Attorney General’s Opinions

Volume 18

Opinion Held Date
18- 1 The State Textbook Commission is authorized to adopt separate basal texts for Physiology and Hygiene. December 2, 1938
18- 2 By-laws of co-operative associations must make provision for the election of the directors and officers by vote of the stockholders. December 2, 1938
18- 3 The average annual compensation a teacher would receive, if she taught the normal time, during her last ten years of service, as distinguished from the amount she actually receives, would constitute her average annual salary to be used to calculate her pension retirement allowance. December 5, 1938
18- 4 1. The State Auditor may distribute fire department relief association funds to a relief association even though such association is delinquent in filing its annual report. 2. A re-transfer of money from the general fund to a special fund, when transferred in error, is not in violation of Section 34, Article V of the Constitution. December 8, 1938
18- 5 The Fish & Game Commission has power to spend department funds in the purchase of lands for wild life restoration purposes. December 27, 1938
18- 6 1. Sheriffs receive actual expenses where prisoners are transported by railroad or bus to state institutions. 2. Sheriffs receive ten cents per mile where prisoners are transported by the sheriffs' own automobiles to the state institutions. 3. Sheriffs may use their own automobiles in transporting prisoners to state institutions where railroad and bus transportation is not suitable. 4. Suitability of transportation is determined by all the surrounding circumstances. December 28, 1938
18- 7 A marriage license is valid only in the county wherein it was obtained. December 29, 1938
18- 8 1. The State Textbook Law requirement of a special supplement for the basal text in National Civil Government precludes a separate basal text for state civil government. 2. The State Textbook Commission is not authorized to adopt basal texts in Montana History, Music or Art. December 29, 1938
18- 9 1. Stenographer's fees for the taking of testimony and preparation of transcript thereof in an insanity hearing before the Chairman of the Board of County Commissioners required by Section 1443, Revised Codes of Montana, 1935, are payable out of funds provided for the maintenance of the District Court. December 30, 1938
18- 10 That the Nepotism Act does not prevent a member of the legislature from voting upon the adoption of the report of the employment committee when such report recommends the employment of any person connected with such member by consanguinity within the fourth degree or affinity within the second degree. January 3, 1939
18- 11 Insofar as Sections 6 and 9 of Article XXI of the Montana Constitution, as amended, attempt to divert the income from land grant funds to other purposes than direct by the Enabling Act, they are invalid, being contrary thereto and the Federal Constitution. Land grant funds and the interest thereon are trust funds and cannot be diverted from the purpose of the trust. The state may not divert for other things, interest on land grant funds pledged to payment of bonds issued. The Enabling Act constitutes a pact between the U.S. and the state, which neither party may violate without the consent of the other. January 5, 1939
18- 12 (1) Sheriffs are entitled to charge ten cents per mile for distance actually and necessarily traveled in making investigations and rendering similar services. January 7, 1939
18- 13 A state senator may serve as a member of a joint commission of two states to study the rights to waters in the tributaries of the Yellowstone River, and in the study of an interstate compact between the states as to said waters, and may receive per diem and expenses while so serving, such membership being only temporary. January 12, 1939
18- 14 1. Coroners can collect $5.00 per day for inquest and $5.00 additional for investigations although done on the same day and in the same case. 2. The duty of the coroner upon an inquest is to go to the place where the body is and if interred to exhume the same, summon a jury and conduct a hearing. The duties of an investigation require a preliminary inquiry to determine the necessity of an inquest. 3. The number of days' pay in investigations in counties of first, second and third class is unlimited. In other counties investigations are limited to one day's pay. The maximum number of days' pay in holding an inquest shall not exceed two at the rate of $5.00 per day.  
18- 15 A judgment obtained against the State of Montana on account of the Custer Drainage District in Yellowstone County may not be paid by the State Treasurer upon order of the District Court, as provided in Section 7326, without a specific appropriation by the Legislature. January 26, 1939
18- 16 1. Section 3073.1, relating to the hours of labor, in retail stores, by reason of the constitutional amendment, is applicable to all cities or towns, irrespective of their population. January 28, 1939
18- 17 A deputy county attorney appointed by authority of Section 4880 R.C.M. 1935, is entitled to a salary of $137.50 a month. January 28, 1939
18- 18 Countersigning by salaried representatives of insurance company does not meet requirements of Chapter 95, Laws of 1937. January 30, 1939
18- 19 The insurance commissioner may not charge per diem for services of himself, his deputy or assistants, whose services are paid for by the insurance department. Assistants whose services are not paid for by the insurance department, employed by the insurance commissioner, are entitled to per diem and expenses in making examinations of insurance companies. The fee or expenses charged for examination of insurance companies should not be deposited in the general fund. Payment should be made direct to the persons who are entitled to them. Under the provisions of Section 166, R.C.M. 1935, the report of the examination and the duplicate receipts, duly certified, should be filed with the insurance commissioner. Such report and receipts should be so filed when there is a convention examination. February 4, 1939
18- 20 1. A proposed act purporting to give consent to the "provision" of the Federal Act which adds another requirement such as the consent of the Governor, does not meet the requirements of the Federal Act, the provisions of which do not include the Governor's consent. 2. The consent by the state through legislation to a Federal Act which requires that the Secretary of Agriculture and the Fish and Game Commission "shall agree upon wildlife-restoration projects" does not permit the Secretary of Agriculture or the Biological Survey to undertake such projects or to acquire lands for such purpose without the consent of the Fish and Game Commission. February 8, 1939
18- 21 The minimum fee for filing and recording an increase of capital stock of a water users association is fixed by Section 145, R.C.M., 1935. February 15, 1939
18- 23 County commissioners have no authority to act individually and can only act as a board. The Nepotism Act expressly forbids the employment of a person related to any member of the board. February 24, 1939
18- 24 Livestock sales on Saturday afternoons, lasting about four hours, totalling about $250 a week for livestock sold on consignment constitutes a livestock market within the meaning of Chapter 52, Laws of 1937. March 2, 1939
18- 25 License fees provided by Section 2441, R.C.M., 1935, should be disposed of in accordance with the provisions of Section 2420 Id. March 7, 1939
18- 26 The lien upon chattels in case of a combination mortgage of real estate and personal property provided for by Section 8273 is eight years as provided by Section 8267 R.C.M. 1935. March 7, 1939
18- 27 1. Under the provisions of Section 4465.20 the publication of county commissioners' proceedings is necessary. 2. Publication of county commissioners' proceedings should specify the name, purpose and amount of all claims. 3. Publication of claims paid by county fair commissions is not required by statute. March 8, 1939
18- 28 State Highway Treasury Anticipation Debentures may be accepted by public officials of the State of Montana as security for the repayment of all deposits of public moneys of the state or of any county, municipality or public institution thereof. March 9, 1939
18- 29 It is the duty of councils of cities of the first, second and third class to require and fix the amount of the bonds of chiefs of police. March 9, 1939
18- 30 Where there are several tax sale certificates on the same property, no more than one certificate of redemption is required in case of redemption. March 9, 1939
18- 31 Lands sold by the county under contract for five years must be taxed as other lands and not to the extent of the interest of the purchaser. March 15, 1939
18- 32 1. That portion of statute requiring different and additional qualifications for school electors than provided for by the Constitution is invalid. 2. That portion of statutory form of oath submitted to challenged voter, inconsistent with the Constitution, is invalid. March 17, 1939
18- 33 1. A person operating a motor vehicle without proper license plates outside incorporated cities can be charged with a violation of either Section 1741.7 or Section 1757. 2. The penalty for the violation of Section 1741.7 is found in Section 1741.8 and the penalty for violating Section 1757 is found in Section 1762. 3. Non-resident owners operating a motor vehicle without proper license plates or any person using plates on one vehicle that were issued to another, or repainting old license plates, are punished as provided by Section 1760.10 March 21, 1939
18- 34 1. House Bill No. 195 of the 26th Legislative Assembly gives the county treasurer the right to employ enumerated deputies without first obtaining permission of the Board of County Commissioners. 2. The salary of deputies allowed by Section 4880, R.C.M., 1935, is fixed by Section 4873, R.C.M., 1935. 3. Section 4874, Revised Codes of Montana, 1935, has reference only to deputies appointed for temporary or emergency service. March 22, 1939
18- 35 School trustees have some discretion to determine what absences are excusable. Whether discretion of school trustees may be exercised to release pupils one hour each week to enable them to attend religious schools depends on facts in each case. The power of board to release pupils for attendance at religious schools is limited to such releases as would not materially affect the best interests of the public school. The statute fixing the hours of the school day must be substantially complied with. March 22, 1939
