iOIlS fOl' tax deeds eithel' on condition 01' partial payment or upon no pay- ment a tall." In the case of Yellowstone Packing and Provision' Co. '-. Hays, 8-3 Montana 1, the Supreme Court held that a board of county commissioners was without authority to remit or compro- miRc delinquent taxes. .