Attorney General’s Opinions

Volume 21

Opinion Held Date
21- 1 County, state, city and town warrants remaining outstanding for more than eight years after date of the call for payment, and checks drawn by state, county, city or town, remaining unpaid for more than eight years after date drawn, are barred by the provisions of Section 9029, Revised Codes of Montana, 1935, and may be cancelled. January 1, 1945
21- 2 The legislative bodies have jurisdiction over their memberships and they have the right to excuse absentees. If the senate in its rules covers such contingencies and in its discretion and deliberations formally excuses an absent senator, such senator is entitled to his per diem. January 5, 1945
21- 3 The Legislature may not appropriate or authorize expenditures whereby the expenditures of the state during any fiscal year shall exceed the total tax then provided for by law and applicable to such expenditure unless the Legislative Assembly making such appropriation provides for the levying of a tax, not to exceed the two-mill levy provided for in Section 9 of Article XII of the Montana Constitution, to pay such appropriation or expenditure within such fiscal year. The legislature is not restricted in making appropriations or authorizations for expenditures to suppress insurrection, defend the state, or assist in defending the United States in time of war, the determination thereof being wholly with the legislature. January 5, 1945
21- 4 Under Section 562, Revised Codes of Montana, 1935, as amended by Chapter 177, Laws of 1943, the county clerk should cancel only the registration of those persons who did not vote at the election, and the registry cards of all persons who voted by absent voter's ballots should not be cancelled. January 6, 1945
21- 5 A member of the Teachers' Retirement System who notified the board of his retirement by letter dated August 10, must be considered under the act to have retired September 10, and his failure to indicate to the board the manner in which he wished to show his benefits until September 30, 1944, fixes the date of the benefits to be realized as of September 30, 1944. January 6, 1945
21- 6 1. The board of trustees of a county high school has not the authority or power to establish a branch of the high school in another town in the county, other than the town selected at the election creating the county high school. 2. Sections 1301.1 to 1301.6, Revised Codes of Montana, 1935, inclusive, as amended, were enacted as an emergency measure in aid of a work relief program and are limited to such a situation. January 9, 1945
21- 7 The Department of Public Welfare may make such grants to needy blind as are permitted within the provisions of the Welfare Act. January 11, 1945
21- 8 Territory lying within incorporated cities should not be included in herd districts. United States reservations may be included within herd districts. In giving the description of outside boundaries of a herd district, only the outside perimeter need be specifically described and the lands lying within the incorporated cities may be excluded by reference to all lands within corporate boundaries within any incorporated city or town. United States land designated as reclamation land, may be included with grazing districts. January 12, 1945
21- 9 Montana license plates cannot be issued for other than cars having a Montana certificate of title, and the Registrar of Motor Vehicles has no authority to issue such a title without the consent of the owner of the vehicle. January 19, 1945
21- 10 Money paid into the office of the Clerk of the Supreme Court as a fine imposed by the Supreme Court in a contempt proceedings originating in said court, must, after deducting any costs incurred, be paid to the county treasurer of Lewis and Clark County, and by such treasurer credited to the general school fund of Lewis and Clark County. January 20, 1945
21- 11 In view of the positive language of the Public Welfare Act, it was necessarily implied that the act should apply to all estates regardless of the date of death where the claim of the state department had not been allowed prior to the effective date of Chapter 178, Laws of1943. January 22, 1945
21- 12 The legislature, by House Bill No. 3, has increased the compensation to be paid the officers and employees of the Twenty-Ninth Legislative Assembly of the State of Montana as set forth in Section 1 of said House Bill No. 3, but this rate of pay applies only to such officers and employees and is passed especially for such officers and employees of the Twenty-Ninth Legislative Assembly. January 24, 1945
21- 13 An officer may file his oath and bond at any time after he receives notice of his election, before the office has been declared vacant, but not thereafter. January 29, 1945
21- 14 An enactment of the legislature which does not provide for the effective date, becomes effective July 1st of the year of its passage and approval. February 10, 1945
21- 15 Abandoned school sites may be sold by the board of trustees of a school district either under the provisions of Subdivision 8 of Section 1015, Revised Codes of Montana, 1935, as amended, or under the provisions of Chapter 106, Laws of 1939. February 13, 1945
21- 16 Penalty or forfeiture clauses in a teacher's contract with a school board are permissible, but insofar as such clauses conflict with the provision of Section 1075, Revised Codes of Montana, 1935, the latter section will control the provisions of the contract. February 13, 1945
21- 17 The schedule of payments for transportation of school children set out in Section 7 of Chapter 152, Laws of 1941, cannot be increased unless the exceptions defined in Subdivision 8 of Section 7, Laws of 1941, as amended by Chapter 189, Laws of 1943, are applicable. February 28, 1945
21- 18 It was the intention of the legislature to, and it did appropriate each of the various particularly itemized sums in House Bill No. 138 in the total amount of $21,934.40. March 6, 1945
21- 19 Public officials having custody of records required by the Veterans' Bureau for the purpose of determining eligibility for benefits made available under such bureau are authorized to furnish certified copies thereof to the applicant for such benefits, or any person acting on his behalf or the representative of such bureau, without charge. March 14, 1945
21- 20 It is the duty of the Clerk of the Supreme Court to transmit a decision to the trial court, without charge, a remittitur, and a copy of such decision in those cases where it is required to accompany the remittitur. The clerk is not authorized to collect a fee for a copy of decision required to be furnished the attorneys with notice of such decision. The clerk is authorized to charge a fee of fifteen cents per folio for copy of remittitur, if requested by an attorney, and in addition, the sum of one dollar for certificate, if the same be certified. March 14, 1945
21- 21 The provisions of the State Purchasing Department Act apply to purchases made by the State Department of Public Welfare coming within the provisions of purchases to be made through the State Purchasing Agent. March 19, 1945
21- 22 The salary increase given to county officers by Chapter 169, Laws of 1943, was effective until March 1, 1945, and after said date salaries shall be the same as provided previous to the enactment of Chapter 169. March 21, 1945
21- 23 There should be two separate and distinct ballots prepared and used, one for each of the separate special elections in each county of the second congressional district. The time for closing registration for this particular election is noon of May 6, 1945. March 24, 1945
21- 24 The code commissioner shall be paid on the basis of Five Hundred Fifty-Five Dollars plus, each month for the eighteen months period. March 24, 1945
21- 25 It is mandatory for the board of county commissioners to reserve not to exceed the 6 1/4% royalty in oil and gas and minerals in tax deed lands sold by the county. April 5, 1945
21- 26 Under provisions of Chapter 28, Laws of 1945, poll books must contain only names of qualified registered electors who are taxpayers and whose names appear on last assessment roll of some county. Where two special elections are held on same date, one for issuance of bonds and other for the election of a public officer, there must be two separate poll books, one containing only names of electors who are taxpayers and the other all qualified registered electors. Registration of electors qualified to vote on the bond issue must close thirty days before election, while registration of electors qualified to vote at election of a public officer must close forty-five days before date of election. April 6, 1945
21- 27 A school district may not use surplus funds to purchase a residence for the school superintendent. April 13, 1945
21- 28 Under the provisions of Section 4993, Revised Codes of Montana, 1935, as amended, a county clerk has discretionary power to require a grantee of a portion of land subdivided under the provisions of said section to deliver with the deed a plat or map which shall show the legal description and area of the land conveyed. April 16, 1945
21- 29 In counties where more than one question is submitted to the electors at the same special election, the laws governing which require different registration closing dates, separate poll books are required. April 17, 1945
21- 30 There is no authority for the county commissioners to use an anticipated surplus in the poor fund for the purpose of constructing a county hospital. April 20, 1945
21- 31 Board of Railroad Commissioners may not entertain an application for, nor grant a certificate of public convenience and necessity for the transportation of ordinary livestock or agricultural commodities exclusively. April 21, 1945
21- 32 A county attorney may not accept appointment as city attorney while he holds the former office. A county attorney, in his private capacity as an attorney, may act as prosecuting attorney for a city and accept a fee therefor. A county attorney, in his private capacity as an attorney, may act as attorney for a city in civil matters, so long as the county or state is not a party, or their interests involved. He may accept a fee for such services. April 24, 1945
21- 33 Fees to be charged foreign corporations on increased capital stock as shown by annual report, under the provisions of Section 145.4, Revised Codes of Montana, 1935, are those prescribed by Section 145.1, Revised Codes of Montana, 1935. April 26, 1945
