Montana Attorney General Opinion 15-576

Opinion No. 576 Road Tax-Poor Poll Tax-Poll Ta.."\: -Volunteel' Fil-e Department -Refund-County Commissioners. Hl!JLD : "There an employee is by law exempt (in this case a volunteer fire- man) from payment of road and poor poll taxes but his employer nevertheless pays such taxes to the county treasurer and deducts the same from the wages of such employee, the county commis- sioners may, under Section 2222, R. C. ~1., 11:)21, order a refund of such taxes. July 13, l\}34. You have requested our opinion upon the right of the members of the IDast Side Volunteer Fire Department to ob- tain refunds from Silver Bow County of road and poor poll taxes paid by them, presumably through their em- ployers. The sections of the Re\'ised Codes of 1921 which apply to the organization of volunteer fire com]Jllnies are as fol- lows: "5143. Fire companies in incorpor- ated cities and towns are formed and organized under special laws, or under authority conferred upon the city or town government. Those in unincor- porated towns and villages are or- ganized by filing, with the county clerk of the county in which they are located, a certificate in writing, signed hy the foreman or presiding officer and secretary, setting forth the date of the organization, name, officers. and roll of active and honorary mem- hers, which certificate and filing must be renewed eyery three months. There must not he allowed to any such towns or ,ill ages more than one com- pany for each one thousand inhabi- tants, but one company must be al- lowed in any city, town, or yi.llage where the popula tion is less than one thousand. 'l'here must not be allowed to any fire company more than twen- ty-eight certifica tp memhers. "5144. E\'ery such fire compan~' must choose or elect. a foreman, who is the presiding officer, and a secre- tary and treasurer, and may estab- lish and adopt by-laws and regulations and impose penalties. not exceeding fh'e dollars, or expulsion for each of- fense. The officers and memhers of unpaid fire companies regularly or- ganized and exempt firemen are en- titled to the following privileges amI exemptions, yiz: Exemption from pay- ment of poll-tax, road-tax. and bead- tax of every description: exemption from jury duty: exemption from mili- tary duty, except in case of war. in- vasion, or insurrection. E"ery fire, man who has sen'ed five years in an organized company in this state is an 'exempt fireman,' and must receive from the chief engineel' of the depa rt- ment to which he belonged a certi fi- cate to that effect. Every active fire- man must have a certificate of that: fact, signed h~' the chief of the fire department or the foreman of the company to which he helongs; such certificates must be countersigned by the secretar~', and over the seal of the company, if one is prodded. Each cer- tificate entitles the holder to exemp- tion from military and jury duty." It appears that the ]~ast Side Volun- teer Fire Company was organized on Xoyember S, 1!)3Z:1, and has complied with the IH'O\'isions of these sections so far as it. was possihle for it to do so. There is nothing in the hoard's letter or in the copy of the county attorney's opinion which accompanies it from which it can he determined that the district sought to be protected against fi re is a town or Yillage within the meaning of section 5143. We may safe- 400 OPIKIQXS OF 'l'HE ATTORXEY GEKEHAL Iv assume. however, that if it be one (;1' the otb.er it is unincorporated. The word "town," as used in section 5143, means an aggregation of hou~es so Ileal' to one another that the lll- habitants may fairly be said to dwell too-ether. (Davis Y. Stewart, 54 Mont. 429; Marx & Co. v. Bankers' Credit Life Ins. Co., 139 South. 421; People v. Van Xuys Lighting Dist.. 162 Pac. 97; County Court of Garfield County v. SChwarz, 22 Pac. 783; Murphy v. State, 5 South. 626.) The word "village", as used in sec- tion 5143, means any small aggregation of houses in the country, generally less in number than in a town or City and more than in a hamlet. (People v. Van Xu~'s Lighting Dist., supra; Mahood y. State, 13.g ·South. 90; State v. Vil- lage of Gilbert, 120 X. W. 528; State Y. Lammers, 8!l N. 'V. 501.) Our investigation has disclosed that the district in question is somewhat extensi ye in area and rather dense in popula tion. Therefore, it easily rises to the dignity of a Yillage, if not a town, according to the definitions ;"rjYen abo\·e. The power of the board of county commissioners to refund taxes is fouml in section 2222, Reyised Codes of Mon- tana 1921, which reads as follow~: "Any taxes, per centum, and costs pa~d more than once or erroneously or Il- legally collected may, by order of the board of county commissioners, be re- funded by the county treasurer, and the state's portion of such tax, per- tentage, and costs must be re~unded to the county, and the state al~(htor must dra,Y his warrant therefor III favor of the county." Our supreme court has held th~t capitation or poll taxes are taxes III the real sense of the term and not mere €..-xactions under the police power of the state. (State Y. Gowdy, 62 Mont. 119.) Our supreme court has also held that section 2222 has been repealed by sec- tion 2269. Re\-ised Codes of Montana. 1921, in so far as it relates to the. right. to recover property taxes illegally col- lected. (First :\'at. Bank Y. Beaverhead County, 88 Mont. 577; Williams v. Harvey, 91 Mont. 168.) W'e think, howe,er, that section 2222 is still effective in a case where an eniployee is by law exempt, from pay- ment of road and poor poll taxes but his employer ne,'ertheless I)ays such taxes to the county treasurer and de- ducts the same from the wages of such employee. A refund may be or- dered under those conditions. This is but following a practice which has pre- vailed in Montana for forty years or more.