O'Shaughnessey v. Wolfe

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 retroactive effect to be given to its 1981
statutory amendment increasing the rate of interest on
delinquent tax payments. We also determine that such
retroactive effect offends no state or federal constitutional
provision.
Lawrence P. OIShaughnesse~~, 1982, tendered to the
in
county treasurer of Flathead County an amount he calculated
would cover interest, penalty and property tax payments
delinquent since 1978. The county treasurer refused the
tender because the amount tendered was insufficient if the
rate of interest applied to the delinquent taxes was
calculated at the rate of 10% per a.nnum. 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 Judicical
Di-strict, Flathead County, for a jud.gment in effect
compelling the county treasurer to accept his tender.
On January 19, 1983, the District Court ordered that
OIShaughnesseyls suit be dismissed. The District Court
grounded its dismissal on (1) 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) an intent to apply the rate through the
entire period of delinquency and (3) on finding no
constitutional prohibition against 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. (Ch. 576,
Laws of Montana (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 session), should be given
retroactive effect. 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 of Montana is retroactive unless
expressly so declared. This Court has held, however, that
the legislature, in providing a retroactive effect to its
enactments, need not expressly state "this act is
retroactive." Any language that shows a legislative purpose
to bring about that result is sufficient. If it is
unmistakable that an act was intended to operate
retrospectively, that intention is controlling in the
interpretation of the statute, even though it is not therein
. , - .
A

'hvSdwn
expressly so stated. v. Love (1953), 127 Mont. 366,
370, 264 P.2d 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 Board of
Equalization (1934), 97 Mont. 13, 33 P.2d 563 (retroactive
income taxes); State ex rel. Rankin v. District Court (1924),
70 Mont. 322, 225 P. 804 (retroactive inheritance taxes).
The second issue raised by OIShaughnessey is that
retrospective application of the November 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 directed by the August 19, 1982 attorney
general's opinion, and those that paid at the new ra.te
directed by the October 26, 1982 opinion, such a-s
OIShaughnessey. 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. Section 2-15-501 (7),
MCA. 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 the first opinion of the attorney
general not to apply retroactively the November 1981
amendment increasing the rate of interest on 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 clauses of the state or federal
constitutions. 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 constitutional effect of
doubtful language in statutes. Courts never look to
administrative interpretation when the language is clear
beyond cavil. To hold otherwise would he to say that
administrators and executive officials, interpreting the
effect of statutes, could 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. All persons will be charged the same rate
of increased interest on their delinquencies. The
legislature created no favored class. 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. OIShaughnessey did not
have a vested right in the 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 issue on appeal is that
retrospective application of the November 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 the judgment of dismissal in the District

Court.

We Concur: