Attorney General’s Opinions

Volume 01

Page Held Date
01- 4-2 The fact that the first Monday in January falls upon a holiday does not affect the mandatory character of the law requiring installation of public officers at that time, under the provisions of Section 4315, of the Political Code. January 2, 1905
01- 4-9 Under the provisions of Laws of 1901, p. 159, a legislator's salary is subject to garnishment, as that of other public officers. The Auditor should make return to the Writ ot the effect that he has no funds on hand, or under his control, when the legislature has not passed any appropriation for the payment of the salary and mileage of its members. January 9, 1905
01- 5-11 The law requires that notices of election for authorizing the issuance of school bonds shall be posted fifteen days before the election. A notice posted on the 4th day of November, noticing the election for the 19th of November, is defective, as the posting is only for fourteen days before the election. In computing the fifteen days notice, the day on which the notice is posted is to be excluded, and, in order that the notice be fifteen full days, the day of election must also be excluded. January 10, 1905
01- 5-19 The State Auditor cannot draw his warrant on the treasurer, in accordance with the provisions of Section 1470 of the Political Code, for the payment of mileage and per diem of presidential electors until appropriation is made for the payment of such expense. January 11, 1905
01- 6 Where a prisoner escapes no time allowance for good conduct, or for the period he is out after his escape should be made. He should be compelled to serve the full sentence; and where before completion of service of sentence he is given sentence for the commission of another crime, to begin at the conclusion of his first term, his escape during time of service of first sentence would not affect his right to time allowance for good conduct in the service of his second term. January 11, 1905
01- 7 Under Section 443, Political Code, state or national banks receiving deposits of state funds must give bonds in double the amount of the deposit, whether signed by individuals or by surety companies. January 12, 1905
01- 8-13 When a public officer's election is duly contested, and such contest is regularly certified by the clerk of the court in which the contest is instituted to the officer whose duty it otherwise would be to draw warrant for the payment of his salary, no warrant can be drawn for the payment of any part of the salary, of such officer until such proceedings are finally determined, under the provisions of Sections 1040 and 1041 of the Political Code. January 13, 1905
01- 8-21 A Sheriff, or Deputy Sheriff, has the right to make arrest for an attempted breach of proper quarantine regulations, promulgated by the State Board of Health, as it constitutes a public offense. It is within the proper exercise of the police power of a city to enact an ordinance requiring compulsory vaccination of its inhabitants to enact an ordinance and requiring persons who have not complied therewith to keep off the streets until vacinated during an epidemic of small pox. January 21, 1905
01- 9 Under Section 1874, Code of Civil Procedure, and Section 4612, Political Code, no fees should be charged to, or paid by, a school district or the county treasurer or superintendent of schools in injunction proceedings instituted by the school district against such officials. January 25, 1905
01- 10 Substitution of Articles of Incorporation should be permitted upon surrender and cancellation of original certificate of incorporation, when proper showing is made, by affidavit, as to the identity of the company, the reason for substitution and that no rights have vested under the first filing and certificate issued. Section 406, of the Political Codes, contemplates that the articles filed in the office of the Secretary of State shall contain all of the facts required by law. Upon such substitution, the Secretary of State should not again charge full fees in accordance with the provisions of Subdivision 4, of Section 410, of the Political Code, as amended by Chapter CXXVII, Laws of 1903, but only for the issuance of new certificate of incorporation and for recording, in accordance with the provisions of Subdivisions 33 and XVII of said section. January 23, 2905
01- 11 Under authority of Procter v. Cascade County, 20 Mont. 315, Sections 2977, of the Penal Code, and 2311, of the Political Code, are superseded by Section 4604, of the Political Code, and accordingly the sheriff should be allowed mileage instead of actual expenses for the transportation of prisoners, which constitutes a charge against the State. Section 2977, of the Penal Code, is not repealed, so far as it provides that such expense shall be paid by the State, and the State and not the county is liable for the fees and mileage of sheriffs for transportating prisoners to the penitentiary; but Section 2311, of the Political Code, in relation to the taking of insane person to the State Asylum and making the expenses thereof a county charge, is, by implication, repealed by Section 4604, of the Political Code, so far as the fees and mileage for transporting insane persons is concerned, and the same constitutes a State charge. January 24, 1905
01- 13 Under Sections 3895 and 3896, of the Political Code of Montana, the same notice must be given where the county is the purchaser and applies for a deed as where an individual is the purchaser and applies for a deed. Section 3882 provides that the duplicate certificate of sale shall be delivered to the county treasurer and filed in his office, and he is thereby made the proper county officer to give notice of time for applying for a deed and to make affidavit showing that such notice was given. January 25, 1905
01- 14 A person contesting the right of another to a seat in the Legislature, and who has been declared the duly elected member, is entitled to the salary and emoluments of the office from the beginning of the session, and the person who has been unseated is a de facto number only and is not entitled to any salary or emoluments for the time he served as a member, under sections 1040 and 1041 of the Political Code. January 26, 1905
01- 15 Section 1797, of the Political Code, as amended by the laws of 1897, enumerate the powers of a school board and should be strictly construed, and as a general rule they have no authority to exceed the powers expressly vested in them by statute, and the authority to rent conferred by subdivision 5 of said section means not to rent a school house belonging to the district to private individuals but to rent a building for school purposes when one is needed by the district. The school trustees, being the guardians of the property and interests of the school district, there can be no objection to their permitting the use of the school houses for dancing, so long as it does not interfere with or interrupt the school, there being no prohibition in the law as against such use. January 27, 1905
01- 16 Under Section 4620 and 4681, Subdivision 2, of the Political Code, the County Attorney is authorized to incur necessary expenses in the prosecution of criminal cases, and may do so even though such expenses may be necessarily incurred without the State of Montana, and all such expenses so necessarily incurred are proper charges against the county liable for the prosecution of such criminal cases. February 4, 1905
01- 17 Vaccinations and vaccination certificates must be made as prescribed by the rules and regulations of the county board of health, under provisions of Section 10 of House Bill No. 104, Laws of 1901, page 83. February 4, 1905
01- 18 In order to comply with the provisions of Section 18 of Article VIII of the Constitution the District Judge must be elected at the same time as the clerk of the District Court and where such clerk has been elected at the presidential election, as additional judge whose office has been newly created by the legislature must be elected at the same time as the successor of such clerk; that is, at the presidential election. Under the provisions of Section 12, of Article VIII, of the Constitution, all district judges hold for the term of four years and until their successors are elected and qualified, and a failure to elect the successor of any such judge does not create a vacancy authorizing an appointment, under Section 34 of Article VIII, but the present incumbent holds over until his successor is elected and qualified. February 7, 1905
01- 27 The Carey Land Act Board is given the power to perform the same duties pertaining to the unfinished contracts of the State Arid Land Commission as were imposed upon said Commission, as far as may be necessary to complete said contracts and to protect the interests of the State therein. With such qualification, the Carey Land Act Board is in exactly the same situation, so far as reviewing the acts of the Commission are concerned, as the Commission itself would be. If the Commission entered into a contract to deliver bonds in excess of the limitation imposed by law then the contract is not binding upon the State, nor upon the Carey Land Act Board, and cannot be enforced, and any act done by the Commission towards the enforcement of the illegal portion may be reviewed by the Carey Land Act Board. (Opinion of December 30, 1904, modified.) The party dealing with the Arid Land Grant Commission was charged with the duty of ascertaining, at its peril, whether the proposed act, that is the delivering of the bonds in question, was within the scope of the authority which the law conferred upon said Commission. The State is never stopped by the acts of its agents or officers in excess of their authority. February 7, 1905
01- 30 Under Section 5, Article XV, of the Constitution of Montana the Legislature has power to regulate and control by law the rates or charges for the transportation of passengers and freight by common carriers from on point to another in the State. Having such power, the legislature can delegate the same to a railway commission and may authorize them to hear evidence and determine and fix rates to be charged for the transportation of passengers and freight between points in the State, and to provide that such rates so fixed by the commission shall be prima facie correct and reasonable until tested in the courts of the State, and otherwise declared incorrect and unreasonable. February 8, 1905
01- 32 Under Section II of the Enabling Act State lands are not subject to entry under the laws of the United States, whether surveyed or unsurveyed, but shall be reserved for school purposes only; and, therefore, the State cannot by law relinquish its rights to private persons, and a law of that character would be special legislation under Article V, Section 26, of the Constitution. February 8, 1905
01- 33 After notice of appeal from a judgment in a justice court against a defendant upon a criminal charge, and the giving and approval of a bond on appeal, the justice court must transmit all papers to the district court, together with the bond, and such justice has no jurisdiction to release to bondsmen and return the cash bond. If the defendant pay the amount of the judgment, without the costs, if maybe that defendant would be estopped from questioning the authority of the justice to receive the payment pending the appeal, and that the fact of such payment being brought to the attention of the district court would be ground for dismissing the appeal and recovery on the bond for the costs of the case. The question of whether the justice has authority to render judgment for costs in addition to the fine is one for the district court to decide upon an appeal, as the justice has no jurisdiction to take any steps whatsoever in the case after the appeal to the district court has been perfected. February 9, 1905
01- 36 Warrants issued by the State Arid Land Grant Commission to meet the preliminary expenses incurred on account of any water system are due and payable when issued and presented for payment; provided there is any money in either Fund A or Fund C with which to pay them. If not, they are payable as soon as there is any money in either of said funds from which the payment may be made. February 11, 1905
01- 38 Whenever the board of county commissioners have, by order, duly designated at the September meeting in each even numbered year the classification of their county, as provided by Section 4331, Political Codes, the government of the county, under the new classification, goes into effect on the first Monday of the following January. The county commissioners may allow deputies and fix the salary thereof to the number authorized by law under the new classification, whose terms as deputies may begin on the first Monday of January. A deputy for the county treasurer under the new classification may be allowed after the first Monday of January, notwithstanding the fact that the term of the old county treasurer does not expire until the first Monday of March. Where the board of county commissioners, at a regularly organized meeting, have authorized the appointment of a deputy, it is the duty of the county clerk to issue warrants to such deputy in the manner provided by law for such time as he renders services under such appointment prior to the amending or repealing of such order by the board of county commissioners at a duly organized meeting of the board. February 11, 1905
01- 40 Warrants issued by the State Arid Land Grant Commission against any reclamation district must be registered by the State Treasurer upon presentation for payment, if there are no funds on hand with which to pay the same. Such fund is not a state fund but is a trust fund and, therefore, the provisions of the laws and constitution of the State, with reference to State funds, are not applicable. February 14, 1905
01- 41 Under the provisions of Section 402 and Section 896 of the Political Code, the secretary of state is not required to furnish the officers of newly created counties with back numbers of the laws and reports. He is required only to furnish current numbers of the laws and reports to such county officers. February 16, 1905
01- 43 Under Section 993, Political Code, the term of office of a deputy, where not otherwise fixed by law, is subject to the pleasure of his principal and cannot under any circumstances extend beyond the term of such principal. Under the Constitution, Section 1 of Article VII, the terms of the outgoing state officers expired on Sunday the first day of January; and, consequently, the term of all of their deputies expire at the same time. Such deputies would, therefore, not be entitled to pay, not withstanding they appeared on the second day of January and assisted in turning over the various departments to their successors. February 18, 1905
01- 44-2 The State Auditor, having nothing to do with the State Arid Land Grant Funds, it is unnecessary for his office to keep a record of them. February 18, 1905
01- 44-18 When assignment of pay due a state employee is filed with the State Auditor, and subsequent garnishment on execution is served upon the Auditor, the Auditor is not at liberty to pay either party, where the legality of the assignment is in question, until the court has decided the same. March 2, 1905