21- 34 Under the first class in the definition of ward Indians, one to qualify as such must be a resident within the boundaries of an Indian reservation and an Indian in fact. Under the second class the person to be a ward Indian must be a member of a tribe or nation of Indians and accorded the rights and privileges as such by treaty or federal statute. Membership in an Indian tribe may be established in the case of incorporated tribes by recourse to their constitution and by-laws and the records of the tribe as to who are its members. As to incorporated and unincorporated tribes, membership may be established by proof of the name of the individual being on an enrollment or Indian census, the proof of receipt of supplies or annuities as a member of any tribe, the allotment of land to the individual as an Indian and held in trust, or the inheritance of an Indian allotment which is held in trust, or the proceeds to the sale of an Indian allotment which is held in trust. Under the second class the person in order to be a ward Indian must be, first, a member of a tribe, and second, as the result of such membership entitled to the rights and privileges of that tribe by virtue of either an Indian treaty or a federal statute. A right or privilege granted by an Indian tribe or an Indian agency is not such a right or privilege as is necessary to qualify under the statute. An Indian--in order to be a ward Indian--must qualify entirely under the classification adopted for the purpose of this opinion under class (a) or class(b) and the combination of a part of the qualifications of class (a) plus a part of the qualifications of class (b) does not entitle such person to be classified as a ward Indian. April 30, 1945
21- 35 Fees for the court stenographer's services should be collected in probate proceedings when there is an issue of fact tried by the court. May 2, 1945
21- 36 1. The Montana Charity League under the facts presented by the Board of Equalization is not eligible to obtain a license under Chapter 142, Laws of 1945, and the Board of Equalization has no authority to issue it a license. 2. Only a bona fide religious, fraternal, charitable, or non-profit organization, which is the sole and complete owner of the slot machine or machines for which licenses are applied, and which is to receive the entire profit therefrom, and use, keep and maintain for use such machines upon its own premises, as incidental to its main purpose for its members only, is eligible to receive a license under the provisions of Chapter 142, Laws of 1945. 3. The Board of Equalization has authority, and it is its duty to require the facts which are necessary to determine if the applicant meets the requirements of the law, before granting a license under Chapter 142. May 11, 1945
21- 37 The hours during which the polls shall be open in Missoula County and in every other county of the state, insofar as the election on the State Debenture Act is concerned, shall be as provided by Section 689, Revised Codes of Montana, 1935.  
21- 38 The Livestock Sanitary Board may not provide by rule or regulation that no indemnity shall be paid for cattle slaughtered when disclosed to be reactors upon the initial test for Bang's disease. May 14, 1945
21- 39 The election held in pursuance of Chapter 149, Laws of 1945, the "State Highway Treasury Anticipation Debenture Act of 1945" is a general election within the meaning of such terms as used in Chapter 2, Laws of 1937. May 14, 1945
21- 40 Under the provisions of Chapter 144, Laws of 1945: 1. Land held by the county under tax deed and which has been offered for sale and not sold prior to the effective date of Chapter 144, Laws of 1945, may be purchased by the taxpayer, or his successor in interest, or legal representative, during the six months operative period of Chapter 144, or until midnight of August 28, 1945. 2. Land held by the county under tax deed and which has not been offered for sale may be purchased by the taxpayer, or his successor in interest, or legal representative, during the six months period following the effective date of Chapter 144, Laws of 1945, or until midnight of August 28, 1945. 3. Under Section 1 of Chapter 144, Laws of 1945, the land not yet acquired by the county by tax deed of February 28, 1945, the effective date of the act, may only be purchased by the taxpayer, or his successor in interest, or legal representative, at any time before the time fixed for the first offering of said property for sale. 4. Lands in the first and second classes set out above may not be offered for sale by the county except to persons whose property was deeded to the county before February 28, 1945, or such persons who are successors in interest or legal representatives, until after August 28, 1945. May 21, 1945
21- 41 A proceeding in court to determine legal title in the survivor of two joint tenants under a deed is a "proceeding" under the provisions of Section 4918, Revised Codes of Montana, 1935, and requires the payment of fees for filing petition and entry of judgment or decree. May 22, 1945
21- 42 Under the provisions of the above quoted act of the Congress of the United States and the Constitution, it is my opinion that the personal property belonging to persons who are in the military or naval services, and who are not legal residents of the State of Montana, although stationed temporarily in the State of Montana, is not subject to taxation by the State of Montana, or any political subdivision thereof. May 24, 1945
21- 43 The price paid by the consumer is the cost of the liquor to your board plus transportation and any other costs to your board to place the liquor on the floor of your warehouse in Helena, plus the regular fifty per cent markup, plus the United States floor stock tax. The state excise tax is then figured on the total retail selling price as above set forth. May 24, 1945
21- 44 Motor vehicles owned by the federal government or one of its instrumentalities, operated over the highways of the state, are not exempt from statutory requirement for registration and payment of license fees, when operated under contract or lease specifically providing the lessee or contractor shall procure at its own cost all licenses and permits necessary for the use and operation of the motor vehicle. June 7, 1945
21- 45 Taxes deemed to have been paid under an unlawful levy must be paid under protest and suit for recovery commenced within sixty days, as provided by Section 2269, Revised Codes of Montana, 1935, or no refund or recovery may be made. Taxes paid more than once or illegally collected may be refunded by the county commissioners as provided by Section 2222, Revised Codes of Montana, 1935. June 9, 1945
21- 46 By departing from Ravalli County for Camas Hot Springs in Sanders County for the purpose of taking baths and massages the recipient of old age assistance did not operate to change his residence and therefore did not move within the meaning of the applicable statute. June 13, 1945
21- 47 Under the statutes, it is the duty of the county assessor to compute and extend the taxes on personal property, using the last year's levy, before final delivery of the personal tax rolls to the county treasurer. After the city council makes the current year's levy on real estate in the City of Butte, and the city clerk certifies the resolution to the county clerk, the assessor must compute and extend the taxes on the assessment roll before final delivery to the county treasurer. June 15, 1945
21- 48 A cigarette vending device of the construction of a slot machine which entails the element of chance either in obtaining the cigarettes or anything of value in addition thereto, or from its mechanical construction and operation appeals to the player's propensity to gamble, is a slot machine and hence a gambling device as contemplated by Section 11159, Revised Codes of Montana, 1935, as amended, and therefore prohibited, except as provided by said section as amended. June 25, 1945
21- 49 A pin ball machine which is operated by inserting a coin in a slot, and from the play of which the player obtains, or may obtain, money, checks or tokens redeemable in money, is a slot machine within the definition of Section 6 of Chapter 142, Laws of 1945, and may be used or operated lawfully only by religious, fraternal, charitable or nonprofit organizations, upon payment of the license fee in said act provided. June 28, 1945
21- 50 Chapter 30, Laws of 1943, does not relate to the constitutional officers of the executive department of the state, such as are enumerated in Section 1, Article VII, of the Montana Constitution, but relates to the employment of assistants, deputies, agents, attorneys, administrators, engineers, experts, clerks, accountants, stenographers and executive attaches of all civil executive state offices, boards, commissions, bureaus and department of the state of Montana. July 3, 1945
21- 51 The board of county commissioners has power and authority to purchase or erect a building or buildings for use of the county in providing hospitalization for the indigent sick and infirm poor of the county, and may operate the same itself, or lease such building or buildings to an individual for such purpose. Such building or buildings, either purchased or erected, may not be used to provide hospitalization to the public generally. July 6, 1945
21- 52 Should a teacher's seventieth birthday be on September 1, 1946, the Teachers Retirement Board will retire the teacher in the regular way on September 1, 1947. July 7, 1945
21- 53 1. Indemnity payable on animals ordered condemned, where the appraisal has been made prior to July 1, 1945, the effective date of Chapter 164, Laws of 1945, is governed by the provisions of Section 3279, Revised Codes of Montana, 1935, as amended by Section 3, Chapter 75, Laws of 1943, but no payment is to be made until the animal is actually destroyed. 2. Indemnity payable on animals ordered condemned, where the appraisal has been made after July 1, 1945, is governed by the provisions of Chapter 164, Laws of 1945, but no payment is to be made until the animal is actually destroyed. July 7, 1945
21- 54 Trustees of a school district may issue warrants for current expenses after the budget for the current year has been approved by the budget board and the county treasurer has opened accounts showing a cash balance to the credit of the district. Such warrants may not be drawn when there is not a cash balance sufficient to pay the warrants, in anticipation of moneys to be realized from taxes until after the levy has been made and approved by the board of county commissioners for the school district. July 13, 1945
