Attorney General’s Opinions

Volume 03

Page Held Date
03- 2 Under Sections 412 to 414 and 562 of the Civil Code extensions of the term of corporations must be made at a stockholders meeting held prior to the dissolution of the corporation, as after such date the stockholders have no authority to act in such manner. Compiled Statutes of 1887 contain no provision for the extension of the term of corporate existence. Corporations are dissolved at the expiration of the time limited by their charter. Note:--This opinion was inadvertently left out of the Report for 1906-08. April 19, 1907
03- 4 Property actually used exclusively for schools, churches and charitable institutions is exempt from taxation, but a mere attempt to use property for such purposes will not exempt it. December 4, 1908
03- 5 The State is not liable for damages resulting from disinfection by County Health Officer. December 5, 1908
03- 6 The Board of County Commissioners must at their December meeting make a contract with some resident practicing physician to furnish medical assistance to the sick poor and infirm of the county and to the inmates of the county jail. No specified period of residence is required. December 4, 1908
03- 7 There is no law compelling the parents or guardians of feeble minded children to send such children to the Deaf and Blind School. December 4, 1908
03- 8 Where a statement of a Foreign Corporation complies with the provisions of Section 4413 of the Revised Codes and is sworn to by the President and Secretary of such corporation, and it further appears therein that said parties constitute a majority of the Board of Trustees, such statement is sufficiently attested to meet the requirements of said Section 4413. December 7, 1908
03- 9 The necessary expense incurred by Directors of the Montana State Fair in going to, attending, and returning from the annual meeting of said Board is a proper charge against the Montana State Fair Fund and not an obligation against the various counties appointing these Directors. December 11, 1908
03- 10-19 The County Treasurer can have the delinquent list of taxes published in any form he desires so long as it contains the information required by law. Form set out in opinion held sufficient. December 19, 1908
03- 10-23 Where a county has purchased property at tax sale, said property should be again assessed the next year and posted in the delinquent tax list the same as other delinquent property, but on the day of sale such property for which the county already holds tax certificate should not be again offered for sale. December 23, 1908
03- 11 Under act of March 2nd, 1893, 25 U.S. Stat. 938, the State was given authority to select two sections of land for the use of the Soldiers' Home, and to deduct that amount from the grants made by the Enabling Act. Under this authority the State deducted two sections from the Reform School Grant and placed it to the credit of the Soldiers' Home. December 26, 1908
03- 13 Under certain facts members of the Board of County Commissioners or the County Health Officer might be guilty of a misdemeanor for purchasing ticket and transporting a person who has smallpox. The county to which such person was knowingly transported should present a claim for the expense of caring for the patient, to the County Commissioners of the county whose primary duty is was to care for such patient. December 28, 1908
03- 15-28 A petition for local option should contain the names of one-third of the voters of the county, including one-third of those whose names appeared upon the last assessment roll. December 28, 1908
03- 15-2 Under Sec. 2897 Revised Codes it appears that the intention was to require the county printing to be let to one newspaper of general circulation, and that the job work could not be let to a contractor other than such a newspaper. The constitutionality of this law is very doubtful, as it, in effect, deprives job printing houses of the right to solicit such business and takes away from the County Commissioners the right to contract for the work that cannot be done by the local paper and gives such right to the local paper. January 2, 1909
03- 17 The cost and charges for the improvement of certain described property in a Special Improvement District is not a part or portion of the city's indebtedness, as a whole. January 4, 1909
03- 18 Foreign Railway Corporations are governed by the provisions of Section 4299 of the Revised Codes in the filing of their articles of incorporation with the Secretary of State, and not by the provisions of Section 4413 of the Revised Codes which relates to all Foreign Corporations not otherwise provided for. January 6, 1909
03- 19 The Superintendent of Public Instruction is not prohibited from receiving compensation for services performed as a member of the State Text-Book Commission, by reason of holding the office of Superintendent of Public Instruction. January 7, 1909
03- 21 1. A corporation to do a banking business must be incorporated under a banking law of the State, and such banking laws are specific enactments. 2. A corporation transacting an "investment and loan" business is subject to examination by the State Examiner. January 8, 1909
03- 22 Bonds issued on behalf of a county free high school is a county indebtedness, and must be issued, signed and sold by the Board of County Commissioners. January 9, 1909
03- 23-11 The State Bureau of Child and Animal Protection has no authority to use any portion of the moneys appropriated for its support for the relief of Indians. Such relief must come from the legislature, if that body has authority to appropriate for such purpose. January 11, 1909
03- 23-9 County Commissioners have no authority to appoint more than two justices of the peace in any organized township. They may, however, on receiving a petition, organize a new township, and then appoint two justices of the peace for such township. January 9, 1909
03- 24 The Board of Railroad Commissioners has no power, under the Act providing for said board, to compel intersecting railways to install transfer connections. January 12, 1909
03- 25 Method and form of transferring funds from the state engineer's expense fund to the general fund of the state. January 13, 1909
03- 27 A mortgage instrument has no value when separated from the debt it secures, and a law providing that such instruments shall not be subject to assessment and taxation is not unconstitutional. January 13, 1909
03- 28 The clerk of the district court may cause a notice to be posted either by signing and posting himself or his deputy may do so, or the clerk may sign it and the attorney may post it. A written motion or showing is the safer practice where leave of court is obtained to file an information, and the court may require such showing as will satisfy it before the granting of such leave. If terms of court expire at the close of the calendar year, the court may call a special session before the beginning of the first regular term of the next year. January 18, 1909
03- 29 1. Supplementary text-books are supplied by the district or purchased by the pupil in the same manner as are basal text-books. 2. Supplementary text-books may be used to the exclusion of basal text-books when sufficient under the course of study pursued. January 20, 1909
03- 30 There is no constitutional provision prohibiting the enactment of a general law authorizing the electors of a municipality to compromise by issuing bonds to pay for indebtedness of a city, which is disputed, or for any other reason unpaid, where the original indebtedness was incurred for lawful purpose. January 20, 1909
03- 31 1. Money accumulated in a sinking fund may be used for the purchase of bonds, or may be invested in state, county or United States bonds. 2. Money in a sinking fund cannot be used for any purpose except for that for which it was raised, or for investment in any interest bearing securities. January 22, 1909
03- 32 Section 9808 of the Revised Codes of Montana provides that each boy or girl committed to the Reform School shall remain there until he or she arrives at the age of 21 years, unless paroled or legally discharged; and that it shall be lawful for the board, upon recommendation of the director of the Reform School, to discharge therefrom any girl who has arrived at the age of 18 years if, while an inmate, she has deported and conducted herself in such manner as to make it reasonably probable that she has reformed and is a proper person to be discharged. January 25, 1909
03- 33-26 Where a railroad company, through error, makes a charge for shipment less than the advertised rates, a bill against the shipper for the difference is proper and should be enforced. January 26, 1909
03- 33-29 Where the electors of a county have authorized and empowered the county commissioners to erect a court house, such commissioners have the implied power to acquire a suitable site therefor. January 29, 1909
03- 35 The only case in which the Board of County Commissioners are given power to authorize, or refuse to authorize, the issuance of a license is where the population of the place is less than one hundred. In all other cases the applicant for a license may go direct to the county treasurer. The commissioners have no authority to revoke a liquor license except in cases where the population is less than one hundred. In all other cases the license can only be revoked where the person holding same has been convicted of violating the law relating to gambling or to the sale of intoxicating liquors. February 2, 1909
03- 36 Section 3119 of the Revised Codes of Montana provided that in counties of the sixth class one deputy shall be allowed the clerk of the district court. Sheriff's are allowed a fee of twenty cents per folio for making necessary copies of papers, processes, or writs, where the same are not furnished by the party or his attorney. February 15, 1909
03- 37 Where the coroner is required by law to decently inter dead bodies, not taken in charge by other persons, he may present and file his claim for such services to the county and may receive warrants in payment therefor. February 8, 1909
03- 38 Where the school trustees neglect to make a special tax levy for their district, and have contracted with teachers for the school year, they have authority to borrow the necessary funds to pay the current expenses until such time as they can certify the special tax levy on the succeeding year to meet such expenses. February 15, 1909
03- 40-18 House Bill 191, in its form as presented, is in part violative of the state constitution, and in such form is inoperative. February 18, 1909
03- 40-20 Where the county has purchased property at a tax sale, and the deed executed pursuant thereto is void on its face, the county commissioners have no authority to cancel such deed, but may, upon a tender by the owner of the property of the taxes theretofore assessed, execute a quit claim deed of the county's right, title and interest to such party. February 20, 1909
03- 41 The penalty for dumping saw dust in streams is provided by Section 8797, Revised Codes, and Section 8798, attempting to cover the same subject, is void. February 20, 1909
03- 42 A special appropriation law refunding money paid into the State Treasury operating only in favor of particular persons or private concerns is violating of the Constitution. February 26, 1909
03- 45 Where a school district issues bonds for the erection of a school house, and thereafter a new district is created which embraces such school house, the new district is liable for the payment of such bonds. Money standing to the credit of the old district must be divided between it and the new district according to the school census of the two districts. March 1, 1909
03- 46 Sections 1741 and 1742, Revised Codes, comprising the sixteen hour law are ineffective and not capable of enforcement, in view of the passage of the Act of Congress of March 4, 1907, in that the Federal law regulating matters pertaining to interstate commerce supersedes Sections 1741 and 1742. These sections, however, are valid and enforcible in matters concerning the transportation of intrastate business. March 2, 1909
03- 48 A license may not be issued for the conduct of a saloon within five miles of a railroad grade in course of construction or where railroad track is being laid. March 4, 1909
03- 49 In an improvement district established by a city or town, the city treasurer is the proper custodian of taxes paid under protest, and the county treasurer is not governed by the provisions of Section 2742, Revised Codes. March 8, 1909
03- 50 A chief of police to whom a warrant of arrest is issued may, under the provisions of Section 9041, Revised Codes, serve the same in any part of the state, and should receive therefor the same mileage and compensation allowed sheriffs and constables under Section 3137, Revised Codes. March 8, 1909
03- 51 Where a fire insurance company comes into the state for the purpose only of handling re-insurance of other companies which pay the license fee provided by Section 4017, the re-insurance company is not required to pay such license fee. March 9, 1909
03- 52 The expenses incident to sending a member of the board of medical examiners to a council on medical education, of interest and benefit to the board in the performance of its work under the law, may be allowed and approved as a claim against the state, payable from the maintenance fund of the board of medical examiners, if first authorized by the state board of examiners. March 11, 1909
03- 53 The trustees of a county free high school have no authority to enter into any contract, make any purchase or assume any obligation in excess of the amount of funds on hand or available through the levy of taxes for the current year. March 12, 1909
03- 54 A person engaged in the saloon business outside the incorporated limits of a town must present a petition to the county commissioners before he is entitled to such a license unless the collection of houses immediately surrounding his proposed place of business, not including those within the incorporated town, contain more than one hundred inhabitants. March 13, 1909
03- 55 Under the new notary public law notarial seals do not have to be changed so long as they contain the words required by the law. The name of the county is mere surplusage. The law expressly provides that old commissions hold good until the date of their expiration, and that notaries public having such old commissions have jurisdiction co-extensive with the boundaries of the state, and notaries public must show when their commission expires. March 13, 1909