18- 36 Under the provisions of Sections 12078, R.C.M., 1935, as amended by Chapter 184, Laws of 1937, if the Court places a prisoner under the jurisdiction of the State Board of Prison Commissioners and does not retain jurisdiction it has thereafter no jurisdiction to revoke a suspended sentence. An order of the District Court revoking a suspended sentence after placing jurisdiction of the prisoner with the State Board of Prison Commissioners and without retaining jurisdiction is without jurisdiction, void and a nullity. Sections 12080 to 12086, R.C.M., 1935, are not repealed by Section 12078, as amended by Chapter 184, Laws of 1937, and apply to all cases where the State Board of Prison Commissioners have been given jurisdiction of a prisoner whose sentence has been suspended. March 25, 1939
18- 37 The phrase "assessed taxable valuation" as used in Chapter 158, (Senate Bill No. 127) of the Laws of 1939 means "taxable value." March 29, 1939
18- 38 1. The county may take and assign tax certificates prior to February 1, 1941, and may also tax deeds. 2. County may not charge penalty and interest to purchase of tax certificate assigned subsequent to February 7th, 1939. 3. Redemptioner of property sold for delinquent taxes to county prior to February 1, 1941, and subsequent to February 7, 1939, upon redemption from county or assignee of certificate before tax deed issued, may not be charged with penalty and interest. 4. Tax deed may issue prior to February 1, 1941, and upon issuance, right of redemption is foreclosed. March 29, 1939
18- 39 1. The owner of property sold for taxes may redeem by paying the original tax without penalty and interest, where the tax deed proceedings were commenced prior to the enactment of Chapter 11, Laws 1939, and completed subsequent thereto. 2. Where the proceedings were commenced and tax deed taken subsequent to the enactment of Chapter 11, the owner may likewise repurchase by paying the original tax, without penalty and interest. April 3, 1939
18- 40 Section 7, H.B. 140, Laws of 1939, does not confilict with either Section 23, Article V or Section 11, Article XI of the Montana Constitution. The State Board of Education has no powers or duties except those prescribed and regulated by law. The general control and supervision of the State University and other state educational institutions vested in the State Board of Education must be within the powers of the board as fixed by the Legislature. April 3, 1939
18- 41 Unexpended balance of funds of Montana Relief Commission held by State Department of Public Welfare, were reappropriated to Department by House Bill 419, Twenty-sixth Legislative Assembly, and may be used for any legitimate expenditure of the Department during the period March 2, 1939, and June 30, 1939. April 6, 1939
18- 42 1. The power to license skating rinks is found in Section 2438, R.C. N., 1935. 2. The collection and distribution of such licenses is governed by Sections 2410 and 2420, R.C.M., 1935. 3. Cities and towns may also license skating rinks and collect and distribute such licenses as provided by ordinance. April 7, 1939
18- 43 Section 3324 as amended by Chapter 85, Laws of 1939, providing for the inspection of livestock when moved from one county to another does not apply to livestock owned by the state for the reason that the state is not within the purview of the statute. April 7, 1939
18- 44 All county treasurers elected at the general election November 8, 1938, are entitled to a four-year term, beginning March 6, 1939, and are ineligible to re-election for the succeeding term. April 7, 1939
18- 45 A corporation claiming to be the owner of a trade mark or name known as the Florence Hotel may record the same in the office of the Secretary of State, although there is a Montana corporation of the same name, since there is no other like trade mark or name recorded. By recording a trade mark or name the applicant secures only a prima facie right and not an exclusive property right in the trade mark or name. April 10, 1939
18- 46 1. There is no irreconcilable conflict between the provisions of Sections 1741.8, R.C.M., 1935, as amended by Chapter 182, Laws 1937, and Section 2 of Chapter 129, Laws, 1937. 2. The provisions of Chapter 129, Laws, 1937, are automatic and mandatory, while the provisions of Section 1741.8 as amended are discretionary. 3. Neither Section 1741.8, R.C.M., 1935, nor Chapter 129, Laws, 1937, is unconstitutional. April 14, 1939
18- 47 The State Purchasing Agent is without authority to disapprove a requisition presented by a state institution, board or commission. A requisition presented by a state institution, board or commission may be disapproved only by the State Board of Examiners. April 15, 1939
18- 48 1. In determining residence under the provisions of Subsection (c), Section III, Part IV, Chapter 82, Laws, 1937, the specific fact of each case must be considered. 2. The term "immediately preceding" as used in Subsection (c) has an elastic rather than a precise meaning. April 18, 1939
18- 49 Banks have only such powers as are conferred by statute and the articles of agreement. Preferred stock can be retired only in the manner provided by statute and the articles of agreement. April 19, 1939
18- 50 Wheat on which the Commodity Credit Corporation has made a loan is taxable in the county in which the farmer or owner resides. Wheat on which the Commodity Credit Corporation has made a loan, is mortgaged property, the title remaining in the farmer or borrower and is assessable and taxable to the farmer in the absence of Act of Congress exempting it. The tax on wheat on which the Commodity Credit Corporation made a loan is a lien on the real property and on the other personal property belonging to the owner; such tax cannot operate to deprive the Commodity Credit Corporation of its lien. April 21, 1939
18- 51 In courts not of record, such as Justice Courts, only those jurors who actually serve are entitled to per diem of $1.50. April 21, 1939
18- 52 1. Investigators of the county welfare board determine the extent of applicant's need and the portion of the expense for medical aid and hospitalization the applicant is able to bear. 2. Needy individuals whose resources and incomes are such that they can pay for medical aid but not for hospitalization are entitled to patronize the physician of their own choice. 3. The county commissioners have not the power to insist that a relief applicant patronize a certain physician in order to obtain needed hospitalization at county expense. 4. The county physician cannot demand that individuals avail themselves of his services on a condition to granting hospitalization by the county. April 21, 1939
18- 53 Where hail insurance taxes have not been collected and no certificates of tax sale have been issued, including the hail insurance, such taxes may still be collected the same as other taxes and property subject to such tax liens may be sold in order to make collection. April 24, 1939
18- 54 "Suit Clubs," Under the facts given come within the definition of lottery under Section 11149, Revised Codes of Montana, 1935. April 21, 1939
18- 55 It is the duty of the stock inspectors to inspect livestock and all persons shipping the same to pay the fee therefor where livestock is shipped from one county to another or out of the state, although such livestock may have been previously inspected on account of prior shipment to livestock markets in the state. April 24, 1939
18- 56 1. Elections for the establishment of a junior college in high school districts, must be held as provided by Section 1224.10-1224.15. 2. Such elections in a county high school district are governed by Sections 1262.12-1262.13. April 29, 1939
18- 57 1. Section 1741.7 and 1746.1, Revised Codes of Montana, must be read together. 2. Chapter 129, Laws 1937, is not applicable to violators of Section 1741.7, Revised Codes of Montana, 1935. May 3, 1939
18- 58 Since the Legislature fixed the amount of money to be expended for administration of the insurance fund in House Bill 337, Laws of 1937, the board of examiners may not provide for an additional appropriation in case of there being insufficient funds for administration purposes, under the provisions of Sections 193 or 355 R.C.M. 1935. In case of insufficient appropriation the board of hail insurance may obtain permission to make expenditures beyond the appropriation as provided by Section 2, Chapter 40, Laws of 1937. May 5, 1939
18- 59 Although a city ordinance make it the duty of the city engineer to collect water revenue, the city having for many years past not required of the city engineer that he discharge this function but has appointed a cashier or collector of water revenue to collect such revenue, there being a shortage in water collections made by such cashier or collector, neither the city engineer nor his bondsmen are liable for such shortage on the facts presented. May 8, 1939
18- 60 The Fire Department Relief Association cannot amend its by-laws to provide disbursements for the pension and disability fund other than is specifically set out by the statute. 2. A member of the Fire Department Relief Association has no action against the City by reason of holding out of his salary dues for the Fire Relief Association. May 6, 1939
18- 61 A Justice of the Peace or Police Judge does not have power to defer payment of a fine when once imposed or to permit the fine to be paid in installments. If a defendant has been released in order to pay his fine in installments over a period of several months, such release is without authority of law and he may be rearrested and compelled to pay the fine or serve time in lieu of the payment. A Justice of the Peace or Police Judge releasing a defendant without payment of fine is not liable under his bond for the fine imposed. The remedy is to rearrest the defendant and compel him to make payment. May 9, 1939
18- 62 1. Grants in aid when appropriated by county through adoption of emergency budget as provided by the Welfare Act, as amended, become county funds. 2. Counties may supplement old age assistance and aid to dependent children grants from general relief funds. May 10, 1939
18- 63 1. Chapter 199, Laws 1939, does not modify or repeal Section 3076, Revised Codes of Montana, 1935. 2. The enactment of the amendment to Section 4, Article 18, of the Montana Constitution, repealed that part of section 3076 permitting employees to work ten hours a day on the week preceding Christmas. 3. Restaurants selling only meals to customers are not retail stores as that term is used in Section 3073.1, R.C.M., 1935. 4. Chapter 199, Laws 1939, is applicable to managers to the same extent as any other employee. May 12, 1939
18- 64 1. Where juvenile delinquent was returned from the State Industrial School as unmanageable and incorrigible, the court cannot summarily commit him to the state prison. 2. A commitment of such juvenile delinquent to the state prison must be predicated upon conviction of a felony, after filing of information. May 16, 1939
