O SHAUGHNESSEY v WOLFE
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No. 83-555 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984 LAWRENCE P. O'SHAUGHNESSY, Plaintiff and Appellant, ROBERTA WOLFE, Flathead County Treasurer, JOAN DEIST, MELFORD WOLLAN and HENRY OLDENBURG, Flathead County Commissioners and DEPARTMENT OF REVENUE, Defendants and Respondents. APPEAL FROM: The District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable James M. Salansky, Judge presiding. COUNSEL OF RECORD: For Appellant: Neil Halprin, Missoula, Montana For Respondents: Ted 0. Lympus, County Attorney, (Jonathon B. Smith, Deputy), Kalispell, Montana Larry G. Schuster, Dept. of Revenue, Helena, Montana Subnitted on Briefs: April 26, 1984 Decided: A L ~ ~ 15, ~ U S 1984 Filed: &ui; 1 5 '1984 Mr. Justice John C. Sheehy delivered the Opinion of the Court. We determine in this cause that the sta.te legislature intended a statutory retroactive effect to be amendment delinquent tax increasing payments. We the also given to rate of its 1981 interest determine that on such retroactive effect offends no state or federal constitutional provision. in Lawrence P. OIShaughnesse~~, 1982, tendered to the county treasurer of Flathead County an amount he calculated would cover interest, penalty delinquent since 1978. and property tax payments The county treasurer refused the tender because the amount tendered was insufficient if the rate of interest applied to the delinquent calculated at the rate of 10% per a.nnum. taxes was OIShauqhnessey maintained that the interest rate should be 8% up to November 30, 1981 and 10% thereafter. When the county treasurer would not accept an amount so calculated by OIShaughnessey, he filed a suit in the District Court, Eleventh Di-strict, Flathead County, for a jud.gment Judicical in effect compelling the county treasurer to accept his tender. On January 19, 1983, the District Court ordered that OIShaughnesseyls suit be grounded its dismissal on dismissed. (1) The District Court the intent of the state legislature in 1981 to apply a uniform rate of interest to all property taxes due prior to November 30, 1981, but unpaid on that date; (2) entire period constitutional of an intent to apply the rate through the delinquency prohibition and (3) against on finding no retroactivity. O'Shaughnessey appeals from the order of dismissal. Prior to 1981, the rate of interest applied to tax payments in delinquency was 2/3 of 1% per month (8% per annum) from and after the delinquency until paid. Section 15-16-101, MCA. In 1981, the state legislature twice amended sections 15-16-101, 15-16-102, 15-17-303, MCA. Laws of Montana (Ch. 576, (1981) (regular session); Ch. 6, Laws of Montana (1981) (special session).) Each such amendment had the effect of increasing the rate of tax from 2/3 of 1% per month to 5/6 of 1% per month (10% per annum). The first amendment, providing that the act applied to taxes assessed a i levied after December 31, 1980, was approved. May 1, 1981. rd The second amendment, Chapter 6 , supra, had this provision respecting applicability: "Section 4. Effective - - applicability. date and This Act is effective on passage and approval and applies to real and personal property taxes that become due on or after November 30, 1981, or tha.t became due prior to November 30, 1981 and remain unpaid on or after November 30, 1981." The second amendment was approved by the Governor on November 25, 1981. The first issue is whether the increased rate of interest on delinquent tax payments provided in Ch. 6, Laws of Montana (1981-) (special retroactive effect. session), should be given We hold it was the clear intent of the legislature that such retroactive effect be given to the amendment. Section. 1-2-109, MCA, provides that no law contained in any of the statutes expressly so declared. of Montana is retroactive unless This Court has held, however, that the legislature, in providing a retroactive effect to its enactments, retroactive." need not expressly state "this act is Any language that shows a legislative purpose to bring about unmistakable that that retrospectively, result an that is act sufficient. was intention If intended is to it is operate controlling in the . , - . interpretation of the statute, even though it is not therein A expressly so stated. 370, 264 P.2d 'hvSdwn v. Love (1953), 127 Mont. 366, 705, 707; State, by and through the State Highway Commission v. Marsh (1978), 175 Mont. 460, 469, 575 P.2d 38, 44. The intent of the legislature that Chapter 6, supra, be given retroactive effect as to the increased rate of interest is clear and unmistakable. It specifically applies to taxes that became due before November 30, 1981, but remained unpaid on or after that date. We have recognized the intent of the legislature to apply laws retroactively in Mills v. State Equalization (1934), 97 Mont. 13, 33 P.2d Board of 563 (retroactive income taxes); State ex rel. Rankin v. District Court (1924), 70 Mont. The 322, 225 P. 804 (retroactive inheritance taxes). second issue raised retrospective application of by OIShaughnessey is the November that 1981 amendment increasing the rate of interest on delinquent taxes violates the Due Process Clause (Article 11, Section 17) and the Equal Protection Clause (Article 11, Section 4) of the 1972 Montana Constitution, and on the Fourteenth Amendment of the Federal Constitution. OIShaughnessey bases his second issue upon the unfortunate but unintentional fact that the attorney general issued two opinions as to whether the November 1981 amendment should be given retroactive application, the first opinion saying