
    Berry, appellant, v. Commissioners of Missoula County, respondents.
    
      Taxation — Illegal assessment — Percentage not allowed on.— A county assessor cannot list and assess for taxation property not subject to taxation, or charge fees and percentage for making such illegal assessment.
    
      Appeal from Second District, Missoula County.-
    
    The opinion states the facts.
    
      "Woody & Marshall, for the appellant.
    William H. Hunt, for the respondent.
   Wade, 0. J.

This appeal presents the single question whether a count}? assessor can list and assess for taxation property not subject to taxation, and charge and receive percentage and fees for making such illegal assessment. The property in question, listed and assessed, was the right of way, road-bed, ties, etc., of the Northern Pacific Kailroad, in said county of Missoula. This property was not subject to taxation. N. P. R. R. Co. v. Carland, 5 Mont. 116. The assessor with as much propriety might- have assessed and returned for taxation all the churches, and school-houses, and public hospitals in the county, thereby swelling the assessments for the purpose of increasing his percentage, as to have included therein this railroad property which is exempt from taxation.

The assessor is not entitled to fees or percentage for making an illegal and unlawful assessment of property. An officer is not entitled to pay for doing an illegal act.

Judgment affirmed.  