18- 65 Registered outstanding warrants for which call for payment has been made may not thereafter be funded under provisions of Chapter 188, Laws 1939. May 17, 1939
18- 66 1. Where several persons have been killed by the same cause the coroner in his discretion may hold one inquest over the several bodies, or separate inquests. 2. Where one inquest is held over several bodies the coroner is entitled only to the statutory fee of $5.00 per day or fraction thereof. 3. A stenographer is entitled to compensation for preparing a copy of the transcript of testimony whether it is subsequently used in a trial or not. May 17, 1939
18- 67 Where the United States Farm Credit Administration acquired personal property by foreclosure on September 17, 1938, and failed to pay the penalty and interest prior to December 1, 1938, the county treasurer is not permitted to remit penalty and interest following the date said property was acquired. May 17, 1939
18- 68 1. Corporations organized under the laws of Montana may not hold stockholders' meetings outside the state. 2. Chapter 32, Laws, 1937, does not amend or repeal Section 5943, R.C.M., 1935. May 18, 1939
18- 69 That provision of Chapter 98, Laws 1937, which prevents the county commissioners in fixing the tax levy to include in the annual budget any amount for anticipated tax delinquency is unconstitutional in that it impairs the bond obligations contracted prior thereto and also violates Section 8 of Article XII of the Montana Constitution in that it prevents the levy of taxes for the payment of the obligations of the county. May 19, 1939
18- 70 Transfer of funds from one item to another under House Bills Nos. 419 and 427 may be made only by Board of Examiners. May 25, 1939
18- 71 Reimbursements accruing prior to July 1, 1939, and received by the State Department thereafter, as well as all reimbursements accruing during the biennium beginning July 1, 1939, are appropriated to the use of the Department for said biennium, under the provisions of Section 5, House Bill No. 427. May 25, 1939
18- 72 1. Foreign reciprocal or interinsurance exchanges are eligible for admission to carry on an insurance business by complying with the general insurance law of the state. June 2, 1939
18- 73 1. It is mandatory that the county superintendent approve the transfer of a student to a high school of another county, if application therefor be properly made prior to September 1st. 2. It is mandatory that the board of trustees of the school to where transfer is requested accept such transfer. 3. The board of budget supervisors of the school of residence must approve and pay budget item for cost of transfer. June 6, 1939
18- 74 The county superintendent of schools is not entitled to expenses incurred in attendance at educational convention held outside the state. June 7, 1939
18- 75 Funds budgeted for transfer students must be equally apportioned amongst all such students, regardless of time of transfer. June 8, 1939
18- 76 The Montana Commission, Golden Gate International Exposition, has authority to employ Montanans, Incorporated, for the purpose of answering inquiries by mail, such inquiries resulting from the operation and maintenance of the exhibit at the exposition. The Montana Commission has authority to determine upon the proper method of advertising the Exposition and its finding of fact as to what is proper will not be disturbed in the absence of abuse of discretion. June 15, 1939
18- 77 1. Buildings constructed on leased ground are to be assessed as real property. June 15, 1939
18- 78 Bulls are not permitted to run at large in grazing districts within the open range between January 1 and July 1, contrary to Section 3403, R.C.M., 1935. June 16, 1939
18- 79 Sections 3327.1 and 3327.2 do not limit the seizure and sale of livestock to instances where livestock has been sold; livestock may be seized and sold even though it may be withdrawn from sale after being shipped. June 16, 1939
18- 80 A person who has been sentenced in justice court to pay a fine only, must be discharged and he may not thereafter be re-arrested and compelled to serve time for failure to pay the fine. June 16, 1939
18- 81 A person selling from house to house household or medicinal drugs or patent or proprietary medicines in a manufacturer's original packages must pay a license fee of $3.00, as provided by Section 8 (a), Chapter 175, Laws of 1939, in order to be permitted to sell the same even though said person in selling said merchandise may be using an automobile or other vehicle to store and convey his stock. June 20, 1939
18- 82 Fiscal agencies designated by the Governor under authority of Section 5668.6, Revised Codes of Montana, 1935, may charge a reasonable fee for their services. June 20, 1939
18- 83 The stockholders of a bank, in reducing the capital stock, may waive the publication of notice required by Section 6014.21, R.C.M., 1935. June 20, 1939
18- 84 Time deposits represented by a certificate of deposit are not subject to the provisions of Section 5121. A time deposit is not an investment within the meaning of Section 5121. Fire department relief associations are not prohibited from keeping funds in a bank on a time deposit as such deposit is not an investment prohibited by Section 5121. June 21, 1939
18- 85 Any sum paid to a treasurer of a city of the second class in excess of $2,00 as salary and compensation is an illegal expenditure. June 21, 1939
18- 86 Expenses of county unemployment office may be paid from either the general or the poor fund. June 20, 1939
18- 87 Funding bonds in excess of $10,000 issued by a county under authority of Chapter 188, Laws fo 1939, are not a debt or liability for a single purpose within the meaning of Section 5, Article XIII. June 23, 1939
18- 88 1. High school graduates, between the ages of sixteen and twenty-one years are entitled to admission to vocational training schools. 2. State apportionments shall be made to the school districts of the person's attendance, where such person is between the ages of sixteen and twenty-one years, and resides within the county. 3. The school district of the person's attendance, where the person is between the ages of sixteen and twenty-one years and resides out of the county, shall receive no other compensation than that provided for in Section 4, Chapter 160, Laws, 1939. 4. Persons over the age of twenty-one years may be permitted to attend vocational school upon payment of fee set by vocational board, and for such person's attendance, the district shall receive no other compensation or fee. June 22, 1939
18- 89 Tax deed lands must be sold in units and to the highest bidder. The county may accept a cash bid in preference to a term bid, although the latter is the highest bid when property is offered for sale for cash. June 21, 1939
18- 90 Milk Control Board does not have power to fix the price of milk and cream sold outside of market areas. The Milk Control Board has power to fix prices of milk and cream sold within market areas, regardless of the consumer. June 21, 1939
18- 91 Funds derived from sale of containers and donated to the State Department of Public Welfare do not revert to general fund of state if not used before end of fiscal year. June 28, 1939
18- 92 The compensation and mileage of county commissioners when acting as a county board of public welfare must be paid from the general fund. June 30, 1939
18- 93 Paragraph 3, Regulation No. 12, is within the powers of the Commission as set out by Chapter 137, Laws of 1937 and 1939. July 6. 1939
18- 94 1. County Commissioners may transact welfare business at same session as county commissioners, but are entitled to only one day's compensation. 2. County commissioners may transact business as county commissioners and as county welfare board at same session or may set a separate day for welfare business. 3. If board adjourns as commissioners and convenes the next day as welfare board, and members of the board actually travel from their homes to attend latter meeting, they are entitled to mileage. July 6, 1939
18- 95 1. The State Hail Insurance Board, within its sound discretion, may compromise hail insurance premiums, by accepting partial payments thereon and debiting the deferred payment, unless tax certificates have been assigned and tax deeds issued, when it is otherwise impossible to collect the full amount of premium. 2. The County Treasurer must accept hail insurance warrants to apply on the premium when the warrant is less than the amount of the premium charge. 3. Accounts shall be audited in the manner prescribed by the state examiner. July 10, 1939
18- 96 Any member of the board of county commissioners violates Sections 456.2 and 456.3, the Nepotism Act, when he votes to appoint as county surveyor a son of one of the members. July 12, 1939
18- 97 The Director of Child Welfare Services of the Department of Public Welfare has the authority and duty to discharge from the House of Good Shepherd, any female committed on voluntary application, when in her judgment, after investigation, such female has been sufficiently reformed, and the environment to which she will return is conducive to her best interests and that of the state. July 13, 1939
18- 98 The State Board of Forestry may promulgate and enforce reasonable rules and regulations for the protection of life and property. A rule or regulation closing certain areas of high fire hazard during extreme emergency conditions, for limited periods, is within the authority of the board. July 14, 1939
18- 99 1. The State Board of Public Welfare may acquire both real and personal property by purchase, gift or condemnation, title to which will vest in the State of Montana for the use and benefit of the department. 2. The State Department of Public Welfare may sell any of its property not needed or being used, but such sale must be made through the State Purchasing Agent, as provided by law. 3. County departments of Public Welfare may purchase office furniture, fixtures, and equipment from the State Department, but the same must be paid for from the county poor fund. 4. Proceeds received by the State Department from the sale of property are trust funds and may be used for any purpose of the department at any time, regardless of fiscal periods. July 17, 1939
18- 100 A superintendent of schools, dismissed by the board of trustees, has the right to appeal to the county superintendent of schools as provided by Section 966. July 18, 1939
18- 101 A child may be committed to State Training School by the Judge of any District Court, but to charge the county of residence, such commitment must be made by Judge of that county. July 19, 1939