03- 56 Counties of the first, second, third, fourth and fifth classes must pay deputies the compensation fixed by House Bill 202. In counties of the sixth, seventh and eighth classes the board of county commissioners may exercise a discretion in fixing the salary at any amount equal to or less than that prescribed by House Bill 202. March 13, 1909
03- 58 Where funds have been received and credited to the school fund, and such school fund has been apportioned by the superintendent, the commissioners have no authority to transfer any part of such funds to the general fund. March 16, 1909
03- 59 Where improvements attached to real estate are taxed, a lien for the amount of the tax attaches to the real estate. March 17, 1909
03- 60 Lincoln County, not coming into existence until July 1, that must be the date upon which the indebtedness between it and Flathead County should be adjusted. It is the duty of the county assessor of Flathead County to make the assessment upon all property which will be in Lincoln county after July first. March 17, 1909
03- 62 School trustees appointed by the County Superintendent of Schools hold office until the next annual school election. March 19, 1909
03- 63-20-1 Sections 16A and 17 of the act creating and establishing the Board of Railway Commissioners of the State of Montana, contemplates only the report of accidents occurring to passengers, employees, or the public, caused from the operations of trains to the traveling public. Accidents occurring in other departments of the railroad need not be reported. March 20, 1909
03- 63-20-2 Under Chapter 85, approved March 5, 1909, salaried for deputies in counties of the first, second, third, fourth and fifth classes are mandatory, and the commissioners have no option in determining the amount of such salaries, nor have they any option in fixing the salary of the under-sheriffs in counties of the sixth, seventh and eighth classes. The salaries of all other deputies in counties of the sixth, seventh and eighth classes may be fixed by the Board of County Commissioners at not to exceed the maximum amount named in the law. The salary of special deputies authorized by Section 3123, Revised Codes, may be fixed by the Board of County Commissioners. Said Chapter 85 went into force and effect on March 6, and the deputies' salaries run from that date. March 20, 1909
03- 64 1. The county is liable for the payment of stenographers' fees where the expense is necessarily incurred by the county attorney on behalf of the county. 2. Under Chapter 85, Laws of 1909, the county is liable for the additional compensation allowed deputies from the date of the approval of said bill, and said bill is not in conflict with Section 31, Article V., of the State Constitution. 3. Justices of the peace are authorized to allow witnesses in criminal cases mileage on the basis of the distance actually traveled, and no more. 4. Constables are entitled to receive mileage when traveling in the performance of their official duty, even though such mileage would extend their compensation from the county beyond the sum of $500.00 in any one year. 5. Policemen are entitled to per diem when appearing as witnesses in criminal cases in justice courts; constables, however, are entitled to per diem when appearing as witnesses in criminal cases in the district court, they not being excepted by the provisions of Section 3182, above referred to. March 23, 1909
03- 67 1. The law does not limit the hours of labor of deputy sheriffs, except as to those who act as jailors, who are limited to eight hours per day. 2. Deputy sheriffs who do not act as jailors receive $1500.00 per year, and those who act as jailors receive not exceeding $90.00 per month. 3. The Board of County Commissioners has the authority to authorize the appointment of extra deputies when the public service demands such appointment. March 25, 1909
03- 70 1. A woman is not eligible to hold the office of deputy county clerk. March 30, 1909
03- 71 1. Section 857, Revised Codes, prescribes the qualification of school district electors, as every citizen of the United States, including women who have resided one year in the state and thirty days in the district. 2. The qualifications of electors for trustees, and for voting on a bonding question of the district, are the same, except as to matters of registration. 3. The question of voting bonds may be submitted to the electors of a district at the time of holding the general election, but separate ballots must be used. March 30, 1909
03- 72 Under Section 2894, and also Section 2802, Revised Codes, as amended, the Board of County Commissioners should meet on the day fixed for the sale, and the per diem and mileage of the members should be charged and paid as at other meetings of the board. These costs and charges are not proper items to be added to the accrued costs in making sale of county property. March 31, 1909
03- 73 Deputy game wardens are public officers under the laws of this state, and therefore, women are not eligible to hold such office. April 1, 1909
03- 75 Under Chapter 25, laws 1909, the county in which livestock is found on the first Monday of March is known as the home county for the purpose of taxation. Such stock should be taxed in that county and the tax thereafter prorated between other counties in which such stock run. Stock assessed before Chapter 125 went into effect is governed by the provisions of such law. April 1, 1909
03- 76 Section 8383, Revised Codes, does not contemplate that rooms used in connection with a saloon for the purpose of storing stock on hand shall be left open, as is required where such rooms are used for the accommodation of patrons. April 3, 1909
03- 77 A person convicted of the crime of attempting to commit rape may be subjected to a punishment of imprisonment in the state prison for a period of two and one-half years, or such person may be tried for assault under Subdivision 5, Section 8313, Revised Codes. April 3, 1909
03- 79 1. State lands now under lease may be sold under the provisions of Chapter 147, laws of 1909. 2. Any sale of lands held under lease prior to March 19, 1909, may be sold by giving notice as provided in the lease. 3. The preference right of purchase granted to lessees in leases held by them are not taken away by the subsequent law. April 6, 1909
03- 80 Section 32, Chapter 147, session laws of 1909, makes it incumbent upon the State Board of Land Commissioners to grant right of way to any city or county desiring to construct a public highway across lands owned by the state, when certain conditions are complied with by the municipality. April 8, 1909
03- 81-9 Lots in the townsite of Cut Bank may not be sold by the State Board of Land Commissioners, except at public sale to the highest bidder. This is provided for by Section 39, Chapter 147, laws 1909. April 9, 1909
03- 81-12 Chapter 85, laws 1909, fixes the salaries of deputies in counties of the fourth class, and it takes from the board the discretionary power of changing the amount named in the law, except as to deputy sheriffs who act as jailors, and to extra deputies selected under the authority conferred by Section 3123, Revised Codes. April 12, 1909
03- 82 Whether a wife has such an inchoate right of dower in lands held by her husband under a contract of purchase as to require her to join in the assignment of the contract is a question on which the authorities are at variance and which is left in doubt by the provisions of Section 3708, Revised Codes, and it is recommended that for the protection of the state and the assignee the board require the wife to join with her husband in making assignment of the contract. April 12, 1909
03- 84 1. The judges appointed by the commissioners prior to the last general election may legally act as judges at the special election. 2. The Board of County Commissioners at a special meeting have the authority to appoint judges to fill any vacancies. April 12, 1909
03- 85 The state and county treasurers are not authorized to waive inheritance tax, collectible under the inheritance tax laws of the state of Montana, but deceased persons, whose estate owns shares in Montana corporations, are not subject to inheritance tax in this state. April 13, 1909
03- 86 1. Section 2894, Revised Codes, confers power upon board of county commissioners to exercise general authority over county property. 2. Section 6302, Revised Codes, confers power upon the judge of the district court to provide rooms, attendants, fuel, etc., sufficient for the transaction of the business of the court, provided the same has not been furnished by the county commissioners, and whether same has or has not been furnished is a question of fact. April 13, 1909
03- 87 An ex-convict who taxes the oath prescribed by Section 859 does not make himself liable for perjury. Sheriff's mileage, in both civil and criminal actions, is ten cents per mile. In no case is the sheriff authorized to charge fifteen cents per mile. April 20, 1909
03- 88 The board of mine examiners has no authority to examine a person for a certificate of competency, or to issue such a certificate, unless the applicant is a citizen of the United States. A person holding a certificate issued by competent authority of some other state, who desire a permanent certificate of competency from the board of examiners must accompany his application with credentials showing that he is a citizen of the United States. Where a temporary certificate is issued to a mine foreman who has continually worked for more than one year for the same company, the law is silent as to his qualifications as to citizenship and age. April 21, 1909
03- 90 The board of trustees of a school district have authority to select a site for the building of a school house where the funds therefor are at their disposal, without submitting the question to a vote of the electors. April 22, 1909
03- 91 In order to be entitled to catch fish with a seine, hook and line for the purpose of selling out of a natural lake, a person must own or control all the land surrounding such lake. Before he has a right to sell fish out of such a lake he must have maintained a fish hatchery, as provided in Section 1, of Chapter 142, for at least three years. Said Chapter 142 repeals by implication the provisions of Section 8794, Revised Codes, which are in conflict therewith. Section 3, of said law, does not make the law unconstitutional, as it merely imposes conditions which must be accepted by persons before they can enjoy the privileges given them under such law. April 26, 1909
03- 92 Under Section 882, Revised Codes, as amended by Chapter 32, laws of 1909, school trustees must call for bids for the erection, repairing and furnishing of school houses, whenever the amount of money involved exceeds $250.00. April 26, 1909
03- 94 1. Section 3826, Revised Codes, as amended, and Section 3827, Revised Codes, govern in the increase of capital stock of banking corporations. 2. Consent of two-thirds of stockholders necessary to increase capital stock of a bank. 3. Bank officials must furnish to the state examiner certificate of increase of capital stock. 4. Section 3827, Revised Codes, governs in relation to the extension of existence of a banking corporation. April 27, 1909
03- 95 Directors of the State Fair have authority to appoint the secretary as custodian of the fair grounds. These duties not being a part of his duties as secretary he is entitled to extra compensation therefor. April 28, 1909
03- 96 Chapter 145, laws of 1909, requires railroad companies operating within the state of Montana to report the time of arrival of all passenger trains at all stations within Montana at least four hours before their arrival. Stations within four hours of the first open telegraph station cannot receive this report. April 28, 1909
03- 97 The coal mine examining board may issue temporary certificates, under Section 5, of Chapter 69, laws of 1909, to persons who are not citizens of the United States. A coal mine inspector has authority to grant temporary permits, under Section 9 of said Chapter, which are good only until such time as the person has an opportunity to be examined as to his competency by the board of examiners. April 29, 1909
03- 98 County Commissioners of the various counties should provide blank books containing bounty certificates for the bounty inspectors of their respective counties, to be paid for as other general expense of administration is met. April 29, 1909
03- 99 The public may acquire the right to use a public highway by prescription. April 29, 1909
03- 100 The relation between the teacher and the school district is one of contract, and if contingencies are not provided for in the contract no deduction can be made for the salary of the teacher by reason of close of the school on account of epidemic, unless the teacher is himself at fault or has estopped himself from making claim for salary. April 30, 1909
03- 101 Section 4337, Revised Codes, is repealed by implication by Section 4385 and 4386, Revised Codes, and therefore railroad companies may charge and accept less than the regular passenger tariff fixed by the railroad commission from clergymen and persons who are the recipients of public charity. May 3, 1909
03- 102 Chapter 85, Session Laws of 1909, does not provide for additional salary to be paid Deputy Assessors in counties of the fifth class. County Commissioners are not authorized to pay Deputy Assessors in counties of the fifth class any salary exceeding $100.00 per month. May 4, 1909
03- 103 When there is a tie vote for candidates for the office of Clerk of the District Court, the County Commissioners must appoint some eligible person to the office, as the Clerk of the District Court is elected for a term of four years, and not until his successor is elected and qualified. May 4, 1909
03- 105 Stock Inspectors, and Deputy Sheriffs acting as such may collect and charge the person for whom the inspection of horses is made $3.00 per day while engaged in such inspection, together with actual expenses of such officer, when such animals are offered for shipment to points outside the state of Montana. Stock Inspectors, and Sheriffs acting as such are entitled to be compensated for the actual expenses incurred in making such inspection, when engaged in the inspection of cattle offered for shipment, but are not entitled to mileage or per diem. May 6, 1909