01- 45 The legislative assembly has no authority to pass any law compelling the owner of realty, upon the direction of the board of county commissioners, without other action, to open a public highway along section lines for the purpose of permitting stock on the public range to get to water, or for any other purpose. Under Article III of the Constitution private property cannot be taken without due process of law and just compensation therefor. March 2, 1905
01- 46 Where taxes duly assessed have become delinquent, the statute of limitations begins to run thereon from the period on which they became delinquent, and actions for the recovery of such taxes are barred by the statute of limitations within two years thereafter, as provided in Sections 513 to 524, Code of Civil Procedure, as amended by the laws of 1903, and by Section 520 of the same Code. Actions in rem against the property are barred at the same time. The property having been assessed and entered upon the assessment book, Sections 3723, 3788 and 3789 do not apply, as they provide for property that has escaped assessment or where the assessment was false, incomplete, etc. March 4, 1905
01- 48 When a bill, upon reconsideration, passes both houses by the constitutional majority the bill becomes a law, but the same should be authenticated by the certificate of the President of the Senate and Speaker of the House of Representatives and then returned to the governor. The duty of such authentication by the Speaker of the House and President of the Senate is merely ministerial. March 7, 1905
01- 49 The county school fund out of which apportionment is made for library purposes, as provided in Section 2001 of the Political Codes, consists of the income from the permanent state school fund and rents from school lands, and the general school levy made by the board of county commissioners, but does not include special levies voted for fixed by the trustees in any district. March 9, 1905
01- 50-10 A law passed changing the classification of counties after a man has been elected to office cannot increase or diminish his salary or emoluments as fixed by law under the classification of counties under which he was elected to office. March 10, 1905
01- 50-11 It is within the province of the legislative assembly, by reclassification of counties or otherwise, to increase, decrease or abolish deputy officers or their salaries or emoluments they not being constitutional officers. But the salary or emoluments of elective officers provided for by law cannnot, under Section 31, of Article V, of the constitution, be increased or diminished during the term for which they are elected. However, under the provisions of Section 3, of Senate Bill No. 31, amending Section 4328 of the Political Code, wherein change in the classification of counties is provided, such change in classification cannot change the government of the county now in existence until the first Monday in January, 1907. March 11, 1905
01- 53 A school district once created cannot be abandoned. The district will remain, even though there be no school children therein or necessity for a school, and the moneys belonging to it will be held to its credit by the county treasurer. The school district may, under such condition, be suspended to await the action of the people resident within the district. However, such a district may be added to one or more adjoining districts, or its boundaries enlarged, and the moneys thereof transferred to such newly created district, as provided by Section 1752, 1753 and 1754 of the Political Code. March 14, 1905
01- 54-14 The State Board of Health may prohibit the sale of unhealthy dairy products, from whatsoever cause arising, under the law, but it is not within its power to interfere so as to prevent trespass by one private party upon the rights of another, even though such trespass brings about the unhealthy and unwholesome condition. March 14, 1905
01- 54-15 The legislature has the constitutional authority to pass laws providing that all children who are attending school must be vaccinated. Such authority can be delegated by the legislature to state and county boards of health. Under Sections 4, 10 and 17, Laws 1901, p. 81, the legislature has delegated authority to state and county boards of health to issue rules and regulations requiring children to be vaccinated before attending school whenever there is a case of small-pox anywhere in the state or anywhere in the county, as the case may be. Wherever a county board of health has established rules and regulations pursuant to this authority, children can properly be excluded from the schools until vaccinated, notwithstanding the provisions of Chapter XLV, Laws of 1903, which provides that all children between certain ages must attend school. The fact that the parents or guardian of the children personally object to vaccination is not a legal or valid defense to an action against them for failing or refusing to send their children to school. They can be repeatedly prosecuted for failing to send their children to school, notwithstanding the fact that there is an order or the board of health in force prohibiting any children from attending school who have not been vaccinated. March 15, 1905
01- 59 The Carey Land Act Board has no power to divert the funds of a reclamation district from the particular fund in which the law requires them to be placed, the board being governed by the same law, so far as applicable, as that which governed its predecessor the State Arid Land Grant Commission. March 16, 1905
01- 60-17-1 All white children upon reservations, and the children of Indians who have severed their tribal relations, are entitled to attend the district schools of the county, and such children should be counted in the school census of the district in which they reside. Apportionment to such school district should be based upon such census. March 17, 1905
01- 60-17-2 A corporation which contracts to pay the dues and assessments of members of fraternal beneficiary associations and in the same contract agrees to pay its members a certain sum of money at the end of a specified period of time is an insurance corporation within the provisions of Section 3560, Civil Code, and Section 2 of House Bill No. 258 (Laws of 1897, p. 76), and such corporation must comply with the general laws governing insurance companies before doing business in this State. March 17, 1905
01- 62 Under Chapter 163, United States Statutes at Large, Vol. 26, p. 747, a section of the old Fort Ellis Military Reservation was granted to the State of Montana to be used by the State as a permanent militia camp-ground, or such other public purpose as the legislature in its discretion might provide. Until the legislature has designated some other public purpose, the land granted the State must be used as a militia camp-ground. It cannot be leased to individuals for private purposes, as such would be in plain violation of the purposes for which it was granted to the State. March 20, 1905
01- 63 Where a county treasurer has deposited county funds and taken a certificate of deposit providing for the payment of interest upon such funds, the interest must be paid to the county, as, under Section 4591 of the Political Code, no county officer is entitled to any fees, penalties and emoluments of any county collected by him for the sole use of the county the same being public moneys belonging to the county. March 23, 1905
01- 64 Fish taken from a lake situated wholly within the boundaries of an individual's lands, the lake having been stocked with fish by the owner of such land, are within the exception to the right to sell fish contained in substitute for House Bill No. 138, Laws of 1905. The owner of such lake and premises has the right to catch fish from such pond and sell the same. March 23, 1905
01- 65-24-1 House Bill No. 112, approved March 2, 1905, changing the basis of distribution of licenses, does not affect licenses issued prior to the approval of such law, notwithstanding the fact that the money paid for such license is not received by the treasurer until after the approval of the new law. March 24, 1905
01- 65-24-2 Under Section 4636, of the Political Code, providing that the clerk of the district court shall collect a fee of $5.00 for the filing of papers and transcript on appeal from a justice or other inferior court, relates only to civil actions, and no fee should be charged a defendant in a criminal case for filing the papers and transcript on appeal. March 24, 1905
01- 66 Where licenses are procured by persons engaged in business in any place where the population is less than 100, the person seeking such license must first present a petition, signed by at least twenty freeholders, as provided in Senate Bill No. 32, approved March 3, 1905, to the board of county commissioners, who in their discretion, may direct the county treasurer to issue the license. This requirement must be followed by those who are engaged in such business at such places prior to the passage of such law whenever their old license expires and they seek to renew it. March 24, 1905
01- 67 Section 7, of Article V, of the Constitution, designates certain offices who are prohibited from holding certain other offices at the same time. In the absence of an express provision in the Constitution or statutes prohibiting a person from holding two offices at the same time they may do so, provided that the duties to be performed by the incumbent of such offices are not inconsistent or incompatible. April 1, 1905
01- 68 Meat and Milk Inspectors appointed under the laws of 1903, p. 226, are deputy veterinarians with limited powers as such, their powers being confined to the inspection of meat and milk intended for human consumption. To make such inspections they have the power to establish temporary quarantines during the time they are making the inspection. They have no authority to order cattle which they may find diseased and have condemned as unwholesome for food to be slaughtered. The power to order the slaughter of diseased cattle rests wholly in the state veterinarian or his duly appointed deputy, under Section 3028, Political Code, as amended Laws 1901, p. 129. The state veterinarian has authority to quarantine diseased animals and infected premises, and may order their slaughter when in his judgment he deems it necessary; also, under his authority of direct supervision of meat and milk inspectors, he may inspect meat and milk and perform all other duties that have been imposed by the laws of 1903 upon meat and milk inspectors. The slaughter of diseased animals, being a matter wholly in the judgment of the state veterinarian, no owner of such animals can of right demand that said diseased animals be slaughtered. The violation of any quarantine established by the veterinarian or the governor is punishable under Sections 1169 to 1176, Penal Code. April 3, 1905
01- 72 The rendition warrant issued by the governor upon surrendering fugitives found in this State should be styled "The Governor of the State of Montana to any sheriff, deputy," etc., instead of "The State of Montana to any sheriff, deputy," etc. Section 27, of Article VIII, of the State Constitution, providing for the style of process, does not apply to papers issued out of the executive department of the State. April 4, 1905
01- 73 Under the Enabling Act of February 22, 1889, sections 16 and 36 in each township in the State of Montana was, upon the admission fo the State into the union, granted to the State for school purposes. The title to such lands vested in the State upon the admission of the State into the union, subject, of course, to any sales or bona fide settlements on any of such lands prior to the admission of the State. As to the unsurveyed townships the State's right to the lands is subject to any bona fide settlement made thereon under the pre-emption or homestead laws prior to the survey of such land by the government, as provided by the act of February 28, 1891, 26 Statutes at Large, 796. The State's right to unsurveyed lands attaching as of the date of the admission of the State, subject only to the rights of bona fide pre-emption and homesteaders made prior to survey, the State can maintain an action to enjoin trespass against any person going upon such unsurveyed school lands for the purpose of cutting the timber therefrom or removing stone or other valuable materials. In short the State can maintain such an action against any person going upon such lands, except bona fide settlers, as defined in said act of February 28, 1891. April 14, 1905
01- 80 Under Chapter 82, Laws of 1905, there is no limitation upon the negotiation or transfer of licenses in the county where the same is issued, except a license issued to a person doing business in a city, town or camp or village of one class under said law cannot be used in a city, town, etc., of a higher class. It may be transferred to any person in the same city, town, etc., or to any other person in any other city, town, etc., provided that the class of the town, city, etc., is of the same or a lower classification. April 14, 1905
01- 81 Under Section 4084, Political Code, the penalty imposed for commencing or carrying on business without a license is in the nature of a fine. It can only be enforced when an action is instituted to collect such license. The treasurer would not be liable for failing to collect the ten percent penalty where the person liable for the license came in and paid for the license before suit was instituted to collect the same. April 14, 1905
01- 83-14 A license that expired and was renewed prior to March 4, 1905, but for which the money was not paid until after such date should be paid for under the law as it existed at the time the license was renewed, the amount of the license being determined by the law in force at the date when it was due and not under the law existing at the time it was actually paid. April 14, 1905
01- 83-20 The amendment of Section 4604 Pol. Code by Chapter 86 (Laws, 1905,) whereby the sheriff is to receive actual and necessary traveling expenses to be paid upon vouchers, whenever he transports persons to the state prison, insane persons to the asylum, or children to the reform school, instead of ten cents a mile for each mile actually and necessarily traveled, as so provided by said section prior to said amendment, is not unconstitutional as violating the provisions of Section 31, of Article V, of the constitution of Montana, which prohibits the increasing or diminishing of an officer's salary or emoluments after his election or appointment. Sheriffs are allowed fixed salaries and are supposed in law to receive no more or less than such salary. The legislature can change the manner of paying their actual and necessary traveling expenses in the performance of official duty so long as such change does not increase or diminish the fixed salary which the law provides the sheriff shall receive. Under Sections 4591 and 4592, Political Code it is clear that the legislature does not consider mileage an emolument of the sheriff's office. If it was an emolument it would have to be paid into the county treasury for the use of the county, as provided in Section 4591. April 20, 1905