18- 102 1. Section 27 of Chapter 208, Laws 1939, is not unconstitutional. 2. Chapter 208 requires a farmer within the boundaries of a grazing district to fence his land at his own expense in order to recover damages for trespass. July 22, 1939
18- 103 To entitle an elector to vote on the question of the purchase of a building for a court house and the creation of a levy to pay for same he must be a taxpayer and possess the qualifications named in Section 2, Article IX of the Montana Constitution. July 24, 1939
18- 104 1. The term "nursery stock," is defined by Section 3614, RCM, 1935, as amended by Chapter 112, Laws, 1939. 2. Nurserymen and dealers in nursery stock must pay the license specified by Section 3619, R.C.M., 1935. 3. Cut flowers are not included in the statutory definition of nursery stock. 4. Each individual store in a chain store system must hold a separate license in order to deal in nursery stock. July 24, 1939
18- 105 Dedication of streets TO THE USE OF the public, as provided in Section 4985, R.C.M., 1935, creates only an easement or right of way, which is lost upon vacation of such street by the city. July 26, 1939
18- 106 1. A well drilling machine deriving its power of operation and transportation from same unit, or from separate units mounted on same chassis, requires but one license. 2. Such machine and transporting equipment, being in separate units, each having its own power, requires two separate licenses. July 26, 1939
18- 107 The state by accepting a quit claim deed from the owner of lands mortgaged to the state and by failing to renew its mortgage lost its interest in the lands mortgaged which were sold by the holders of subsequent liens and encumbrances. July 26, 1939
18- 108 In notice of application for tax deed a county may include in one notice more than one tract of land provided the requirements of Section 2209 are met and each owner or person interested can obtain from the notice the information required by this section. July 27, 1939
18- 109 Section 1199, Revised Codes of Montana, 1935, providing for a special levy to provide free textbooks for pupils in the public schools is applicable both to elementary and high school districts. July 28, 1939
18- 110 Tax deed lands acquired by the county may be retained when the use of such lands is necessary for the conduct of the county's business, or the preservation of its property. August 4, 1939
18- 111 1. The conviction of a person of a felony in federal court for an offense against the federal laws does not forfeit the citizenship of said person convicted. 2. The conviction of a person of a felony in another jurisdiction does not constitute a disqualification or deprive a person of the right to vote within the meaning of Section 2, Article IX, Montana Constitution. 3. The Attorney General has no authority unless directed by the Governor to commence a quo warranto proceeding against a person who unlawfully holds or exercises a public office, as provided by Section 9576. August 4, 1939
18- 112 1. Under Chapter 85, Laws, 1937, as extended by Chap. 209, Laws, 1939, each political subdivision may independently and separately levy the tax as provided therein. 2. Levy cannot be made unless project is sponsored and has been authorized in the manner as provided in said Chapter 85. 3. Levy in anticipation of authorization cannot be made. August 8, 1939
18- 113 An order creating and establishing a horse herd district, under Section 3389.2. R.C.M., 1935, does not become effective until thirty days after the order, and publication of notice has been duly given as provided by said section. 2. There being no statutory provision as to when the notice must be published, such notice may be published at any time after the order has been made. August 9, 1939
18- 114 Bonds of a defunct school district in which the lands have been sold and tax deeds issued would not be collected. Section 3, Article XI of the Montana Constitution guarantees school funds against loss. July 29, 1939
18- 115 A state bank becoming insolvent and going into liquidation on June 19 is nevertheless subject to assessment as a state bank on capital stock and monied capital. August 11, 1939
18- 116 1. County Commissioners may permit appointment of extra deputies in any office in excess of the number allowed by law, when in their judgment the duties of the office require it. 2. Compensation of extra deputies may be fixed by the Board at any sum, not to exceed the amount fixed by statute for regular deputies. 3. The Board may also permit employment of such clerical and stenographic help as it deems necessary to properly carry on the business of the county, and fix the compensation therefor. August 10, 1939
18- 117 1. County department may require applicant for general relief to perform work for the county at prevailing rate of wages, which wages must be paid for by warrant or check unless applicant dissipates his allowance. 2. "Prevailing Rate" of wages defined as that wage as paid for similar work at the place where performed. August 16, 1939
18- 118 The establishing of fire districts in unincorporated towns or villages is within the discretion of the county commissioners of the county in which such town or village is situate. A fire district having been established, a special tax not exceeding two mills on the dollar of assessed valuation of property may be levied upon all the property of such district for the purpose of buying apparatus and maintaining the fire department of such district. August 16, 1939
18- 119 1. The registrar may enter into reciprocal agreements within his discretion to cover all types of motor vehicles, subject to limitations in statute. 2. Types of operation subject to reciprocal agreement stated. 3. In transit plates may be subject of agreement. August 16, 1939
18- 120 Producers of milk who sell on own premises to customers who bring their own containers are required to have dairy license. August 17, 1939
18- 121 1. High school students may transfer by filing application any time prior to September 1. 2. No supplemental budget for transfers on applications made after adoption of final budget may be made. 3. Cost of transfers made between adoption of final budget and September 1 may not be pro-rated. August 18, 1939
18- 122 1. The County Commissioners may designate any agency to expend appropriation provided for by Section 4550, R.C.M., 1935. 2. Funds appropriated under Section 4549, R.C.M., 1935, for purpose of holding county fair or advertising products and resources of county may be expended only by county fair commission. August 18, 1939
18- 124 The employment of a wife of a trustee of a school district as a teacher violates the Nepotism Act. August 25, 1939
18- 125 A County may plat a tract of land and dedicate a portion thereof for streets and alley without violating Section I, Article XIII of the Montana Constitution. August 28, 1939
18- 126 Section 4586, R.C.M., 1935, permits payment of the cost of construction of a lighting plant in equal payments with interest levies reduced each year rather than payment of the amortization plan. August 28, 1939
18- 127 A county treasurer must issue his official receipt in triplicate for money collected by him, one copy to be delivered to the party paying the money, one copy delivered to the county clerk, and the third copy retained by him. August 31, 1939
18- 128 1. A person employed by the State University and performing duties required of the administrative, instructional or scientific staffs, is eligible for membership in the teacher's retirement system. 2. Actual or exclusive teaching is not a pre-requisite qualification for membership. September 6, 1939
18- 129 1. "Ward Indians" as defined by Section 3, Chapter 129, Laws, 1939, are Indians living on an Indian reservation set aside for tribal use, or a member of a tribe or nation accorded certain rights and privileges by treaty or by federal statute. 2. The County Board of Public Welfare must take applications of Ward Indians for assistance, and pass upon the same, certifying their decision to the State Department. 3. The State funds are liable for payment of assistance to Ward Indians. 4. The County is not required to pay general relief to Ward Indians, nor to reimburse the state for old age assistance, aid to dependent children, or aid to blind, but such assistance is paid from State funds. September 7, 1939
18- 130 1. Any Indian child who comes within the definition of Ward Indian contained in Chapter 129, Laws, 1939, and who meets the requirements of Part IV, Chapter 82, Laws, 1937, is entitled to aid to dependent children assistance. 2. Such assistance paid to Ward Indian children must be paid entirely from state funds. September 7, 1939
18- 132 1. No fee can be charged or required to be deposited by students for admission to the high school or any of its courses. 2. No fee can be charged, or required to be deposited, for the use of the high school facilities or equipment. 3. Fees may be charged, when breakage occurs and when excessive supplies are used by students taking specified courses but not as a condition precedent to entrance to such courses. 4. Non-compulsory fees may be charged students attending athletic games. September 12, 1939
18- 133 1. The taxpayer's right to repurchase tax deed land does constitute a preferential right. 2. The taxpayer's rights extend to his successor in interest. 3. The rate of interest on deferred installments, when purchase is made by taxpayer is six per cent; if sold to other than taxpayer, the rate is four per cent. September 13, 1939
18- 134 1. County tax deed lands reacquired through cancellation of contracts of sale, must be re-advertised, re-appraised and offered at public auction. 2. If the land is not sold at public auction, after appraisal and notice, it may be sold at private sale. September 12, 1939
18- 135 A Sheriff of one county may not charge a fee for service of process in a suit by another county. September 12, 1939
18- 136 1. Members of the administrative, instructional and scientific staffs of the State College are eligible to membership in the teachers' retirement system. 2. Actual teaching is not required for membership in teachers' retirement system. September 14, 1939
18- 137 The County Commissioners may not expend county funds to pay expenses of delegate or representative to meeting or convention outside of state, nor for any meeting except as provided by Section 443, R.C.M., 1935. September 14, 1939
18- 138 One who comes into the State for the special purpose of accepting a position with the personnel of the department of public welfare, and remains here only temporarily may not qualify as a resident as that term is used in the Public Welfare Act. September 18, 1939