03- 107 The Board of County Commissioners of counties of the fifth class may allow the County Treasurer a deputy during all, or so much of the year, as in their judgment the business of the office requires at a salary of not more than one hundred dollars per month. May 8, 1909
03- 108 Where an express company operating over a railroad in the state of Montana desires to discontinue its business as a common carrier of express matter, the railroad commission may certify to the cancellation of all rates, tariffs and schedules under which such express company was operating. This does not tend to relieve the express company of obligations incurred prior to the filing of the certificate of cancellation. May 11, 1909
03- 109 The Railroad Commission has authority to fix dockage fees, but has no authority to interfere with the contract rights of riparian owners of navigable waters. May 11, 1909
03- 110 Under Section 6 of Chaper 147, Laws of 1909, a fee of two dollars should be charged for all patents hereafter issued. Persons who received certificates of purchase of state lands prior to the passage of said Chapter 147 are entitled to patent containing no reservation of coal, oil and gas. Persons receiving patents containing right-of-way for canals, ditches, etc., for the reclamation of arid lands are only entitled to damage caused to their buildings and other improvements placed upon the land. May 11, 1909
03- 113-12-1 Under Chapter 147, Laws 1909, the purchaser of state lands is not required to furnish a bond for the payment of deferred payments. May 12, 1909
03- 113-12-2 The manner of extending the term of existence of domestic corporations is provided by Section 3826 to 3828, Revised Codes, and Section 3907, is amended by said sections. Banking corporations must comply with the provisions of said sections 3826 to 3828 in increasing their capital stock, and must also file a certificate with the Bank Examiner, as required by Section 3918 and 4009. May 12, 1909
03- 117 Mortgages on real estate are not an interest in real estate but are personal property, within the meaning of the inheritance tax law, and subject to the same tax as other personal property. May 13, 1909
03- 118 The Railroad Commission has power to make a rule that no railroad company shall abandon or remove any side track or spur now or hereafter to be installed, without receiving permission from the Board of Railroad Commissioners of the State of Montana. May 25, 1909
03- 119 Where the County Clerk issues a certificate certifying that a certain paper has been filed in his office, he should affix his seal to such certificate and charge fifty cents for the certificate. On the other hand, he is not required to affix his seal to the endorsement made at the time of filing paper in his office, and if he does affix his seal thereto he is not authorized to charge for the same. May 26, 1909
03- 121-26 The entire issue of bonds of a school district, issued in excess of the constitutional limit of indebtedness of three per cent, is void. May 26, 1909
03- 121-1 Under the provisions of Section 1065, Revised Codes of Montana, and Subdivision XIV of Section 165 of the same code. The Adjutant General being a Military Officer, the Secretary of State has no legal right to charge a fee for the issuance to him of his commission. June 1, 1909
03- 123 1. The Board of School Trustees elected in April have charge of the employment of teachers for the year beginning September following, and are bound by action of out-going board. 2. A County Superintendent of Schools may revoke a teacher's certificate without a hearing, when satisfied that the teacher is incompetent, or that any reason exists which would have been sufficient for refusing to issue a certificate. 3. In school districts of the third class, having less than fifty pupils, no nominations of trustees need be made prior to election. Voting for any qualified persons serves to nominate said person for the particular term for which the vote is cast. 4. a. Where a county division line intersects a district, the district becomes a joint district, and the funds are jointly held by both county treasurers. 4. b. Road districts divided by county division lines are not apportioned in proportion to the amount of road fund, but the district in each county becomes a road district of that county and is entitled to have work done under the direction of the County Commissioners. June 3, 1909
03- 128 School Trustees have no authority to use the money of their district for the purpose of erecting a school building, or additional school room, without first being authorized so to do by a vote of the district. June 7, 1909
03- 129 The Clerk of the Court should charge the fees required by Section 3170, Revised Codes, except such fees are were provided for filing inventories, which latter fees were declared void by the Supreme Court. June 7, 1909
03- 130 The Board of County Commissioners have no authority to transfer money from any fund of the county to the high school fund of the county, and the Board of Trustees of a county high school cannot borrow money or assume any obligation in excess of the funds on hand, or to be raised by taxes already levied. June 7, 1909
03- 132 Where the state has filed selection lists in violation of rules adopted by the Commissioner of the General Land Office, and appeal from the decision holding such selections for cancellation would be ineffectual. June 9, 1909
03- 134-9-1 A witness in a criminal case, who is called in a second criminal case the same day, is not entitled to per diem for the second case, as the witness fees paid in the first case cover his compensation for the entire day. June 9, 1909
03- 134-9-2 1. Salary of Under Sheriff, Deputy Sheriff, Deputy Clerk and Deputy Clerk of the Court in counties of the sixth, seventh and eighth classes is $1,200.00 per annum. 2. The County Board has no authority to increase or diminish the salary fixed by law for Under Sheriff, but may fix the salary of any deputy above named at any sum not exceeding $1,200.00 per annum. 3. Where extra deputies are allowed by the Commissioners, the salary may be fixed at any sum not exceeding $1,200.00 per annum. June 9, 1909
03- 135 A constable is not entitled to charge double mileage where he arrests or subpoenaes two persons at the same time. June 10, 1909
03- 136 County Commissioners have no authority to revoke appointments of special deputies at a special meeting, unless the call for such meeting designated the transaction of such business at the meeting. June 10, 1909
03- 137 Where the sheriff arrests a party on a warrant and takes him before the authority issuing the warrant, he is transporting such person by order of court and is entitled to ten cents per mile for each mile actually traveled by himself and by the prisoner. June 10, 1909
03- 138 1. The Sheriff in visiting places where liquor is sold, and inspecting licenses, is entitled to receive ten cents per mile for the distance actually traveled. 2. Deputy Sheriff may act for and on behalf of the Sheriff in visiting places where liquor is sold and inspecting licenses. June 10, 1909
03- 139 School Trustees have no authority, directly or by vote of the electors, to levy a special tax for the purpose of erecting buildings. Where a special tax has been levied for maintenance of schools, and there is a surplus after providing eight months' school in third class districts and nine months in first and second classes, such surplus, upon a vote of the district, may be used for building and improvements. June 12, 1909
03- 141 The State Board of Education has no authority to lease any portion of the land used for the State University for the purpose of erecting private dwellings thereon. June 19, 1909
03- 143 Under Chapter 129, Laws of 1909, only bonds of the United States, or of the State of Montana, or of counties, school districts or municipalities of this state can be received as security for such deposits. June 19, 1909
03- 144 County Commissioners have authority to revoke only such licenses as are issued pursuant to their order, except where the licensee has been convicted of certain offenses. June 24, 1909
03- 145 Banks, upon complying with the provisions of Sections 3918, or 4005, Revised Codes of Montana, and showing that at least thirty days notice of the meeting was given to the stockholders, are entitled to a certificate of increase from the State Examiner. June 25, 1909
03- 147 The owner of a mine, or a prospector, working but one or two men upon his property is not a mine foreman within the provisions of Chapter 60, Laws of 1909, and is not required to have a certificate to work such mine, nor is he entitled to such a certificate. June 28, 1909
03- 148 Where a person purchases the goods from a social club and takes out a saloon license, he cannot add the period of time such social club was conducting business to the time he conducts the business under the license in order to take advantage of the proviso contained in Sec. 8555, Revised Codes. June 29, 1909
03- 149 Children may be admitted to the Orphan's Home pursuant to the various sections mentioned in the following opinion. July 1, 1909
03- 151 Where a railroad company makes a special rate for the shipment of goods to concentration points and incorporates, as a part of the special rate, a provision for the insurance of such goods by the railroad while held at such point, it is a reasonable regulation and the shipper is not entitled to the special rate without complying with the insurance provision. July 1, 1909
03- 152 Chap. 131, Laws of 1909, provides certain cases in which children may be committed to proper institutions, and further provides that when so committed the expense of caring for such children must be paid by the county from which they are committed. Whenever children are committed by any authority to any institution other than those established and maintained by the state, the expense of caring for the same is a county charge. July 6, 1909
03- 154 The Game Law being general with reference to the subject of fines imposed for its violation, the general law with reference to the disposition of fines apply, and it is, therefore, proper for a justice of the peace to deduct costs of prosecution from the amount of the fine paid. July 7, 1909
03- 155-7-1 Where the Railroad Commission has had a hearing and fixed rates, and thereafter one of the roads duly notified of such hearing has gone into the hands of a Receiver, the rate so fixed would be binding against the Receiver. July 7, 1909
03- 155-7-2 Where horses are to be shipped beyond the boundaries of the state, a stock inspector or sheriff is entitled to a fee of three dollars and actual expenses for inspecting the same. When horses are shipped from one county to another in this state for purposes of selling the same, the sheriff or stock inspector is not entitled to any fee. The Stock Inspector's compensation therefor must be fixed by the Board of Stock Commissioners. The Sheriff, while not entitled to a fee is entitled to his mileage under Sec. 3137. July 7, 1909
03- 158 A town, in order to acquire title to a cemetery must use the same continuously, without interruption, for a period of five years, under such circumstances as are necessary to establish title by adverse usage. A private party has the right to establish a cemetery and charge a fee for lots situated therein. A county clerk in recording a cemetery plat should charge the same fees as provided for recording plats of townsites. July 9, 1909
03- 160 The provisions of Chapter 90, Laws of 1909, prohibiting saloons within two thousand feet of educational institutions does not include public schools and county free high schools. July 13, 1909
03- 161 Where there is not Justice of the Peace in a township there is not method of having an execution issued upon a judgment theretofore rendered in such justice court until a new Justice of the Peace has been appointed or elected to such court. July 14, 1909
03- 162 The owners of bonds of the various educational institutions which were called for payment on January 8th, 1909, are not entitled to interest from that date. All such bonds were absolutely void and the payment of the same was in the discretion of the State. July 14, 1909
03- 163 It was the intention of the legislature under Chapter 92, Laws of 1909, to limit race meetings in each county to the period of time named in the act; therefore the County Commissioners would have no authority to grant a license for the conduct of a race meeting for a longer period of time than that named in the act for each county. July 15, 1909
03- 164 Mortgages owned by a bank should not be separately taxed; but should be taken into consideration in determining the value of the stock. July 21, 1909
03- 165 The sheriff, city marshal or other peace officer charged with the enforcement of the law seem to have equal authority in the service of process in criminal cases. July 27, 1909
03- 166-28 The board of examiners are vested with a judgment and discretion as to who are entitled to receive a certificate as a public accountant. July 28, 1909
03- 166-29 Mining machinery and buildings situated on a mining claim may be assessed and taxed for their actual value, independent of the mining property itself. July 29, 1909
03- 167 There is no objection to an application for entry of Carey Lands being made through an attorney-in-fact. August 2, 1909
03- 168 A private unincorporated bank is prohibited from using a corporate name for such bank, unless the word "unincorporated" be made a part of the name. There is no penalty fixed by the statute, and it is doubtful whether or not injunction would be the proper remedy to prevent a private bank from so using a corporate name. August 4, 1909
03- 170 It is unlawful to sell intoxicating liquors at a town or camp on the line of a railroad grade in course of construction at a point where liquor had not been sold under a license six months previously, even though the population exceeds one hundred, and this is true even if the grade is completed for more than five miles distant from the camp or town, so long as the men doing the work continue to remain at said town or camp. August 5, 1909
03- 172 Where a telephone company operates its lines through more than one county, the franchise granted by the state is subject to taxation in each county through which the telephone company operates. August 5, 1909
03- 174 Title to land used as a public cemetery in or near any city or town or village vests in the inhabitants of the city, town or village after five years continuous use. Either the city or town council, or the board of county commissioners, may assume the management and control of a public cemetery. August 5, 1909