01- 89 Under Chapter 53, Laws 1905, the state board of land commissioners are not prevented from offering for sale or selling state lands lying within the irrigable limits of national irrigation projects, prior to their completion, at a price in excess of the minimum price fixed by the Enabling Act. But before title passes from the State to such purchaser proof should be required by the state land board shown that the purchaser has fully complied with the said law. April 21, 1905
01- 90 Section 653 of the Political Code provides for the organization of Insurance Companies with a cash capital and share of stock, and also for the organization of Mutual Insurance Companies without a capital stock upon agreements for insurance and notes given for the premiums. April 21, 1905
01- 91 Tribal Indians are not required to procure a License to hunt on their reservation. They would be required to procure a license to hunt off of their reservation, if they could hunt at all, under the provisions of Chapter 86, Laws of 1903, prohibiting Indians from carrying firearms off the reservation. As to persons other than Indians living upon an Indian Reservation, they would be required to procure a license to hunt thereon, as the laws of the State extend over Indian reservations and to person thereon, except Indians, and crimes committed by or against an Indian. While it would be necessary for a white person living on the reservation to procure a license to hunt thereon in order to comply with the laws of Montana, it does not follow that the issuance of a license to such person would give him authority to hunt on such reservation; his right to hunt there depending upon the laws of the United States governing the rights of white persons upon a reservation. April 21, 1905
01- 92 A freeholder residing within the limits of an incorporated city is a proper person to sign a petition directed to the board of county commissioners for the issuance of a retail liquor dealers license, under the provisions of Chapter 71, Laws of 1905, where he resides within the township in which the retail liquor dealer is to engage in business. The word "township", as used in said act refers to the political rather than to the surveyors subdivision. April 21, 1905
01- 93 Under Section 2939 the appointment of the physician should be made by the superintendent, he being constituted the chief executive officer of such institution; but before such appointment is effectual and operative it must be approved by the board of trustees. April 22, 1905
01- 94 In the absence of the governor from the state it is not necessary that his signature be affixed to bonds authorized to be issued by the board of land commissioners. As the board acts by majority and the mere signing of the bonds being only a ministerial act, signatures to the bonds of a majority of the board is sufficient to insure the legality of the bond issue. April 25, 1905
01- 95 Under the provisions of Senate Bill No. 46, Laws of 1901, p. 150, the annual report of a corporation required to be filed by the corporation cannot be made and filed by the resident agent, unless he show full power and authority vested in him to act for the corporation. April 25, 1905
01- 96 Under Section 4050, Political Codes, as amended by act of March 2, 1905, county treasurer remits forty-five percent of all moneys collected for licenses to state treasurer; also remits five percent to state treasurer, under Section 4075, Political Code. Treasurer may do anything with reference to collection of tax or license which his predecessor could do. Liability for tax or license ceases only by its payment or by statute of limitations. April 28, 1905
01- 97-28-1 Sections 406 and 407 not repealed. Section 311 amended by the laws of 1899, p. 94, and such amendment by implication amends Section 313. Sections 310 to 314, inclusive, as amended, are not in conflict with Section 2384, Political Code. April 28, 1905
01- 97-28-2 Stock inspectors are not entitled to mileage when traveling in the performance of official duties, under Section 2973 of the Political Code. Under Section 4648, when subpoenaed as a witness in a criminal case, they are entitled to mileage at the rate of ten cents a mile each way, but are entitled to no per diem as a witness while attending criminal trial. April 28, 1905
01- 98 Section 3967, Political Code, in so far as it provides that the assessor shall collect poll taxes is unconstitutional. The provision of that section as to what person shall collect the tax does not affect the legality of the tax. Article 16, Section 5, of the constitution provides that the treasurer shall be the collector of taxes. It is, therefore, his duty, under the constitutional provision, to take the necessary steps to collect the poll tax provided for in Section 3960. April 28, 1905
01- 99 Under Section 142, Code of Civil Procedure, when in the discretion of the district judge suitable rooms for holding district court have not been provided by the county commissioners, the judge can direct the sheriff to provide the same and upon the bill for the expenses incurred being certified to as correct by the judge, it is a charge against the county treasurer and must be paid by him upon presentation. It need not be audited by the board of county commissioners and the treasurer is fully protected in honoring any paying the certificate signed by the judge. April 29, 1905
01- 102 Under Section 4648, Political Code, a public officer, whether he be postmaster, constable, justice of the peace, sheriff or under sheriff, is not entitled to per diem when in attendance upon court in a criminal case, but he is entitled to mileage. This is one of the burdens imposed as an incident to holding public office. May 2, 1905
01- 103-2-1 Bounty is a creature of the legislature and may be allowed or repealed at any time, and claimants therefor must conform to the procedure prescribed by the law in existence at the time such claim is made. Claims for bounty which do not conform to the requirements of the law in effect at the time made, can not allowed and approved by the board of examiners. The only relief such claimants can have is by special appropriation by the legislature. May 2, 1905
01- 103-2-2 Under the provisions of Section 472 of the Penal Code, prohibiting the employment of children under the age of sixteen years for the purpose of "singing, playing on musical instruments, rope walking, dancing, begging or peddling in any public street or highway, or in any mendicant or wandering business," the question of whether the employment of children in a traveling opera company is in violation of the law must be determined by their mendicant or wandering business character. May 2, 1905
01- 104 Residence is a question of fact to be determined from the evidence. A mere foreman is not liable for forfeiture, under Section 26 of Article 3 of the road law of 1903. Service on foreman of special construction crew insufficient to bind railroad company. May 3, 1905
01- 106 In the absence of legislative provision, the care and control of the Fort Ellis Military reservation is vested in the governor, as commander-in-chief of the military forces of the State, and he may direct the sale or removal of buildings thereon. May 6, 1905
01- 107 Under the board of health system in this State, as provided by House Bill No. 104, Laws of 1901, p. 81, the state board of health is given general supervision of the public health of the State and authorized to make and enforce each needful rule and regulation respecting the public health. A rule and regulation requiring local health officers to make reports out at stated intervals is reasonable, proper and necessary to enable the state board of health to perform its inquisitorial and advisory work in accordance with the provisions of said act. There is no provision in the law for the publication of the rules and regulations made by the state board of health, but as they tend to restrict the exercise of personal rights, notice thereof should be given as a condition precedent to their enforcement. After they are properly promulgated by publication, and otherwise, so that local and county health officers can be charged with knowledge thereof, they can be enforced either by mandamus, removal of the health officer from office, or criminal action against him for a misdemeanor. May 8, 1905
01- 109 Annual statement of foreign corporation must contain information called for by Act of March 9th, 1901, and must be in the form indicated by Section 1 of said Act. May 11, 1905
01- 110 State Auditor cannot draw warrant in favor of alleged assignee of claim, unless he has conclusive proof binding upon the assignor that the claim has been assigned. May 11, 1905
01- 111 The claim of an attorney appointed by the court to defend a pauper prisoner, must be presented to the County Commissioners as other claims against the County. May 11, 1905
01- 112-12 It is not proper to assess costs as a part of the penalty for violation of Chapter 52, Laws 1905, as there is no provision in the law making costs a part of the penalty for its violation. May 12, 1905
01- 112-16 In order to extradite a fugitive from justice from Canada, it is necessary to have a statement of the County Attorney respecting the crime for which the party is wanted, an affidavit of the Sheriff or some other responsible party as to the flight setting up the facts, and a copy of the information and original bench warrant, if the information has been filed, otherwise certified copy of the complaint, and original warrant of arrest issued by justice of the peace, and in addition, the original deposition made in triplicate of certified copies thereof, of at least two witnesses testifying to the material facts on which the information or warrant was issued. All of these papers, as well as the signatures of officers, must be certified to. There must be three complete sets of the papers transmitted to the Governor, and the Governor must transmit the same to the Secretary of State of the United States, with request for the extradition of the fugitive, and the Secretary of the U.S. will thereupon make requisition upon the government of Great Britain for the extradition. May 16, 1905
01- 114 The general appropriation bill passed by the last session of the legislature appropriated $1,500.00 each for the office and traveling expenses of the Carey Land Act Board, and House Bill No. 222, Section 28, appropriated $1,000.00 each year for paying the secretary, office and traveling expenses of said board, and provided further that out of any funds received by said board from the sale of lands reclaimed, the additional sum of $2,000.00 was appropriated to be used at the discretion of the board. The salary of the secretary should be paid out of these two appropriations. May 18, 1905
01- 115 The State Auditor is without authority to issue a warrant for the payment of claims against the public printing fund when the same has been exhausted, and an appropriation made for public printing for the fiscal year 1906, cannot be drawn upon or used in payment of claims for public printing in the year 1905, or for claims accruing in 1905. May 20, 1905
01- 117 House Bill No. 105, Laws of 1905, amend Section 552, Political Code, by increasing the number of assistant boiler inspectors from one to two. The general appropriation bill No. 261, Laws of 1905, appropriate salary for Boiler Inspector and $1,800.00 for Assistant Boiler Inspector. House Bill No. 292, Laws of 1905, makes a special appropriation bill to appropriate money to pay the salary of the additional assistant boiler inspector, provided for by said House Bill No. 105. May 23, 1905
01- 118 Under Section 602 Political Codes as amended by laws of 1903, page 20, Board of Medical Examiners may determine from facts presented to them, whether the applicant for license to practice medicine has complied with the law requiring him to take four courses of lectures of six months each. May 23, 1905
01- 119 Boards of County Commissioners have no authority under the laws of this State to employ a detective for the purpose of procuring evidence against persons committing larceny, or other crimes, against citizens of their county, nor have they power to employ an attorney to whom such a detective is to make reports of his investigations. County Commissioners can only make contracts that are legal charges against the county , when acting as a board, duly and regularly called and organized, as provided by Sections 4220, 4215 and 4216 of the Political Code. As to whether an agreement made by one or more members of the board when not in regular or duly called special session, but purporting to be made by the board, is binding upon such members individually, is a question to be determined from the peculiar wording and manner of signing the agreement. May 25, 1905
01- 123-26 Under Section 873 of the Civil Code it is your duty to issue a certificate showing the organization of the association and attaching to and making a part of such certificate, the papers filed by the association, certifying to its organization; for this certificate your fee is $5.00. As to the certified copy to be forwarded to county clerks, you are entitled to twenty cents per folio and $1.00 for your certificate. May 26, 1905
01- 123-27 Under the provisions of Chapter 49, Laws of 1905, page 100, the Bounty Inspector should, after his inspection of hides in accordance with the provisions of said law, redeliver the scalps to the bounty claimant for transmission of such claimant to the County Clerk. May 27, 1905
01- 125 The State Auditor cannot issue a warrant against the money appropriated "for encampment National Guard," to defray the expense of camping detachments of the several companies for rifle practice. May 30, 1905
01- 126 No authority of law exists for the appointment of special registry agents in case of a special election held in any county, but the official register and check list used at the next preceding general election, must be used and no new registration need be made. June 6, 1905
01- 127 Under Section 1271 of the Civil Code, a lessee of State lands may work all mines and stone quarries open at the beginning of his tenancy, and is not liable in an action of waste for the value of any rock removed by him from any quarry, which was opened and worked at the beginning of his tenancy, unless the tenant was a wrong doer by holding over after the termination of his lease, either by its own limitation or by being terminated. June 3, 1905
01- 129 Provisions of Chapter 71, Laws of 1905, page 154, do not apply to a license for the conduct of a retail liquor business in a town, city, village or camp containing a population of more than one hundred. The fact that plat had been filed with the County Clerk in contemplation of an incorporation of such town, where no corporation thereof was ever actually had, has no effect whatever in the fixing of the boundary of the town or camp for the purpose of determining its population under said law. June 6, 1905
01- 130 Under the provisions of Chaper CXX, Laws of 1903, page 232, the fiscal year for collecting meat and milk inspection licenses begins on the first day of June, and such license is payable "quarterly in advance." Licenses should be paid in advance, and not issued on time, credit or on the installment plan, and under this law licenses cannot be issued for a year upon payment in advance of merely an amount sufficient to cover the first quarter. June 6, 1905
