Montana Attorney General Opinion 15-483

Opinion No. 483. School Districts-TransfelTed Terri- tOl'y-Delinquent Taxes, Collection of. HELD: 'Vhere territory is trans- ferre!1 from one school district to an- other, the delinquent school taxes due in the territory so transferred. at the time of transfer, must he paid to the school district from which such terri- tory was detached . March 1, 1934. "'e acknowledge receipt of yonrs of the 2nd of January requesting an opin- ion from this office on the following matter: "Inclosed find a letter frolll the County Superintendent of Schools of Golden Valley County, Montana, which speaks for itself. "She made an order transfening Sections l!) and 20 to another district, and did not mention anything about delinquent taxes, or other financial interests, and I maintain that the de- linquent taxes to he collected, should therefore belong to the old district. "Please send me your conclusions' concerning this matter to satisfy this official and ohlige." In County of Hill v. County of Lib- erty, 62 Mont. 15, it was held that de- linquent taxes due in the old county on property in the new belong to the new county. l<~ollowing the rule laid down in that case it might be said that the same rule would apply in the mat- ter tha t you submit, but we do not think it does for the reason that that decision is based upon a special act. the l\'ew Counties Act, and a special provision is contained in that Act gov- erning delinquent taxes. (Section 43H8, R. C. 1\1.. 1921.) Furthermore, a com- mission is prodded for in the New Counties Act to adjust the property rights and indebtedness hetween an old county and a new county created out of territory taken from the old. Court decisions in other States quite generally hold that such taxes belong to the old district. In Marsh v. Early, 169 ~. C. 465, 86 S. E. 303, it was held that: "Excluding from a certain school district tha t portion of its ter- riority lying' in another county taking effect from its ratification, docs not exempt the territory excluded from lia- bility for sehool taxes already accrued 332 OPINIONS OF THE A'I'TORNEY GENERAL and due, and which constituted a lien upon the property." In that case the old district claimed the taxes due and the court upheld its contention. (SeE' also, Waldron v. Lee, 5 Pick. (Mass.) 323; and Ovitt v. Chase, 37 Vt. 196 202.) 56 C. J. Sec. 853, page 731, lay~ down the general rule as follows: "Taxes which have been levied and be- come due prior to the time of the de- tachment may be collected, the detach- ment not affecting the validity of a levy already made, and the duty of a tax collector to collect and turn over school taxes levied by the proper au- thorities is not affected by the subse- quent detachment." A different rule seems to be implied by Section 1028, R. C. M., 1921, relat- ing to the creation of new districts. That section provides that the division of funds shall he made by the county superintendent in the manner therein provided. A similar method might be followed in your case without doing any great injustice to anyone, but if such method is adopted it must be kept in mind .that, if there is any bonded indebtedness outstanding in the old district, territory may not be detached from such district without considera- tion for the bondholders. To permit taxpayers to transfer from one district to another to escape tax obligations is not to be encouraged. To sum up the situation, our stat- utes are not specific in the matter but in dealing with similar questions seem to imply that the detached territorv shall carry with it the right to its ow~ revenues, not, however, without taking into account the indebtedness left he- hind. For the reasons stated we do not think the case of Hill County v. Liberty County, supra, furnishes a pre- cedent controlling here. On the other hand, the citations from other states are specific and we think they should be followed and the old district be giv- en the delinquent taxes. In your opinion to the county super- intendent, you advised her that she should issue an order directing the county treasurer to make the transfer. We think the procedure outlined by Section 1028 may be followed in this matter. The procedure therein author- ized is that the superintendent shall certify to the treasurer the transfers or apportionment to be made, and such certificate will be the treasurer's au- thority to make the apportionment.