03- 175 Two members of the County Board of Examiners constitute a quorum for holding examinations or transacting other business. The County Superintendent of Schools may conduct examinations alone. The County Superintendent of Schools may appoint any competent person to conduct an examination. August 5, 1909
03- 176 The county clerk, or his legally appointed deputy, has the authority to administer oaths and to take acknowledgments, without restriction as to the character of the instrument. August 14, 1909
03- 177 1. School board may require foreign pupils to pay tuition, and do not waive the right to collect the tuition by not demanding the same in advance. 2. Where rate of tuition is not fixed until after pupil has attended school, there is some doubt as to the right of the district to collect the same, but the district is justified in instituting proceedings therefor. August 14, 1909
03- 178-16 It is the duty of the County Attorney to prosecute for violations of the law against the pollution of water supplies. August 16, 1909
03- 178-17 Feeble minded inmates of the reform school, over the age of 21 years should be discharged therefrom, and they should be committed to the state school for the deaf and blind or the state insane asylum. August 17, 1909
03- 179 The state has no authority to compel the inspection of boilers and the licensing of engineers employed by the government under contract on Fort Missoula Military Reservation. August 26, 1909
03- 180 Section 3175, revised codes, does not amend paragraphs two and four of Section 3176, of said codes, but does amend and supersede paragraph three of said section 3176. September 2, 1909
03- 181-3 A ditch used exclusively for purpose of placer mining is not taxable for its value independent of that purpose. Ditches used for irrigation and other domestic uses have a distinct and separate value, and as such are assessable as other property. September 3, 1909
03- 181-7 Upon petition of 50 or more inhabitants residing in a town or village, addressed to the Board of County Commissioners, describing the limits of the proposed town and the several wards thereof, which territory must not exceed one mile for each 500 inhabitants, the preliminary steps for the incorporation of the town are taken and the Board of County Commissioners must thereupon order a census to be taken of the town, which must show at least 300 or more residents. The persons signing the petition must all be male residents, over the age of 21 years, full citizens of the United States, and have resided in the state one year and within the town at least thirty days. If the census shows 300 or more, the Board of County Commissioners must call an election to vote on the question of incorporation, and only qualified electors residing within the proposed incorporation are entitled to vote on the question of incorporation. September 7, 1909
03- 183 The County Commissioners fix the compensation of, and the county is responsible for, the payment of members of the examining board provided for in section 955, revised codes. The expense of medical attention required by pauper children confined in industrial schools is a proper charge against the county and not a charge against the school district. September 8, 1909
03- 184 The County Clerk and Recorder is not permitted, under section 3168, revised codes, to allow individuals or corporations desiring to file a large number of similar deeds to supply the books therefor and deduct from the regular fees of the clerk and recorder the amount which would be charged for the printed matter supplied by private persons. September 8, 1909
03- 186 1. State Board of Health has power to prevent pollution of waters under provisions of chapter 177 and chapter 110, laws of 1907, and cities and towns should report to state board all sewer and drainage systems, that board may determine whether same will have the effect of polluting the waters named in the law. 2. The laying of a main or lateral, whether of a sewer or water system, may be the enlargement of a system or it may only be the completion of a system already determined upon, dependent upon the circumstances and facts of each case. 3. State board has authority, under its general powers to preserve the public health, and its jurisdiction extends to reservoirs, settling tanks, and all other matters and things which might injuriously affect the public health. September 9, 1909
03- 187 1. A justice of the peace should deduct from the fines collected in a case the costs thereof and remit the balance to the treasurer. 2. A constable receives ten cents per mile for his own travel, and actual expenses for transporting persons under arrest. 3. The mileage and expenses are not a part of the maximum $500.00 which may be paid to a constable in any one year. September 9, 1909
03- 188 A married woman may file on Carey Lands only where she would be permitted to make homestead entry under the laws of the United States. September 9, 1909
03- 189 The law allows a coroner fifteen cents a folio for taking testimony at inquests. He can take the testimony or hire a stenographer at not to exceed fifteen cents per folio. The district court stenographer can charge no more than any other stenographer when taking such testimony. September 9, 1909
03- 190 Where sections 16 and 36 have been lost, through some action or lack of action on the part of the state, lieu or indemnity selections cannot be made, but if lost by reason of some Act of Congress indemnity selections may be made, except when embraced in a reservation not yet open to the public, as provided in section 10 of the Enabling Act. September 9, 1909
03- 191 The law gives the Board of Dental Examiners a discretionary power in determining who have practiced dentistry sufficient to entitle them to take an examination. September 11, 1909
03- 192 1. Reservation to government, made by law, and attaches whether named in conveyance or not. 2. Compensation cannot be claimed for acreage embraced in right of way. 3. Improvements placed on land prior to location of right of way must be compensated for. 4. Where improvements made after location of right of way no compensation can be claimed. 5. Land taken by government not for right of way purchased at $10.00 per acre, if title is still in state. 6. Where title to the land taken, not for right of way, has passed from the state, the government must deal with owner of the land. 7. Contract for sale of land prior to February 28, 1905, not subject to right of way named in said chapters 53, and 147. September 13, 1909
03- 194 A new district, when taken out of an existing district, is not entitled to any apportionment of public moneys until school has been maintained for the time required by law. But if the new district is carved out of old districts, the school maintained in the old districts will inure to the benefit of the new district. September 15, 1909
03- 195 1. Under facts submitted, doubt is expressed if conviction for violating eight hour law can be sustained. 2. Cases pending should be permitted to take their usual course until district court has passed on sufficiency of evidence under admitted facts. September 16, 1909
03- 197 Persons importing stallions or jacks into Montana to sell to parties who intend to breed such animals are importers for breeding purposes, and must procure a certificate provided for by section 6, chapter 108, laws of 1909. September 17, 1909
03- 198 Cities and towns have authority to levy a road and poll taxes of two dollars upon all make residents between the ages of 21 and 45 years, which tax, in the absence of an ordinance providing for the collection thereof, must be collected by the county treasurer. September 24, 1909
03- 199 Cities of the first, second and third classes may by ordinance provide for the collection of taxes by the city treasurer. In the absence of such ordinance it is the duty of the county treasurer to collect delinquent taxes assessed for special improvements. September 28, 1909
03- 200 Fines imposed for a violation of quarantine regulations adopted by the state board of health should be turned over to the State Treasurer. October 4, 1909
03- 201-4-1 Where a city of the first, second and third class has no ordinance relating to the collection of taxes and assessments, it is the duty of the County Treasurer to collect such taxes for the city. October 4, 1909
03- 201-4-2 The railroad commission has power to order railroad companies to furnish cars properly equipped so that they may be loaded to their capacity for transporting goods and merchandise. October 4, 1909
03- 202 The state may waive its right to sections 16 and 36 in national forest reservations, and may make lieu selections of lands elsewhere in exchange for such sections. October 6, 1909
03- 203 The state of Montana has the right to select indemnity lands on the Flathead Indian Reservation for all school lands lost to it by reason of allotments or otherwise. Such selections should be made prior to any entry of lands by those drawing successful numbers. October 6, 1909
03- 205 Where the county clerk makes a copy of an instrument in his office, he is entitled to fifteen cents a folio, which fee covers the affixing of his certificate to the copy. Where the copy of the instrument is prepared by some one else and presented to the clerk to compare and certify, he should charge a fee of fifty cents for comparing and affixing his certificate under seal. October 11, 1909
03- 206 Neither government land nor state land can by any pretext whatsoever be burdened with taxation, either special or general. October 19, 1909
03- 207 Persons who practice medicine without having obtained a license therefor are guilty of violating the law, but the State Board of Medical Examiners have no jurisdiction in such cases, but the board may revoke a license for unprofessional and dishonest conduct. October 19, 1909
03- 208 Under chapter 29, laws of 1909, the County Commissioners in letting contract for the care of the county poor should limit the term of such contracts to not exceeding two years. October 19, 1909
03- 209 Section 71, chapter 147, laws of 1909, does not authorize the location of mining claims upon state lands during the time they are held under a valid lease from the state. October 20, 1909
03- 210 All conveyances of state lands should contain a reservation of coal. October 21, 1909
03- 211 Section 1564, revised codes, provides that streams, lakes, etc., used as a source of water or ice supply, or for any domestic purposes, may not be polluted by the introduction of sewage, and that human excrement may not be introduced into such streams, etc. Before a city may use a stream as the outlet for its sewer system it must appear that such stream is not used for any domestic purpose. October 25, 1909
03- 212 (See Opinion.) October 25, 1909
03- 214 Where an old school district is divided the bonded indebtedness for buildings and furniture falls exclusively upon the district in which the building is located. October 27, 1909
03- 215 A stock inspector employed by a board of county commissioners, under authority of chapter 61, laws of 1909, is not an officer but an employee of the county, and is not required to furnish bonds or take an oath of office. October 27, 1909
03- 216 The Board of County Commissioners have no authority to grant a right of way for a railroad along the county highway. Such should be acquired by condemnation proceedings under the eminent domain statutes. October 29, 1909
03- 218 A railway company, building for its own convenience a line for the exclusive handling of freight, is not obligated to carry passengers over such line, and where, between given points such freight line is shorter in mileage than its main line, used as a carrier of passengers, a railway company may transport passengers over the longer distance, and at a rate not in excess of three cents per mile for the distance actually traveled. The railroad commission has power, after a hearing afforded a railroad company, to order the installation of passenger service where the public necessity warrants the same. October 30, 1909
03- 222 Timber lands cannot be sold except in cases where the soil, when the timber is removed, would make good agricultural land. In all other cases the timber must be sold separate from the land and the land held for the purpose of re-foresting. November 2, 1909
03- 224 Tax deeds heretofore issued which have been declared void by the Supreme Court may be treated as if no deed had ever been issued, and the County Treasurer should serve written notice, as provided by Sec. 2651, Revised Codes, and if the property is not redeemed the treasurer should then execute a new deed to the county upon the form heretofore prepared by the Attorney General. November 2, 1909
03- 225 Special Improvement taxes and General taxes are Separate and Distinct Classes or Species of Taxation, and a taxpayer may pay the whole of either class without making payment of the other class. November 6, 1909
03- 226 The constitutional limitation upon the levy of state taxes, based upon the valuation of taxable property in the state, does not affect the valid levy made by the legislature prior to the total valuation increasing into another class, and only limits the action of the legislature after the increased valuation has been ascertained. November 8, 1909
03- 229 The census of school children prepared by clerks, and copies of which should be sent by superintendents to the Commissioner's Bureau, should contain the name, age, date of birth and sex of each child, and the names of both parents. November 9, 1909
03- 230 In criminal cases where a fine is imposed, mileage and per diem of witnesses and sheriffs costs should be deducted by the clerk of the court, and the balance paid to the County Treasurer. The costs, mileage and per diem of jurors in criminal cases is not part of the costs to be deducted. November 11, 1909
03- 231 Where a transcript from a justice court is filed in the district court, and execution issued thereon, the total fee is $2.50, whether the execution is issued at the time of filing or thereafter. There is no fee provided by law that can be charged for filing a petition for the adoption of a child. November 16, 1909
03- 232 Under the provisions of chapter 103, session laws of 1909, the word "Montana" appearing in the seal of a Notary Public is a sufficient designation of the name of the "State of Montana." November 16, 1909