18- 140 1. Section 2238, R.C.M., 1935, as amended by Chapter 6, Laws of 1939, makes it mandatory for the assessor to make a report to the county treasurer of personal property, the taxes upon which are not in his opinion a lien upon real property sufficient to secure the payment of such taxes. 2. Section 2239, R.C.M., 1935, as amended by Chapter 107, Laws of 1939, makes it mandatory for the treasurer, after receiving the assessor's report with reference to taxes upon personal property to levy upon and take into his possession such personal property within thirty days and sell same for taxes of not paid. 3. There is no statute of limitations that bars seizure and sale or the collection of taxes upon personal property. 4. The failure of a county treasurer to levy upon and take into his possession property certified to him by the assessor and failure to collect the tax would, generally speaking, constitute wilful failure and neglect and subject him and his bondsmen to liability for the uncollected taxes unless there are special facts and circumstances making it otherwise. September 20, 1939
18- 141 1. Personnel of the county departments may be employed, dismissed, or promoted by the County Board only with the approval of the state department through its committee on personnel, in accordance with the provisions of the Merit System. 2. The salary of personnel attached to the county board may be fixed by the County Board with the approval of the state department through its committee on personnel, but such salary must be within the salary range as adopted in the Merit System. 3. The State Department, through its committee on personnel, may dismiss any member of the personnel attached to the county board for inefficiency, incompetence or similar cause, but such dismissal must be in strict accordance with the rules and regulations of the Merit System. 4. Neither the County nor State Board may reduce the salary below that fixed in the Merit System. September 26, 1939
18- 142 1. Federal Vocational Funds granted to High Schools need not be budgeted. 2. The State Examiner may make suitable regulations safeguarding the expenditure of such funds. September 27, 1939
18- 143 It is unlawful to use tatoo marks on domestic animals or livestock running at large or upon the public domain or open range or which may run or stray at large or upon the public domain or open range unless such tatoo mark has been recorded as provided in Section 3301, R.C.M., 1935. September 29, 1939
18- 144 1. Compensation paid members of the Teachers' Retirement System by the Federal Government as part of their salary, must be excluded in determining the member's earnable compensation. 2. If the inability to collect 5% of the teacher's salary consisting partly of Federal Funds injures other members, the board may in its discretion exclude such persons from membership. September 29, 1939
18- 145 1. Annual crops grown on lands acquired by the county through tax deed, if severed before purchase, are personal property belonging to the county. 2. The owner and taxpayer may repurchase his property from the county, at any time before the sale for the amount for which the property was actually sold, by paying for the same in cash or on terms. 3. The owner must purchase the entire tract described in the tax deed. October 4, 1939
18- 146 The owner of property sold to the county for delinquent taxes may repurchase the same by paying the amount for which the property was actually sold to the county. October 4, 1939
18- 147 1. Fees for the Teachers' Retirement System cannot be deducted from the salaries of university teachers until they have become members. 2. Membership shall begin when the time expires for the teachers to notify the retirement board that they will not become members. 3. Membership may become retroactive and fees collected for the entire period of membership. October 5, 1939
18- 148 Where a school district has been divided prior to the enactment of Section 1029.1 (1933) the indebtedness apportioned to each district is determined by deducting the amount of money in the sinking fund and dividing the remainder between the districts in proportion to the value of the school property in the new district. October 6, 1939
18- 149 1. Under Chapter 85, Laws, 1937, county commissioners may issue emergency relief warrants in anticipation of taxes actually levied, without creating a debt in violation of Section 5, Article XIII of the State Constitution. 2. The amount to be expended for any year may not exceed the anticipated revenue from such levy for that year. 3. Taxes levied for all purposes under Chapter 85, may not exceed in the aggregate one per cent of the taxable value of property within the subdivision. October 11, 1939
18- 150 The state examiner under Section 210, R.C.M., 1935, has power to prescribe a delinquent tax record for the counties and should he do so the counties are compelled to conform therewith. The expense incident to installing a delinquent tax record prescribed by the state examiner is a mandatory expenditure required by law and such expenditure may be made as provided by Section 4613.6 of the Budget Law. October 11, 1939
18- 151 Each party plaintiff presenting a separate issue of facts to be supported by testimony or proof to be taken by the court stenographer is a party to the suit within the meaning of Section 8932 and must pay the fee of $3.00 to be applied upon the payment of the salary of the court reporter. October 13, 1939
18- 152 A park commission of a city or town may not purchase supplies from a corporation in which one of the park commissioners is a stockholder. October 17, 1939
18- 153 1. Transfer of high school apportionments to another district, county, or adjacent county in another state being authorized by statute, is in conformity to the constitution. 2. Eligible high school students who make application on or before Sept. 1 must be transferred. 3. The apportionment for the current year must be transferred to the school of the student's attendance, even though there were no transfer students or transfer budgets for the preceding year. 4. No authority exists for transferring students or apportionments, where application is made subsequent to Sept. 1. 5. Transportation costs are a part of the average amount budgeted per eligible high school student for maintenance and operating costs. October 17, 1939
18- 154 The provisions of the nepotism statutes apply to appointments of personnel of state and county departments of public welfare under the Merit System. October 18, 1939
18- 155 The members of the State Water Conservation Board are state officers. The board is a state agency, performing governmental functions and under the provisions of Section 4893 is exempt from paying court fees, including stenographer's fees, etc. October 19, 1939
18- 156 A constable's mileage and expenses are not a part of the maximum of $500 for constable fees which may be allowed in criminal cases in any one year. October 19, 1939
18- 157 The earnings of the head of a family are exempt from execution or attachment for the collection of an unpaid bill for burial expenses. October 26, 1939
18- 158 There is nothing in the statutes preventing cities from investing money received from cemetery lots in special improvement district bonds. Expenditures by a city or town of municipal funds for entertainment of conventions, such as the Montana Section, American Water Works Association for luncheons for visiting ladies, entertainment, printing of banquet menus, tickets, etc., for dues of city officials in the American Water Works Association or other associations having municipal problems to deal with are not authorized. October 26, 1939
18- 159 The State of Montana is not bound by the provisions of the Act creating the Milk Control Board, and the State Purchasing Agent is required to purchase milk for state institutions from the lowest responsible bidder, in accordance with Section 293.3. November 6, 1939
18- 160 The clerk of the Supreme Court, under the provisions of Section 372, is not authorized to collect a fee of $10.00 for application of a party for permission to file a typewritten transcript on appeal and since the transcript itself has never been filed, the clerk is not authorized to collect the fee of $10.00 provided by said section. November 6, 1939
18- 161 House Bill No. 140 of the Twenty-sixth Legislative Assembly authorizes the institution to use student fees in addition to the specific amounts appropriated. November 9, 1939
18- 162 The funds of the Unemployment Compensation Commission of the State of Montana in the possession and under the control of the State Treasurer are subject to the provisions of the state depository law, Section 182, R.C.M., 1935. November 9, 1939
18- 163 Under the Provisions of Section 3, Chapter 136, Laws of 1939, volunteer firemen are eligible only as trustees and not as officers of fire department relief associations. November 9, 1939
18- 164 Where a chattel mortgage and an assignment of a chattel mortgage are combined in one paper the county clerk and recorder should charge 50c for the filing of each. Where a satisfaction of chattel mortgage is drawn to cover several chattel mortgages a filing fee of 50c should be charged for each chattel mortgage satisfied as it requires separate indexing and service. The proper fee for the satisfaction of a chattel mortgage by the filing of an affidavit is 50c. The proper fee for the satisfaction of a chattel mortgage on the margin thereof is 25c. November 10, 1939
18- 165 Where, in the transfer of real estate, mineral rights have been reserved and the reservation has been placed on the tax roll and assessed separately from the land but later such reservation has been deeded to the grantee of the land, and it appears that the value of such assessment was not deducted from the assessed value of the land, the county commissioners may order the cancellation of the assessment against the mineral reservation. November 10, 1939
18- 166 A purchaser trailing a horse from one county to another must have such animal inspected. The offense is a misdemeanor, of which the counties have concurrent jurisdiction. November 15, 1939
18- 167 One who goes about from house to house giving free facials and selling cosmetics, is a cosmetologist as defined by Section 2, Chapter 222, Laws, 1939, and must pay the license fee provided by said Chapter 222. November 21, 1939
18- 168 A delinquent taxpayer may redeem real estate from each tax sale by paying the original tax and subsequent taxed until another sale is held, and until February 1, 1941, without penalty and interest, and he need not at the same time redeem from other tax sales. November 21, 1939
18- 169 Under the facts given, the license fee for retail liquor dealers in the town or village of East Helena is $200.00. November 29, 1939