01- 131 Under the Provisions of Section 1892 of the Penal Code, as amended by Chapter 23, Laws of 1903, page 47, the county in which a criminal action or proceeding arises, is liable to pay an attorney appointed by the court for his services, such sum as the judge certifies to be a reasonable compensation, not exceeding the maximum amount fixed by the law. And in case more that one attorney has been appointed in the defense, the county must pay each attorney the amount certified to be reasonable compensation, not exceeding the maximum amount prescribed in the law. June 9, 1905
01- 132 Under the provisions of Sections 4682 and 4683, Political Code, Lewis and Clark County must pay all costs, as allowed and certified by the court of Cascade County, upon the removal and trial of the case of State v. Keerl from Lewis and Clark County, upon warrant drawn for the amount thereof upon the treasurer of Lewis and Clark County by the board of county commissioners of Cascade County. June 12, 1905
01- 133 A saloon on a boat comes under the latter part of Section 4063, Political Code, as amended by Chapter 82, Laws of 1905, wherein it provides "or elsewhere not provided for in this section." The license is $165.000 semi-annually. Liquor can only be sold to passengers on the boat. If the boat ties up at any town where a higher license is required, or where a petition for a license must be presented to the board of county commissioners, no liquor can be sold to the inhabitants of such town or place without paying the higher license or procuring such petition. June 20, 1905
01- 135 Under Section 3691, et seq., Political Code, the shares of a national bank are taxable to the holders thereof, and the value of such shares is ascertained by adding to the capital stock of the bank its surplus and reserve fund and subtracting from the same the value of the real estate owned by the bank. Shares of stock in a national bank should be assessed to the individual owners thereof, and the real estate owned by the bank should be assessed to the corporation. Opinion of attorney general to C.L. Harris, county attorney, of June 27, 1904, referred to and distinguished. June 20, 1905
01- 136 County clerks should be paid the sum of five cents per hide for inspecting coyote and wolf scalps, or mountain lion lower jaws accounted for by them, out of the state bounty fund in the hands of the state treasurer, after their claims have been audited and approved by the state board of examiners. June 23, 1905
01- 137 The state game warden is entitled to his actual and necessary expenses, not to exceed $1,500.00 per annum, except when performing any official service which might be performed by a sheriff, then instead of receiving actual and necessary expenses he shall receive the same fees allowed the sheriff for such services and five cents per mile for each mile traveled in the performance thereof. Special deputy game wardens, when performing official services in their own districts are not allowed anything for expenses, their salary being in full for services and expenses, except when the service performed in their own district is such as might have been performed by a sheriff, then they receive the same fees as the sheriff and five cents per mile for the distance traveled in performing the service. Special deputy game wardens when performing services outside of their own district receive actual and necessary expenses incurred by them outside of their district, but for such service they are not entitled to the five cents per mile, even when the services are such as might have been performed by a sheriff. The board of examiners has authority to demand that vouchers and itemized statement accompany claims filed, and may refuse to allow any claim until the same are so filed. It rests in the sound discretion of the state game warden as to when he will send a deputy into another district to perform services therein. Whenever he deems it necessary for the better enforcement of the game and fish laws he may do so. June 23, 1905
01- 141 Under the provisions of Section 3072, Political Code, as amended by Chapter 49, Laws 1905, respecting time for inspection of skins by a county inspector, it is my opinion that he is only authorized to examine skins or issue bounty certificates on the first three day of each month, unless the last of the first three days of the month falls upon a holiday, and that in that event the inspector may legally act upon the day following. But where the first day is a holiday, or the second day is a holiday, no exception to the provisions of the law is made. June 24, 1905
01- 142 Under Chapter 58, Laws of 1905, such companies must pay at the time of beginning business a license of $125.00, as provided by laws of 1897, p. 77. Thereafter the fees each year for continuing business will be $40.00, as provided by Section 14 of Chapter 58, Laws of 1905. The Inter Mountain Mutual Life Insurance Company, of Billings, must pay a license of $125.00 per annum, as provided by laws of 1897, p. 77. June 26, 1905
01- 143 The articles of incorporation referred to in Chapter 68, Laws 1905, differ so materially and no particular form thereof being required by law, it is inadvisable and impracticable to adopt any form of blank book for recording the same. The words "stock certificates," mentioned in said Chapter 68 was a mistake. It was the intention undoubtedly to provide for the recording of subscriptions for stock, as the department of the interior require that the subscriptions for stock in water users' associations shall be recorded. The county clerk should procure a blank form book, conforming to the blank subscriptions for stock adopted by the water users' associations, and record the subscriptions for the fee provided by said Chapter 68. June 27, 1905
01- 145 The inhabitants of any number of school districts may form an association for the purpose of maintaining a private school and of giving christian instruction therein, and may use the public schools for such purpose, with the consent of the district. Such private school is not entitled to receive any portion of public moneys, nor can taxes be levied in support thereof, even with the consent of the taxpayer; and, unless a public school is maintained, as provided in Section 1757, Political Code, as amended, the district cannot participate in the distribution of any school moneys, nor can sectarian instruction be permitted in a public school. June 27, 1905
01- 146 Under Section 3691, et seq., Political Code, the shares of a national bank are taxable to the holders thereof, and the value of such shares is ascertained by adding to the capital stock of the bank its surplus and reserve fund and subtracting from the same the value of the real estate owned by the bank. Share of stock in a national bank should be assessed to the individual owners thereof, and the real estate owned by the bank should be assessed to the corporation. June 29, 1905
01- 148 The act of Congress of March 3, 1905, gives the secretary of agriculture authority to make rules and regulations for the government inspection and disinfection of sheep or other live stock shipped from a quarantined state or territory into another state or territory. Such rules and regulations, in so far as they apply to sheep shipped from one state or territory to another state or territory, control and are superior to the laws of this state. Where sheep that are shipped into this State have been inspected and dipped pursuant to the rules and regulations of the secretary of agriculture, Chapter 45, Laws of 1905, of the State of Montana have been substantially complied with, in so far as the inspection and dipping of the sheep are concerned, but the other provisions of said Chapter 45, to the effect that sheep so shipped into the State must be branded and placed in quarantine, etc., being additional precautions to those established by the rules and regulations of the secretary of agriculture, are not in conflict and should be enforced by the local inspectors of this State. July 10, 1905
01- 150 The fee of ten cents allowed justices of the peace for issuing a resident license to hunt, under Section 5, Chapter 57, Laws 1905, is net to the justice. The necessary expenses of transmitting the money to the state treasurer, and the duplicate license and reports to the state game warden, may be deducted by the justice from the amount remitted to the state treasurer. July 11, 1905
01- 152 In cases of separate sentences to state prison, the good time granted to the convict under Section 2969, Penal Code, should be computed on the basis of each sentence, in the same manner as though no other sentence had been imposed. July 12, 1905
01- 154 Section 2511, Political Code, provides that the department commander of the Grand Army of the Republic of Montana shall be a member of the board of managers of the Soldiers' Home. Article 6, Section 2, rules and regulations of the Grand Army of the Republic provides that in the event of a vacancy in the office of department commander the senior vice commander shall at once succeed to the title and duties of that office. Upon the death of the department commander the senior vice commander becomes a member of the board of managers of the Soldiers' Home, upon qualifying and filing the bond required by Section 2512, Political Code. July 1, 1905
01- 155 If a person to whom a certificate has been issued, authorizing him to practice dentistry, fails to pay his dues, as provided by Section 629, Political Code, as amended by the laws of 1901, p. 112, after being duly notified that if his dues and fines were not paid within thirty days that his certificate would be revoked, then the board of dental examiners' action in revoking his certificate would be valid, and before the person could again practice dentistry in this State he would have to appear befor the board of dental examiners for examination of applicants to practice dentistry. If the notice to the effect that his certificate would be revoked within thirty days if he failed to pay his dues was not properly served or given, the revocation of his certificate would not be valid, and he would, by paying up the back dues and penalties required by said Section 629, as amended, be entitled to practice dentistry without taking another examination. July 15, 1905
01- 156 The term "each party to the action," Sections 374, C.C.P., has reference to the different sides of the controversy rather than to the individuals named as plaintiffs or defendants, and when their interests are so united as to be a unit, but one stenographers fee can be charged to each side of the case; but where separate issues are raised, the party so raising them must pay a separate fee. A sheriff is entitled to his commission on the purchase price of property sold by him, either under foreclosure or execution. A butcher is not required to pay a separate license for using a wagon in connection with his business where he has paid a merchants license. July 18, 1905
01- 158 Under Section 3072, Political Code, as amended by Chapter 44, Laws of 1905, the fee allowed the county clerk for inspecting pelts presented for bounty is not in conflict with Section 31, Article V of the constitution. It is an additional duty imposed upon an officer after his election, for which additional compensation may be allowed him. July 20, 1905
01- 159 Where a mortgage has been assigned prior to the first Monday in March but the assignment not placed of record and the assessor, relying upon the record, has assessed the mortgage to the mortgagee, such assessment should be changed and the mortgage assessed to the assignee, upon the mortgagee appearing before the board of equalization and making affidavit to the effect that he has assigned the mortgage prior to the first Monday in March and giving the name of the assignee. July 22, 1905
01- 160 No license can be collected, under Chapter 56, Laws 1903, p. 117, where a person uses one or more buggies for samples and travels throughout the county taking orders for buggies, which orders are sent to the factory outside of the state of Montana and there filled and the buggies shipped to the purchaser, or to the agent who delivers them to the purchaser. July 22, 1905
01- 161 Under Section 4071, Political Code, as amended by the Laws of 1897, p. 202, the amount of license to be charged an electric company depends upon the population of the city or town in which it does business and not upon the location of the power house in which the electricity is generated that it is transmitted to such city or town. July 26, 1905
01- 162 Section 1, of Chapter 101, Laws 1905, prohibits the running of automobiles within the limits of a city, within the thickly settled or business part of any town, as the same is defined by Section 4710, Political Code, or within any fire limits, when established, in any unincorporated town or village, as provided in Section 3237, Political Code, at a speed exceeding eight miles an hour. July 26, 1905
01- 163 On the removal of a criminal case from one county to another it is the duty of the county to which the action is removed to furnish a prosecuting attorney, and the county from which the action is removed is not liable for the fees of such prosecuting attorney. August 1, 1905
01- 165 Whenever the sheriff performs any service for which a fee is charged under Section 4634, Political Code, he must collect the same and has no authority or right to waive the collection thereof. When the sheriff sells property under the chattle mortgage he should collect the fees for advertising and the commissions upon the amount received, and such fees when collected must be turned into the county as provided by Section 4591, Political Code. August 4, 1905
01- 166 Furniture and fixtures of a building and loan association should be assessed to the corporation. The value of the stock should be assessed to the owners as a solvent credit. August 5, 1905
01- 167 Under the provisions of Section 2973, Political Code, stock inspectors are not entitled to collect mileage upon arrest of criminals by them. August 9, 1905
01- 168 Where an action has been prosecuted in the district court contesting an assessment the judgment rendered therein is res adjudicata as to all questions involved and such property cannot be re-assessed. August 10, 1905
01- 170 Under the existing laws of Montana, a corporation may incorporate for a term not exceeding forty years. Section 411, Civil Code, supersedes Section 403 and has not been repealed or modified and is controlling on the subject. August 17, 1905
01- 171 Under Section 4640, Political Code, the coroner is entitled to $5.00 per day, and no more, for holding inquests, regardless of the number held. It is no part of his duty as coroner to perform autopsies. When a physician holds an autopsy, the presence and assistance of the coroner does not entitle him to extra fees as such, such service is simply a part of his duties in holding the inquest. If the coroner is a duly licensed and practicing physician qualified to perform an autopsy, and does perform the same instead of calling in a physician, he would be entitled to the customary charge of a physician for performing the autopsy. August 26, 1905
