Montana Attorney General Opinion 16-155

Opinion No. 155. Taxation-Airplanes, Assessment of -State Board of Equalization. HELD: Since there is no statute au- thorizing it, the State Board of Equalization may not assess airplanes in the first instance, whether used for pleasure or convenience, or engaged in intra-state or interstate commerce. August 15, 1935. State Board of Equalization The Capitol Your letter to us of July 25 is as follows: "The National Parks Airways, en- gaged in interstate commerce be- tween Salt Lake City, Utah, and Great Falls, has requested that this board assess the airplanes which we consider properly assignable to Mon- tana. "Will you kindly advise us: 1. Whether this board has the power to assess such airplanes. 2. If so, under what law should they be assessed? 3. How should the assessment be distributed, i. e., to counties, cities, school districts and/or other taxing subdivisions ... The Constitution and laws of Mon- tana define the powers of the State Board of Equalization. Section 15, Article XII, of the con- stitution as amended in 1922, pro- vides: "The state board of equaliza- tion shall adjust and equalize the valuation of taxable property among the several counties, and the different classes of taxable property in any county and in the several counties and between individual taxpayers; super- vise and review the acts of the coun- ty assessors and county boards of equalization; change, increase, or de- crease valuations made by county as- · 154 OPINIONS OF THE ATTORNEY GENERAL sessors or equalized by county boards of equalization; and exercise such au- thority and do all things necessary to secure a fair, just and equitable valu- ation of all taxable property amol).g counties, between the different classes of property, and between individual taxpayers. Said state board of equali- zation shall also have such other powers and perform such other duties relating to taxation as may be pre- scribed by law." Section 16 of the same Article pro- vides: "All property shall be assessed in the manner prescribed by law ex- cept as is otherwise provided in this constitution. The franchise, roadway, roadbed, rails and rolling stock of all railroads operated in more than one county in this state shall be assessed by the state board of equalization and the same shall be apportioned to the counties, cities, towns, townships and school districts in which such rail- roads are located, in proportion to the number of miles of railway laid in such counties, cities, towns, town- ships and school districts." Section 8 of Chapter 3, Laws of 1923, authorizes the board "to an- nually assess the franchise, Toadway, roadbeds, rails, and rolling stock, and all other property of all railroads, and the pole lines and rights of way and all other property of all tele- graph and telephone lines, electric power and transmission lines, ditches, canals and flumes, and other similar property, constituting a single and continuous property operated in more than one county in the state, and to apportion such assessments to the counties in which such properties are located on a mileage basis; provided, however, that lots and parcels of real estate not included in right of way, with the buildings, structures and im- provements thereon, dams and power- houses, depots, stations, shops, and other builrlings, erected upon right of way, furniture, machinery, and other personal property, shall not uc con- sider.ed as a part of any rmch single and continuous property, but shall be considered as separate Jlnd distinct thEm::fl'om, and shall be asse~sed hy the county assessor of the county wherein they are situated." The same section also authorizes the board "to exercise general supervision over the administration of the assessment and tax laws of the state, and over as- sessors, county boards of equalization, boards of county commissioners, and other officers of municipal corpora- tions, having any duties to perform under any of the laws of this state relating to taxation to the end that all assessments of property be made relatively just and equal at true -value in substantial compliance with law, and to supervise the administration of all revenue laws of the state and assist in their enforcement, and for that purpose may visit each county in the state whenever deemed neces- sary, and may call, not to exceed one meeting of the county assessors each year at the capitol, for consultation and instruction, the expense of such attendance to be paid by the respec- tive counties." Section 11 of Chapter 3 provides that "whenever the board shall, in any year, discover that any taxable property of any person has not been assessed in such year, or that it has becn omitted from taxation during any previous year or years, the board may assess the same for such year or for such previous years." Section 1 of Chapter 161, Laws of 1933, provides that the board shall assess the net proceeds of mines, roy- alties and royalty interests. Section 3 of Chapter 26, Laws of 1935, provides that the board shall assess the properties of freight line companies within the state. The board possesses other powers not necessary to recite here as they are without any particular pertinency. It is the duty of the county assessor to assess, in the first instance, all property subject to assessment other than that which the board is required to assess under the provisions of Sec- tion 8 of Chapter 3, Laws of 1923; the provisions of Section 161, Laws of 1933, and the provisions of Section 3 of Chapter 26, Laws of 1935. (Sec- tions 2001-2047, Revised Codes 1921, and amendments.) The state board of equalization, as the Supreme Court has said, "is a special tribunal endowed with limited powers and charged with the per- formance of specific duties." (State v. State Board of Equalization, 56 OPINIONS OF THE ATTORNEY GENERAL 155 Mont. 450.) It must find the author- ity for what it does in the constitu- tion and laws. (State ex reI .. Tones v. Erickson, 75 Mont. 429.) Generally speaking, state officers, boards, commissions and departments have such powers as are expressly delegated to them by constitutional and statutory provisions, and such ad- ditiunal powers as are necessarily im- pliE'd from those which are expressly granted. But executive and adIT'.iniR- trative officers, boards, departments and commissions have no powers he- yond thpse granted by express pro- vision or necessary implication. (59 C. J. 111.) As there is no staiute which au- thori2es the state boa~'d of equali:m- tien to assess airp13.; les in the fir8t instance, whether used for pleasure or convenience, or engaged in intra- state or interstate commerce, the an- swer to the first question must be in the negative. The answer to the first question being what it is, an- swers to the second and third ques- tions become unnecessary.