03- 233 The perdiem of the state engineer for the time devoted to matters of the Carey Land Act Board are part of the expenses to be taken out of the Carey Act funds. November 17, 1909
03- 234 A quarter section of land may be sold for the total appraised value of such quarter section, where it is ten dollars or more per acre, notwithstanding the fact that certain 40's of said quarter section were appraised at a higher value than the price per acre received for the entire quarter section. November 18, 1909
03- 235 A mortgage upon real estate is assessed as personal property, and the domicile of the owner of the mortgage is the situs for the taxation thereof. November 22, 1909
03- 237 The Board of Stock Commissioners having empowered its Executive Committee and given it full authority in all matters when the board is not in regular session, such committee has full power and authority to appoint a secretary when such office becomes vacant, until the next regular meeting of the Board. November 23, 1909
03- 238-26 Where a party or firm engaged in the sheep business, who was assessed for cattle, horses and sheep; also for improvements situated on public lands, has left the county and permitted the tax levied thereon to become delinquent, an action on debt should be brought for the recovery of such tax in the county in which such property was situated. November 26, 1909
03- 238-29 It is the duty of the board of county commissioners of the several counties to see that the levy to pay interest, and create a sinking fund, for the payment of state bonds, is included in the levies upon property in their respective counties, and that such taxes are collected. A failure so to do is a violation of their official duties, for which they would be liable on their official bonds, or would be liable to removal from office. November 29, 1909
03- 240 Corporations organized under the laws of the State of Montana must extend their corporate existence pursuant to the provisions of Sections 3826 to 3828, Revised Codes. Section 3815 relates only to the continuance of the existence of corporations organized prior to the adoption of the codes of 1895. December 1, 1909
03- 242 Superintendent of schools, under Section 2963, may appoint deputies, but such deputies are entitled to no compensation. Deputies so appointed would have authority to act upon questions of dividing school districts and of conducting teachers' examinations or to renew teachers' certificates. December 1, 1909
03- 243 A city is liable for the payment of fees in legal proceedings before the district court, the same as any other litigant. December 1, 1909
03- 244-2 Certain forms of contract and modifications of contract of Glass-Lindsay Company approved. December 2, 1909
03- 244-7 Under Chapter 146, Laws of 1909, unoccupied state lands may not be included in irrigation districts provided thereby. December 7, 1909
03- 245 There is no authority of statute whereby a domestic bank can legally organize a branch bank in this state. December 2, 1909
03- 247 A person inheriting real estate not subject to taxation, and also inheriting personal property in excess of $7,500.00, cannot use the proceeds from such personal property to pay off mortgages on the real property, or to complete the purchase of real property, and thereby reduce the amount of personal property inherited. December 8, 1909
03- 249 Section 1679, providing for the appointment of a coal mine inspector, fixes his term, and does not provide that he shall hold until his successor is elected and qualified. Therefore, at the expiration of his term there is a vacancy by operation of law. In appointing his successor, he must be appointed for the balance of the next four year term, as the appointment power has no authority to appoint him for a shorter period. December 9, 1909
03- 251 A city or county, or any officer acting in behalf thereof, should not be charged fees for filing pleadings in the office of the clerk of the district court. December 9, 1909
03- 253 Under Section 2573, Revised Codes, the board of county commissioners may by rule prescribe the kind of notice, and the manner of giving the same, when contemplating a raise in an assessment. Sections 2572 and 2573 must be construed together, and the power of the board of county commissioners is limited by the duties prescribed in such sections. December 10, 1909
03- 255-11-1 A city is liable for the expense incurred in caring for a smallpox patient who is a resident of the city. But if the patient is not a resident of the city, the county should bear the expense. December 11, 1909
03- 255-11-2 As the law providing for a butcher's license has been repealed, a butcher may sell meat and take orders from a wagon without any license at all, except such license as may be imposed by city ordinance. December 11, 1909
03- 257 Where a county has purchased property for delinquent taxes, such property must thereafter, until the county has secured a deed therefor, be published in the delinquent tax list, but need not be offered for sale at the time of sale of delinquent property. December 13, 1909
03- 258 1. A sheriff, acting under an order of court, is entitled to receive ten cents per mile for the distance actually traveled in conveying a child to the State Orphans' Home, and ten cents additional, in full compensation, for the transportation and dieting of such child. 2. School districts, especially those which may have outstanding indebtedness in the form of bonds, or otherwise, should not change their numbers. Neither the county superintendent nor the board of county commissioners has power to change the numbers of school districts. December 13, 1909
03- 259 Where a person holding a liquor license sells liquor to minors, or permits minors to loiter in his place of business, and is convicted of such offense, his license is ipso facto revoked, under Section 2767, Revised Codes. December 14, 1909
03- 260 Diseased stallions brought in to the state cannot stand for public service. The fees paid into the stallion board may properly be used for the purpose of warning prospective purchasers of the diseased condition of stallions. December 18, 1909
03- 261 The laws of this state do not authorize trust, deposit and security banks, or savings banks, incorporated under the laws of this state, to organize branch banks. December 20, 1909
03- 263 Resolutions by state board of health on July 9 and December 18, 1909, do not prohibit local and county boards from maintaining quarantine and isolation hospitals in smallpox cases. December 22, 1909
03- 264 The exemption of educational institutions from taxation applies only to general taxes for revenue purposes and does not exempt such institutions from the payment of taxes for local improvements specially benefitting such property. December 27, 1909
03- 266 An agricultural society or corporation, whose articles show that certain purposes for which it is organized will bring profit to the members, cannot file its articles under Section 4224 et seq., Revised Codes. It must pay the fee provided in the general incorporation law for filing articles. December 28, 1909
03- 267 Where Flathead county, in assessing the property of such county, placed the property which thereafter would be situated in Lincoln county into separate books, which were turned over to Lincoln county upon its coming into existence, it need not require the return of said books to the original county as they in no way affect the property of such county. December 28, 1909
03- 268 1. The law relating to the regulation and protection of the industry of horticulture will be sustained by this office as constitutional until the same shall be decided otherwise by some court of competent jurisdiction. 2. All fruits in the State of Montana, whether native or foreign, are subject to inspection. 3. The legal fees for inspection is two cents per box or package, not exceeding, however, the sum of $5.00 for each inspection. 4. Violations of the law are declared to be a misdemeanor, and punishment is provided for in the act itself. The procedure is the same as for other misdemeanors. December 29, 1909
03- 270 The general appropriation made by the regular session of the legislative assembly, until exhausted, is available for the payment of the mileage and per diem of the members of such assembly when called in special session. December 29, 1909
03- 271 There is no statute authorizing the assignment of unearned salary by public officers, and we know of no decision of our supreme court passing on the validity of such an assignment. When an unearned salary has been assigned, and an attachment is thereafter levied against such salary, the disbursing officer should pay the same into court and require the claimants to litigate their rights. January 3, 1910
03- 272 In selecting indemnity lands on what was formerly the Flathead Indian Reservation, the state cannot select timber lands, as such lands have never been restored to and become a part of the public domain. January 4, 1910
03- 275 Railroad companies should furnish cars in such condition so that the same may be loaded to their capacity. When it is necessary to supply additional facilities the common carrier should bear the expense thereof. January 5, 1910
03- 276-6 An island must be of a permanent character, and not merely surrounded by water when the river is high, and where it is not of such permanent character the title in it belongs to the owner of the adjoining land. January 6, 1910
03- 276-8 The law contemplates that the board of county commissioners shall award the contract for the care of the poor, sick and infirm to the lowest responsible bidder. More than one contract for this purpose should not be entered into during any year, unless on account of great distance from the county seat or poor farm, and lack of transportation facilities, economy should dictate more than one place at which the poor, sick and infirm should be cared for. Where stock is held in a corporation by a county attorney, the corporation is not thereby precluded from bidding on the contract for the care of the poor. While the law provides that the county commissioners shall direct the clerk to advertise for bids for the care of the poor at the September meeting, the fact that this is postponed to some subsequent meeting does not invalidate the contract. The chairman, or other member of the board of county commissioners, may, upon proper showing, commit any worthy person to the poor farm, but the board, as a board only, has control of the care of the poor, sick and infirm in other matters. January 8, 1910
03- 279 Males under 18 years of age and females under 16 are not capable of consenting to a marriage contract, nor are they entitled to any license to marry even with the consent of their parents. Males over 18 and under 21, and females over 16 and under 18 are not entitled to a license to marry without the consent of their parents. A dining car is not required to take out a liquor license in this state, and the sheriff, therefore, is not required to visit and report such dining cars, under Chapter 79, Laws of 1909. January 8, 1910
03- 281 A game of cards may be conducted by the players themselves, in which event the can be prosecuted for opening, carrying on and conducting a gambling game. January 11, 1910
03- 282 An inspector has the authority to inspect fruit in the hands of retail dealer, and such dealer may be prosecuted for refusing to permit such inspection. The inspector can refuse to deliver a certificate of inspection until the fee is paid, or he may bring suit to recover the fee for the delivery of certificate. When fruit is not inspected at the point of shipment, it must be inspected at destination, before delivery, and if consignor and consignee refuse to pay for the inspection the carrier is not liable for refusing to deliver the fruit. The carrier also would have the right to have such fruit inspected and sold to collect its freight or express and the inspection fees paid by it. January 14, 1910
03- 286 Where two insurance companies have merged into one, and one of these companies was not theretofore admitted to do business in this state, the merged company must pay the full fees of a new corporation before it can be admitted to do business. If the merged company is admitted to do business, the annual license fee of one company is all that can be charged against the merged company. January 19, 1910
03- 287 A saloon does not necessarily constitute a large room with bar or bar fixtures. A stock of liquors kept in any manner for the purpose of retailing to any prospective purchaser, especially where a saloon license is procured, would constitute a saloon. January 20, 1910
03- 289 Section 4376, Revised Codes, provides for notice to be given of hearings before the railroad commission in the matter of fixing rates. The act creating the commission does not provide for hearings in matters other than rate hearings. However, it is safe for the commission to follow in other matters the rule by which they are governed in rate hearings. January 21, 1910
03- 290 The county clerk should file and record an affidavit of annual representation on mining claims. The fee therefor is $1.00. Section 3614, Political Code of 1895, should have been incorporated in the Revised Codes of 1907, and is still in effect. January 21, 1910
03- 291 The reform school is a school and not a penal institution, and the right to discharge a female over the age of 18 years by writ of habeas corpus does not appear to be authorized by the statutes governing the reform school. January 27, 1910
03- 293 A building and loan association is a corporation organized for the purpose of making loans among it members. Therefore, a corporation which makes loans upon real estate, not to members, does not come within the provisions of the law relating to building and loan associations. January 28, 1910
03- 296 Under Sections 1829 and 1936 a transportation company or common carrier may lawfully refuse to receive shipments of fruit or nursery stock from points in Montana until the same has been first inspected and a certificate issued. January 31, 1910
03- 297 Where a surety on a bond given to the Carey Land Act Board dies, the principal should be notified by the board and required to furnish an additional bond. January 31, 1910
03- 298 Where there is a deficiency in an appropriation for the first year of a two year appropriation, such deficiency may be paid from the revenue appropriated for the second year and the total deficiency carried to the end of the second year. February 7, 1910
