Montana Attorney General Opinion 16-59

Opinion No. 59. Taxation-Personal Property Tax, Collection of -County Treas- urer-Sheriff . HELD: 1. It is not necessary that the county treasurer obtain a writ of execution to levy upon personal prop- erty for personal property tax but, under Chapter 102, Laws of 1923, the report of the assessor is sufficient. 2. Where the county treasurer de- signates and appoints the sheriff to act as his deputy for the purpose of levying upon the property and con- ducting the sale, the sheriff need have nothing more than the treasurer him- self, excepting as a matter of caution he should also have in writing the treasurer's appointment of him as deputy. 3. When the treasurer appoints the sheriff to act as a deputy county treasurer the sheriff cannot perform those duties through his deputies. Mr. Oscar C. Hauge County Attorney Havre, Montana March 13, 1935. This will acknowledge receipt of your letter of March 8, with which you kindly enclosed a copy of an opin- ion which you have rendered to the County Treasurer of your county rel- ative to the procedure which the Treasurer must follow in the collec- tion of personal property taxes under Section 2239, R. C. M. 1921, as amend- ed by Chapter 102, Laws of Montana, 1923. Section 2 of Chapter 102, supra, provides: " .... * The county treasur- er must at the time of receiving the assessor's report, and in any event within thirty days from the receipt of such report, levy upon and take into his possession such personal property against which a tax is assessed and proceed to sell the same, in the same manner as property is sold on execu- tion by the sheriff, and the county treasurer may for the purpose of making such levy and sale, designate and appoint the sheriff as his deputy, and such sheriff shall be entitled to receive the same fees, as entitled in making a seizure and sale under exe- cution. * * *" This provision is mandatory and the treasurer must proceed according to its express language. (State v. De Graff, 162 Wash. 107, 298 Pac. 339.) Sections 2240 to 2246, inclusive, have been repealed thereby. (Perham v. Putman, 82 Mont. 349, 267 Pac. 305.) It is our opinion that under this section all that the treasurer need have in his possession at the time of levying upon the property is the re- port of the assessor, which the asses- sor must make according to Section 2238, R. C. M. 1921, as amended by Chapter 143, Laws of Montana, 1929. While it is true that Section 2 of Chapter 102, supra, requires the sale to be made in the same manner as property which is sold on execution by the sheriff, we do not think it is necessary to obtain a writ of execu- tion. (Thomas v. Thomas, 44 Mont. 102.) The report of the assessor ac- cording to Chapter 143, supra, must set forth: "* * * the nature, amount and assessed valuation of such prop- erty, where the same is located, and the name and address of the owner, claimant, or other person in posses- sion of the same, * * "." Having this information in his possession, we then believe that the statute itself (Section 2239, as amended by Chap- ter 102, Laws of 1923) is sufficient warrant for the treasurer to proceed. As was pointed out by the Supreme Court in the case of Perham v. Put- man, supra, such a sale is a treasur- er's sale of personal property seized for taxes: "It should be so entitled and should so recite. " '" " It was not to be a sheriff's sale and it was not to be an execution sale. It was re- quired to be a county treasurer's sale and was only required to be conducted in the same manner as a sheriff's sale on execution. ,. " *" Where the treasurer designates and appoints the sheriff to act as his dep- OPINIONS OF THE ATTORNEY GENERAL uty for the purpose of levying upon the property and conducting the sale, the sheriff need have nothing more than the treasurer himself, excepting as a matter of caution he would also have in writing the treasurer's ap- pointment of him as deputy. We agree with the opinion of At- torney General Foot (Vol. 13, Report and Official Opinions of Attorney General, p. 220), which you have called to our attention, in which it is held 'that when the treasurer appoints the sheriff to act as a deputy county treasurer, the sheriff cannot perform those duties through his deputies. We are enclosing herewith a copy of Opinion No. 172, Vol. 15, Report and Official Opinions of Attorney General, p. 123, rendered by this of- fice, which may be of interest to you in regard to this matter. Accordingly, we believe that your opinion to the County Treasurer of your county is correct, and it is here- by confirmed.