| Show IMPORTANT OPINIONS attorney general bishop has baa submitted two important opinions loup one to governor wells welle on the payment of jurors and witnesses and one to the board oi of equalization on assessment of mortgages mortgagee in the former he be gays t J the governor dear sir pursuant to your request that I 1 investigate and report to you the question ol of compensation of jurors and witnesses in criminal oases cases since the ath day of january 1896 and to advise you of the method of their payment and when they are likely to receive payment I 1 beg to report as follows subdivision 5 of section 94 of the county government bill passed by the last legislature in prescribing the duties of clerk of the district court among other things provides As clerk clervi of the district court he fie shall issue a certificate of the attendance and mileage of all jurors and all witnesses in criminal cases subdivision 7 of section of the same act relating to the duties of county attorney provides provi dejE he shall examine and when approved by him attach his approval and signature to the certificate of attendance and mileage of all jurors and all witnesses it in criminal cases issued by the county clerk I 1 section of the same act provides at such times as the board of county commissioners may designate it shall be the duty duly of the county attorney and county auditor of each county to prepare in duplicate and verify under oath a full an and complete itemized statement of all certificates issued by the clerk of the district dis trici court and county attorney since the date of the last statement or in case no ao former state ment has been made then since january 4 1896 for mileage and attendance of grand jurors lor for mileage and attendance of f petit jurors engaged in the trial of oases cues in the district court and for mileage ra I 1 leage and attendance ot of witnesses summoned by or on behalf of the state in criminal cases in the district court one of said statements shall be transmitted to the state auditor and the other shall be filed in the office of the county clerk upon the receipt of said statement by the state auditor he shall unless he be finds the same to be incorrect draw his warrant I 1 in favor of the county treasurer upon the state treasurer tor for the whole amount of said eaid juror and witness certificates as 69 shown by said eaid statement and shall transmit the same to the county treasurer the county treasurer will hold the funds so drawn from the state slate treasurer upon the warrant aforesaid as u separate fund for the redemption of the juror and witness certificates above described this law is not an emergency act and therefore Is not in force at the present time but will become operative and in force from and after june 5 1896 you will observe that section supra is by express terms retroactive and upon its taking effect on june 5 1896 will relate back and include all jurors and wit nesses fees incurred subsequent to jan uary 4 1896 of course under this law these fees cannot be paid prior to june 5 1896 but at that time they may be certified to the state auditor by the county auditor and treasurer and a warrant upon the state treasurer in favor of the respective counties shall be drawn the time of the payment of these state warrants will depend upon the fact as to whether there shall be any money in the state treasury applicable to this his purpose an appropriation having been made for the payment of these fees out of any money not otherwise appropriated the probability in my opinion is that there is likely to be money on hand for this purpose on and after june 5 1896 or soon thereafter MORTGAGE assessment in his bis opinion to the board of equal i izi tion the attorney general says gentlemen I 1 have your favor of the of april asking for my opinion upon the following under the provisions of the revenue act approved april 5 1896 do you think it proper to list and assess mortgages standing upon the records of the several counties of the state and known to be held and owned by non residents of the state Stat eor or subsequent to making the assessment ascertained to be so owned and if co c 0 listed and assessed could the taxes be collected in case ot of delinquency and how answering the ahe first part of your ques tion I 1 beg to say I 1 am of the opinion that where a mortgage is owned and held by a nonresident non resident of the state slate it would not be subject to taxation within his state personal property consisting of bonds mortgages and debts generally has no status independent of the domicile of the owner especially where the instruments constituting the evidence of debt are separated from the actual possession of the owners both in law and equity the mortgagee mon mori has only a chattel interest while it is true that the situs of the property mortgaged is within the jurisdiction of the state the mortgage itself being personal property a chose in action attaches to the owner if the property mortgages attaches to the person of the owner are i not properly within the state and if not they are not the subject of taxation this doctrine seems to be supported i both by principle and the weight of authority tho thorby rity A different rule might prevail in case mortgage securities owned by a nonresident were placed in the hands of an agent or agents in this state stale for the purpose of collection and reinvestment in such case they could probably be taxed at the agents residence as being in property in an agents possession and h hence coming under the general rule governing such property wj a provided in sections 14 and 15 of the revenue act on this point however there is some con conflict filet in any event the agent must of necessity be authorized to do some act in reference to their mortgage if the owner keeps exclusive control of it it is still in his possession in other words there must be a bona fide agency your question however does not contemplate nor include such owes cases as tit lit is confined to mortgages known to be held and owned by non residents of the state you also ask my opinion upon sections 76 and 77 of the revenue act so far as they relate to mortgagee mortgage deeds of trust etc relating to lands in more than one county as to the legality of such provisions in the absence of legislation relating to the place where respective properties situated in more than one county are included in the same mortgage instrument ment the rule announced above in relation to the situs of such property will obtain in this case but in my opinion it is entirely competent for the legislature to determine where a mortgage shall be assessed and if it be upon lands situated in more than one county it may provide that the mortgage may be assessed in the respective con counties aties in proportion to them the valuation of such instrument in each county this was clearly the intention of the Jegi legislature slature I 1 am therefore of the opinion that the legality of these sections cannot be questioned and that their provisions ought to be followed by the proper authorities |