no and the second opinion saying yes. The attorney general issued the first opinion on August 19, 1982 (Vol. 39, Opinions of Montana Attorney General-, No. 70) but withdrew the August opinion a.nd issued a second but opposite opinion on October 26, 1982 (Vol. 39, No. 76, supra). O'Shaughnessey contends that the two attorney general's opinions divided taxpayers into two separate classes, those who paid interest on their tax delinquencies due on November 30, 1981 as by directed general's opinion, and directed by the OIShaughnessey. the August 19, those that paid October 26, 1982 1982 attorney at the new ra.te opinion, such a-s In his opposing argument, OIShaughnessey marshalled evidence before the District Court that certain taxpayers had indeed made delinquent tax pa.yments on which interest was cha.rged on the basis of the first attorney general's opinion. An attorney general's opinion which conflicts with the legal opinion of the city attorney, county attorney, or state-employed attorney is controlling unless overruled by a District Court or the Supreme Court. MCA. Section 2-15-501 (7), An attorney general's opinion is not binding on the Supreme Court, Butte Miner's Union No. 1 v. Anaconda Mining Company (1941), 11-2 Mont. 418, 118 P.2d 148. The county treasurer of Flathead. County, between August 18 and October 26, 1982 was bound by general not amendment to the first opinion of the attorney apply increasing retroactively the rate of the November interest on 1981 tax d-elinquencies. After October 26, 1982, the county treasurer was bound by the second attorney general's opinion to apply the increase retroactively. This does not in itself mean that the November 1981 a.mendment is violative of due process or equal protection constitutions. clauses of the state or federal The legislative enactment stands by itself. It applies without discrimination to all persons in the same class equally. The act of an administrator or executive official interpreting the amendment will not make the statute itself unconstitutional, especially where the interpretation is clearly mistaken based on the language of the enactment. It is true that courts sometimes look to official usage or interpretation to determine the doubtful language in constitutional effect of statutes. administrative interpretation when beyond cavil. To hold administrators and effect of look to is clear otherwise would he to say that could the never language executive statutes, Courts officials, interpreting the undermine the enactments by official action and nullify otherwise validly adopted laws. Thus, the legislative, and even the judicial power would pass to the executive, at least in the negative or vetoing sense. We have here a legislative amendment clearly pointing to a retroactive result. Its language is not discriminatory but applies to all delinquent tax payments made on or after November 30, 1981. of increased All persons will be charged the same rate interest on their legislature created no favored class. delinquencies. The If some taxpayers of Flathead County escaped the increased rate of interest on some portion of their delinquencies by paying up between August 19 and October 26, 1982, the legislature is not at fault, nor the language of the November 1981 amendment. It clearly applies to all equally. It is possible that taxpayers who were delinquent but paid up before the legislative amendment of 1981 were charged 8% instead of 10% per annum on their delinquency, though perhaps the same 1978 taxable year for which O'Shaughnessey was delinquent was involved. This possiblity does not create an u.nconstitutiona1 discrimination. have a vested right in the OIShaughnessey did not interest rate charged on delinquent taxes that is immune from legislative amendment. We agree with the Supreme Court of Michigan: "It is the duty of the landowner to pay his taxes, and to pay them when they become due. Incidental to the power to tax is the power to enforce payment. Because the state has been liberal in making provision for the redemption of the lands from the lien created by the tax, it does not follow it cannot change the terms upon which the lands can be redeemed. (Citation.) We do not think it can be longer said in this state that the taxpayer has a vested right to have the interest charged in order to redeem to remain at the same rate it was when the land was assessed, so long as he chooses to be delinquent in the payment of his ' taxes. I Webster v. Auditor General (Mich. 1889) , 80 N.W. 705, 707. OIShaughnessey's third retrospective application of issue on appeal the November is that 1981 amendment constitutes an ex post facto penalty in violation of the state and federal constitutions. OIShaughnessey recognizes that the increased rate of interest on delinquent taxes is not a criminal penalty, hut contends that the increase is punitive in nature and amounts to the taking of the vested right. We have already said that a delinquent taxpayer has no vested right in the amount of interest that will be charged when he finally pays his delinquent taxes. However the rule against ex post facto laws applies only to penal or criminal matters. The collection of delinquent taxes by the assessment of interest and penalties on the amounts due does not change a civil proceeding to a penal or criminal ma.tter. The ex post facto rule does not apply in this case. Durocher v. Myers (1929), 84 Mont. 225, 230, 231, 274 P. 1062, 1065; ~ ~ C l a n a t h a n Smith (198O), 186 Mont. v. 56, 606 P.2d 507- We affirm Court. We Concur: the judgment of dismissal in the District
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