03- 299 Patents should not issue for state lands to other than the contractor to purchase, except where a proper assignment is made and filed in the office of the county clerk where the land is situated, or in the office of the register of state lands. February 7, 1910
03- 300 The law providing for the opening of the Flathead Indian Reservation requires that indemnity selections for the state be made by the governor, but as he is a member of the state board of land commissioners the usual form of indemnity selections is sufficient. February 7, 1910
03- 301 It is the duty of the board of health of a county to care for persons suffering from contagious diseases where they are personally unable to provide for themselves. The state board of health may order persons frequenting schools to be vaccinated, where smallpox exists, or is threatened, and may close schools where the order is violated. February 8, 1910
03- 303 Boards of county commissioners, when desirous of obtaining right of way over state lands for public highway, must file with the board of land commissioners a duly attested plat, showing the location of the proposed road, showing the necessity of the road and that it conforms as closely as possible with sectional and subdivision lines. When the statute is complied with, the board of land commissioners must grant the right of way. Where a well defined permanent road-way, generally traveled by the public, existed over state lands prior to July 1, 1905, the public acquired an easement therein, under Section 2600, Political Code. The supreme court has held, however, that the road must be permanent, well defined and fixed in its location. Chapter 44, Session Laws of 1903. Chapter 44, session laws of1903, re-enacts Section 2600, Political Code, and roads which were public highways at the time of the passage of the latter act are such without other or further action on the part of any one. The state board of land commissioners may dispose of rights of way for public highways without receiving therefor the sum of $10.00 per acre, as required by the Enabling Act. An easement and not the fee is disposed of, and in the event of abandonment by the public the land reverts to the state, and Section 32, Chapter 147, Session Laws of 1909, is not in conflict with the Enabling Act. February 9, 1910
03- 305 Section 37, Chapter 147, Laws of 1909, limits the amount of state lands that may be sold to one individual to 160 acres of agricultural land, susceptible of irrigation, and 320 acres of agricultural land not susceptible of irrigation, and 640 acres of grazing land, being in all a total of 1120 acres, and when the limitation in any classification is reached no further sale can be made to that individual. February 10, 1910
03- 306 School district warrants, when properly drawn and not paid for want of funds, should be registered by the county treasurer, and bear six per cent interest from date of registration. February 14, 1910
03- 307 Where a proper petition for the incorporation of a town has been filed, and the territory embraced within the proposed incorporation was never situated in any registration district, the board of county commissioners have authority to order a special registration in order that there may be qualified electors to vote at the election called by the county commissioners. February 14, 1910
03- 309 The license certificate issued under Section 8, of Chapter 108, Laws of 1909, for stallions having five pure top crosses should be modified so as to show that such horses are not registered in stud books recognized by the department of agriculture. February 17, 1910
03- 310 The period of time that a person sentenced to the state prison is confined in the insane asylum is computed as a part of his term in the prison. February 18, 1910
03- 311 A positive statement under oath that a person is guilty of unprofessional or dishonorable conduct by accepting fees upon the condition that he will cure a person, when he could not from the nature of the disease guarantee a cure, is a sufficient allegation to warrant a hearing. Also, an allegation that he is associating with a company that is violating the medical law is a sufficient allegation to justify a hearing. February 18, 1910
03- 312 A city in which an assistant boiler inspector is permanently stationed is not a remote district within the meaning of Section 1657, Revised Codes. February 21, 1910
03- 314 An appropriation made for betterments of the Montana State Fair may be applied in payment for the grand stand, as the grand stand comes within the meaning of the word "betterments." February 24, 1910
03- 315 The taxpayers of a proposed new district are the best judges of its boundaries, and the county superintendent has no power to alter the boundaries set out in the petition. The county superintendent may grant or reject the petition according to the boundaries therein described. Upon appeal from the action of the county superintendent, the board of county commissioners is limited to rejecting or granting the petition according to the boundaries set out therein. The right of appeal is given only to residents of the proposed new district, and in the event that residents of the original district, not included within the boundaries of the new district, should desire an appeal, they could not proceed under Section 840, but must invoke the aid of the courts. February 28, 1910
03- 317 The calendar year begins on the first day of January and ends on the 31st day of December. The law which provides that the excess of collections over expenses, under the act providing for public accountancy, "becomes the property of the state university," is interpreted to mean that the state treasurer must, at the end of the fiscal year, transfer this excess to the university maintenance fund. Where an appropriation is made for the year ending February 28, 1910, for furnishing and equipping a state university library building, or bills for furnishings and equipments ordered prior to the expiration of the period of appropriation, but not received until after that date, may be audited, presented to the board of examiners, allowed and paid out of the appropriation, which is not covered back to the state treasury until the termination of the two year period. February 28, 1910
03- 319 Where a monthly or other periodical rent is charged a subscriber for purely local conversations over a telephone instrument, such instrument is liable for a county license notwithstanding the fact it may also be used in interstate conversations. Where no local rent is charged for an instrument, it is liable for a county tax unless the telephone company can show that one or more bona fide interstate conversations had been held over it during the year. March 1, 1910
03- 321 Persons are entitled to the first form of certificate set out in section 8, of chapter 108, laws of 1909, where the stallion or jack is registered in books that recognize five pure top crosses. If the stud book in which such stallion or jack is registered recognizes stallions or jacks of less than five pure top crosses they are not entitled to such certificate of registration. It is not necessary to show that a person has previous knowledge of this law in order to convict him of a violation thereof. March 2, 1910
03- 322 Where a claim against the county is presented to the board, and an appeal is taken from the action of the board, under section 2947 the county is a party to the action in the district court. The board of county commissioners has power and authority to employ special or additional counsel in these appeals in all cases to which the county is a party, but may not employ additional counsel for the purpose of securing advice, where no litigation is pending, but must rely upon the advice of the county attorney, and if not satisfied, they may call upon the attorney general for such advice. The board of county commissioners has authority to transport, at the public expense, paupers who are properly county charges to points without the state, when that action is less expensive than caring for such persons. The board of county commissioners, in all matters except in emergency cases where it is necessary to provide for the care of the poor, must act as a board and not through the individual members. March 2, 1910
03- 326 Where two foreign corporations are consolidated, one of such corporations retaining its name and increasing its capital stock so as to take over the property of the other corporation, it must pay a fee upon the total increase of capital stock, notwithstanding the fact that a part of such increase is used to take over the property of the other corporation, which had already paid a fee on its capital stock. March 3, 1910
03- 329 The law prohibits a person from holding more than a certain amount of the several classes of land. Therefore, a person who has purchased the full amount of any one of such classes is not authorized to take an assignment of a certificate of purchase of any more of such class of land. March 4, 1910
03- 330 The inspector of fruits in this state has authority to require all fruit to be inspected at the point of origin of shipment. May 7, 1910
03- 331 A teacher who has a county certificate of any grade, and is also the holder of a professional county certificate, or a life or state diploma, or is a graduate of a reputable normal school, is qualified to teach as the principal of a school of more than two departments. March 10, 1910
03- 332 Chapter 130, session laws 1909, is valid and constitutional, there being no conflict between said law and section 1970, revised codes. March 10, 1910
03- 333 Stallions shipped to this state to sell to persons for breeding purposes must have the certificate required by section 6 of the stallion law, and they are not exempt from such requirement by reason of the fact that the purchaser intends to turn the stallion upon the public range. If a person ships a horse himself to turn on the public range, he is not required to have said certificate. March 10, 1910
03- 334 Where there is a vacancy in the office of clerk of the district court, which has been filled by appointment, the person so appointed holds only until the first general election thereafter, when a person must be elected for the balance of the term in which such vacancy occurred. March 12, 1910
03- 336 The state examiner has the power to prescribe general methods and details of accounting for the receipt and disbursement of monies by state officers, and may require that the auditor deliver all blank licenses and receipts to state officers, taking their receipts therefor. March 14, 1910
03- 338 The game warden, or his regular deputies, or special deputies appointed for that purpose, or justices of the peace, may issue licenses to residents of this state to hunt and kill large game or game birds, or they may issue licenses to residents of this state, or non-residents, to catch fish in the state. Only the game warden, his regular deputies, and deputies appointed for that purpose, are authorized to issue licenses to non-residents to hunt and kill large game or game birds. The game warden and his regular deputies and clerks who draw a fixed salary are not authorized to collect the fee of ten per cent, as compensation for issuing licenses by them. Special deputies and justices of the peace who do not receive fixed salaries are authorized to retain ten cents upon each dollar of money collected from licenses issued by them. March 15, 1910
03- 340 Sections 8836, revised codes, makes it a misdemeanor for any person to allow a stallion to run at large. This law is not repealed by section 15, chapter 108, session laws of 1909, as said last named chapter clearly excepts from its provisions stallions turned upon the public range. March 15, 1910
03- 341 A county superintendent has authority and jurisdiction to change the boundary lines of school districts so as to make them conform to sectional or subdivision lines where the boundary between two districts is indefinite, such as a range of hills. This action, when taken by the county superintendent, should be reported to the board of county commissioners, and, if approved by them, should be ratified and incorporated in their minutes. However, where a material change in the territory of a district is contemplated, this can only be done in compliance with the provisions of section 841, revised codes. March 16, 1910
03- 343 The superintendent of public instruction has authority to collect fees authorized by the state board of education. All fees, or other monies, collected by such officer, in his official capacity, should be paid into the state treasury and all expenses incurred by him for printing diplomas, etc., are claims to be presented to the state board of examiners. March 18, 1910
03- 345 A defendant charged with murder is entitled to be admitted to bail, unless the county attorney makes a showing satisfactory to the court that the proof of his guilt is evident or the presumption thereof great. The sufficiency of such showing is addressed to the sound discretion of the court; and, as a rule, would not be disturbed unless a manifest abuse of discretion was shown. March 23, 1910
03- 346 House Joint Resolution No. 8 is in no sense a law, therefore not binding upon the board of land commissioners, nor can it be held to amend the laws in force as controlling the action of such board. The law provides that no state lands shall be sold, except at public sale. Therefore, the board has no authority to grant to the Billings Polytechnic Institute the lands referred to, and at the price mentioned in said house joint resolution. March 24, 1910
03- 348 Chapter 147, laws of 1909, limiting the number of acres that can be sold to any one person, is not retroactive, and, therefore, does not affect purchasers under prior laws. Where a purchaser of state lands has duly assigned his certificate of purchase he is in a position to again purchase a tract of land from the state, the same as if he had never theretofore made a purchase; provided, of course, that his assignment of the first certificate was to a person legally entitled to receive the same. March 24, 1910
03- 350-29 Under sections 4365 and 4378, revised codes, the railroad commission has authority to promulgate a rule requiring railroads to report, by telegraph, serious accidents to the board. March 29, 1910