21- 55 An increased allowance for transportation, rent or board in lieu of bus transportation may not be granted under the provisions of Subsection 8 of Section 7, Chapter 152, Laws of 1941, as amended, when the parents of pupils reside within a district where no school is closed and the pupils attend school within the district. July 13, 1945
21- 56 Under Chapter 142, Laws of 1945, no license for the operation of slot machines may be issued by the State Board of Equalization for the year 1945 after the 15th day of July, 1945. No license for the operation of slot machines may be issued for the year 1946 and subsequent years, after the 15th day of January of the year for which licenses are applied. It is the duty of the State Board of Equalization to consider and pass upon all applications for licenses prior to the date fixed by statute for the issuance of licenses, and to issue licenses to these found eligible on or before that date. July 16, 1945
21- 57 A license or certificate required by statute for the operation of a business, trade or profession, is a personal privilege and may not be transferred to another who purchased such business during the period for which such license or certificate was issued. A bond furnished under the provisions of a statute which provides the conditions thereof, may not be transferred to another after the effective date of a statute repealing the former and providing different conditions. July 18, 1945
21- 58 Any balance in the appropriation from the general fund of the state to the Unemployment Compensation Commission of Montana for the period beginning July 1, 1945, and ending June 30, 1946, and for the period beginning July 1, 1946, and ending June 30, 1947, under House Bill No. 325, page 579, Laws of 1945, must revert at the end of the second year thereof, as provided in said appropriation bill, Section 304, Revised Codes of Montana, 1935. August 1, 1945
21- 59 When, after the adoption of the preliminary budget for a school district, it is found that the amount which will be received from the district ten (10) mill levy and from all other sources during the ensuing school year, will not be sufficient to meet and take care of the expenditures proposed to be made during such year, the board must determine and make an estimate of the amount of such deficiency and the number of mills of additional levy required to be made and must call an election to be held prior to July 1, at which election such levy must be submitted to the electors. The provision of the statute that such election shall be held before July 1, is directory only if suit is instituted to test the validity of the election after it has been held. If no suit is brought to restrain the holding of the election after July 1, an election held at such time will be valid and any levy authorized at such election will be legal, providing all other requirements of the statute relative to the calling, holding and determination of such election are complied with. If such election is held after July 1, it must be held in time to permit the board of county commissioners to make the levy and extend the same upon the tax roll, as provided by law. August 2, 1945
21- 60 Chapter 144, Laws of 1945, does not have a retrospective effect and a purchaser who was a former owner purchases the land subject to outstanding leases and the terms thereof. A purchaser of land under Chapter 144, Laws of 1945, whose land was held by the county by tax deed prior to the effective date of Chapter 144 must pay the fair market value thereof as fixed by the board of county commissioners. August 6, 1945
21- 61 The provisions of Chapter 157, Laws of 1945, are applicable to motor vehicles brought into the state after January 1. A motor vehicle brought in to the state after January 1, for which application for registration and licensing is made under the provision of Sections 1760.1, 1760.2 and 1760.3, Revised Codes of Montana, 1935, is not taxable until it has been in the state not less than the period for which registered. A motor vehicle registered and licensed prior to July 1, 1945, the effective date of Chapter 157, Laws of 1945, on which taxes have not been collected, because not in the state on January 1, may not be taxed under the provisions of Chapter 157, Laws of 1945. August 11, 1945
21- 62 Only such property belonging to a society or organization of honorably discharged United States soldiers, sailors or marines, as is used exclusively for educational, fraternal, benevolent or purely public charitable purposes, rather than for gain or profit, is exempt from taxation under the provisions of Section 1998, Revised Codes of Montana, 1935. August 21, 1945
21- 63 A scheme whereby tickets are sold to purchasers who guess as to the date of a future event, and the purchaser whose guess as to the time is closest to the happening of the event, receives war bonds as a prize, constitutes a lottery. August 31, 1945
21- 64 1. A board of school trustees does not have the authority to require students to board and room in a district dormitory in lieu of furnishing transportation. Parents or guardians receiving transportation money for students have discretion to select the place where said student may board and room, which may or may not be the district dormitory. 2. A board of trustees has not the authority to withhold a portion of the amount fixed by Section 7, Chapter 152, Laws of 1941, as amended , for the district dormitory, but must pay the full amount to the parents or guardians. 3. A school board has no authority to withhold the amount payable in lieu of transportation, if the students elect not to live at the district dormitory. September 6, 1945
21- 65 Funds realized by a county from the sale of bonds for construction purposes cannot be invested until such time as construction can be started. The funds in question must be invested only for the purpose for which they were borrowed. September 6, 1945
21- 66 1. It is not mandatory for a county superintendent of schools to authorize the transfer of high school students to another high school in another county when the students reside within less than one and one-half miles from an established bus route and a county high school is operated in the county of the students' residence. However, in the discretion of the county superintendent, the transfer may be authorized. 2. The board of trustees of an elementary school has no authority over the transfer of high school students from one county to another county. 3. A board of trustees does not have the authority to use elementary school funds for the transportation of high school students. September 13, 1945
21- 67 The board of trustees may not transfer any of the money or funds from the high school budget in the district to an elementary school budget in the district. September 18, 1945
21- 68 Chapter 44, Laws of 1945, is not discriminatory class legislation and is valid and constitutional. September 19, 1945
21- 69 The board of county commissioners may make a levy, which was omitted through inadvertence, as in this case, after the second Monday in August, if the levy is made prior to the second Monday in October and before the county assessor has delivered the completed assessment book to the county clerk. September 20, 1945
21- 70 The members of this commission may be reimbursed for the expenses they necessarily incur in the performance of their duties, in their sound discretion. These expenses are to be paid out of the fund appropriated to the commission for administrative expenses. September 24, 1945
21- 71 The Montana Armory Board is a subdivision of the State of Montana within the meaning of Section 3475 of Title 26, U.S.C.A., and as such, is exempt from the payment of the transportation tax therein provided. September 25, 1945
21- 72 The board of school trustees may not lawfully make any rule or regulation prohibiting the attendance of a child who is a resident of its district and who has attained the age of six years from entering and attending such district free public school. September 26, 1945
21- 73 A county road which has been "laid out" is a public highway and must be worked and maintained by the county. September 27, 1945
21- 74 School trustees have the discretionary power to permit pupils attending private or parochial schools to ride on public school busses provided there is ample room in the busses and the parents or guardians of such children pay their proportionate share of the cost of such transportation. September 29, 1945
21- 75 The board of administration of the State Employees Retirement System may not select its personnel through the Merit System Council. October 1, 1945
21- 76 The Milk Control Board has the power to authorize milk produced in any one day distributed the same day to one district, and milk produced the next day distributed to the other district, when the area served is divided into two districts, and the whole of the daily output of milk is distributed on alternate days to first one district and then the other. October 10, 1945
21- 77 Under Section 2204 and Section 2196, Revised Codes of Montana, 1935, as amended, it is mandatory for the county treasurer and county clerk to each keep a book in which shall be kept records concerning tax sale the certificates and upon redemption from tax sale the county clerk must make the proper notations required by Section 2205, Revised Codes of Montana, 1935. The state examiner may prescribe the forms, receipts, certificates and procedure to be used by county clerks and county treasurers in handling all tax sales and tax redemptions and such county officers are compelled to conform therewith. October 15, 1945
21- 78 A county is liable for the expense of each boy committed to the State Industrial School from that respective county and the expense includes that of committing the boy to said school and returning of him to his parents or guardian after his release therefrom, and the committing county is further liable for the expense attending the care, education, training and safekeeping of such boy while he is in actual attendance or residence of said institution. As no specific amount has been provided in this amendment, the committing county is liable for the actual expenses as enumerated above. October 15, 1945
21- 79 Irrigation district bonds which have matured bear interest after maturity at the rate stipulated in the bond. October 10, 1945