01- 172 When the thirtieth of November falls on a legal holiday, taxes are not delinquent until 6 o'clock p.m. Dec.1 following, and the taxes paid on December first should be credited in the receipts of the fiscal year ending November 30. August 25, 1905
01- 173 The act of 1905 confers upon a district a power not granted to it by the original act and brings within the operation of the statute a deficiency not contemplated by the original act, and as to such matter the amendatory statute must govern as to date. August 28, 1905
01- 176 Under Chapter 71, Laws 1905, a liquor dealer must procure a petition and get an order from the board of county commissioners each time he applies for a license. The word "township," as used in such law, refers to the political or judicial townships of the county, as established by the board of county commissioners, and not to the surveyors township. August 29, 1905
01- 177 Under Section 16, Chapter 45, Laws 1905, the fee for inspecting shep which have been within this State six months preceding such inspection, shall be paid out of the sheep inspection and indemnity fund. All other fees and expenses incurred for superintending the dipping of sheep, feeding, marking, etc., shall be charged to the owner of the sheep, whether the sheep have been within the State six months or not. August 29, 1905
01- 179 Under Section 4634, Political Code, the sheriff is only entitled to mileage where he actually serves the warrant of arrest, or other writ, process, order, etc. Where he travels in search of a person, either with or without a warrant, and fails to find such person he cannot collect mileage for the distance so traveled. August 30, 1905
01- 181 Where the only property owned or possessed by an individual is a recorded mortgage, the mortgage should be assessed to the owner thereof, and if the taxes are not paid thereon and become delinquent, difficulty would be encountered in collecting the same by summary process, and the proper procedure would be to bring a civil action to collect the amount thereof. August 31, 1905
01- 183 Chapter 9, Laws 1905, creating Sanders County, names the officers for the new county, but the law does not take effect until the first day of March, 1906, and therefore the board of county commissioners, as such, have no more power or authority to contract for the county than any other individual. But in order to perfect the organization and place the county in a position to at once commence business, there is no objection to the board of county commissioners named in the bill purchasing in advance such books, supplies, records and stationery as are necessary in order to enable the new county to at once commence business. They cannot, however, enter into a contract for the transcribing of the records, because this must be done by them as a board of county commissioners after organization. August 31, 1905
01- 185-2 The fee to be charged for recording and filing a certificate of increase of capital stock is the same as that prescribed for the filing and recording of a certificate of incorporation. September 2, 1905
01- 185-7 It is within the province of the legislature to determine and specify the fees to which a justice of the peace is entitled to receive in any and all cases and to fix the amount thereof in each instance as well as in the aggregate. Under the provisions of Section 4642, Political Code, by the last subdivision, the limit upon and aggregate amount of fees which a justice may receive from the county in any one year is $500.00. September 7, 1905
01- 186 It is the duty of the State Treasurer to register the coupons of bonds issued by the Montana Arid Land Grant Commission, District No. 4, not paid, when due, on their presentation. September 7, 1905
01- 187 It is proper for a justice of the peace to charge the Game Warden or one of his deputies a fee for issuing a search warrant. September 7, 1905
01- 188 The law imposes the duty upon the county treasurer of collecting delinquent taxes on personal property and making seizure, but the treasurer may delegate the performance of such duty to the sheriff or assessor, as special deputies without compensation, the county treasurer being primarily liable for such collection. September 8, 1905
01- 190 It is not within the province of the Board of County Commissioners to employ special counsel at the expense of the county for the prosecution of criminal cases. However, there can be no legal objection to the employment by them at county expense of special counsel for the prosecution of a civil case to which the county is a party, but it is not within the province, nor has the Board of County Commissioners, authority to employ, at the expense of the county, special counsel to prosecute cases, either civil or criminal, in the supreme court on appeal generally, as such duty is by law placed upon the attorney general. September 9, 1905
01- 193 The costs and charges of sending out blank reports, statements, notices, etc., to county school superintendents is a proper charge against the expense account of the Superintendent of Public Instruction. September 12, 1905
01- 194 The county treasurer is the proper custodian of the special tax levied and collected under the provisions of Section 3237, Political Code, for apparatus and maintenance of volunteer fire departments, and such tax money can be paid out of the treasury only upon warrant. September 12, 1905
01- 195 Where examination and commitment of an insane person is had before the Chairman of the Board of County Commissioners, under the provisions of Section 2312, Political Code, as amended by the laws of 1897, p. 164, all the evidence must be reduced to writing and filed with the other papers in the office of the Clerk of the District Court. There is nothing in the law requiring that such testimony shall be reduced to writing when the hearing is had before the District Judge. A sheriff is entitled only to his actual expenses incurred in hunting up criminals or looking up evidence in any criminal case. September 12, 1905
01- 198 Under the provisions of Section 3004, et seq., Political Code, the state veterinarian is empowered to order and compel the slaughter of horses, cattle or asses suffering from a dangerous, incurable infectious or other contagious disease. Method of procedure prescribed. September 19, 1905
01- 200 Where a school district is bonded for the building and furnishing of a school house, and such district is afterwards divided and a new district created out of a portion thereof, the new district this created is not liable for the payment of any part of the bonds issued by the old district. September 30, 1905
01- 201 Senate Bill No. 5, p. 62, laws 1901, is repealed by the provisions of the laws of 1905, p. 178. A merchant on an Indian Reservation cannot be required to pay a state or county license for trading with the Indians, nor where the conduct of his business is a part of the government policy and method of dealing with the Indians. But where such merchant's business does not fall within this rule, he is liable for the payment of the license required by state law. Under the provisions of Section 374, C.C.P. but one stenographer's fee can be collected from the same party in the same action, even though there is a re-trial had of the case. October 2, 1905
01- 204 The land grants made to the State of Montana by congress for educational purposes under the provisions of the Enabling Act and constitution can be used only for the support and maintenance of such institutions. The moneys secured from the leasing of the lands or interest upon the permanent fund secured from the sale of the lands are dedicated solely and exclusively for the support and maintenance of such institutions, and an attempted bond issue against the Normal School land grant of one hundred thousand acres, for the payment of which bonds the moneys received from the sale of such lands and licenses to cut trees, and moneys derived from the leasing and interest derived from the fund is unconstitutional and void. The money secured from the sale of such lands must be held and remain inviolate and sacred to the trust. Although the act in question, Chapter 3, Laws 1905, provides that the State shall not be held liable for the payment of the bonds, and that they shall run from the State Board of Land Commissioners to bearer, still the state receives the benefit and must be held to be the debtor. October 9, 1905
01- 212 The law requires that notice of election authorizing the issuance of school bonds shall be posted fifteen days beore the election. A notice of such election posted on July 17 noticing such election for the first day of August following is a sufficient compliance with the law as the time of posting. Reversing former ruling of office in letter to State Board of Land Commissioners, bearing date January 10, 1905. October 10, 1905
01- 213 Laws of 1905, p. 320, make an appropriation for the care and maintenance of feeble minded children at the school for the Deaf and Blind. Section 2344 provides that on application the district court must order a child sent to such school. The expense of clothing and transportation of the children to be furnished by the county superintendent of schools at the expense of the county. Feeble minded children now at the Orphans' Home should be sent at the expense of the county to the school for the Deaf and Blind. October 10, 1905
01- 215 Warrants presented for payment out of funds realized from the sale of lands granted for educational institutions should not be registered, nor should warrants drawn upon a bond fund created for the purpose of erecting buildings for educational institutions be registered. The reform school is an educational institution and not a penal institution and is governed by the laws relating to educational institutions. October 12, 1905
01- 217 The act of August 18, 1894, ws amended by the act of June 11, 1896. By this amendment the State is entitled to patent for such lands upon proof showing that an ample supply of water is actually furnished in a substantial ditch, etc., to reclaim such lands, without regard to settlement or cultivation. However, the act of August 18, 1894, is still in force so far as it applies to the sale of such lands by the State. The State can sell such lands only to actual settlers. October 14, 1905
01- 218 State warrants issued in payment of current expenses of the government and state institutions, drawn against specific appropriations for such purposes, are not debts within the meaning of the constitutional limitation of indebtedness. Cash on hand and taxes due for the fiscal year may be figured as cash in offset to the warrants issued. October 18, 1905
01- 222 Where the sheriff assists the county attorney in securing evidence for the prosecution of a criminal case he is entitled to his actual and necessary traveling expenses thus incurred. October 19, 1905
01- 223 Under the express provisions of Chapter 39, Laws 1905, amending Section 717, Penal Code, said law does not apply to the selling or furnishing or giving away of intoxicating liquors within the limits of any town or city, even though such town or city may be essentially a logging or saw mill camp. October 20, 1905
01- 224 The bounty law does not apply to animals inoculated with mange by the State Veterinarian, in accordance with the provisions of Chapter 107, Laws of 1905, p. 302. October 20, 1905
01- 225 Where a merchant residing and having a fixed place of business at Helena attempts to advertise and sell goods in his name at Boulder, he must pay the license required under the provisions of Section 4066, Political Code, as amended by Chapter 84, Laws 1905. October 20, 1905
01- 226 Under Section 3099, Penal Code, the reform school building fund consists of money derived from the sale of timber and from the sale or leasing of lands granted to the State for a reform school. As the Enabling Act and constitution provide that the proceeds from the sale of lands shall be a permanent fund, and that the interest from the investment thereof and income from leases shall only be used for the support of schools, warrants drawn against such building fund, for the purpose of erecting buildings, is a diversion of the fund and in violation of the constitution. After buildings have been completed and paid for out of such fund it constitutes a complete diversion of the same. The State must replace such diverted funds by an appropriation of the legislature of by the issuance and sale of state bonds. Money received as insurance from the burning of such building comes from an entirely different source, is not a part of the fund diverted, and may be used for the purpose of replacing the destroyed buildings. October 24, 1905
01- 228 Chapter CXIV, Laws 1903, repealed the law of 1897, p. 189, which provided for the State Arid Land Grant Commission and for funds A, B, and C. This law, however, made no provision for the payment of the warrants issued by the Arid Land Grant Commission against funds A, B, and C. Chapter 105, Laws 1905, defining additional duties of the Carey Land Act Board, makes provision for the payment of the warrants issued by the Arid Land Grant Commission under the law repealed as aforesaid. Therefore, the holders of such warrants can look only to the fund provided for by the act of 1905 for payment of their warrants. October 25, 1905
01- 232 After appeal from a justice court to a district court from a judgment in a criminal action over which the justice court has original jurisdiction, the complaint, if found defective, cannot be amended nor a new one permitted to be filed. October 26, 1905
01- 233 There is no objection, under the law, to the board of county commissioners making purchase of lands for county poor farm purposes to the extent of 160 acres, nor is there any objection to their making sale of all or any part of said tract and buying an entirely new tract. Where in the interest of the county a part of the 160 acre tract is sold, there is no objection under the law to their making purchase of a quantity of land adjoining equivalent to the tract so disposed of to replace the same. October 26, 1905
01- 235 Live stock are taxable in the county where the owner resides and has his home ranch rather than in the county where they are taken or removed for the purpose of feeding or ranging. October 26, 1905
01- 236 One who accompanies a party of hunters from a given point in the State of Montana across the state line into Idaho under contract to act as a hunter's guide in the State of Idaho, and does not act as such hunter's guide within the State of Montana, is not liable for the payment of a guide's license within Montana. If, however, such party does any hunting within the State of Montana the guide is liable for the payment of a license, though their expressed intention was to hunt only in the State of Idaho. October 27, 1905
01- 237 A justice of the peace is not prohibited by Section 3 of Senate Bill 82, p. 92, Session Laws 1901, from drafting a complaint in a criminal case. A justice who drafts a complaint in a criminal case is not thereby disqualified from trying the case. The county attorney is not obliged to attend cases in the jsutice court not instituted by himself when he is "otherwise officially engaged." October 27, 1905