18- 170 1. County Commissioners may lease county owned land, which has been offered for sale and not sold, and for which there is no immediate sale. 2. Such lease may be for cash, or on the crop payment plan. November 30, 1939
18- 171 The per capita poor tax may not be collected at the time application for motor vehicle license is made as such tax cannot be collected until after it is levied and such levy cannot be made until the second Monday of August. November 30, 1939
18- 172 The statutes do not authorize the payment of an attorney fee to a lawyer representing a person charged with insanity at an insanity hearing. December 5, 1939
18- 173 The money paid to a unit of the University of Montana to compensate for damage resulting from a fire loss must be deposited in an imprest fund and used for the sole purpose of repairing the damaged building. December 4, 1939
18- 174 The county commissioners, having failed to make payment for reimbursements due the State Department of Public Welfare before the close of the fiscal year, and having failed to make provision for such payment in the budget for the ensuing fiscal year, may declare an emergency under Section 4613.6, and issue emergency warrants in payment thereof. Reimbursements due the State Department of Public Welfare under the Welfare Act are mandatory expenditures required by law. December 7, 1939
18- 175 When a county has reached its constitutional limit of indebtedness it may not issue warrants in anticipation of taxes levied or to be collected when such warrants are general obligations against the county. Such county may, however, issue warrants in anticipation of taxes levied under the provisions of Chapter 85, Laws, 1937, since such warrants are obligations against the special fund therein created for which a special levy is authorized for a special purpose. December 8, 1939
18- 176 When a vacancy, caused by death, occurs in either house of the legislature it is mandatory that the county commissioners fill the office by appointment. December 11, 1939
18- 177 The same fees are chargeable in proceedings on foreign wills as in ordinary probate proceedings. December 11, 1939
18- 178 1. Section 1617, R.C.M., 1935, is contrary to Section 4, Article XII of the Montana Constitution in that the legislature, instead of granting power to the county commissioners to levy a road poll tax, assumed to make such a levy itself and such tax is therefore void. Section 4465.4 vests discretion in the board of county commissioners to levy a poor per capita tax and hence does not violate Section 4, Article XII of the Montana Constitution. Although Section 5219 is unconstitutional in that it violates Section 4, Article XII of the Montana Constitution, Section 5039.48 remains and is valid because it vests discretionary power in the city or town council to levy and collect road poll taxes. Delinquent poor poll taxes may not be collected when the current tax on automobiles is collected. See State v. Fischl, 106 Mont. 282. Poor poll taxes cannot be collected when application for motor vehicle license is made since they have not at that time been levied by the county commissioners. After poor poll taxes have been levied they may be collected when the current taxes on the automobile are paid, provided the taxpayer is not assessed with other personal property or real property. When a taxpayer owns other property, either real or personal, besides a motor vehicle poor poll taxes should be paid when the taxes on the other real and personal property are paid. December 18, 1939
18- 179 A Liquor License is not property but a mere personal privilege and therefore not subject to attachment. December 19, 1939
18- 180 A dairy which does not maintain a store is not a food store within the meaning of Chapter 49, Laws of 1939, and is not subject to license and regulation as provided by said chapter. December 21, 1939
18- 181 If a city clerk in a city of the second class should render services as assistant city engineer there is nothing in Section 5025, R.C.M., 1935, to prevent the city from paying for such services in addition to the maximum salary fixed by the statute for services as city clerk and city engineer. December 21, 1939
18- 182 A trade area is the territory surrounding a marketing center, where similar local conditions cause the cost of production of such commodities to be approximately the same. December 22, 1939
18- 183 A fire department relief association may provide for the payment of a salary to a secretary, but such salary may not be paid from the disability and pension fund. December 28, 1939
18- 184 Cost of insurance on a student's union building must be paid from the income of the building, being part of the operating cost, as provided by Chapter 10, Extraordinary Session 1933-34, and may not be paid from the university millage fund appropriated for fire insurance. Insurance is a proper and legitimate item of operating expense. December 29, 1939
18- 185 State banks organized under Section 6021, R.C.M., 1921, or prior to the enactment of 6014.10, R.C.M., 1935 (Chap. 89, Laws 1927), may, upon authority of the stockholders, obtain continual succession by following the method set out in said Section 6014.10. December 29, 1939
18- 186 A fireman disabled in line of duty is entitled to compensation from the disability and pension fund of the fireman's disability and pension fund, regardless of whether his salary as a fireman is paid during such disability. 2. The amount of compensation allowed is within the sound discretion of the board of trustees. January 3, 1940
18- 187 1. Statutory salary of public official is incident to his title, and one having legal title to an office is entitled to the salary for the period of time he is illegally prevented from performing the duties incident to the office. 2. One who performs the duties of an office under claim of title is entitled to compensation in an amount equal to that provided by statute for such office for services performed. January 8, 1940
18- 188 Per capita county road taxes were unlawfully levied under the provisions of Section 1617 and if paid, Section 2269 provides the exclusive remedy for their recovery. January 11, 1940
18- 189 Automobiles are assessed, taxed and licensed in the county of their business situs, or where they are habitually used as of the first day of January. January 22, 1940
18- 190 The owner of a motor vehicle who pays registration license fee to the wrong county does so at his peril. The county properly entitled to the registration license fee may collect from the owner who has paid to the wrong county, or may file claim for refund from the county collecting, or sue for an accounting. January 24, 1940
18- 191 A mortgagee who accepted a deed in cancellation of his mortgage on tract A, which was sold for delinquent taxes including personal property taxes, cannot have a transfer of such personal property tax to, or apportionment thereof with tract B, which is still owned by his mortgagor, when such tracts were neither assessed nor sold together. January 26, 1940
18- 192 School districts qualifying therefore under the provisions of Section 2396.4, R.C.M., 1935, as amended by Chapter 67, Laws of 1939, are entitled to a gasoline tax refund. January 26, 1940
18- 193 Section 3847.26, R.C.M., 1935, prescribing fees for filing certain documents with the Public Service Commission, applies to railroads as well as motor carriers. January 29, 1940
18- 194 Employees of the county board of public welfare are entitled to mileage under Section 4884, R.C.M., 1935. Such employees are entitled to collect mileage at the rate of seven cents (7c) per mile. January 30, 1940
18- 195 Since the laws of Italy permit persons residing in the United States to inherit property left by deceased persons in Italy no disability on the part of citizens of Italy and non-residents of the United States arises by virtue of Chapter 104, Laws of 1939, to inherit property of estates in Montana. February 2, 1940
18- 196 Since Chapter 91, Laws of 1937 is in conflict with Section 2439, R.C.M., 1935, in respect to the movie theaters to be taxed, in the amount of the tax, in the officers charged with collection of the tax and the use of the funds collected, said Section 2439 is repealed by said Chapter 91. February 5, 1940
18- 198 A school district having made an incorrect census report may correct the same and receive apportionment of the income on school funds on the basis of the corrected census, provided such correction is made before the apportionment and distribution is made by the State Treasurer. February 9, 1940
18- 199 One may establish a state or county residence for purposes of relief while residing on lands within the geographical boundaries of the state or county, title to which is in the Federal Government. February 13, 1940
18- 200 The board of irrigation commissioners has only such powers as are expressly given by statute and such implied powers as are necessary to carry out the purposes of the district. Where there is a question whether certain expenditures by the irrigation commissioners come within the implied powers of the commissioners and there are not sufficient funds before the examiner to determine the question, his statutory duty is discharged by calling attention in his examination report to the questioned expenditures. February 13, 1940
18- 201 Qualified electors who are taxpayers upon either real or personal property and whose names appear upon the last completed assessment rolls are qualified to vote at a school election held for the purpose of raising revenue in excess of the 10-mill levy provided for by law. February 15, 1940
18- 202 Married persons between the ages of six and twenty-one years are entitled to attend public schools. February 15, 1940
18- 203 A person who duplicates broken ophthalmic lenses without having a certificate of registration as an optometrist violates Subdivision 9, Section 3156, as amended. The act of duplicating broken ophthalmic lenses is separate and apart from the mechanical work done upon lenses. The former is forbidden by statute while the latter comes within the exception; it is immaterial that such person, on his own initiative, employed another to duplicate the lenses for him. February 20, 1940
18- 204 Where there are other applicants for a lease of lands under lease the current lessee's rights are fixed by Sections 1805.20 and 1805.35 and he has only preference rights. In such a Case Section 1805.21 has no application. February 23, 1940
18- 205 The signature on an initiative petition is sufficient if it enables the clerk and recorder to certify that the person who signed the petition and who signed the registration card is one and the same person and the signatures need not be identical. It is not necessary that the signer of the petition himself insert the precinct of which he is a resident. This may be done by his authorized representative. March 4, 1940