21- 80 The salaries fixed and specified in Chapter 150, Laws of 1945, will not take effect until the duly qualified and elected official has taken office for the term for which he was elected, subsequent to the fixing of such salary by the board of county commissioners in September of the election year for that particular office. October 17, 1945
21- 81 When the State Examiner starts his examination of a county office, and after counting the cash and verifying the bank accounts of such officer, he finds a shortage exists in the accounts of said officer, the State Examiner shall forthwith file a verified preliminary report showing the existence of such shortage and the amount or approximate amount thereof, with the board of county commissioners. Upon the filing of such verified statement, such officer shall immediately be suspended from the duties and emoluments of his office, and the board of county commissioners shall appoint some qualified person to such office, pending the completion of such examination. When the State Examiner completes the audit or examination of the accounts of a county officer and finds that a shortage existed in the accounts of such officer on the date of the commencement of such examination, the State Examiner must file with the board of county commissioners his verified final report, showing such shortage. Upon the filing of such report the officer whose accounts were short forfeits his rights to said office. October 17, 1946
21- 82 An applicant who has failed in the certified public accountant's examination may take further examinations within the next two succeeding years following such failure, but in no event shall he be entitled to more than one examination in each year. October 18, 1947
21- 83 The Livestock Commission may not distribute the unexpended portion of the bounty fund created by Chapter 298, Revised Codes of Montana, 1935, to the several counties on the basis of taxes collected by the individual counties for bounty purposes. October 19, 1948
21- 84 The county is liable for the $150.00 burial expense and such amount must be paid to the widow of said veteran, assuming that the burial expenses were paid by her. October 23, 1945
21- 85 A county treasurer is not authorized to transmit funds from a high school district of the residence of transfer pupils to a different high school district where the pupils attend school unless requisite budget has been adopted as provided in Section 1263.8, Revised Codes of Montana, 1935, as amended, and Section 1263.11, Revised Codes of Montana, 1935, as amended, and the transfer is authorized and the requisite notice given to the county treasurer by the county superintendent of schools of the pupils' residence and the superintendent or principal of the schools attended, within the times and in the manner specified by Section 1262.81, Revised Codes of Montana, 1935, as amended. October 23, 1946
21- 86 A tax deed taken against the owner of the surface rights to land does not extinguish the taxable recorded fractional interest consisting of mineral, oil and gas rights which are separately owned, but that a tax deed taken in accordance with law, extinguished royalty interests which do not constitute an interest in the realty. October 23, 1947
21- 87 Surplus school funds not needed for current school expenses may not be used to pay the outstanding bonds of the school district, but must become a part of the funds available for use of the school district in the next school year and used in the next ensuing budget. October 23, 1948
21- 88 In concurrence with Opinion No. 441, Volume 19, Report and Official Opinions of the Attorney General, Section 2439, Revised Codes of Montana, 1935, was by implication repealed by Chapter 91, Laws of 1937, and as a result thereof, the county treasurer may not request a license fee under and by virtue of Section 2439, supra. October 25, 1949
21- 89 The Montana State Apprenticeship Council may, in the exercise of its sound discretion, legally pay a portion or the whole of traveling expenses incurred by the Federal Apprentice Training Service field representative when such traveling is solely within the State of Montana, and the services of such representative come within the provisions of Chapter 149, Laws of 1941. November 1, 1945
21- 90 Distributing plants must pay the producer the established price of a designated area regardless of whether or not the producer lives in said established area. November 3, 1945
21- 91 The qualifications of an elector at an election for the creation of a cemetery district are the same as the qualifications specified for an elector at a biennial general election. November 3, 1945
21- 92 A returning veteran who failed to vote at the last general election must reregister in order to vote at the next general election. A returning veteran who had voted at the last general election either in person or by absent ballot would not have to reregister. In regard to reregistration, the construction of the phrase "every general election" as contained in Section 562, Revised Codes of Montana, 1935, as amended, must be said to apply only to the regular biennial general elections. November 16, 1945
21- 93 The board of trustees of a school district has the authority to lease a teacherage to a family as a residence provided the teacherage is not needed for the use of the school and also the occupancy by the tenant will not interfere with the operation and use of the facilities of the school and school grounds as a school. November 19, 1945
21- 94 Taxes levied on land held by the county under tax deed and sold on contract as provided by statute do not become a lien on such land, but such taxes are extinguished and canceled upon a cancellation of the contract as provided by statute. November 19, 1945
21- 95 County clerk must file both the navy honorable discharge certificate and notice of separation from the United States Naval Service. Chapter 58, Laws of 1943, provides for the furnishing of certified copies of public records when necessary to all veterans and is not limited to the furnishing of certified copies to or for incompetent veterans. November 19, 1945
21- 96 Chapter 176, Laws of 1945, requires the inspection of livestock before removal from one county to another in cases where such cattle are being sold or disposed of by the owner, with the exceptions contained in subdivisions (a) and (b) of Section 1 of Chapter 176, and so much of subdivision (c) as pertains to movement by the owner for the purpose of pasturing, feeding or changing the range thereof. The further exception in subdivision (c) which provides for movement from one county to the next adjoining county within the State of Montana when such animal is used "IN THE ORDINARY CONDUCT OF HIS BUSINESS" must be construed as meaning when livestock is utilized by the owner or his agent as transportation or motive power, such as for contracting, drayage, or general hauling, or when hauled in truck or trailer by governmental agencies, and not to include that construction which would enable the owner "in the ordinary conduct of his business" to drive cattle from one county to the next adjoining county where such cattle are to be sold or disposed of by the owner. November 21, 1945
21- 97 Chapter 59, Laws of 1945, amended by Chapter 176, Laws of 1945, covers and requires inspection of cattle belonging to Indians, whether they be deemed wards or not, when such cattle are being moved outside of a reservation, within the State of Montana, and when such movement of cattle does not come within exceptions as specified in Section 1, Chapter 176, Laws of 1945. November 21, 1945
21- 98 1. A tax deed issued to a county passes title to the land in the county free of all encumbrances and clear of any and all claims, including lien for personal property tax which had become a lien on the real estate of the owner, except as provided in Chapter 63, Laws of 1937. 2. That personal property taxes which became a lien upon realty and were extinguished through tax deed issued to the county may not thereafter be collected. 3. Whether a former owner of tax title property has a preferential right to repurchase such property depends upon the provisions of Chapter 144, Laws of 1945. November 26, 1945
21- 99 The board of county commissioners has not the power or authority to authorize one rural improvement district to permit the use of its facilities by another rural improvement district and the two cannot enter into a contract to use the mains, pumps and reservoirs of an existing water system of one district for the benefit of both districts, nor can I find wherein the board of county commissioners would have any jurisdiction in the matter. November 27, 1945
21- 100 Marriage certificate, after the solemnization of the marriage, should be recorded by the clerk of the court who issued the license even though the marriage ceremony was performed in another county. November 28, 1945
21- 101 1. Witnesses testifying in proceedings under Chapter 152, of the Code of Civil Procedure, 1935, are entitled to witness fees as provided by Section 4936, Revised Codes of Montana, 1935. 2. The county in which such proceedings are instituted is liable for such witness fees as in other actions or proceedings wherein the county is a party. November 29, 1945
21- 102 The board of county commissioners has the authority to budget for and approve the payment from county funds for such items as printing, postage, stationery, telephone, telegraph and traveling expenses for the office of the public administrator in the same manner as other county officers. November 29, 1945
21- 103 A warrant or warrants issued by your (State Auditor's) office on the order of the Post War Planning and Construction Commission or its authorized chairman, by resolution of said commission, is your legal authority for the issuance of said warrant or warrants. December 1, 1945
21- 104 1. Funds provided by the federal government by grant or public bounty and dispersed to the several units of the University of Montana for particular purposes by the Veterans' Bureau are trust funds, and come within the provisions of the first part of Section 3 of Chapter 14, Laws of 1941. 2. Such federal funds shall be kept by the state treasurer in specific fund accounts so designated as to clearly indicate their purposes and source and may be drawn upon by the unit of the University of Montana for which intended as needed, and expended for the purpose for which such funds are granted. December 6, 1945
