Montana Attorney General Opinion 15-143

Opinion No. 143 Counties--ReaJ. Pl'operty-Taxation of Propel·ty of One County by Another. HELD: If a county is, in effect, a mortgagee of property in B county, the property is subject to taxation in B county, but if A county is the equitable owner of property in B county, wheth- er or not title is acquired according to law or by an ultra vires act, it is not suhject to taxation there. April 8,. 1933. ·We have your inquiry concerning the OPINIOXS OF THE ATTORNEY GENERAL 10!) statu!; of certain land in Hill County for purposes of taxation, the same be- Ing held in the name of Niels ::\Iadsen, trustee for Sheridan County. It is not possible to determine from your statement of the case or that of )11'. Ahern or from both together whether Sheridan County is, in effect, a mortgagee of the property or the equitable owner thereof. If it be the former, the property is subject to taxa- tion. (61 C .. J. 56C., 367; 2 Cooley on Taxation, Sec. 625.) If it be the lat- ter, the property is not subject to taxa- tion (Sec. 2, Article XII, of the Con- stitution; Buffalo Hapids Irr. Dist. v. Colleran, 85 Mont. 466; People Y. City of Toulon, 133 N. };. 707; 2 Cooley on Taxation, Secs. 625 and 6~; 61 C. J. 417-420) and cannot be Yalidly sold for taxes. (61 C. J. 1132, 1133.) ·We agree readily enough with Mr. Ahern that under Section 4444, Revised Codes 1921, a county is without power to purchase and hold lands outside its own limits, but we do not think the principle ·has any application here. Assuming that Sheridan County is the owner of the land in question, it matters not a·t all whether it acquired title thereto ·according to the law or by an ultra vires act so far as the re- sult is concerned. In either case the mandate of the Constitution is controll- ing. (Warren County Y. Nail, 29 South 755; Benedict v. B(l. of Com'rs. of Lin· coIn County; 17 Pac. (2cl) 454; Mills Y. Forest Presel'\'e Dist., 17S X. E. 126; Bloss v. Board of Supr's .. 136 N. ,V. :'iS9; Haley Y. Umatilla County, 13 Pac. 890: 'VaIden Y. Town of 'Vhigham, 48 H. K 159; 2 Cooley on Taxation, Sec. (i:,{5; 15 C. J. 532, 533.) As you and the county attorney of Hill County are apparently not in ac· cord either as to the law or the facts, we suggest the institution of an action to quiet title on the part of Sheridan County as the Simplest and best way to cnd the contro\·ersy.