Montana Attorney General Opinion 17-57

Opinion No. 57. Taxation-Real Property-Remitting Penalty and Interest. HELD: 1. According to the language of the statute. in order to redeem lands from delinquent taxes it is necessary that he pay all delinquent taxes to and in- cluding the first half of 1936. 2. Senate Bill No. 1 does not af- fect assignments of tax sale certifi- cates made before March 1, 1937. 3. The constitutional authority of the legislature to enact Senate Bill No. 1 does not depend upon the ex- istence of an emergency since emer- gency does not create power. (Home Building and Loan Association v. Blaisdell, 290 U. S. 398.) Mr. 1. E. McKenna County Attorney Lewistown, Montana Dear Mr. McKenna: March II, 1937. You have asked our confirmation of your opinion to County Treasurer 58 OPINIONS OF THE ATTORNEY GENERAL Ferrell, dated March 5, 1937, upon the following questions submitted to you: "1. Must a taxpayer pay all de- linquent taxes to and including the first half of 1936 at one time before December 1st, 1938 or may he pay any particular year and stilJ receive the benefit of this Act?" The reasoning of opinion No. 99 in Volume 16, Opinions of the At- torney General, p. 98, applies, as the wording of the two acts are similar. We agree with your conclusion that this question must be answered in the affirmative and that there is no redemption of real property as pro- vided for by Senate Bill No. I, unless all of the taxes are paid. "2. In the matter of a tax deed can action be started where old as- signments were issued before March 1st, 1937?" The last sentence of Section 1 of this Act provides: "This Act shall not apply to the purchaser of any ceritficate of sale made prior to the passage and ap- proval of this Act." The Act would therefore not affect assignments made before March I, 1937, the date when the Act was passed and approved. 3. You have raised the further question whether the legislature may constitutionally declare an emergency for a period covering nearly two years, or until December I, 1938. We do not believe that the power of the legislature to waive payment of interest and penalty depends upon an emergency. As said by Chief Jus- tice Hughes in Home Building and Loan Association v. Blaisdell, 290 U. S. 398: "Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. * * * While emergency does not create power, emergency may furnish the occasion for the exercise of power. 'Although an emergency may not call into life a power which has never lived, nev- ertheless emergency may afford a reason for the exertion of a living power already enjoyed.' Wilson v. New. 243 U. S. 332. 348." Our Supreme Court in State ex reI. Sparling v. Hitsman, 99 Mont. 521, apparently did not uphold a simi- lar law on the theory that an emer- gency existed which gave the legisla- ture the power to enact such law. Our court quoted with approval the lan- guage of Chief Justice Hughes, supra. It is possible that where the con- tinued operation of a law depends upon the existence of an emergency, the fact of such emergency is open to judicial inquiry. However, we do not believe that the operation of Senate Bill No.1 depends upon the existence of an emergency. Until a competent court, if ever, shall place some limita- tion upon the operation of the Act, we must assume that it is valid ac- cording to its terms.