21- 105 Honorably discharged Union soldiers and sailors and their widows of the Civil War, the Spanish-American War, the Philippine Insurrection, and of the World War I, and men and women who are and will be honorably discharged from World War II, and any disabled civilian recommended by the State Rehabilitation Bureau, shall be preferred for appointment and employment in every public works of the State of Montana, and of every county and city thereof, provided they possess the business capacity, competency and education to discharge the duties of the position or employment involved, and provided further, a vacancy exists in such position or employment. 2. In those positions or employments which require an examination to determine fitness, the fact that a non-veteran may receive a higher grade than a veteran does not deprive the veteran of his right to preference so long as the veteran has received the required passing grade and is qualified for the position or employment. 3. As between a disabled veteran, whose disability is admitted by the Veterans' Administration of the United States to have been incurred in the service of any of the wars mentioned in the statute, and an able-bodied veteran, or a disabled civilian recommended by the State Rehabilitation Bureau, the disabled veteran has a prior preference. 4. The appointing power has a discretion in making appointments, but where a veteran is concerned, such discretion may not be arbitrary, and when the veteran is qualified for the position, he is entitled to the appointment or employment in preference to a non-veteran. December 12, 1945
21- 106 The proper fee to be charged for issuing a transcript of judgment is 15c per folio when certified to, plus 50c for certificate. December 22, 1945
21- 107 There being no specific limitation in Section 4444.2, Revised Codes of Montana, 1935, as amended, to the total amount that may be expended for such purpose, except from the general fund, and the authority existing in the board of county commissioners to acquire by purchase lands suitable for public camping and public recreational purposes, the county may budget in the general fund for such purpose up to the sum of $3,000.00 and may budget in a special fund up to the sum of $7,000.00 for such purpose, the sum total of which will not exceed the limitations specified in Section 5 of Article XIII of our State Constitution and Section 4447, Revised Codes of Montana, 1935. Since the county is granted the authority to purchase and hold lands within its limits by Section 4444, Revised Codes of Montana, 1935, and granted authority to purchase and acquire lands suitable for public camping and public recreational purposes, it follows that the county has the implied power, in the sound discretion of the board of county commissioners, by resolution, to hold an election submitting to the qualified electors of their county the question of incurring such an indebtedness by a bond issue for the amount necessary for such purposes, provided that the total indebtedness of said county would not then exceed the limitations of Section 5 of Article XIII of our State Constitution and Section 4447, Revised Codes of Montana, 1935. December 29, 1945
21- 108 A benevolent association licensed and authorized to do business under the provisions of Chapter 153, Laws of 1945, may provide for and maintain a reserve fund, under the supervision of the Commissioner of Insurance. January 2, 1946
21- 109 A county treasurer may not collect taxes on personal property or motor vehicles for an incorporated town when the town has not made a levy for the previous year on such property because it was incorporated after the time for making a budget and fixing tax levies. January 2, 1946
21- 110 A liquor license may not be granted for use on premises which are directly across the street from a school although the main entrance of the school is not on the same street as the premises applying for the license, but the entrance of the school is within six hundred feet of the entrance of the premises seeking the license. January 2, 1946
21- 111 Under the present status of the law, a county has not the power or authority to issue bonds for the purpose of constructing a civic center. January 2, 1946
21- 112 The ten-mill levy provided for in Section 1203, Revised Codes of Montana, 1935, as amended by Chapter 51, Laws of 1945, does not relate to high schools and may not be levied for high school purposes. January 5, 1946
21- 113 The property belonging to the Carnegie Public Library of Miles City, a "Free Public Library," by resolution, is tax exempt so long as such library is maintained and owned by the City of Miles City, Montana. January 8, 1946
21- 114 The provisions of Chapter 114, Laws of 1943, must be enforced by the State Fire Marshal, but Chapter 114 does not repeal Section 2737.1, Revised Codes of Montana, 1935, as amended, and the latter section is a grant of supervisory powers to the State Fire Marshal concerning the adequacy of fire exits in the building enumerated in the section. January 15, 1946
21- 115 Creamery butter may be sold, offered or exposed for sale if the same be contained in parchment paper on which is printed in a conspicuous place the name of the wholesaler or manufacturer and the words "16 ounces net weight" or "1 lb. net weight." January 18, 1946
21- 116 It is the duty of the State Examiner to examine at least once each year the books and accounts of the Highway Patrol System and the Public Employees' Retirement System. January 18, 1946
21- 117 A person appointed to the office of clerk of the district court following the entrance into military service of the regularly elected clerk holds that office until the regularly elected clerk applies for restoration to the office, during the term for which he was elected, under the provisions of Chapter 47, Laws of 1941. If the person returning from military service does not apply for restoration to the office under the provisions of Chapter 47, no vacancy is thereby created in the office during the term. January 28, 1946
21- 118 1. The trustees of a second class school district have the power to purchase two lots adjoining a grade school for playground purposes without submitting the question to a vote of the electorate. 2. School trustees may enter into a contract for the purchase of additional land adjoining a school site and the purchase price paid by an appropriation provided in the next ensuing budget or the purchase price may be paid in installments by provision contained in three successive budgets. 3. A school board of the first or second class may not build a school house, or purchase or locate a school site unless directed so to do by a majority of the electors of the district voting at an election as provided in Section 1015.8, Revised Codes of Montana, 1935, as amended by Chapter 165, Laws of 1937. January 29, 1946
21- 119 1. (a) A girl under the age of 16 years, regardless of written consent, may not be legally married within the State of Montana. (b) A parolee from, or an inmate of the Vocational School for Girls over the age of 16 years, but not having attained the age of 18 years, must have the consent of the school before legally obtaining a marriage license. 2. An inmate of the Vocational School for Girls may not be legally discharged until she has arrives at the age of 18 years and has deported herself in such a manner as to make it reasonably probable that she has reformed and is a proper person to be discharged. The girl in the factual situation presented could not in any event be released to her husband under the circumstances as presented. 3. The Vocational School for Girls may bring an action to annul this marriage at any time before this girl arrives at the age of legal consent. 4. The procedure to be followed by the Vocational School for Girls in PAROLING OR LEGALLY DISCHARGING an inmate is specified in Section 12539, Revised Codes of Montana, 1935. The procedure to be followed when an inmate is DISCHARGED OR RELEASED ON TRIAL OR PAROLE is specified in Section 12541, Revised Codes of Montana, 1935. January 30, 1946
21- 120 The State of Montana must pay to a school district one-third the cost of transportation by school buses in accordance with the schedule fixed by the Board of Education as provided in Section 1200.1, Revised Codes of Montana, 1935, and also the state must pay to the district one-third of the amount paid to parents or guardians in lieu of bus transportation as provided in Section 7 of Chapter 152, Laws of 1941, as amended by Chapter 189, Laws of 1943, and Chapter 116, Laws of 1945, and the fact the per capita transportation cost is higher in one class than the other will not change the method of computing the amount of the state's reimbursement to the school district. February 6, 1946
21- 121 Persons "who qualify" under the Servicemen's Readjustment Act of 1944, and acts supplementary and amendatory thereof, as that term is used in Chapter 44, Laws of 1945, are persons who are eligible to receive educational benefits under that federal legislation--and as such they are excepted from the operation of Chapter 44, Laws of 1945. February 8, 1946
21- 122 1. All insurance companies are liable for the payment of the license tax provided by Section 6112, Revised Codes of Montana, 1935. 2. A casualty company, authorized to write the fire coverage on an automobile as incidental to its casualty coverage is liable for the license tax provided under Section 6112, Revised Codes of Montana, 1935. 3. The state auditor, under the provisions of Section 5127, Revised Codes of Montana, 1935, has authority to and it is his duty to collect and distribute the license tax provided by Section 6112, Revised Codes of Montana, 1935, from all insurance companies, including a casualty company authorized to write fire coverage on automobile as incidental to its general casualty coverage. February 14, 1946
21- 123 1. The office of county auditor was not abolished by enactment of Chapter 150, Laws of 1945. 2. Since no compensation is now provided by general or special law for the county auditor, the board of county commissioners has jurisdiction and power--under such limitations and restrictions as are prescribed by law--to fix the compensation of the county auditor and to provide for the payment of such compensation. February 15, 1946
21- 124 The board of county commissioners has no authority to refund any unused portion of a license tax that was legally and properly collected. February 15, 1946
