Bottomly v. Meagher County

• Citation: 133 P.2d 770,114 Mont. 220
• Decision Date: 05 February 1943
• Docket Number: 8387.
• Parties: BOTTOMLY, Attorney General, v. MEAGHER COUNTY et al.
• Court: United States State Supreme Court of Montana

133 P.2d 770

114 Mont. 220

BOTTOMLY, Attorney General, v. MEAGHER COUNTY et al.

No. 8387.

Supreme Court of Montana

February 5, 1943

Original action by R. V. Bottomly, as Attorney General of the State of Montana, against Meagher County, Montana, and others for a declaratory judgment.

Judgment in accordance with opinion.

R. V Bottomly, Atty. Gen., and Myles J. Thomas, of Helena, for plaintiff.

Ralph J. Anderson, of Helena, amicus curiae.

J. H Higgins, Co. Atty., of White Sulphur Springs, and Toomey McFarland & Hall and E. G. Toomey, all of Helena, for defendants.

JOHNSON Chief Justice.

This is a proceeding for declaratory judgment. Original jurisdiction was accepted by this court because the final judgment might necessitate further enactments at the legislative session now convened, trial in the district court and appeal to and decision by this court not being possible in time, and such original jurisdiction therefore being necessary and proper to the complete exercise of this court's appellate jurisdiction. Constitution of Montana, Article VIII, section 3.

The attorney general's complaint alleges that there is in process of administration in the district court of Meagher county the estate of William Gaspar who died in 1940, leaving a surviving brother residing in said county and a surviving brother and sister residents and citizens of the country of Roumania; that it has not been proven to the said court that at the time of Gaspar's death the said country would permit the transfer to an heir, devisee or legatee residing in the United States of property left by a deceased person in Roumania; that under Chapter 104 of the 1939 Session Laws the interests of the said brother and sister, residents and citizens of Roumania, will escheat unless such reciprocal law of that country is shown, but that under section 4 of that Chapter the proceeds would go to the general fund of Meagher county, whereas under Article XI, section 2 of the Constitution of Montana it should go to the public school fund of the state; that both Meagher county and the state are claiming the interests of the non-resident brother and sister under the said statute and constitutional provision, respectively, and that the Alien Property Custodian of the United States also claims them as the property of alien enemies; that other estates in process of administration in other counties are similarly situated; that it is necessary to determine the status of the state of Montana under the constitutional and statutory provisions in question.

It is apparent that if the statute in question is valid in granting the interests in question to Meagher county rather than to the public school fund of the state, the county attorney of that county, and not the attorney general, will have the duty of opposing the claims of the non-resident brother and sister and of the Alien Property Custodian. The attorney general's legal duty is therefore affected by the statute so as to entitle him to seek a declaratory judgment under section 9835.2, Revised Codes.

The plaintiff contends that Chapter 104 provides for an escheat; that the constitutional provision is mandatory and exclusive; and that the proceeds of the shares of heirs barred by the Chapter must go to the public school fund of the state. The defendants, Meagher county and the county commissioners thereof, contend that Chapter 104 does not provide an escheat but merely modifies the succession statutes under the circumstances stated, so that the county becomes the heir in place of the non-resident aliens. Amicus curiae contends that the Chapter is invalid in attempting to escheat the alien's share to the county, since all escheats must go to the public school fund of the state, but that the Chapter is a valid amendment of the succession statutes in barring the alien claimants as heirs under the conditions stated, and that it leaves Tony Gaspar, the surviving brother residing in Montana, as the only qualified heir. Thus the plaintiff regards Chapter 104 as an escheat statute; the defendants regard it as a succession statute; and amicus curiae regards it as an escheat statute so far as the county is concerned, and a succession statute so far as the state is concerned, thus barring both if there is any resident heir competent to take. Necessarily defendants claim, and amicus curiae admits, that the clear intent of Chapter 104 is to divert the interests of the non-resident aliens concerned to the general funds of the counties for the benefit of the public; for unless that intent is both present and valid, defendant county can take nothing; and unless that intent is both present and invalid, the qualified heir to whom amicus curiae refers can take nothing by reason of the Chapter.

