Montana Attorney General Opinion 15-408

Opinion No. 408 Bastardy-Verdic~\vitnesses. Ex- pense of. HELD:' Bastardy cases are specinl proceedings to be tried as civil actions nnd resulting in civil liability: .. Not being a felony, two-thirds in number of the jury may rcnder Ycrdict. The witnesses must be subpoenaed at state expense. December Hl, 1933. You request advice from the office on .the following matters: 1. I s a proceeding in bastardy a civil or a criminal action: 2. "'hat number of jurors are nec· essary to arrive at a verdict: 3. In such actions, are \vitnesses subpoenaed at the expense of the state? Heplyillg' to questiun 1. in the abo sence of speCial regulations proceed- ings in hastardy must be governed by the rules of procedure applicable to d \'il actions. (7 C. J. 966 and cases cited; Skaggs \'. State, 207 Pac. 877.) Bast.'lrdy cases are special proceedings to be tried as ch'il actions. (Clark V. State, 281) Pac. 313.) There are no "special regulations" governing such proceedings in our statutes other than Sections 12267·12274 It. C. M. 1921. The judgment provided by Section 12273 is in the nature of a civil liabil- ity. The fact that the offense is dealt 286 OPI:\'IONS OF THE ATTORNEY GENERAL with in the Penal Code does not clas- sify it as a crime_ Replying to question 2, in cases not amounting to a felony two-thirds in number of the jury may render a Yer- dict. (Section 11929 R. C. M. 1921.) Bastardy is nowhere defined as a fel- ony. Replying to question 3, while the ac- tion is in the nature of a civil proceed- ing, it must be brought in the name of the state (Section 12267) and be prose- cuted by the county attorney, (Sec- tion 12271) and witnesses lllust, in our opinion, be subpoenaed at the expense of the state. Opinion No, 411 Taxation-Delinquent Taxes--Redemp- tion fl'om Tax Sale by Payment of Proportionate Shal'e of Personal Property Tax, HELD: Section 2211, as amended, permits one who redeems real property ft'om tax sale to clear his title to such redeemed property by paying the pro- portionate share of delinquent personal property tax which is a lien against a group of real property which includes such redeemed property, December 20, 1933. It appears from your letter to us of the 18th inst., that continuously from 1919 to the summer or fall of 1933 A held .the legal title to a large number of town lots in Hill County. The taxes levied against them in 1919 were al- lowed to become delinquent, and at a tax sale held in January, 1920, the lots were struck off to the county as pur- chaser. In 1925 certain personal property was assessed to A, who failed to pay the ·taxes thereon and to this day they ha ve remained delinquent. In the summer or fall of this ,rear A sold to B two of the lots in question. B then redeemed these two lots by pay- ing all the taxes which the county treasurer apportioned to them. Some ·time later that official called B's at- tention to the fact that A had failed to pay the taxes levied on his personal property for the year 1925. B is will- ing to pay his proportionate share of these taxes under the provisions of Section 2211, Revised Codes, 1921, as amended hy Chapter 48, Laws of 1923, if aplical>le, in order to clear his title to the property. It is your view that he ought to be permitted to do so and you ask us to give you the benefit of our opinion on the matter. Section 2211, as amended, reads as follows: "Whenever any person, firm, co- partnership, corporation, or associa- tion shall desire to redeem from a tax sale and pay all subsequent taxes upon any lots, piece or parcel of real estate, which said person, firm, co- partnership, corporation, or associa- tion shall own or hold a mortgage or other lien against or ha ye any inter- est in such property, it shall be the duty of the county treasurer of the county in \yhich such real estate is situated to permit such redemption and payment; and in case the said real estate shall have been assessed or sold, together with other real estate, or in case the tax assessed against 'any other property shall be a lien thereon, then it shall l>e the duty of said county tn'asurer to compute and apportion the tax that should ha ye properly been assessed against the said real estate sought to be re- deemed, and upon which the taxes are sought to be paid, the same as if said property had been separately assessed. Any personal property tax which is a lien upon said real estate shall be likp- wise computed and apportioned on the same percentage basis as the tax as- sessed against the real estate is ap- portioned." 'We are convinced that the statute is l)road enough to coyer the case before us. Indeed the Supreme Court in con- struing the statute in State ex reI. Federal Land Bank y, Hays, 86 Mont. 58, used language that seems to put the (juestion iJeyond contro\"ersy.