21- 125 (1) A city attorney or county attorney may not defend a prosecution commenced by the other in the name of the State of Montana. (2) No broad rule is herein promulgated regarding a county attorney's defending, in his private capacity as a lawyer, a prosecution commenced by a city attorney in the name of a city or town. Each such case must be judged on its own facts; and each county attorney confronted with such a problem must weigh his responsibility as a lawyer and public prosecutor in the light of the facts of the case, his oaths as an attorney and as a public officer, and the code of ethics of the legal profession. February 18, 1946
21- 126 The filing fees for county officials must be based on the salary in effect at the time the candidate files. February 19, 1946
21- 127 The State of Montana, the Montana State Park Commission, and the members thereof--acting in their official capacity-- cannot be held liable if damages result from an accident involving a visitor to Morrison Cave. No opinion is expressed herein regarding possible liability of members of the commission as individuals if they act without the scope of their lawful authority or if they are guilty of misfeasance or actual negligence at any time. February 20, 1946
21- 128 Chapter 176, Laws of 1945, requires the inspection of cattle before removal from one county to the next adjoining county--for the purpose of feeding and fattening--when such cattle are conveyed by the owner in his own truck to a ranch in the next adjoining county which is neither owned nor controlled by the owner of the livestock so moved. February 20, 1946
21- 129 Ward Indians who qualify under the Public Welfare Act are entitled to general relief grants from county poor funds. Grants of general relief to ward Indians are payable from county poor funds and such grants are not reimbursable to the county from state funds. February 25, 1946
21- 130 School district may be consolidated with an existing joint school district only by the creation of a new joint school district in compliance with the provisions of Sections 1024 and 1035, Revised Codes of Montana, 1935, as amended. February 26, 1946
21- 131 A public meeting at which candidates for the office of school trustee of a first class school district are nominated must be held forty full days before the date of the election, and as held in the above case, the day of the meeting and the day of the election must be excluded from the computation of the forty-day period. March 5, 1946
21- 132 At a joint meeting of a board of trustees of a county high school and a district high school which acts upon the question of the employment of a district superintendent and county high school principal, the board of trustees of the county high school shall have the number of votes at said meeting equal to the number of votes of the board of trustees of the school district. March 6, 1946
21- 133 Under the present requirements of the law, the Montana Highway Commission cannot legally expend moneys from the state highway fund of Montana for construction, reconstruction, betterment, maintenance, or at all, on the Red Lodge-Cook City highway. March 13, 1946
21- 134 Any person, firm or corporation holding title or equitable title or any number so holding title to any of such lands lying within such district are "occupiers of land" and further, any persons, firms or corporations as such owners, lessees, renter or tenants who are in possession of any lands lying within such district organized under this act are "occupiers of land" within such definition. March 16, 1946
21- 135 A high school district which was heretofore created under the provisions of Sections 1301.1 to 1301.6, Revised Codes of Montana, 1935, as amended, has the power and authority to issue bonds for construction purposes. March 16, 1946
21- 136 In school districts of the first class, where but one public meeting is held, and only one candidate be nominated for each term to be filled, then and in that event no election need be held and the clerk of such district shall certify such facts to the board of trustees of the district, acting as a board of canvassers who shall thereupon certify the election of such persons to the county superintendent of schools. March 16, 1946
21- 137 When the owner of lands which include the oil, gas, and or minerals, leases such lands and when production is secured and saved from such lands, the county is entitled to the 6 1/4 per cent royalty interest in all oil, gas and minerals produced and saved from said lands. March 21, 1946
21- 138 It is the duty of the county treasurer to determine and extend the amount of tax due and payable on personal property discovered by the assessor at times other than the regular assessment period, the taxes upon which are not a lien upon real property, and to collect the same in the manner provided by statute. March 31, 1946
21- 139 "Due notice," as contemplated by Section 1614, Revised Codes of Montana, 1935, is given when a board of county commissioners notified by registered mail such persons as may be interested in proceedings for abandonment of a highway not a state highway--i.e., those who have land abutting on the road proposed to be abandoned--and also causes a copy of such notice to be published once a week in the official county newspaper for a period of three weeks prior to the date of hearing on the proposed abandonment. Further, such "due notice" is any notice which will fairly and fully enable all persons who have or might have an interest in the abandonment of the highway to know the abandonment of such highway is to be considered on a day certain, and which will thereby give all persons who have or might have an interest proper and sufficient time in which to prepare and interpose objections to the proposed abandonment. March 23, 1946
21- 140 When a petition for a weed control and weed seed extermination district is presented to a board of county commissioners, is noticed for hearing, and the board takes definite action upon it as provided in Sections 6 and 7 of Chapter 195, Laws of 1939, such commissioners may not, after denying such petition, rescind their action and reconsider that petition. Under the legislative act, in order for the board to have something to consider and act upon, it would be necessary to present another petition. March 26, 1946
21- 141 The term "honorably discharged," as used in Chapter25 of the Laws of 1945, embraces all veterans who were discharged, relieved, released, transferred, or retired from active duty status with the military forces under reputable circumstances --to the exclusion of persons who were dishonorably discharged and persons who received bad-conduct or undesirable discharges. April 3, 1946
21- 142 Undivided interests in real estate are taxable to the separate owners of such interests and such interests are subject to tax liens and may be sold for taxes. Mineral reservations or grants wherein there is a complete severance are taxable as an interest in property, not on the mineral in place, but on the right to enter and to mine or explore for the same; and as such rights are taxable, they are subject to tax deed proceedings. April 3, 1946
21- 143 A surplus in the sinking and interest fund cannot be used in the next ensuing fiscal year for the construction of a county hospital, for under the mandatory provision of the budget law, such surplus must be transferred to the general fund and thus be available as cash on hand with a reduction in the tax levy for such fund for the ensuing year and resulting relief to each taxpayer. April 13, 1946
21- 144 The reserve fund for maintaining high schools from July 1 to December 1 of each year is to be considered as a part of, and included in the maximum budget as fixed by Section 1263.5, Revised Codes of Montana, 1935, as amended by Chapter 64, Laws of 1941, and the two-year increase of 30% allowed under Chapter 133, Laws of 1945. April 25, 1946
21- 145 An order of consolidation of county offices made by the board of county commissioners is operative in combining the duties of two or more offices at the beginning of the term of the officer elected to fill the consolidated office, and is not operative in combining the duties at the time the order is made. In the case presented, it is important to note the person elected to the consolidated office must be qualified to hold the office of county superintendent of schools. April 25, 1946
21- 146 Public officers are not precluded from receiving jurors' per diem by virtue of their public offices. Justices of the peace are entitled to receive witnesses' fees in criminal cases as they are not such officers as are prohibited by statute. April 25, 1946
21- 147 When two or more school districts are consolidated, and a new district is formed, the county superintendent of schools must appoint three trustees to serve until the first Saturday in April succeeding. In the case of consolidation by annexation, the officers of the first or second class school district shall continue to hold office until the end of the term for which they were elected. April 26, 1946
21- 148 Corporations incorporated under Chapter 40 of the Civil Code of Montana--Sections 6428 to 6449.7, inclusive, Revised Codes of Montana, 1935--cannot be incorporators of a corporation being formed under said chapter. April 27, 1946
21- 149 Any corporation save those excepted by Section 5928, Revised Codes of Montana, 1935, may amend its articles of incorporation so as to accomplish any change of powers or activities which it could accomplish by incorporating an entirely new corporation. The filing fee in this instance should be in the recording of an amendment to the articles the same as if new articles were presented. April 27, 1946
21- 150 Neither the board of county commissioners nor the fair commissioners of Lake County have authority to aid in the maintenance and construction of a fair grounds, which fair grounds was not purchased by the county commissioners under the authority of Section 4550, Revised Codes of Montana, 1935, as amended, as a county fair grounds. April 29, 1946
21- 151 No city, town, person or company shall proceed to build or install or enlarge or extend any system of water supply, drainage, or sewage disposal without first obtaining the approval of the State Board of Health. April 29, 1946
21- 152 A vacancy has not occurred in the office of county clerk and recorder by reason of the duly elected office holder's absence from the office for more than three months due to illness. May 1, 1946