03- 350-30 Writs of attachment, or of execution, being mesne and final process, cannot legally be served outside of the county in which the justice of the peace issuing the same holds office. March 30, 1910
03- 353 A license must be procured by every person engaging in the business of selling nursery-stock within the state of Montana. April 7, 1910
03- 354 A notice of an appeal from the decision of a county superintendent dividing a school district, held sufficient to give the county commissioners jurisdiction. April 7, 1910
03- 355 Trustees of a county free high school have authority to levy taxes for building purposes, not exceeding more than ten mills in any one year. Such trustees cannot expend a sum in excess of $10,000 for the erection of school buildings without submitting the question to a vote of the electors. Such elections should be ordered by the board of county commissioners, and a notice thereof given in the same manner as that of other elections called by the commissioners. The expenses of such elections should be paid out of the general fund of the county, the same as other special elections. April 7, 1910
03- 357 Deputy clerks in counties of the fourth and fifth classes receive a salary of $1,500 per annum. This provision only extends to the number of deputies allowed by law. The board of county commissioners may appoint additional deputies and fix their salary at any sum not in excess of $1,500. April 7, 1910
03- 358 The railroad commission of Montana has authority to permit the abandonment of established lines of railway where the public service warrants. April 8, 1910
03- 359 1. The qualifications for mayor and aldermen of cities and towns cannot apply to the officers first elected in a newly incorporated town, which town has not been in existence for a period of two years. 2. Where a county officer procures an official bond from a surety company he cannot require the county to pay the premium on such bond. April 12, 1910
03- 360 Women are entitled to vote at school district elections, either for school trustees, issuance of bonds, or any other question submitted by the trustees to the electors of the district. Women may also vote where the law submits a question to the "taxpayers" as distinguished from "electors." Women in this state, either married or single, may purchase, hold and sell property in their own name. April 12, 1910
03- 362 The lessee of state lands, under section 2174, has a preference right to purchase, notwithstanding the provisions of chapter 147, session laws of 1909. April 13, 1910
03- 363 Where the county superintendent of schools is aware that the population of a certain district entitles the district to become a district of the first class, power and authority is thereby vested in the county superintendent to appoint the required number of trustees for a first class district; namely, seven. April 14, 1910
03- 364 Where two trustees are elected in a district of the third class, with less than fifty children of school age, their terms not being designated, they must, by agreement between themselves, determine their respective tenure of office. April 21, 1910
03- 365-29-1 Section 4318, revised codes, imposes an obligation upon all railroads to make crossings through their fences, and over their road-bed, along their right of way, every four miles thereof, or as near thereto as may be practicable. April 29, 1910
03- 365-29-2 Under an existing contract conferring trackage rights to the Northern Pacific Railway Company over the Great Northern tracks between Prickley Pear Junction and Boomerang Wye, through rates between points on the Northern Pacific Railroad and Boulder, or other points upon the Elkhorn branch, must be effective at intermediate points between Boulder and Prickley Pear Junction. The trackage rights conferred under contract is held to constitute intermediate points as part of the route of the Northern Pacific Railway Company. Under the constitution intermediate points upon the line or route of a railway may not be charged more than more distant points for the same class of service. April 29, 1910
03- 367 No provision is made for registration as special elections. The old registration and check lists must be furnished by the county clerk to at least one of the judges of election in each precinct, and residents of one precinct who have moved into another precinct in the interim between the regular and special election are not entitled to vote in the latter precinct. April 30, 1910
03- 369 Section 8576 assumes to prohibit boxing and wrestling and slugging matches, except boxing with soft gloves, in any gymnasium for exercise. It is here held that boxing or wrestling, either within a gymnasium, or otherwise, is not contrary to statute. April 30, 1910
03- 370 Misrepresenting the location of lands to prospective settlers, and receiving money therefor, is a confidence game, punishable under section 8684, and the misrepresentation need not be in writing, as section 9289 does not relate to such offenses. April 30, 1910
03- 371 Where the governor has made application for the survey of unsurveyed government lands, the same should be withdrawn from entry from the date of such application, and the commissioner of the general land office is not authorized to refuse to so withdraw it unless the state advances the money for paying the expense of the survey. May 2, 1910
03- 373 The board of railroad commissioners has no authority over transportation by boat on Flathead lake. Said board has authority to fix dockage and wharfage charges on navigable waters, whether such docks were constructed prior to or subsequent to the enactment of chapter 38, laws of 1909. May 5, 1910
03- 376 Held that the state auditor is justified in executing the order and direction of the state board of examiners made on April 18th, 1910, transferring certain funds from the state fair betterment appropriation; also the appropriation of $16,000 for the purchase of the grandstand, to the state fair maintenance account, so that same may be at once available for use and thereby save interest charge to the state. May 6, 1910
03- 377 The city of Glasgow may introduce the sewage of said city into the water of Milk river, as said waters are not used as a source of water supply by any city, town, or public institution or water or ice company, for domestic use. May 16, 1910
03- 379 The state board of health has general supervision of local boards of health, and also all matters pertaining to the general health and safety of the public, and may investigate conditions in any part of the state, with a view to their betterment, or abatement, if found to the best interest of the public health and safety. May 16, 1910
03- 380 The city of Glasgow may introduce the sewage of said city into the water of Milk river, as said waters are not used as a source of water supply by any city, town, or public institution or water or ice company, for domestic use. May 16, 1910
03- 381 The state board of health has general supervision of local boards of health, and also all matters pertaining to the general health and safety of the public, and may investigate conditions in any part of the state, with a view to their betterment, or abatement, if found to the best interest of the public health and safety. May 16, 1910
03- 382 The report required by Section 6, Chapter 73, Laws of 1909, should be for the official or fiscal year for which appropriations are made. May 20, 1910
03- 383-6 The notice of a school election to vote upon the question of issuing bonds need not state the exact rate of interest, nor the number of years that the bonds shall run, such matter being left to the discretion of the board, within the maximum limits. June 6, 1910
03- 383-25 It is unlawful for the owner of land whereon beaver are doing damage to contract for the destruction of the same for a share of the pelts. May 25, 1910
03- 385 A licensed engineer is not required under the law for the purpose of unloading a boiler or steam engine, or for demonstrating the working of the same for the purpose of making sale thereof, as such class of work is not operating steam machinery under the statute. June 8, 1910
03- 387 Section 1413, Revised Codes of 1907, as amended, provides method of letting contract. Plans and specifications must be prepared by board of county commissioners before submitting to public for bids thereon in order that contract may be let for lowest price obtainable, and competition insured. June 9, 1910
03- 389 Foreign surety companies, in order to do business in this state, must comply with Chapter 139, Laws of 1909, and when they have so complied they do not have to also comply with the general laws relating to the admission of foreign corporations. June 9, 1910
03- 390 Bonds of School Districts must be redeemable at some time prior to maturity, otherwise they are void, and the board of school trustees must reserve this right to redeem. June 11, 1910
03- 392 The intention of the law was that a purchaser of state lands must reimburse a prior lessee for improvements. The state board of land commissioners has authority to require a purchaser to furnish satisfactory evidence of settlement with the lessee for improvements before the issuance of certificate of purchase to him. June 15, 1910
03- 394 The above warrants are valid and legal obligations against the state and should be paid in the order of their registration, and each bear six per cent interest. June 27, 1910
03- 396 The transferree of a county warrant takes it subject to all legal and equitable defenses which extended to it in the hands of the payee, and if illegally issued, the county treasurer has no authority to pay the same. July 2, 1910
03- 397 A right of way application is not an application to purchase within the meaning of Section 6, Chapter 147, Session Laws of 1909, and no filing fee therefor can be charged. July 2, 1910
03- 398 The county commissioners of Lincoln county are entitled to receive six dollars per day for actual sessions, not exceeding $250.00 per year, and fifteen cents per mile for the distance necessarily traveled in going to and returning from the county seat and place of residence; also five dollars a day for inspection of bridges and highways. July 20, 1910
03- 399 There is no direct authority in the statute authorizing a district judge to direct the county attorney to apply for extradition in a criminal case, but the county attorney would be fully protected by the court's order and in making his application to the governor he should fully set forth his views respecting the merits of the case, irrespective of the order of the court or judge. August 10, 1910
03- 400 All real and personal property within fire limits designated by the town plat is subject to taxation for fire purposes in an unincorporated town. Real estate belonging to a banking corporation should be assessed to it and all other property owned by it should be assessed by considering its value and making estimate of the value of the shares of stock which are assessed to the owner of such stock in proportionate amounts, irrespective of the location of the bank building or its principal place of business. The situs for taxation of share of stock in a bank is the residence of the shareholders. August 11, 1910
03- 401 Indians residing in what was formerly the Flathead Indian reservation in Montana are residents of the state, and must obtain license to hunt and fish the same as other citizens. August 15, 1910
03- 402 Under the provisions of Section 2542 of the Revised Codes of 1907, any property discovered by the assessor to have escaped assessment may be assessed at any time if such property is in the ownership or under the control of the person who owned and controlled it at the time it should be assessed. However, in making such assessment the assessor cannot go back for a period longer than two years because of the operation of the bar of the statute of limitations. August 16, 1910
03- 403 Where two plats of an original townsite are filed, or offered to be filed, having the same name for town and covering the same territory, or territory in conflict, the board of county commissioners has authority to disapprove of second plat when found in conflict with first, or direct finding of second as an addition to the original townsite where not in conflict. There seems to be a hiatus in our laws with reference to the filing of plats of an unincorporated town. However, under the general provisions of law respecting the executive authority of boards of county commissioners with reference to the government or control of county property where a plat of a proposed townsite, or an addition to an unincorporated town or village is sought to be filed which does not conform to a townsite already platted and recorded, or an addition or part of a town already platted, the board of county commissioners has power and authority to supervise the filing of such plants or additions so as to prevent conflict and confusion. August 20, 1910
03- 406 There is no authorization in the law for a board of county commissioners to refund money paid for liquor licenses. August 22, 1910
03- 407 The constitution and statute provide that a defendant has a right to be represented by counsel at every stage of any criminal proceeding. In preliminary hearings defendants must procure counsel. If defendant appears for arraignment in the district court without counsel, and without means to employ counsel, the court must, if the defendant so desires, appoint counsel. August 22, 1910
03- 408-26 Stereoptican views or magic lantern reproductions on separate slides showing a picture of a prize fight cannot be considered moving pictures within the prohibition of Section 8881 of the Revised Codes of 1907. August 26, 1910
03- 408-27 By the provisions of Section 4114 of the Revised Codes, the character of securities required to be deposited with the state auditor by the insurance companies are bonds of the state of Montana, or of the United States, and county, school district or municipal bonds do not constitute bonds of the "state," and registered state warrants cannot be accepted as "state bonds." August 27, 1910
03- 411 Original plat of, or adjoining unincorporated town has a right to take the name of the town. A second plat including portion of same town has no right to assume the name of the town and should be approved by county commissioners before filing. August 31, 1910