01- 238 1. An election for sumitting to the electors of a county the proposition of issuing bonds to erect a county free high school building may be submitted at any time whenever the board of free high school trustees so decide, after giving the notice required by law. 2. Such question must be submitted to the electors of the county, not the taxpayers, therefor women cannot vote whether taxpayers or not. 3. Such election must be held in the various school districts and conducted in the manner of electing school district trustees. 4. County free high school trustees should furnish necessary supplies. October 28, 1905
01- 241 Under the provisions of laws 1897, p. 187, national guardsmen who attend an encampment are entitled to the per diem as named in Section 18 of the act of March 9, 1897. Claims therefor should be filed by the men with the State Board of Examiners, and if approved, to be transmitted to the legislative assembly, as provided in Section 689, Political Code. October 31, 1905
01- 242 It is the duty of the county commissioners annually to levy a tax sufficient to pay the interest of all bonds and to create a sinking fund. This provision is mandatory. If the board violates this provision and does not provide for a sinking fund, the interest on bonds may be paid out of the surplus money on hand in any of the other county funds, except the school fund, provided there is a surplus in any such funds at the end of the fiscal year. The commissioners, under Division 5 of Section 4230, may levy, in addition to the per capita tax of $2.00, a special tax for the poor fund of the county. If this fund proves insufficient for the care and maintenance of the poor, the commissioners have no authority to transfer money from other funds to this fund until the close of the fiscal year, when they may do so out of any surplus in the funds, other than the school fund. When a fund is exhausted prior to the close of the fiscal year, warrants drawn against it must be registered, as provided in Section 4290, Political Code. Section 4256 provides for the transfer of all surplus money that may be on hand in the several funds, except the school fund, All taxes levied for the different special purposes mentioned in the law must be used exclusively for such purposes, until the close of the fiscal year, at which time, if there is a surplus in any such funds, other than the school fund, it may be transferred under the provisions of Section 4256. The work "poor", as used in Section 4569, Political Code, means the persons entitled to relief from the county, as defined in Section 3201, of the same code. October 31, 1905
01- 247 A board of county commissioners is limited under the law to the purchase of a tract of land for county poor farm purposes not exceeding 160 acres, but this does not prevent the acceptance of the part of the county of a larger tract of donation. And a county may own and hold a tract of land in excess of 160 acres for county poor farm purposes, provided that not more than 160 acres thereof is secured by purchase. October 31, 1905
01- 248 1. Census reports of clerks of school districts may be amended by the clerk at any time prior to apportionment of school funds, as the facts may justify, and they may also be corrected by the county superintendent so as to correctly show the facts where error is apparent on the face of such returns or within the knowledge of the county superintendent. 2. Children should be enumerated by the clerk of the school district for the purpose of apportionment of school money by the county superintendent in the district in which they actually reside rather than in the district in which they attend school. November 1, 1905
01- 250 Under Section 1, Article 12, of the constitution the legislature has authority to levy taxes for state purposes. Section 4, Article 12, prohibits the legislature from levying taxes for county, city or town purposes. The authority to levy taxes for county, city and town purposes is vested by the constitution, and legislative acts pursuant thereto, in the counties, cities and towns alone. The act of 1899, p. 73, and the act of 1903, p. 210, attempting to divert a part of the taxes received from levies made by a county for county purposes to another use than that for which they were levied is unconstitutional and void. November 2, 1905
01- 254 Under the compulsory education law, Sections 1920 to 1925, inclusive, Political Code, as amended by Chapter XLV; laws 1905, p. 92, all children between eight and sixteen years of age must attend school during the school term while the public schools are in session, unless they are excused as therein provided. November 3, 1905
01- 257-4-1 A petition for local option, under Section 3180, Political Code, must contain at least one-third of the qualified voters for members of the legislative assembly, whose names appear upon the last assessment roll of the county. It is then sufficient to authorize the commissioners to act thereon. This section does not prohibit other persons who are residents of the county, and qualified to vote for members of the legislature, from signing such petition. November 4, 1905
01- 257-4-2 Section 1732, Political Code, requires superintendents to visit the schools in their counties. Division 8, of Section 4681, provides that contingent expenses necessarily incurred for the use and benefit of counties are county charges. Section 1741, as amended by the laws of 1901, p. 122, provides that the necessary traveling expenses incurred in visiting schools must be allowed superintendents in counties of the seventh and eighth classes, but such section does not prohibit the commissioners from so allowing the actual traveling expenses of superintendents incurred in counties other than the seventh and eighth classes. Held: That county commissioners have authority to allow actual traveling expenses of superintendents for visiting schools in counties other than the seventh and eighth classes. November 4, 1905
01- 259 Under Section 3076, Political Code, as amended laws 1905, p. 104, it is the duty of the board of county commissioners of each county to levy annually a special tax of four and one-half mills on the dollar for the benefit of the state bounty fund. Where the board fails to make this levy, mandamus will lie against them to compel them to discharge this duty. It is too late to resort to mandamus proceedings after the duplicate assessment book has been turned over to the county treasurer and he has published his notice as required by law and has collected taxes and issued receipts therefor on the class of property named in the law of 1905. November 7, 1905
01- 260 Under authority of State v. Cook, 14 Mont. 333, a balance or unused portion of an appropriation for the first of two fiscal years for which appropriation is made for a specific purpose by the legislative assembly may be transferred and added to the appropriation made for the second fiscal year. November 10, 1905
01- 263 Where a company is mustered out of service, all property and money of such company revert to the State. If there are outstanding debts of the company, they should first be paid out of the money of the company on hand. The balance of money, after payment of outstanding debts, is placed to the credit of the general fund of the State. November 17, 1905
01- 264 Under Section 4064 Political Code, as amended, butchers are not required to have a fixed place of business in the same sense as other merchants. Their place of business may be at their ranch or distributed out by wagon to customers throughout the county; when they have procured a butchers license they do not have to procure a peddlers license. November 18, 1905
01- 265 It is not within the power of the Board of Land Commissioners to employ special counsel to prosecute a case before the supreme court to test the constitutionality of acts authorizing the issuance of bonds pledging the land grants of educational institutions, for the Board is not the party beneficially interested and there is no fund from which it could legally authorize payment to be made for such expenses. However, upon the theory that the bonding of such land grants affects their maintenance, the educational institutions interested might with propriety, though their board of trustees, authorize the payment of a reasonable fee for such purpose, and the State Board of Examiners could properly allow and approve such a claim. November 18, 1905
01- 268 1. Where G gave J a chattel mortgage as security for a negotiable promissory note, which note was executed in payment of rent in advance, such mortgage is assessable. If the owner of such mortgage had any grievance on account of the assessment of such mortgage, he should have presented the same to the Board of County Commissioners, sitting as a Board of Equalization, and not having done so, the Board of County Commissioners are without authority to make any change in the assessment. 2. The County Attorney must furnish an opinion in writing to the Board of County Commissioners without fee, when required. This is an official duty which he can be compelled to perform. November 20, 1905
01- 270 A person has a right to kill and sell cattle raised by himself without a license. However, he is limited to products raised by himself. If he engaged in the business of buying cattle for the purpose of killing the same and selling the meat, he must procure a regular butchers license. He may peddle the beef from cattle raised by himself throughout his county without procuring a peddler's license. November 21, 1905
01- 271 1. Sixth class counties are liable for the traveling expenses of County Superintendents while visiting schools of the County. See opinion to L.H. Mills, Chairman of Board of County Commissioners on November 4th, 1905. 2. It is not the duty of the County Superintendent to furnish note books to teachers while attending a teachers institute and such note books are not a proper charge against the county. December 6, 1905
01- 272 The situs of live stock for the purposes of assessment and taxation is the county wherein the owner thereof is conducting such business. December 6, 1905
01- 273 Where patent has issued for lands containing coal, it is within the province of the Board of Land Commissioners to permit the mining of same upon any business basis which it may determine to be for the best interest of the State. December 16, 1905
01- 274-20 The delinquent tax list should be published in accordance with the provisions of Section 3873 of the Political Code as amended by the laws of 1901, page 142, and the form thereof may be prescribed by the Treasurer so long as it contains the information required by the law. December 20, 1905
01- 274-28 Chapter 84, laws of 1903, prohibiting Indians from carrying firearms off their reservation, is in operative as to trial Indians who have entered into treaties with the United States, in which the right to hunt off the reservation is reserved by them. Indians residing upon reservations within this state are residents of the state; and they can hunt off their reservation during the open season by procuring a hunter's license the same as other residents of the state. They are subject to the same punishment as other residents of the state for violation of the game law or license law when off their reservation. December 28, 1905
01- 277-5 Under Second Paragraph, Sec. 4634 of the Political Code, but one fee of one dollar can be charged for the use of the County in making service of one Writ of Attachment. December 30, 1905
01- 277-30 Under authority of State v. Cook, 14 Mont. 333, when a specific appropriation is made for a specific use for the two ensuing fiscal years, and the amount appropriated for the first year becomes exhausted, items of expense thereafter incurred during such fiscal year may be paid by warrant drawn against the amount appropriated for the succeeding fiscal year when that year is reached and the money available for payment of such specific items. Until the year 1906 is reached, however, the Auditor is not authorized to draw his warrant, because there is not fund available. January 5, 1906
01- 279 A County Treasurer is liable for the loss of public funds except when the loss is occasioned by the act of God or the public enemy, or where a statute has expressly provided that the funds shall be deposited in some bank. Under Section 4367 as amended by Chapter 5, laws of 1903, the depositing of money in a bank is optional with the treasurer. If he does so deposit it and take a bond from the bank, it does not relieve him and his bondsmen from liability on the official bond. January 6, 1906
01- 281 County officers as defined by the constitution and Section 4312 of the Political Code, do not include their deputies. There is no law in this State providing that deputy must be over 21 years of age, and, in the absence of such a law, a minor is qualified to act as a deputy for the performance of the ministerial duties of any county officer. January 8, 1906
01- 282 Under the provisions of laws of 2901, page 80, a County Health Officer has authority, independently of the County Commissioners or County Board of Health, to incur reasonable, necessary and legitimate expenses for the suppression or prevention of contagious or infectious diseases, which should be paid as other county charges. January 20, 1906
01- 284 Where the county treasurer, under Section 4870, as amended by laws of 1897, page 224, collects taxes for incorporated towns or cities, he should settle with and turn the same over to the treasurer of such town or city when so directed by an order or resolution signed by the mayor and clerk of the town or city. Division 5 of Section 4350 of the Political Code does not apply to such taxes, as they are in no sense county moneys. Taxes levied by incorporated cities or towns distinguished from those levied by the county commissioners for volunteer fire companies. January 30, 1906
01- 286 Under Section 3732, and Division 25, Section 4320, Political Code, County Commissioners have authority to have the County Surveyor survey land in a town or city which has not been platted into lots and blocks, and to make out descriptions by metes and bounds of the different tracts or parcels. It is the duty of the Assessor to procure correct descriptions of all real estate assessed by him and to assist him in so doing he should resort to and use the maps furnished by the board of county commissioners. When the board have furnished the assessor maps and correct descriptions by metes and bounds, their duty ceases, and it becomes the duty of the assessor to make copies of such maps and descriptions, if he deems it necessary, in order to procure correct descriptions of the land assessed by him. The commissioners have no authority to employ persons to do the work that should be done by the assessor, and any contract made by them for such work is in excess of their authority and not a proper charge against the county. January 27, 1906
01- 290 Sections 2900 to 2906, Political Code, do not apply to lost or estray horses or other domestic animals found upon the range. Under Chapter 19, Laws of 1903, there is no possible way provided for the finder of a lost or estray horse to acquire the right ot use or dispose of the same. January 31, 1906