21- 153 Public employee's election not to become member of the Public Employees' Retirement System--as provided by paragraph (f) of Section 5 of Chapter 212, Laws of 1945--is determinative of such employee's status only so long as his state service continues thereafter. If his state service terminates and he subsequently re-enters state service, he shall become a member of the Retirement System as provided by Section 4 of Chapter 212, Laws of 1945. May 8, 1946
21- 154 It is the authority and duty of the State Board of Hail Insurance to investigate all claims for loss presented to it and to determine from the facts whether the policy of insurance under which the claim is made was in full force and effect at the time of the loss. If a policy of insurance was not in effect at the time of the loss, the board has no authority to allow a claim for loss thereunder. May 16, 1946
21- 155 A motor vehicle owned by an automobile company, but under the exclusive control of a city in accordance with the terms of a rental lease agreement is exempted from the statutory requirement for registration and payment of license fees as provided by Section 1760, Revised Codes of Montana, 1935, as last amended by Chapters 200 and 201, Laws of 1945; but so long as ownership is not in the city, there is no exemption from taxation. May 16, 1946
21- 157 A common school district's proportionate share of a high school building district's indebtedness must be included in the computation of the limit of indebtedness of the common school district. May 16, 1946
21- 158 Funds realized from the sales of bonds to be used "after the termination of the war" cannot be used until a formal treaty of peace has been ratified, or by proper act of Congress or proclamation of the President. May 21, 1946
21- 159 A county treasurer, elected in 1944 for the unexpired term of the treasurer, elected at the general election in 1942, does not come within the constitutional provision prohibiting the treasurer from being eligible to his office for the succeeding term. May 21, 1946
21- 160 Chapter 156, Laws of 1945, permits a board of county commissioners to contract with the United States of America or any federal agency for the purchase, lease or other acquisition of any new, unused or rebuilt equipment, supplies and materials and make payment therefor without first advertising for bids as provided in Section 4605.1, Revised Codes of Montana, 1935, as amended by Chapter 42, Laws of 1941. However, Chapter 156, Laws of 1945, in no way relieves the board of county Commissioners from compliance with the county budget system as outlined in the law. Further, each board of county commissioners must continue to obey the mandate of Article XIII, Section 5, of the Montana Constitution, which provides no county shall incur any indebtedness or liability for any single purpose to an amount exceeding $10,000.00 without the approval of a majority of the electors thereof voting at an election provided by law. May 21, 1946
21- 161 A joint airport board, acting pursuant to Chapter 54, Laws of 1941, may make disbursements from the joint fund without again having the approval of the board of county commissioners. May 23, 1946
21- 162 A candidate for nomination may not file a petition for nomination for an office on one political party ticket, and, at the same time, file a petition for nomination for the same office on another and different political party ticket. May 24, 1946
21- 163 County bonds held by the State of Montana may not be refunded prior to the maturity date of the bonds when there is no provision in the bonds for redemption prior to maturity. May 25, 1946
21- 164 A school district, through its board of trustees, does not have the power or authority to enter into an oil and gas lease concerning school district land which is not necessary for school purposes. June 6, 1946
21- 165 The term of office of the county coroner, elected at the general election in 1944, expires on the day before the first Monday in January, 1947, and that a county coroner should be elected at the general election in November, 1946, for a term of four years, the term to commence on the first Monday of January, 1947. June 13, 1946
21- 166 A person honorably discharged from the National Guard but without a record of active service in the Army of the United States is not a person who has "served in any branch of the armed services of the United States," as that language is used in Section 4536, Revised Codes of Montana, 1935, as last amended by Chapter 25, Laws of 1945. June 13, 1946
21- 167 Property leased by a city under an agreement with an option to purchase, title to remain in the lessor until said agreed value is paid in full, is not exempt from taxation by the county under Article XII, Section 2, of the Montana Constitution as being "property of a city." Nor is such "property" exempt from taxation by the county by reason of a provision in the agreement that the city will reimburse the lessor for any taxes levied on such property. June 13, 1946
21- 168 A Fire Department Relief Association cannot legally refund pay roll deductions to a member whose employment with the fire department is terminate before any application is made for any of the benefits payable from the fund. June 14, 1946
21- 169 A surplus in the poor fund at the end of a fiscal year may be used in the next ensuing year for the construction of a county hospital providing the budget for the latter year appropriates such funds for such capital expenditure as an item of the poor fund. June 19, 1946
21- 170 The legislature has specifically placed the duty of collecting hail insurance premiums on the county treasurer and the sheriff (and not on the Board of Hail Insurance) and in the absence of any statutory authority, the Board of Hail Insurance may not employ legal assistance in collecting delinquent hail insurance premiums. June 20, 1946
21- 171 Funds may be transferred from the "new building and alterations" item of a school budget to the interest and sinking fund during the fiscal year. June 21, 1946
21- 172 Farmers who reside outside a weed control district may not receive any benefits from the funds, equipment and supplies as provided in the weed control act. June 21, 1946
21- 173 A school district may provide in its budget for its proportionate share of money for the construction of a power line which will be used by the schools of the district. June 22, 1946
21- 174 The corporate existence of a fire department relief association, organized in 1916 under articles prescribing a twenty-year term, terminated in 1936 and the right to extend the term finally expired in 1941, in accordance with Section 5916, Revised Codes of Montana, 1935. Hence, a new corporation must be formed to comprise and function as a fire department relief association. June 27, 1946
21- 175 High school students who attend high school outside of the county of their residence and who reside closer to a high school in the county of their residence than the one attended are not entitled as a matter of right to permission for transfer and resulting payment of such funds although the same students may be entitled to transportation. June 27, 1946
21- 176 The manufacture, display or sale of fireworks as defined in Chapter 86, Laws of 1943, is illegal within the State of Montana, and will remain unlawful until six (6) months after the formal ratification of a peace treaty by the Congress of the United States or an appropriate proclamation by the President of the United States. June 29, 1946
21- 177 A school district does not have the power to use the proceeds of a bond issue which was issued for the purpose of constructing a workshop to be used in conjunction with the schools of the district in the remodeling of an old swimming pool into a workshop and the construction of a new swimming pool. July 1, 1946
21- 178 The schedule found in Section 7 of Chapter 152, Laws of 1941, as amended by Chapter 189, Laws of 1943, and Chapter 116, Laws of 1945, applies only to the computation of the amount paid to parents or guardians of students who receive such payments instead of bus transportation and the portion of budgets for bus transportation paid by the county and the school districts is fixed by the actual amounts called for in the budgets. July 5, 1946
21- 179 A school trustee is not precluded from holding such office because he is not registered to vote and the residence of such trustee must be determined from the facts in accordance with the rules of Section 574, Revised Codes of Montana, 1935. July 6, 1946
21- 180 Citizens nominated for public office at the July 16 primary election by having their names written in on a primary election ballot have until the 10th day of August, 1946, in which to file acceptances of nominations in the proper state or county offices. July 11, 1946
21- 181 A person defeated in the primary election may have his name printed on the ballot as an independent candidate by complying with the provisions of Chapter 64, Revised Codes of Montana, 1935, particular reference being made to Sections 613, 614 and 615, and Section 618, as amended by Chapter 105, Laws of 1943, certificate of nomination to be filed with the proper officer on or before August 6, 1946. July 22, 1946
21- 182 (1) Section 5113, Revised Codes of Montana, 1935, applies to cities operating under a commission form of government as well as to cities organized under the general municipal incorporation laws. (2) In Montana a municipality has only such powers as are expressly conferred and such as are necessarily implied and are indispensable in order to accomplish the purpose of its creation. Hence, a city may not by ordinance reduce the age limit for firemen at the time of employment below the age limit specified by Section 5113, Revised Codes of Montana, 1935. July 25, 1946
21- 183 A person who is the owner, or entitled to the possession of a horse, who willfully permits the same to run at large within a horse herd district, may not be prosecuted under the provisions of Chapter 165, Laws of 1945. July 27, 1946
21- 184 1. It is lawful for all patrons, except minors, of a fair or racing association to contribute entrance fees toward a purse to be divided among such patrons in races to be given or conducted by a fair or racing association. 2. Such races may be given or conducted by such fair or racing association, and contributions to such purse made and such purse divided among such patrons, except minors, in counties of a population of forty thousand or more for a period of thirty days, except Sundays, in any one year, and in counties of lesser population for a period of not more than six days, except Sundays. 3. One fair association, or one race association may conduct such races for the periods specified, or the period may be divided between two or more racing associations, or two or more fair associations, or between such fair associations and such racing associations. 4. Specifically, a fair association may conduct races in the county for a part of the period and a racing association for the balance of such period. The periods designated as above may not be exceeded. July 30, 1046