Section 2 of Article XI of the Constitution of Montana provides: "The public school fund of the state shall consist of the proceeds of *** all estates, or distributive shares of estates that may escheat to the state; ***."

The parties have argued the question whether this provision is self-executing. However, that is immaterial for the purposes of this action, since the binding effect of constitutional provisions on the legislature is not dependent upon whether they are self-executing. Section 29 of Article III of the state Constitution provides: "The provisions of this constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise."

Therefore the legislature has no power to divert escheated estates or escheated distributive shares of estates from the state public school fund to other uses, whatever power it may have to provide when and how escheats shall occur and by what machinery they shall pass. The issue before us is simply whether Chapter 104 provides for escheats; if it does, the diversion of those escheats from the public school fund of the state to the general funds of counties is beyond the power of the legislature, whether or not the constitutional provision is self-executing.

Before proceeding to an analysis of Chapter 104 we shall review the general statutes relative to escheats. Sections 27 and 28 and subdivision 8 of section 7073, Revised Codes, are provisions of substantive law and are as follows:

"The original and ultimate right of all property, real and personal, within the jurisdiction of this state, and not belonging to the United States, is in the people of the state." Section 27.

"Whenever the title to any property fails for want of heirs or next of kin, it reverts to the state. All property within the limits of this state, which does not belong to any person, belongs to the state." Section 28.

"If the decedent leaves no husband, wife, or kindred, the estate escheats to the state." Subdivision 8 of section 7073.

A number of code sections contain further substantive law and provide machinery relative to escheats. Sections 7088, 7089, 7090 and 7091 provide:

"Resident aliens may take in all cases by succession as citizens; and no person capable of succeeding under the provisions of this chapter is precluded from such succession by reason of the alienage of any relative; but no non-resident foreigner can take by succession, unless he appears and claims such succession within five years after the death of the decedent to whom he claims succession." Section 7088.

"When succession is not claimed as provided in the preceding section, the district court, on information, must direct the attorney-general to reduce the property to his or the possession of the state, or to cause the same to be sold, and the same or the proceeds thereof to be deposited in the state treasury for the benefit of such non-resident alien, or his legal representative, to be paid to him whenever, within five years after such deposit, proof to the satisfaction of the state auditor and treasurer is produced that he is entitled to succeed thereto." Section 7089.

"When so claimed, the evidence and the joint order of the auditor and treasurer must be filed by the treasurer as his voucher, and the property delivered or the proceeds paid to the claimant on filing his receipt therefor. If no one succeeds to the estate or the proceeds, as herein provided, the property of the decedent devolves and escheats to the state, and is placed by the state treasurer to the credit of the general fund." Section 7090.

"Real property passing to the state under the last section, whether held by the state or its officers, is subject to the same charges and trusts to which it would have been subject if it had passed by succession, and is also subject to all the provisions of the Code of Civil Procedure in relation to escheated estates." Section 7091.

Section 10346 provides that the court may appoint an agent to receive the distributive share of any non-resident having no agent for the purpose.

Section 10348 provides that if it appears to be for the benefit of those interested, personal property remaining unclaimed in such agent's hands for a year may be sold under court order and the net proceeds of sale paid into the state treasury.

Section 10351 provides that the court must inquire into any claim made for such property, and being satisfied of the claimant's right, must grant him a certificate upon presentation of which the state auditor must draw a warrant on the state treasurer for the amount.

Sections 9959, 9960 and 9961, Revised Codes, make it the duty of the attorney general to enforce, and specify the procedure by which he shall enforce, the state's right to escheated real property.

Section 206 extends the attorney general's duty under those sections, and makes the procedure therein contained applicable, to personal property as well as real estate.

Section 9962 provides for petitions by claimants not parties or...