01- 291 1. Sec. 3695 of the Political Code as amended by Chapter 25, Laws of 1905, is not unconstitutional as violating the uniform clause of the state constitution with reference to assessment. 2. The method of assessing property of a private banker is specified in Chapter 25, Laws of 1905, that of assessing the State Bank is given in Daly Bank and Trust Company v. Board of Commissioners, 81 Pac. 950. February 7, 1906
01- 292 Under Chapter 104, Laws of 1905, page 232, foreign banking corporations should pay the fees and make the reports required by that act. The proviso contained in Section 15 of the act, is void, as being in conflict with Section 11, Art. 15, of the State Constitution. If the act of 1905 is void in toto Chapter C. laws of 1903, page 184, applies, which makes, substantially, the same requirements. February 9, 1906
01- 293 Sec. 3695 of the Political Code is not unconstitutional under the decision of Daly Bank & Trust Company v. Board of Commissioners, 81 Pac. 950. February 10, 1906
01- 294 Laws of 1901, page 150, requiring foreign corporations to file copies of their charter, statements and appointment of agent with Secretary of State, do not apply to foreign insurance companies, as they are governed by the special law on insurance, Sec. 650 to 739. Fraternal societies, lodges and benevolent organizations are exempted by Sec. 706 and 721 from filing the statements and appointments of agents required of other foreign insurance companies. Sec. 11, Art. 15 of the constitution requires foreign corporations to have one or more known places of business and an authorized agent upon whom process may be served. But as no law supplemental to this section has been passed designating how the place of business shall be known, or with whom appointment authorizing the agent to receive service of process shall be filed, there is no authority for requiring foreign fraternal societies, lodges and benevolent organizations to file written appointments of an agent upon whom service of process can be made in any public office in this state. February 10, 1906
01- 298 The provisions of Chapter 71, Laws of 1905, do not apply to cities, town, villages or camps containing a population of more than one hundred, whether incorporated or not. Town, city or camp defined. February 28, 1906
01- 299 Under the provisions of Sec. 7, Art. 9 of the Constitution of the State, no person is qualified to be elected or appointed to any office who is not a citizen and who shall not have resided in the State at least one year next before his election or appointment. In the event of a vacancy this occuring because of ineligibility of a person appointed to the position of county attorney, the board of county commissioners may declare a vacancy in the office and make appointment. March 1, 1906
01- 300 1. No contract can be let for public printing in Sanders County until the act creating the county takes effect. 2. The Commissioners of Sanders County may issue bonds for the payments of indebtedness of Missoula County assumed by Sanders County under the authority conferred by Section 7 of the act creating Sanders County. Any other bonds issued must be under the authority of the general law. Sec. 4240 as amended by laws of 1905, page 78, referred to. 3. Boards of County Commissioners have authority at any general meeting or at any speical meeting called for that purpose, to make appointments to fill vacancies in township and county offices. March 2, 1906
01- 301 The "Deaf and Dumb Asylum," or the "Montana School for the Deaf and Blind" located at Boulder, Montana, is a State Institution of learning within the meaning of Section 12, Article 11, State Constitution, and the bonds heretofore issued against the land granted by the Montana Enabling Act "for the establishment of a Deaf and Dumb Asylum" are void, as such bonds fall within the same class as the State Normal School Bonds heretofore held void by the supreme court of Montana. March 3, 1906
01- 304 An osteopathic practitioner is prohibited from using anesthetics or any drugs in the practice of his profession by Chapter 51, Laws of 1905, page 106. March 5, 1906
01- 305 Sec. 4, Chap. 9, Laws 1905, provides that the indebtedness of Missoula County as the same existed on January 1st, 1906, shall be apportioned between that county and the county of Sanders after making certain deductions therein specified. Sec. 16 of said Chapter provides that the Act establishing Sanders County shall take effect from and after March 1st,1906. That part of Sec. 4 which makes the indebtedness of Missoula County on January 1st, instead of March 1st, the basis of settlement between the counties is in conflict with Sec. 3, Art. 16 of the State Constitution, which provides that a new county must pay its ratable proportion of existing liabilities at the date of its establishment. The date of establishment of Sanders County being March 1st, settlement must be made upon the basis of existing indebtedness of Missoula County on March 1st, 1906. March 6, 1906
01- 306-7 Jails situated in the new county must be considered in making apportionments and reductions of indebtedness of the old county. County Bridges in either the old or new county are a part of the public highways and should not be considered in making apportionments or reductions of the indebtedness between the old and new county. See Elliott on Roads and Streets, Second Edition, Sec. 44a. March 7, 1906
01- 306-13 Where a person is punished for contempt under Sections 2170 to 2183, Code of Civil Procedure, the governor has no authority to grant pardon or remit the fine imposed, as it is not an offense against the criminal laws of the state within the meaning of Section 9, Article 7 of the Constitution. March 13, 1906
01- 308 The salary of officers appointed in the Act creating Sanders County must be paid according to Section 11 of such Act. Sec. 4328 of the Political Codes as amended by laws of 1905, page 48, does not apply to such officers as the classification provided for by such amendment does not come into effect until January 1st, 1907. March 16, 1906
01- 309 Under Section 4230 of the Political Code and 3040 of the Penal Code, the authority to repair and improve county jails is vested in the board of county commissioners. The sheriff's duty is to take charge of and keep whatever jail is furnished him by the board. If the sheriff objects to the board or their agent entering the jail for the purpose of making improvements or repairs, he could be mandamused to compel him to permit them so to do. March 20, 1906
01- 311 The term of office of trustees in school districts not of the first class, begins on the third Saturday in April and is for three years, and the trustees elect must qualify on or before that date. March 13, 1906
01- 313-20 Under the law of 1905, page 254, where the county desires to avail itself of the drainage law, the commissioners may, at their regular meeting in March, 1905, or at any time thereafter, appoint a drainage commissioner. March 20, 1906
01- 313-28 Where a piece of land has been regularly platted for addition to a townsite, the plat approved by the council and duly recorded, the lots must be assessed as town lots, and the county commissioners have no authority to order or direct that they be assessed in any other manner. March 28, 1906
01- 314 At an election held under Section 4721, Political Code, to vote upon the question of incorporating a town, only the qualified electors whose names appear on the last general registration list of the precinct or precincts embraced in the territory described in the petition for incorporation have a right to vote at such election. March 22, 1906
01- 317 Action of County Treasurer in issuing retail liquors dealers license cannot be reviewed by certiorari. The power to revoke such license rests, primarily, with the county commissioners. The determination of the population of a town, village or camp is a question of fact. (See opinion for rules.) Chapter 39, Laws of 1905, has no application fo licenses where a saw mill is merely incident to or an aid to a town or village. March 31, 1906
01- 321 The executive committee, Montana State Fair, has no authority independently of the Board of Directors, to erect a grand stand, or to permit one to be erected by others. The duties of the executive committee are administrative and executive, rather than initiative. April 5, 1906
01- 322 Under Sec. 9 of the Act creating Sanders County, (Laws 1905, page 18), the county clerk of Missoula County is entitled to five dollars per day while engaged in comparing and certifying to the records transcribed for Sanders County. This law does not fix the number of days in which this work must be performed, but does limit the compensation for doing such work, it being five dollars per day. April 21, 1906
01- 323 Under Div. 12, Sec. 4230 and Div. 3, Sec. 4424 of the Pol. Code, it is not necessary for the county commissioners to meet monthly for the purpose auditing, allowing and authorizing the issuance of warrants for salaries of officers. Such warrants need be signed only by the county clerk. County officers should file their sworn claims, however, on the first of each month. April 21, 1906
01- 324 Playing cards or shaking dice for sociability, amusement, or pastime is not gambling. Playing for gain or profit is necessary to constitute gambling. As to whether treating while playing any of the games mentioned in the law is a violation thereof must be determined from the particular facts in each case by the local authorities. As to nickle in the slot machines, the law has been construed in 26 Mont. 349. April 26, 1906
01- 325 The section requiring foreign life insurance companies to comply with the general foreign corporation law having been repealed by Senate Bill 46, Laws of 1901, page 150, the presumption is that such companies are not governed by that law. April 25, 1906
01- 327 1. In transcribing records of property, chattel mortgages and attachments that have ceased to be incumbrances should be excluded. 2. It is the duty of the party who has contracted to transcribe the records to see that they are correctly transcribed. April 28, 1906
01- 329 Where the territory is transferred from one school district to another after trustees of each district have certified to county commissioners the amount of special tax to be levied, and after the transfer of such territory the county commissioners make levies pursuant to such certificates, the taxes collected on the territory transferred should be credited to the district to which such territory was transferred. A man's ranch or slaughterhouse may be his fixed place of business for wholesaling or retailing meat and he would be required to procure a regular butchers' license. He should keep a record of brands and descriptions of all cattle killed by him the same as a butcher with his place of business in town. A man killing cattle raised only by himself may sell the meat without procuring a license. He must exhibit the hide to the purchaser of the meat and keep the hide in his possession for at least ten days. Butchers having a regular butchers' license may sell and distribute their meat in wagons or in any other manner without procuring a peddlers license. Where a public highway is to be run across State Lands, or the location thereof changed, the power to grant a right of way rests with the State Board of Land Commissioners, who are given jurisdiction over such matters. May 3, 1906
01- 332 Live stock running upon the public range should be assessed in the county of their accustomed range regardless of the permanent residence of the owner thereof. The fact that they are removed from their accustomed range for winter feeding or other purposes and are not returned until after the first Monday in March makes no difference so long as they are returned to their accustomed range when running at large. May 8, 1906
01- 333 The current School Year begins September 1st and ends on August 31st following. The School Board is elected and organized in April and has authority to employ teachers fro the entire school year beginning in September following. They have no authority, however, to employ teachers for any longer period of time. May 14, 1906
01- 336 The county is liable for the support of Indigent Children, wards of the County, attending Montana School for the Deaf and Blind during the summer vacation at such school. May 14, 1906
01- 337 Boards of County Commissioners have no authority to remit or to cancel taxes lawfully levied or assessed. County Boards of Equalization may correct erroneous assessment and county commissioners may refund taxes erroneously paid. Republication of delinquent personal property tax lists not required in certain cases. May 16, 1906
01- 338 Under Chapter 74, Laws of 1905, Foreign Corporations must pay the same fees to the Secretary of State for filing certificate of increase of capital stock as are required from domestic corporations. May 16, 1906
01- 340 Under the provisions of Sec. 5, Act of 1899, relating to County Free High Schools, four votes must be cast in the affirmative to carry any question. A Trustee present and refusing to vote is deemed to assent to the act of those who do vote. May 21, 1906
01- 341 The eight hour law, known as Chapter 50, Laws of 1905, does not apply to prison guards employed at the State Penitentiary. It was not the intention that such law should apply to officers vested with governmental functions, nor could such a law be so applied. May 28, 1906
01- 345 Sub.-Div. 49 Sec. 4800, as amended by the laws of 1897, p. 203, and Sec. 4875 of the Pol. Code, are amended by section 11 of the laws of 1903, page 70, both as to the amount of the tax and as to the class of persons against whom it may be assessed, and cities and towns should comply with the later Act. June 1, 1906
01- 346 Under the provisions of Sec. 4072 of the Pol. Code, each lawyer practicing his profession, whether individually or in partnership with others, must pay the license prescribed. May 29, 1906
01- 347 Under Sec. 5, Chap. 99, Laws of 1905, the Nomination Paper of a candidate for the office of County Commissioner should designate the term for which the candidate is nominated. June 5, 1906
01- 348-5 A military organization mustered in after the last State Inspection, and not inspected prior to the 30th of May, is not entitled to any portion of the annual appropriation for company expenses for the current year. June 5, 1906
01- 348-6 Chap. 71, Laws of 1905, apply exclusively to retail, rather than wholesale, liquor dealers engaged in selling spirituous, malt or fermented liquors or wine, in cities, towns, villages or camps where the population is less than 100. June 6, 1906
01- 349 An action on an official bond of a county clerk is based upon "a liability created by statute," June 7, 1906
01- 351 County Commissioners have no authority to appoint or employ counsel to conduct or assist in the prosecution of criminal cases. Under Sec. 4602, as amended, county commissioners may authorize the county attorney to appoint a special deputy for such period as they may determine and at a compensation not exceeding that fixed by law for deputy county attorneys. June 11, 1906
