No. 87-298
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
FALLON COUNTY, et al.,
Plaintiffs and Appellants,
-vs-,
STATE OF MONTANA, et al.,
Defendants and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Daniel L. Schwarz; Schwarz and Schwarz, Broadus, Montana
For Respondents:
R. Bruce McGinnis, Department of Revenue, Helena, Montana
David W. Woodgerd, Argued
Submitted: April 4, 1988
Decided: April 27, 1988
Filed: APR 2 7 1988
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
In 1985, the state legislature, through its General
Appropropriation Bill (H.B. 500) , provided state funding for
the salaries of county assessors for fiscal year 1987 at the
level of 70%. The remaining 30% was to be paid by the
several counties. In 1987, the state legislature continued
the apportionment of the county assessors' salaries between
the state and the several counties for this biennium but
reduced the state participation to 66%, with the several
counties to pick up the remaining 34%.
Fallon County, 19 other counties, and one county
assessor brought suit in the District Court, First Judicial
District, Lewis and Clark County against the State of
Montana, acting through the Governor and the Department of
Revenue, challenging the apportionment between the state and
counties of the salaries of the county assessors. After a
hearing, and receipt of briefs, the District Court issued an
order granting summary judgment in favor of the state and
entered judgment thereon on June 17, 1987, dismissing Fallon
County's action on the merits, and holding that the
provisions of H.B. 500 which funded only 70% of the salaries
for county assessors does not violate Art. VIII, 5 3 of the
1972 Montana Constitution. Fallon County has appealed the
District Court decision to this Court and on consideration,
we affirm.
The section in issue is in Art. VIII, of the state
constitution. It provides in pertinent part:
Section 3. Property tax administration. The state
shall appraise, assess, and equalize the valuation
of all property which is to be taxed in the manner
provided by law.
Prior to the 1972 Montana Constitution, the assessment
and valuation of property for tax purposes was determined at
a county level, subject to review by the former State Board
of Equalization. During the Constitutional Convention of
1972, it was contended that the county system had
inadequately equalized property values statewide. It was
contended during the Convention that the then recent case of
Serrano v. Priest (Cal. 1971), 487 P.2d 1241, mandated a
change in Montana's assessment, valuation and equalization
system to avoid equal protection attacks on the method of
state funding for elementary education. The ultimate result
was the adoption of Art. VIII, S 3 above quoted.
Following the adoption of the 1972 State Constitution,
the legislature, to implement the new assessment system,
provided that all county assessors became agents of the
Department of Revenue (DOR), and they remain state agents
presently. Section 15-8-102, MCA. County assessors were
omitted from the list of county officers ( S 25-605, R.C.M.
(1947)) , but subsequently regained county officer status in
1977. Section 7-4-2203 (1)(i), MCA.
Beginning in 1973, all county assessors' salaries were
paid from state funds through the DOR. In 1985, the
legislature changed this pay structure through H.B. 500 which
provided for state payment of 70% of the county assessors'
salaries applying to fiscal year 1987. The 1987 legislature
has continued the apportionment of such salaries in this
biennium by funding an amount sufficient to pay 66% of county
assessors' salaries. The remainder is to be supplied by the
several counties.
In the District Court and on appeal, Fallon County and
its co-plaintiffs argue that Art. VIII, § 3 grants a right to
the people to have their property assessed by the State of
Montana and to have the state remain solely accountable for
such assessments; that the designation of assessors as
"county officials" is not sufficient to change the
constitutional duty of the state to assess property and to
pay for the personnel employed for that purpose; that the
assessment of taxes is a duty placed on the state regardless
of the form of government at the county level chosen by the
people, and that though assessors may perform duties in
addition to those provided for in the constituti.on relating
to assessment, the elemental accountability for assessors
lies with the DOR. Additionally, Fallon County argues that
the apportionment of such salaries, because of the mills
limitation applicable to levies by counties, has the effect
of using up county funds that would otherwise be available
for other county activities. Some of these issues are raised
by Fallon County because the District Court, in its order
granting summary judgment in this matter held that the office
of elected county assessor is a county office, that it is a
permissive office, and that the assessor has some duties
which are in addition to those required relating to
assessment.