18- 206 When a county makes application for tax deed the notice should state the amount due on the tax sale for each application for tax deed made, together with all subsequent taxes on which no sale was held but should also segregate the amount of each subsequent tax sale for the convenience of taxpayer in making redemption. The right of a delinquent taxpayer to redeem from each tax sale without at the same time redeeming from subsequent tax sales is not cut off when the county makes application for a tax deed. March 4, 1940
18- 207 1. Where the county assigns tax sale certificates, one assignment may cover several tax sale certificates. 2. Where an individual upon an assigned tax sale certificate makes application for tax deed the delinquent taxpayer must redeem from all tax sale certificates, if he wished to redeem. No disposition need be made of subsequent tax sale certificates where a delinquent taxpayer fails to make redemption prior to issuance of tax deed. March 5, 1940
18- 208 Where A and B submit tie bids for a lease and the commissioner of state lands called for new oral bids at a later date, and B withdrew his bid and stated that it would be impossible for him to appear and protect his bid and A, through his authorized representative submitted a bid in a lesser sum, the latter bid should be accepted for the reason that is was the only bid, the previous bids having been rejected. March 6, 1940
18- 209 A person voting on an initiative or referendum measure concerning the creation of a levy, debt or liability must be a taxpayer as provided by Section 2, Article IX of the Montana Constitution. The signer of a petition for an initiative or referendum measure which concerns the creation of a levy, debt or liability need not be a taxpayer. March 7, 1940
18- 210 The prices paid by distributors to producers are automatically fixed by the last paragraph of subdivision b, Section 7, Chapter 204, Laws of 1939, and supersede all prices fixed by the Milk Control Board under the act repealed by said Chapter 204. March 11, 1940
18- 211 Where oil royalty deeds on non-producing land permit the holder to have ingress and egress to the land involved, the royalty may not be taxed for the reason that the mineral contents of the mine may not be taxed in place but the taxation must be on the annual net proceeds. While the right of ingress and egress is a right which is subject to taxation, such right would be of only nominal value where there is no production. March 11, 1940
18- 212 Fees collected for wheat testing by the Grain Laboratory, under Section 908, are special funds and no appropriation is necessary. Such fees must be used for such purposes and no other. Moneys received by the experimental station in the sale of animals raised for experimental purposes can be used by such experimental station as they are appropriated by House Bill 140, Laws of 1939. April 3, 1940
18- 213 Where the county per capita road taxes are not paid by employees, and the employing company, at the instance of the county treasurer, without their knowledge or consent, deducts them from their wages and pays them to the county treasurer, relying upon 1620, which is unconstitutional, they may be refunded under Section 2222. Where a section of an act authorizing the collection of a county per capita road tax is unconstitutional, a companion section which specifies the method of collection, is likewise unconstitutional. March 13, 1940
18- 214 The Milk Control Board is not required to hold a public hearing before the establishment of a new market area or the disestablishment of an existing market area. The public hearing to be held prior to the fixing of prices must be held in the market area where the prices are to be fixed. Public hearings held prior to the fixing of prices in a market area may be held by a duly designated agent of the board. March 14, 1940
18- 215 A corporation in existence cannot, as a corporation, be an incorporator in the formation of another corporation. March 13, 1940
18- 216 A contract made by the officers of the Welfare Department with the Federal Surplus Commodities Corporation, in which the former agree to abide by the decision of the latter concerning the interpretation or construction of the contract permitting the latter to determine all questions of fact and to determine the qualifications and number of employees for the state, is invalid. March 15, 1940
18- 217 The surplus funds of the Fire Department Relief Association cannot be invested in school district warrants. March 22, 1940
18- 218 Under the Public Welfare Act, the county commissioners must provide osteopathic and chiropractic services for relief clients. March 22, 1940
18- 219 An individual in making application for a tax deed is required by Chapter 54, Laws of 1937, to pay all taxes and penalty and interest accumulated at the time of such application and must therefore pay all taxes paid by the holder of a previously issued certificate of tax sale. A county, in making application for tax deed, need not pay taxes, penalty and interest accumulated at the time of application. When a county makes application for a tax deed the holder of the previously issued certificate of tax sale has the right of redemption and must exercise it in order to protect his rights. March 27, 1940
18- 220 1. "Agricultural land" is land capable of being plowed and from which crops can be produced which does not lie within the limits of a city or town and which is not mineral or timber land. 2. Chapter 195, Laws of 1939, is an additional method providing a means for weed control when the county is unable to finance it from the general fund. March 27, 1940
18- 221 Food stamps held by the State Treasurer and by the county treasurers in any available surplus fund may be considered as cash. March 28, 1940
18- 222 Although a county may assign its certificate for tax sale after making application for tax deed and before tax deed has issued, in the event it does make such assignment it should dismiss its application or action for tax deed. There is no statutory authority for the county assigning rights acquired under its application for a tax deed so as to enable the assignee to take tax deed on the proceedings commenced by the county. March 29, 1940
18- 223 The stockholders of a cooperative association may delegate to its Board of Directors the power to alter or amend its by-laws. April 10, 1940
18- 224 Citizenship is not a requirement of qualification of commissioner of a drainage district. April 10, 1940
18- 225 Conditional sales contracts covering tires and other accessories filed with the Registrar of Motor Vehicles are not valid against creditors or subsequent purchasers or encumbrances unless the owner of such contract is the record legal owner of the motor vehicle. April 12, 1940
18- 226 In an election for school trustees in a district of the second or third class, ballots on which a name is written in must be counted for the written-in candidate even though the voter failed to make a cross in the square provided. April 18, 1940
18- 227 Fines collected for violation of Section 1751.4 and 1751.9, R.C.M., 1935, are to be disposed of as provided by Section 1741.12 when the violators were arrested or apprehended by officers of the Montana Highway Patrol. April 18, 1940
18- 228 Section 7 of House Bill 140, Laws of 1939, is applicable only to income received by taxation and fees appropriated and under the control of the legislature. Said Section 7 of House Bill 140 does not prevent the construction of buildings on the grounds of the units of the University of Montana when such buildings are paid for by federal grants, income from impressed trusts or private dominations. April 18, 1940
18- 229 1. Claims of the state and county against estate of deceased old age recipient must be paid after funeral expenses not to exceed one hundred ($100.00) dollars, and expenses of administering the estate have been paid. 2. If funds are insufficient such claims must be paid in the order mentioned pro rata before claims of lower classes as provided by Section 10307, R.C.M., 1935. April 23, 1940
18- 230 In the event lands are not sold when first appraised and noticed for public sale, the commissioners may at any time sell the same at private sale without re-appraisal or re-advertising and at not less than 90% of the appraised value. Of course, if there should be a substantial increase or change in land values the commissioners should order a re-appraisal. Where the fair market value cannot be determined by the board or there has been a substantial increase or change in land values the commissioners should order a re-appraisal. May 1, 1940
18- 232 Where the county commissioners offer tax deed property for sale as provided by Chapter 181, Laws of 1939, and the taxpayer whose property has been deeded to the county has not before such sale purchased such property, a third person having made a bid at such sale and same being accepted cannot thereafter refuse to enter into a written contract and cannot upon obtaining a quit claim deed from the taxpayer demand the right to purchase the property by merely paying the taxes, penalty and interest for which such property was sold. May 10, 1940
18- 234 A transfer from the poor fund or the general fund to the road fund is prohibited by budget act (Section 4613.5). At the end of the fiscal year transfer of surplus funds is permitted and such funds could be used to pay warrants and interest thereon issued in case of an emergency which might be declared as provided by Section 4613.6. May 16, 1940
18- 235 The fish and game commission, under the provisions of Section 3653 has power to purchase water for the purpose of protecting, preserving and propagating fish in the State of Montana. It is extremely doubtful that the fish and game commission has power to enter into the purchase of water for a period of thirty years or beyond the term of the commission. May 17, 1940
18- 236 "Assets" as used in Section 6184, R.C. M., 1935, should be defined as it is used generally in the business world; that is, as all property, including Accounts Receivable, which is available for the payment of debts. May 20, 1940
18- 237 The costs of arrest and trial of a person convicted of larceny of livestock may not be deducted from the sale proceeds of confiscated trucks used in connection with the theft in the absence of statute authorizing it. May 28, 1940
18- 238 Cities, towns, counties and school districts may contract for the purchase of water for a period of years. A contract may be signed by a purchaser even though it is also signed by him as an officer of the Water Users' Association. Since the signatures to contracts need not be witnessed in order to make contracts valid, it is not material that the parties thereto witness the signatures of each other. May 28, 1940