01- 352 1. Indian Reservations should not be included in a voting precinct. 2. Wards of the Government are not entitled to be registered or to vote in a county in which the reservation is situated or elsewhere. 3. Persons who are not Wards of the Government residing upon an Indian Reservation and who have not established a residence elsewhere in the county have no right to be registered or to vote in such county. 4. If a person, not a ward of the government, has established a residence in the county before moving onto the reservation, he has a right to be registered and to vote in the precinct embracing the place where he had thus established his residence, but not elsewhere. June 21, 1906
01- 353 Sec. 1206, Pol. Code, as to registration of voters, is not amended by the Primary Election Law, Chap. 99, Laws of 1905, except in counties which have adopted that law. June 27, 1906
01- 354 County Commissioners have no authority under Chap. 1, Laws 1905, to revoke licenses of a Retail Liquor Dealer doing business in a town of more than 100 inhabitants. Under Sec. 4051, Pol. Code, conviction of a retail liquor dealer for violating laws relating to gambling or sale of intoxicating liquors is a revocation of the license. June 28, 1906
01- 355 The Board of County Commissioners, when sitting as a County Board of Equalization, has the power to subpoena witnesses. Royalty, when paid as rent, cannot be assessed to the owner of a mine as a part of the net proceeds. Net proceeds of a mine operated under lease should be assessed to the lessee and the tax is not a lien against the mine. June 30, 1906
01- 359 A Foreign Insurance Corporation cannot be admitted to do business in the State of Montana under the license heretofore issued to a separate company whose paying business the new company takes over by contract of re-insurance. July 9, 1906
01- 360 1. Members of Volunteer Fire Departments organized under Section 3232 and 3233, are exempt from road and poll tax. Failure to file a certificate giving the names of the members of such company every three months does not deprive those who are still active members of the company of such exemptions. 2. Mortgages of state banks are secured credits from which the bank may deduct solvent debts. Excess of credits after deducting of solvent debts must be taxed. Debts can be deducted from nothing but credits. July 19, 1906
01- 361 1. The taxes on deposits of a bank owning no real property for the year 1903 cannot be collected after Nov. 30, 1905, because of the statute of limitations. The liability of the treasurer for failure to collect such tax is a question of fact to be determined from all the circumstances in the case. 2. An order made by the board of county commissioners on December 17th directing the assessor to make a supplemental assessment, is void and such assessment invalid, as the county commissioners can only make such orders while sitting as a board of equalization. 3. Real estate having been sold for taxes, although not of sufficient value to pay all the taxes due from the owner of the same, must be accepted in settlement of such tax and the county is entitled to a deed for the real estate if not redeemed by the payment of the full tax. 4. The fact that the county assessor, or deputy county assessor is also a deputy county treasurer is not sufficient to make the treasurer and his bondsmen liable for his failure to collect taxes on personal property which is not a lien upon real estate. Sec. 3940 as amended, must be strictly followed in order to make the treasurer liable for the failure to collect such tax. July 16, 1906
01- 363 Credits based upon contracts of sale of sewing machines in Montana, made payable to a foreign corporation and not held or kept within the state, are not subject to assessment within this state. The sewing machines, however, should be assessed to the party in whose possession they are found. July 17, 1906
01- 364 Under Sec. 1206 of Pol. Code, as amended by laws of 1899, page 54, there must be a general registration of all voters every eight years beginning with the year 1898, therefore, every elector must register this year in order to exercise the right of voting at the coming election. Under Sec. 1206 of the Pol. Code as amended by Sec. 14 of the Primary Election Law, Chap., 99, Laws of 1905, the period for registration of electors in counties having adopted such primary election laws begins on July 15th, and ends on August 15th. Electors not registering during such period cannot vote, as there is no provision for the swearing in or voters, or opening of the registration books in such counties after August 15th. July 26, 1906
01- 367 The Carey Land Act Board has no authority to convey to the United States Government lands for which it has received a patent from the Government. Bods issued the Dearborn Canal Company are declared to be a lien upon patented lands reclaimed by such canal, and the board cannot issue a conveyance of such lands free from all liens or incumbrances until such time as said bonds have been declared invalid or satisfied. July 30, 1906
01- 368 Shares of stock in corporations, the capital stock or property of which is situated outside the State of Montana, if owned by residents of this state, are subject to taxation herein. Where the capital stock of a foreign corporation consists of shares of stock of other corporations, the share of stock of the foreign corporation owned by residents of this state are subject to taxation herein, notwithstanding the fact that the shares of stock which constituted the capital stock of such foreign corporation represent tangible property in Montana which has been taxed. July 31, 1906
01- 372 Money of insane persons dying in the asylum, which has been turned over to the State Treasurer must be placed to the credit of the General Fund. Money and effects of deceased persons dying without heirs or claimants and turned over to the State Treasurer must be placed to the credit of the escheated estates fund and held for twenty years, at the end of which time it is transferred to the permanent school fund. August 2, 1906
01- 374 When the state's proportion of a license collected by a county treasurer has been paid into the state treasury it can be refunded only by act of the legislative assembly authorizing the same as a legitimate claim against the state. August 6, 1906
01- 375 The assessor has no authority to change or alter the assessment roll after the assessment books have been turned over to the county clerk and recorder, not after the Board of Equalization has adjourned and the county levy has been made, save and except that he may correct omissions, errors or defects in form with the consent of the County Attorney, where such errors or defects consist of purely clerical mistakes. He cannot increase or diminish valuation. August 8, 1906
01- 377 Automobiles, though run for hire, are not chargeable with payment of the license required by Section 4073 of Political Code. August 15, 1906
01- 378 Under the provision of Chapter 99, Laws of 1905, page 198, there is not objection to an elector voting at the primary election for a person for particular office who has not been regularly nominated and whose name is not herefor printed upon the official ballot; and such votes should be county for such candidate the same as though his nomination had been filed with the County Clerk, and his name printed upon the ballot in accordance with the provisions of the law. August 20, 1906
01- 379 The proposed Constitutional Amendment with reference to direct legislation and reference of laws must be voted for on separate official ballots to be provided by the County Clerk. Form of ballot set forth. August 21, 1906
01- 380 Where nominations are actually made for certain county offices by a political party and there are vacancies on the party ticket, through failure to nominate any person as a party candidate for office, such vacancy may be filled by the party committee as provided by Section 13, of Chapter 99, Laws of 1905. In counties having adopted the Direct Primary Law, nominations can only be made by direct primary, by petition, or by nominations filed by the party committee to fill vacancies arising after the holding of the primary, where no nomination for a particular office was by the party made at such primary election. However, if a party makes no nominations whatsoever under this law, it has no ticket in the field and there can be no vacancies upon the ticket to fill. August 23, 1906
01- 382 The Anti-gambling Law (Laws of 1901, page 166) does not apply to horse racing or pool selling on the results of such races. August 23, 1906
01- 385 The expense of transporting destitute children to the Orphans' Home is a county, rather than a state, expense. August 23, 1906
01- 386 A county does not possess the authority to purchase real estate for County Fair purposes. August 24, 1906
01- 387 A Board of County Commissioners is not clothed with statutory authority to offer or pay rewards for the arrest of criminals. August 24, 1906
01- 389 The salary of the State Examiner, and of his assistants and his expenses, should be paid by warrants drawn on the state examiners fund. When such fund is exhausted, the same should be paid by warrants drawn on the general fund. Where such salary and expenses have been paid by warrants drawn on the general fund before exhausting the state examiners fund, the board of examiners have authority to order a transfer of money from the state examiners fund to reimburse the general fund. August 31, 1906
01- 390 Women who engage in the sale of intoxicating liquors should be required to pay licenses, the same as any other person, as no distinctions are made, and no prohibition against their engaging in such business. August 31, 1906
01- 391 When a foreign corporation doing business in Montana increases its capital stock, a certificate of such increase should be filed with the Secretary of State, and the fees to be charged therefor are found specified in the law of 1905, page 161. September 19, 1906
01- 394 Under Section 4642, Political Code, a Justice of the Peace can charge only $5.00 for all services rendered as a committing magistrate, which includes the transmitting of all papers to the District Court. Provided, however, that where the testimony is reduced to writing that the usual stenographer's fee for taking and transcribing such testimony may be charged. September 21, 1906
01- 395 The Board of County Commissioners have no right to ignore the primary election law on the ground that the same is unconstitutional, and thereupon reopen the registration books in accordance with the general election law of the state. Until the primary election law is declared unconstitutional by the courts, it is the duty of the county commissioners to follow the provisions thereof. October 2, 1906
01- 396 Where a declaration of intention or certificate of naturalization heretofore issued to an individual has been lost or destroyed, in order to obtain such papers in lieu thereof, the applicant must first present to the clerk of the court which issued such papers, a full and complete written statement of the facts under oath, and such lieu papers cannot be by the clerk issued until they have been investigated and reported upon by the Bureau of Immigration and Naturalization. October 9, 1906
01- 397 Clerks of the District Courts are entitled to retain for their own use, one-half of the fees by them collected under the National Naturalization Act, approved June 29, 1906, up to the sum of three thousand dollars. October 9, 1906
01- 398 The question of issuing county bonds may be submitted at a general election. No special registration of electors is necessary for such election. The question must be submitted to the electors of the county and only those who are duly registered and qualified electors may vote upon such question. The question must be printed upon separate ballots than those containing the names of candidates to be voted for at such election. October 9, 1906
01- 399 Inmates of the Montana Soldiers' Home are entitled to register and vote in the precinct where the home is located, provided they are citizens of the United States and have resided in the State one year and within the county for thirty days. October 11, 1906
01- 400 An elector, in order to either register or vote, must be a male citizen of the United States, over 21 years of age, and have resided in the state one year and in the county thirty days. No requirement is made of residence for any length of time in the precinct further than that the elector shall be an actual resident of the precinct. October 15, 1906
01- 402 1. The law creating Sanders County (Chap. 9, Laws 1905, p. 18), is a special law dealing particularly with the method of voting for the county seat of Sanders County, and its provisions should be strictly followed at the election. 2. Sample ballots are usually prepared and distributed by the central committees of political parties, but cannot be used by electors in the polling places. 3. The officers of Sanders County elected at the general election 1906 will qualify on the first Monday in January succeeding the election. 4. The Clerk of the Court of Sanders County having been appointed by the legislature to hold only until the next general election, an election of a person to fill this office should be held this year. October 17, 1906
01- 405-6 An elector being properly registered in his registration district may vote in the precinct where his name regularly appears on the list, even though he may reside in a different precinct. November 6, 1906
01- 405-15 Deposits required to be made by foreign surety companies with the State Treasurer are held in trust for the benefit of resident holders of obligations of such corporations. November 15, 1906
01- 406 Mere irregularities in holding an election which do not affect the result of the election cannot vitiate it. The qualifications of a person to fill the office of county attorney are the same as those of a district judge except that the county attorney only need be twenty-one years of age and it is not necessary for him to possess the qualifications at the time the election is held, provided he possess them and is able to qualify at the date he is required under the law to qualify and enter upon the discharge of his duties. November 20, 1906
01- 410 A foreign corporation desiring to do business in this state as a Building and Loan Association, must comply with the provisions of the law of 1897, p. 231, and the act amendatory thereof and if the company desires to transact some other character of business, it must comply with the law relating to corporations transacting such other business. November 21, 1906
01- 411 Part of an Indian Reservation may be included in a school district. A person residing upon an Indian Reservation within such district who possesses the qualifications required by law may hold the office of school district trustee. November 23, 1906
01- 412 1. It is the duty of the county clerk to make abstracts of title when the fees therefor are paid in advance, and such fees should be turned into the county treasury. 2. The county clerk cannot evade the duty of turning the fees in to the county treasury by making such abstracts and signing the same "Abstractor" instead of "County Clerk." November 23, 1906
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