03- 413 Indian children on the Flathead reservation are not entitled to the apportionment of school moneys unless they have severed their tribal relations; and the school census should not include the names of Indian children unless they are living under the guardianship of white persons. Indians who have not severed their tribal relations are wards of the government and are not entitled to the election franchise of citizens. September 7, 1910
03- 414 Railroad companies, or other persons, transporting stallions into the state without proper state or federal certificate, may be prosecuted in any county through which such animal is transported, or in the county to which such animal is transported and delivered. September 7, 1910
03- 416 Under the provisions of Section 2852, Revised Codes of 1907, before the board of county commissioners can consider and act on a petition for removal of a county seat, and as a condition precedent to the exercise of jurisdiction by it and the submission of the question to the electors; such board must find from a comparison of the names subscribed to the petition with the names on the poll books of the county and the last assessment roll, that the petition is subscribed by a majority of the legal voters of the county who are ad valorem taxpayers thereof. If such petition is not found to be signed by a majority of the legal voters of the county who are such taxpayers, it is insufficient. September 7, 1910
03- 417 A lake is not a stream within the meaning of Section 8797, Revised Codes, and dumping sawdust into a lake is not a violation of said section. Where sawdust is carried from a lake into a stream it would be a violation of such statute. September 10, 1910
03- 419 It is the duty of the Board of county commissioners, under Section 470, Revised Codes, to lay out a new county into convenient registration districts, which shall be consecutively numbered. This should be done at the regular June meeting, but a failure on the part of the board of county commissioners to perform such duty at the June meeting would not preclude the commissioners from taking action at any time prior to the registration period. September 14, 1910
03- 420 Nominations for judicial offices shall be made as provided for in Section 524, Revised Codes (Section 1313, Political Code). A petition for nomination for a judicial office shall contain the name of the person nominated, his residence, business, business address, and the office for which he is nominated. The number of signatures upon such petition must be not less in number than five per cent of the number of votes cast for the successful candidate for the same office at the next preceding election, whether the candidate be for state, county, township, municipal or any other political subdivision of state or county. September 19, 1910
03- 422 It is a general provision of the law that all persons engaged in the liquor business must first obtain a license, as shown by the provisions of Section 2759, Revised Codes. Where a license has been issued for the conduct of a retail liquor dealers business in a town, city or camp having less than 100 population, the board of county commissioners has authority to revoke such license for cause, but are without such authority where a town or city has a population of more than one hundred. Section 2757, Revised Codes, provides that where any person is convicted of a violation of the law with respect to gambling, or the sale of intoxicating liquors, such conviction is, in itself, a revocation of the license granted to such person. And, as the conduct of a house of prostitution is a violation of the law, a license to retail liquor therein should not be granted when the character of the house is known. It is the duty of the local county or city officials to administer the law without reference to this department, particularly when the character of such house is known to such officials, and this department will, upon request, advise such officials upon the law. September 19, 1910
03- 424 Any person who has been engaged in the sale of intoxicating liquor at a fixed place of business for six months prior to the beginning of work upon a railroad grade within five miles of such place of business, comes within the exception mentioned in Section 8555, Revised Codes, and may sell liquor to employees on such railroad grade. The mere making of a survey, or doing preliminary work in order to determine where the grade will be located, is not a construction of the grade within the meaning of Section 8555, Revised Codes. September 20, 1910
03- 426 Under Section 9812 of the Revised Codes, any person, whether he be an officer or employee of the state reform school or not, who connives at, procures the escape, or harbors an escaped inmate of said school, knowing such person to be an escaped inmate, for the purpose of assisting in his escape, is guilty of a violation of this section. September 23, 1910
03- 427 Under session laws of 1891, a person killing a bear and making proper proof of such killing is entitled to bounty fee of five dollars. September 23, 1910
03- 428-23 The bonds of public officers are in the nature of security for the faithful performance of their official duties, and in the absence of an express statute to the contrary such officers are not entitled to present a claim against the state for premiums paid in order to obtain such security. September 23, 1910
03- 428-24 An election on the question of the incorporation of a municipality must be had and conducted substantially as required by statute, and if not held in substantial compliance with statute it is subject to contest. Sections 7234 to 7249 of the Revised Codes have no application to contesting elections upon the question of the incorporation of a municipality; these sections applying only to certain elections and referring only to contest pertaining to the rights of individuals declared to be elected to public office. Under the provisions of Section 6943, et seq., the attorney general may institute quo warranto proceedings to determine whether or not a proposed municipality has a legal existence, and when upon a complaint or otherwise he has good reason to believe that a case can be established by proof he shall commence such an action. Only such persons whose names appear upon the official register or check list of the last preceding election, and who are residents within the limits of the proposed incorporation or precincts covering the territory proposed to be incorporated, are entitled to vote at an election to determine whether or not the city or town shall be incorporated. Illegal votes will not render an election invalid if it appears that the result was not affected thereby. September 24, 1910
03- 432 Under the provisions of Section 3311, Revised Codes of 1907, policeman (jailer) is not eligible to any other public office. Policeman (jailer) a public officer within provisions of Section 471, Revised Codes of 1907. October 5, 1910
03- 433 No fee to be collected for filing transcript of judgment docket from another county, specified in Section 6810, Revised Codes of 1907. October 8, 1910
03- 434 General corporation laws relative to change of name and change of place of business, applicable to. Change of name of state banks, Section 3814, Revised Codes, applies. Place of business of state banks, Section 3849, Revised Codes, applies. October 8, 1910
03- 436 Where an Indian Reservation in compliance with an Act of Congress has been declared open to settlement by Presidential Proclamation, the Board of County Commissioners may establish polling precincts on that part of the Reservation within the County. October 13, 1910
03- 437 All judicial nominations should be placed in a separate column under appropriate heads, and preferably in the order in which the nominations are certified to the county clerk. October 14, 1910
03- 438 Under Section 4375, Revised Codes, the railroad commission of Montana has power to fix and establish rates for all or any connecting lines of railroad in this state on the basis of through or joint rates. October 14, 1910
03- 439 Persons filing upon homesteads within the state of Montana prior to November 8th, 1909, with the intention of complying with the requirements of the homestead law, are entitled to vote at the general election in 1910. October 21, 1910
03- 441 Upon division of an election precinct containing less than one thousand electors, no new registration is required where a particular description of the house, building or room in which the elector resides is contained in the official register. Where no particular description of the house, building or room in which the elector to the proper precinct within his district where the proper description of his residence in the official register indicates he is entitled to vote. October 21, 1910
03- 443 Chapter 113, Session Laws 1909, providing that all nominations for judicial offices shall be made only by petition, does not apply to the offices of county attorney, state senator, and county coroner, for the reason that these offices are not judicial offices within the meaning of said chapter. October 24, 1910
03- 445 Animals wild by nature are subject to ownership only while subjected to possession or disabled and immediately pursued. The killing of buffalo is prohibited by Section 8783 as amended by Chapter 81, Session Laws 1909; but this statute does not apply to the animals named therein when reduced to captivity and made the subject of private ownership and kept in control and confinement by the owner, but when such animals roam at large and are not capable of being controlled they cease to be private property and are protected by the above statute. October 27, 1910
03- 447 There is no objection to the use of mileage books by state officers in the performance of duties, provided the same are purchased upon requisition through the state board of examiners, and the appropriation for the maintenance of the particular office is adequate. October 27, 1910
03- 448 The payment of a fee by banks subject to state supervision according to their capital stock becomes due immediately upon the organization of the bank and is not subject to be prorated according to the length of time between date of organization and November 1st. October 31, 1910
03- 449 It is the duty of the county clerk to receive and file nominations and to prepare and supply ballots for the election of the first officers of a new incorporated city or town. Nominations for first officer of a newly incorporated city or town may be filed at any time prior to the election. The election of the first officers of a city or town is in the nature of a special election to fill vacancies. November 2, 1910
03- 452 There can be no recovery for the service fee of stallion, unlicensed under provisions of Chapter 108, Session Laws of 1909. November 4, 1910
03- 455 All property is assessable to the person by whom it is owned or claimed, or in whose possession or control it was at 12 o'clock M. on the first Monday in March. Under the provisions of Section 2510, Revised Codes, property not within the state of Montana on the first Monday of March could not be assessed therein. November 5, 1910
03- 456 Where the Carey land act board has entered into a contract for the reclamation of arid lands providing that work in certain districts shall be completed on or before a definite date, the contractor is not in default until that date even though work is not commenced with a sufficient time to allow its completion of the prescribed date. November 10, 1910
03- 457 Where a board of county commissioners offers for sale an issue of refunding bonds they must be sold at not less than par and deductions in favor of the bidder for legal expenses, printing, etc., which reduce the bid below par, invalidate the bid. The entire issue must be used for purposes for which it is issued and expense of printing the bonds must be met out of moneys in the county treasury not otherwise appropriated. No charges for legal advice can be paid out of this fund as the board of county commissioners is entitled to the advice of the county attorney and attorney general. November 17, 1910
03- 458 Where a car has been routed out of a particular place over the line of one railroad, consigned to an industry located upon the tracks of a competing line, the competing line of railroad has the right to refuse to handle such car unless the switching charge is paid for the same or the competing line has a joint rate published in its tariffs, in which case it must abide by such joint rate and handle such car. November 22, 1910
03- 459 Section 4249 of the Revised Codes of Montana fixes the maximum tariff for transportation of passengers by railroads in this state at three cents per mile, but Section 4375 of the same codes confers upon the board of railroad commissioners power and authority to fix different rates "if found necessary to do justice." This latter section seems to have been passed in order to place it within the wisdom and discretion of the board of railroad commissioners to provide for cases where a new railroad is constructed which, on account of conditions along its route, must for a time depend upon a meagre patronage. November 22, 1910
03- 460 A certified check is an obligation of the drawer thereof calling upon the drawee to pay the funds in its hands to the credit of the drawer, and the certification of such check shows that the bank holds funds with which to meet the drawer's obligation. As it is the custom of banks to return the ordinary check which passes through its hands in the course of business, the same course should be pursued with respect to certified checks. November 25, 1910
03- 461 Where a school district is improperly organized on account of a change in the boundaries described in the petition, the entire proceedings is invalid, and expenses incurred by the trustees of such a district should be assumed by the district when properly organized. November 30, 1910
03- 463 County commissioners are entitled to receive ten cents per mile for the distance actually traveled in going to and returning from the county seat and their place of residence; and Section 3111 Revised Codes supercedes and takes the place of Section 3194 Revised Codes in this respect. November 30, 1910
03- 465 The appropriation for the erection and furnishing of a Women's Dormitory at the Agricultural College expires on Nov. 30th, 1910. The general appropriation for the Board of Railroad Commissioners should not be charged with bills for printing, officer furniture and supplies. November 30, 1910
  • 19 October 2018
  • Author: Lund, Debra
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