18- 239 Under Chapter 6, Laws of 1933, and Chapter 208, Laws of 1939, failure of Grazing District to file map within time prescribed, does not invalidate organization. The certificate of approval on the part of the Grazing Conservation Commission, is the vital requisite to bring into being a grass conservation district. Chapter 66, Laws of 1933, and Chapter 208, Laws of 1939, were enacted for the benefit of the general public and should be liberally construed. June 17, 1940
18- 240 A candidate at a primary election may also serve as an election judge or clerk. June 25, 1940
18- 241 The Montana Liquor Control Board has authority to refund excess license fees paid by applicants for liquor license. June 27, 1940
18- 242 Where certain measures to be voted upon can be submitted to taxpayers only, the legislative will as contained in Chapter 81, Laws of 1939, can be obeyed by having all ballots voted by taxpayers stamped with the words "Taxpayer's Ballot." The county clerk of each county should supply a list of the taxpayers entitled to vote in each voting place in each precinct. June 28, 1940
18- 243 The cost of removal of noxious weeds from state highways must be paid from the noxious weed fund as provided by Section 15, Chapter 195, Laws of 1939. July 11, 1940
18- 244 Private individuals cannot by posting their premises prevent deputy fish and game wardens from patrolling such premises in order to determine whether the law has been violated. July 22, 1940
18- 246 A person need not be a precinct committeeman in order to qualify as chairman of the county central committee. August 1, 1940
18- 247 A justice of the peace on a salary basis, acting as coroner, is entitled to the fees of the coroner. August 1, 1940
18- 248 Write-in candidates must qualify by filing a declaration of acceptance and pay the statutory filing fee within ten (10) days after the date on which the Primary Election was held. August 5, 1940
18- 249 Neither Section 4605 or 9033, R.C.M., 1935, applies to a sheriff's claim for difference in mileage at the rate of 7c and 10c. A sheriff's claim for the difference between 7c, the rate paid him, and 10c the rate allowed by statute, is not barred by statutes of limitations. August 7, 1940
18- 250 Where a shipper sells livestock bearing the brand recorded in the name of another person the livestock commission is justified in holding up the proceeds of sale until the shipper produces either a bill of sale from the owner of the recorded brand or such other satisfactory proof as the circumstances warrant. An unsworn statement by a person who sold a branded animal to the shipper that he purchased the animal from the owner of the recorded brand is not satisfactory proof. The fresh brand of the shipper on the animal bearing the recorded brand of another is not sufficient proof of the ownership of the shipper, the recorded brand being unvented. August 9, 1940
18- 251 The sheriff may collect mileage when called by private persons to fight forest fires on private land. The same rule applies to state lands or state forests. The sheriff may take prisoners from the county jail to fight forest fires on private lands or state lands. August 13, 1940
18- 252 Manner of arranging ballot; rotation of names, and position of parties on ballot explained. August 22, 1940
18- 253 1. The tax levy provided for under Chapter 85, Laws of 1937, as extended by Chapter 209, Laws of 1939, may only be made after authorization for expenditure has been obtained as provided therein. 2. Each political subdivision may separately and independently levy the maximum provided under said chapters, even though the property affected by the levy overlaps. 3. The maximum levy of 1/2 per cent may be made for each year during the life of the Act, as amended. 4. The levy should, if possible, be made at the same time as other levies for the county are made, but may be made at any time, even after the expiration date of the Act, March 15, 1941. September 3, 1940
18- 254 A candidate at primary election who was defeated may not have his name written on ballot under any party designation. September 3, 1940
18- 255 One employed or stationed at a U.S. Civilian Conservation Corps camp may establish residence for purpose of registering and voting, depending upon intent as manifested by acts and circumstances. September 10, 1940
18- 256 A lien for personal property taxes extends to each particular item for the entire tax on all the property. The lien pf personal property taxes is not lost through a sale of the personal property. September 10, 1940
18- 257 1. A county is chargeable only for expenses of examination, transportation and clothing of those committed to the Montana State Training School. 2. The cost of maintaining inmates of the Montana State Training School is not a proper charge against the county from which committed. September 13, 1940
18- 258 1. Equipment purchased from the Noxious Weed Fund and surplus funds may not be used outside the district. 2. The county may pay its share of the expense of weed control on highways and county owned land either out of the noxious weed fund or out of the general fund. September 13, 1940
18- 259 The Commissioner of Agriculture may require that trucks in which loose apples have been hauled be fumigated in the presence of one of the horticultural inspectors before another load may be hauled therein. September 13, 1940
18- 260 A Montana building and loan association may pledge and hypothecate any of its assets to secure loans from the Federal Home Loan Bank without the consent of the state superintendent of banks. September 13, 1940
18- 261 The state or its political subdivisions may insure property or liability in any company licensed to do business within the state under a contract providing for an initial premium with a limited contingent liability. September 17, 1040
18- 262 The State Board of Public Welfare having assumed the contracts and obligations of the Montana Relief Commission, may revoke or terminate said agreements, as provided by said contract. 2. Personal property owned by the State Board may only be sold or otherwise disposed of under authority of the State Purchasing Agent and with the consent of the Governor. September 24, 1940
18- 263 The state or county has no lien on property of recipient of old age assistance. The State or county may not require as a condition of granting old age assistance that the applicant transfer his property. September 30, 1940
18- 264 1. Tract indices in the office of the clerk and recorder are public records and must be made available during office hours, for inspection of public. 2. Certified public abstracters have the right to copy tract records in office of Clerk and Recorder without charge. October 11, 1940
18- 265 Funds derived as proceeds of fire insurance covering property of the State Department are trust funds and may be used by the State Board of Public Welfare for any lawful expenditure, regardless of fiscal periods. (See Opinion 99, Vol. 18.) November 23, 1940
18- 266 The undivided interest of a tenant in common in land is not subject to tax as such. The lien for taxes extends to all of the land. November 25, 1940
18- 267 Where the amount paid on contract for sale of tax deed lands before cancellation of the contract was not enough to equal the amounts the various funds would have received had the taxes been paid before becoming delinquent, the money received on a second contract for sale of the same lands should be credited to the various funds as provided by Chapter 181, Laws of 1939 until these funds have received the amounts they would have received had the taxes been paid before becoming delinquent, and the balance should then be credited to the general fund. November 25, 1940
18- 268 Moneys received by county treasurers from the state treasurer, being the earnings of isolated tracts of land of the public domain should be distributed according to Section 191.2, R.C.M., 1935, as amended by Chapter 102, Laws of 1939, depending whether such lands are within or not within grazing districts under the Taylor Grazing Act. November 30, 1940
18- 269 A claim for old age assistance paid during life of deceased recipient need not be presented to administrator or executor within the time prescribed in the notice to creditors. December 4, 1940
18- 270 In the absence of statutory authority the owner of lands within the limits of a city may not have an unplatted strip assessed for street improvement, segregated and separately assessed so as to permit payment of the tax on the balance without payment of the tax on such unplatted strip. December 9, 1940
18- 271 Section 3, Chapter 141, Laws of 1939 limits the authority of the Board of Land Commissioners to the reinstatement of a certificate of purchase to six years after cancellation. Quitclaim deeds convey all rights of grantors, including mineral rights unless expressly reserved. December 10, 1940
18- 272 Corporations in making returns to the corporation license tax department of the Board of Equalization must include net income from both interstate and intrastate business. December 10, 1940
18- 273 Property legally seized other than by search warrant is to be returned to the owner or his heirs. December 14, 1940
18- 274 Moneys received by county treasurers from the State Treasurer earned by public domain lands within a Taylor Grazing District are distributed according to Subdivision 2(a), Section 191.2, R.C.M., 1935, as amended by Chapter 102, Laws of 1939. December 17, 1940
18- 275 Sec. 5 Art. XIII of the Constitution, or Section 4717, R.C.M., 1935, does not prohibit the incurring of an indebtedness or a liability or the borrowing of money for the poor in excess of $10,000 without the approval of the electors of the county. December 20, 1940
18- 276 The members of the Board of Railroad Commissioners ex-officio Montana Trade Commission in an action under the Unfair Trade Practices Act are public officers acting for the State of Montana and are exempt under Section 4893 from paying court fees, including fees of the clerk of the district court. December 26, 1940
18- 277 That a public officer who failed to file a properly attested oath of office as provided by Section 432, R.C.M., 1935, did not ipso facto forfeit his office. 2. Filing of oath of office prior to assuming the duties of the office is mandatory. 3. Provisions of Section 432, R.C.M., 1935, are directly only. January 2, 1941
18- 278 The Board of County Commissioners may enter into an agreement with a labor union regarding wages, hours of work and working conditions. January 4, 1940
  • 9 October 2018
  • Author: Lund, Debra
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