When a legislative course of action expressed in
statutes or budgetary laws is tested for constitutionality
under the State Constitution, our review is circumscribed by
certain principles. We must give the state constitutional
provision a broad and liberal construction consistent with
the intent of the people adopting it to serve the needs of a
growing state. State ex rel. Fenner v. Keating (1917), 53
Mont. 371, 163 P. 1156. The constitutional provision should
receive a reasonable and practical interpretation in accord
with common sense. Cottingham v. State Board of Examiners
(1958), 134 Mont. 1, 17, 328 P.2d 907, 912. The
constitutionality of a legislative enactment is prima facie
presumed, and every intendment in its favor will be presumed,
unless its unconstitutionality appears beyond a reasonable
doubt. State ex rel. Mills v. Dixon (1923), 66 Mont. 76, 84,
213 P. 227, 229. The question of constitutionality is not
whether it is possible to condemn, but whether it is possible
to uphold the legislative action which will not be declared
invalid unless it conflicts with the constitution, in the
judgment of the court, beyond a reasonable doubt. Matter of
the Estate of Kujath (19761, 169 Mont. 128, 545 P.2d 662; see
also Board of Regents v. Judge (19751, 168 Mont. 433, 543
P.2d 1323; Arps v. State Highway Commission (19311, 90 Mont.
152, 300 P. 549.
We held in Board of Regents v. Judge, supra, that under
the state constitution, the legislative appropriative power
extends to all public operating funds of state government.
The constitutional limit over that power is that
appropriations by the legislature shall not exceed
anticipated revenue. Art. VIII, S 9.
The duties of the county assessor vis-a-vis the
Department of Revenue are these:
(1) The county assessors of the various counties
of the state are agents of the department of
revenue for the purpose of locating and providing
the department a description of all taxable
property within the county, together with other
pertinent information, and for the purpose of
performing such other administrative duties as are
required for placing taxable property on the
assessment roles. The assessors shall perform such
other duties as are required by law, not in
conflict with the provisions of this subsection.
Section 15-8-102, MCA.
The office of county assessor is a permissive office,
and may be elected or appointed. Section 7-4-2203, MCA. The
Board of County Commissioners has the power and discretion to
consolidate the office of county assessor with one or more
other county officers. Section 7-4-2301, MCA. While a
assessor is an agent of the state, nevertheless, under §
7-4-2110(1), MCA, the Board of County Commissioners has the
jurisdictional power to "supervise the official conduct of
all county officers charged with assessing, collecting,
safekeeping, management or disbursement of the public
revenues. I
'
Irrespective of the contentions of Fallon County, the
dispositive question is whether the imposition by the
constitution on the state of the duty to appraise, assess and
equalize property valuations mandates that the state should
fully fund the county assessors' salaries. The
constitutional provision itself is silent on that point. It
is apparent that Art. VIII, 5 3 was adopted with a conscious
choice of leaving the method of implementing the state's
duties to the legislature. Even though S 15-8-101, MCA,
requires the Department of Revenue to "secure such personnel
as is necessary to properly perform its duties" that section
does not dictate, when read with other statutes pertaining to
the county assessor that the state should completely fund
county assessor salaries. Art. VIII, 3 gives the
legislature wide flexibility to implement the assessment,
appraisal and valuation of property for tax purposes. Fallon
County's claim that the legislative apportionment of salaries
conflicts with the Constitution is very far from approaching
invalidity beyond a reasonable doubt. Matter of the Estate
of Kujath, supra.
Finally, Fallon County in making its "common sense"
argument, Cottingham v. State Board of Examiners, supra,
contends that it is unfair for the state, which controls the
assessment of property to require counties to shoulder part
of the expense of the assessors. That issue is political,
not constitutional, and must be addressed to the legislature
itself. When the legislature acts within its constitutional
power, courts are unable to contravene such power on any
court-presumed grounds of fairness, absent equal protection
consequences.
Accordingly, we affirm the decision of the District
Court.
n
F e Concur:
J
"d4-C-8 . e e ~
G w a
Frank I. Haswell, Retired
Chief Justice, sitting for
Justice R. C. McDonough.