Montana Attorney General Opinion 16-199

Opinion No. 199. Taxation-Personal Property Tax- Payment in Two Installments Not Permitted, When. HELD: Personal property taxes, OPINIONS OF THE ATTORNEY GENERAL 207 which are not a lien against real es- tate, may not be paid in two install- ments. Novelllber fi, 1935. Hon. Frank H. Johnson State Examiner The Capitol You have submitted for my opinion the question whether personal prop- erty taxes which are not a lien against real estate may be paid in two installments. Section 2238, R. C. M. 1921, as amended by Chapter 102, Laws of 1923, Chapter 24, Laws of 1925 and Chapter 143, Laws of 1929, reads: "It shall be the duty of the assessor, up- on discovery of any personal property in the county, the taxes upon which are not in his opinion a lien upon real property sufficient to secure the pay- ment of such taxes, to immediately, and in any event not more than ten days thereafter, make a report to the treasurer, setting forth the nature, amount and assessed valuation of such property, where the same is located, and the name and address of the own- er, claimant, or other person in pos- session of the same * * *." Section 2239, R. C. M. 1921, as amended by Chapter 102, Laws of 1923, reads: "The county treasurer must collect the taxes on all personal property, and in the case provided for in the preceding section, it shall be the duty of the treasurer immediately upon receipt of such report from the assessor to notify the person or per- sons against whom the tax is assessed that the amount of such tax is due and payable at the county treasurer's office. The county treasurer 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, * * * ." The question has been raised as to whether these sections have been amended by Chapter 96, Laws of 1923, as amended by Chapter 79, Laws of 1929, Chapter 67, Laws of 1931, and Chapter 158, Laws of 1933, read- ing 'as follows: "All taxes levied and assessed in the State of Montana, ex- cept special assessments made for special improvements in towns and cities, and except taxes levied and assessed upon motor vehicles, shall be payable as follows: One-half (1h) of the amount of such taxes shall be payable on or before five o'clock P. M. on the 30th day of November of each year, and one-half (1h) on or before five o'clock P. M. on the 31st day of May of each year; * * *." In 1931, in an opinion to Deputy County Attorney B:oiness of Billings, Attorney General Foot held that per- sonal property taxes were not pay- able in two in~tallments, or, in other words, that Chapter 96, Laws of 1923, as amended, had application to all taxes on real property and personal property secured by lien on real prop- erty. (Volume 14, Opinions of the At- torney General, page 219.) The only statute which casts any shadow of doubt on the question is Chapter 96, Laws of 1923, as amend- ed. The opinion of the Attorney Gen- eral was rendered after the 1931 amendment thereof. Since that opin- ion was rendered there have been two regular and one special session of the legislature. As pointed out, in the 1933 Session, the law was again amended but no change was made which would give an effect contrary to the ruling of the Attorney General. I am informed that public officials concerned with the construction of the sections of the law above quoted have construed Chapter 96, Laws of 1923, as amended, as not affecting personal property when not a lien upon real property. The result has been that the payment of such per- sonal property taxes in two install- ments has never been permitted. In view of this construction over a pe- riod of twelve years, and the opinion of the Attorney General in 1931, and the opportunity of the legislature to correct this interpretation, we are in- clined to the view that the opinion of the former Attorney General should stand. In this connection we call at- tention to the following rules of con- struction: "The contemporaneous construc- tion placed upon a statute by the officers or departments charged with the duty of executing it is entitled 208 OPINIONS OF THE ATTORNEY GENERAL to more or less weight, especially if such construction has been made by thE' highest officers in the executive department of the government, or has been observed and acted upon for a long period of time; and, while not generally controlling, where the case is not extreme and no vested rights are involved, such construc- tion should not be disregarded or overturned except for the most co- gent reasons, and unless clearly er- roneous." (59 C. J. 1025, Section 609.) "Where the language of a statute is ambiguous or uncertain, the con- struction placed on it by contempo- raries, although not controlling, may be resorted to as an aid in ascertain- ing the legislative intent, and should not be overturned except for cogent reasons." (rd., Section 607.) "On the principle of contempora- neous exposition, common usage and practice under the statute, or a course of conduct indicating a par- ticular understanding of it, will fre- quently be of great value in deter- mining its real meaning, especially where the usage has been acquiesced in by all parties concerned, and has extended over a long period of time; * '" "." (rd., Section 608.) We are strengthened in this view by reason of the fact that a different and contrary construction would not only result in the loss in many cases of personal property taxes through transfer, loss, consumption, conceal- ment or destruction of personal prop- erty during the additional six months for payment of the second install- ment if permitted, thus resulting in inequality of paymen.t of taxes by the escape therefrom by many, but also by the fact that the adoption of the construction that all personal prop- erty taxes are payable in two install- ments, the first on November 30, and the second on May 31 following, ex- cept in those cases where the county assessor, in compliance with the terms of Chapter 143, Laws of 1929, recommends to the treasurer that they be paid at once, would leave the door open to inequality and favor- itism. Sections 2238 and 2239, R. C. M. 1921, as amended, are in the nature of special statutes having to do with the collection of personal property taxes only. Chapter 96, Laws of 1923, as amended, makes no reference at all to these sections. There was no express intention to repeal or amend them. If the legislature had such intention and wished to make such a drastic change affecting the collec- tion of personal property taxes, it is difficult to believe that it would not have made its intention clear by some express declaration to that effect or reference to these special sections. It seems more likely that the legisla- ture intended that Chapter 96, as amended, should have general appli- cation to the payment of taxes ex- cept in so far as special statutes dealt with the collection of personal prop- erty taxes. "A special or local act on the subject of taxation is not re- pealed by a general tax law unless the intent to repeal is clearly appar- ent." (59 C. J. 936, Section 545.) Repeal or amendment of statutes by implication are not favored. State v. Cascade County, (Mont.) 296 Pac. 1; Nichols v. Ravalli County School Dist. No.3, 287 Pac. 624, 87 Mont. 181; London Guarantee, Etc., Co. v. Industrial Accident Board, 266 Pac. 1103,82 Mont. 304; Ex p. Naegele, 224 Pac. 269, 70 Mont. 129; State v. Mil- ler, 220 Pac. 97, 69 Mont. 1; State v. Bowker, 205 Pac. 961, 63 Mont. 1; 59 C. J. 905, Sections 510 et seq. "The repeal of statutes by implica- tion is not favored. The courts are slow to hold that one statute has re- pealed another by implication, and they will not make such an adjudi- cation if they can avoid doing so con- sistently or on any reasonable hypo- thesis, or if they can arrive at an- other result by any construction which is fair and reasonable. Also, the courts will not enlarge the mean- ing of one act in order to hold that it repeals another by implication, nor will they adopt an interpretation leading to an adjudication of repeal by implication unless it is inevitable, and a very clear and definite reason therefor can be assigned. Further- more, the courts will not adjudge a statute to have been repealed by im- plication unless a legislative intent to repeal or supersede the statute plainly and clearly appears. The implication must be clear, necessary, and irresistible. The foregoing rules OPINIONS OF THE ATTORNEY GENERAL 209 are particularly applicable where the statute claimed to have been re- pealed has for a long time been rigid- ly adhered to and construed as be- ing in existence, as well as where it has been given a settled meaning by adjudications of the court of last re- sort, or where subsequent legislation shows that the legislature deemed it still in existence." (59 C. J. 905, Section 510.) For the foregoing reasons I am of the opinion that personal property taxes whi~h are not a lien against real estate may not be paid in two installments.