Montana Attorney General Opinion 15-88

Opinion No. 88 County Treasurer - Clerk of Court- Clel'k and Recorder-Fees. HELD: County treasurer is required to furnish information to the public re- 'ganling taxes hut. is not required to fur- nish c'Crtifieate; amI if he "oluntarily furnishes it, he cannot charge a fee therefor. Clerk of court and clerk allli record- er charging fee for searching record, should furnish a certificate or state- men t. No form is relluired. Liabilitv of offic'ers and bondsmen (lepelllls tipon facts in each case. February 23, IH33. You have submitted the following questions: '."re are herewith attaching a cer- tificate form which some banks are requesting count.y officials to certify to. "Please gh'e us your opinion as to whether it is the official duty of the ,',arious eounty officers to make such certificates. "If they do make such certificates, do they or their bondsmen incur any liabHity in case of error? "If such certificates are to he made, what should each of the officers charge for his service '!" In regard to the eounty treasurer. the certifica te calls for certain infor- mation in regard to delinquent taxes and taxes levied for the current year. While it is the duty of the county treasurer to furnish information to taxlJayers regarding the amount of taxes delinquent and levied, I find no provision in the stu tutes of l\1ontuna which requires him to furnish a par- ticular form of certificate carrying his signature and seal for which he is re- quired or perm~::ted to make a charge. (See opinion No. 84, this yolume.) In the ahsence of a duty expressly 01' im- pliedly imposed by statute, I urn of the opinion that he is not requit'ed to furnish such certificate. 'l'he statute does not make any provision for a fee for such sen'ice and in case the treas- m'er voluntarily furnishes sueh certifi- eate no fee would be permissihle as it is not the policy of the law that any officiul should use his official position for the lJurpose of llli "a te gain. Section 4mS, R. C. l\f. 1H21. which lists the fees to he charged by the clerk of the district court. fixes a fee for sen rching the records. "While the stat- ntes do not require that he make a cer- tificate O\'er his signature and seal in the form submitted, since the law im- poses the duty for which he must make a charge. u statement or certificate signed hy him set,tinl-( forth the result of his search wou\cl be, it would seem, un implied duty. Since fees are only collectible when expressly authorizpr\ hy law and an of- ficer demandinl-( fees. either from the public or the state or other govern- mental bodies, must point to a particu- la r statute authorizing them (46 C .. J. 1017. Sec. 244), and since toile statute docs not authorize the collection of a fee for the search, to-wit: 25c for each ~'eur of files, the clerk of the court, if he issues a certificate setting forth the result of his search, may not muke a charge for such certificate, Section 4!)I7 sets forth the fees of the county clerk, which include fees for searching the index records and for lila king a bstracts of title, which fees. of course, must be puid to the county tl'eaSurel', "rhat I ha"e sail! reglll'r\- ing the duties of the clerk of the court. would apply to the county clerk. The statute does not authorize the collec- tion of u fce for making a certificate setting forth the result of his search. nOlO for a certificate in connection with the making of un ahstract of title, and therefore no fee can be charged for making a charge for such certificate. if made. It goes without saying that the county clerk and rt.'Corder should make no ussertion in his statement, or certificate, except what his record ac- tually discloses. 72 OPINIONS OF THE ATTORNEY GENERAL In the absence of specific facts, I do not believe that 1 should attempt to pass an opinion on the liability of eith- er of these officers, or their bondsmen, for loss in case of error. So many fac- tors enter into the question of the per- sonal liability of ~n officer and his bondmen that no opinion should be ex- pressed except upon a given state of facts for each case. In the ahsence of such facts, it would serve no useful purpose to make general statements re- garding the law.