21- 185 The board of trustees of an elementary school district may finance the purchase of a school site, which has been approved by the electorate, by either providing in the school budget for such an appropriation item, or by using the funds realized from the compensation paid for the destruction of the school to be replaced. July 31, 1946
21- 186 1. Children whose parents have moved into a district and whose parents maintain a permanent residence within the district are entitled to the same school transportation privileges as are the other children of the district without regard to the length of residence of the parents within the district. 2. Children whose parents have moved into a school district which does not maintain an elementary school are entitled to attend the school in another district to which the children of the district are transported and the district of the parents' residence must pay the proportionate amount for such pupil to the school attended as provided in Section 4 of Chapter 152, Laws of 1941. 3. The number of school trustees who must countersign school district warrants with the school district clerk is not fixed by statute, but the trustees may, by appropriate resolution, provide for such counter signatures. August 3, 1946
21- 187 1. In providing funds for weed control and weed seed extermination, under Section 13 of Chapter 195, Laws of 1939, as amended, county commissioners may either appropriate from the general fund of the county, or levy a tax not exceeding two mills on the dollar, but may not use both methods. 2. The tax so authorized to be levied must be levied on all the property of the county, including property within corporated cities or towns. August 5, 1946
21- 188 A clerk of court may not--upon receiving notice of the wilfull destruction of a marriage license and certificate prior to their return to his office by the solemnizing authority--issue a duplicate and secure the necessary signatures of the solemnizing authority and witnesses for the purpose of recording it. Section 5720, Revised Codes of Montana, 1935, requires the record to be made from the original certificate; and a duplicate executed later than the initial, true writing is not an "original." August 6, 1946
21- 189 1. When a piece of real estate has been duly severed into surface rights and mineral rights, or the right of entry to prospect, explore and mine, and taxed separately, and the county has taken tax deed to each interest separately, the county may, under Chapter 171, Laws of 1941, duly appraise and advertise each of the separate interests, and sell the same separately. 2. When the county has taken title to the surface and subsurface of a piece of real estate as a unit, it must first appraise and offer the entire unit for sale, including surface and mineral rights, and if sold retain the statutory 6 1/4% mineral royalty; but if the same cannot be sold, it may, if determined by the board of county commissioners, to be for the best interest of the county, then divide the real estate into two estates by dividing it horizontally, and appraise each estate separately and advertise and sell each separately. 3. When the county offers surface rights only for sale, and the purchaser buys only the surface rights, he may not require a reformation of his deed to convey to him all mineral save 6 1/4% royalty interest, and if the transaction were irregular and void, his remedy is to request a refund of his purchase price, or the portion thereof paid. August 7, 1946
21- 190 (1) The payment of salaries, wages or compensation to female employees which are less than those paid to male employees for equivalent service or for the same amount or class of work or labor in the same industry, school, establishment, office, or place of any kind or description is a violation of the law. (2) The division of labor is charged with the duty of enforcing the provisions of Section 3090, Revised Codes of Montana, 1935, and you are correct in requiring the distinction between female and male employees for the sole purpose of wage fixing be abandoned. August 7, 1946
21- 191 Funds for the operation and maintenance of junior colleges may be provided for under Chapter 158, Laws of 1939, by inclusion of the necessary amount in the high school budget and/or by charging tuition for each student, which tuition should not exceed $125.00 per year. Both of these methods may be followed simultaneously in raising the necessary funds. August 9, 1946
21- 192 To comply with Article, Section 4, Montana Constitution, a person seeking office of county commissioner must actually have lived and maintained a home, where he was personally present, within his particular commissioner district for at least two years preceding the time when he files his petition for nomination. Removal of such residence from his particular commissioner district--subsequent to his filing the petition for nomination but prior to election--does not disqualify such a candidate for county commissioner, so long as he remains an elector of the county he seeks to represent. August 9, 1946
21- 193 (1) The county in which animals--destroyed by order of the state veterinary surgeon or a deputy state veterinary surgeon by reason of their affliction with disease, as set out in Chapter 75, Laws of 1943--were owned at the time they were determined to be affected with such disease shall be liable for the county's portion of any indemnity to be paid therefor. The ownership and county liable for indemnity are to be established as provided by Chapter 75 Laws of 1943, without reference to the assessment list or tax rolls, since Chapter 75 makes no mention of taxation or assessment of destroyed animals as a condition precedent to payment of indemnity therefor. (2) Whether cattle branded ID (Indian Department) are or are not the property of the United States is a question of fact to be determined in the individual case from the particular facts involved. (3) Indemnity shall not be paid for animals belonging to the United States (Section 3278, Revised Codes of Montana, 1935). August 17, 1946
21- 194 Section 455, Revised Codes of Montana, 1935, as amended by Chapter 112, Laws of 1945, and Section 24 of Chapter 44, Laws of 1943, may be read together and harmonized insofar as the clerk of the district court's duty to furnish to the registrar of vital statistics of the State Board of Health a certified copy of each final order of adoption ins concerned. Forwarding to the State Registrar of Vital Statistics of the State Board of Health of such copy of final order of adoption is not a violation of Section 455, as amended by Chapter 112, Laws of 1945, since the State of Montana is not a "person" within the meaning of that statute. August 17, 1946
21- 195 A surplus in the general funds of a municipality cannot be transferred to the water system account to be used in the purchase of a water system. August 19, 1946
21- 196 1. The Montana Liquor Control Act does not authorize a person or concern within the State of Montana to buy intoxicating liquor for the purpose of resale to retail liquor dealers in the state. 2. There is no prohibition in the Montana Liquor Control Act against wholesale of intoxicating liquor to the Montana Liquor Control Board by a wholesale liquor dealer operating and making such sale within the State of Montana, providing such wholesale dealer does not possess the liquor within the state. 3. Under the laws of Montana, intoxicating liquor may be sold only at state liquor stores to permittees or licensees at retail posted prices and from the stock in the store. 4. No licensee or permittee, or other person or concern, may sell intoxicating liquor within the state at wholesale, except to the Montana Liquor Control Board. 5. A licensee may possess and sell at retail on his licensed premises intoxicating liquor purchased at a state liquor store. 6. A permittee--individual or special--may purchase intoxicating liquor at a state liquor store, and possess the same for the purposes only as specified in Section 2815.77, Revised Codes of Montana, 1935, as amended by Chapter 3, Laws of 1937. August 22, 1946
21- 197 Regulation No. 25 is unnecessary for the purpose of the administration of the liquor control act or for carrying out the provisions of the act or the orderly and efficient administration thereof. It is ineffective for any purpose. It was without the authority of the board to make and is void and of no effect. August 23, 1946
21- 198 Elective County Officers are obligated to perform their duties as set forth in the law, and to keep their offices open for transaction fo business during the hours the law prescribes, but are not obligated to work any certain number of hours per day. August 26, 1946
21- 199 The State Treasurer shall deposit to the credit of the State Highway Fund any balance remaining from the gasoline license tax collections after deducting therefrom drawbacks or refunds (Sections 2381.22 and 2396.49, as amended) and an amount sufficient for payment of principal and interest of debentures. August 27, 1946
21- 200 Outstanding warrants of a school district at the end of a fiscal year which have not been presented for payment, although there are sufficient funds, are paid from the funds of the budget of the prior year and not included in the subsequent budget as an item of expense. August 28, 1946
21- 201 Funds realized from the sale of bonds by a county for the purpose of constructing a county building should not be placed in the bond sinking and interest fund and subsequently invested in securities. August 29, 1946
21- 202 So long as the college station wagon is operated by one of the college staff for use by students in the exclusive, regular course of educational work, there can be no liability on the part of the college for personal injury to student being driven or riding in the same, since the Montana State College is an arm of the state, instituted and maintained by the state in compliance with the state's constitutional duty to establish and maintain educational institutions. August 25, 1946
21- 203 1. Section 662, Revised Codes of Montana, 1935, as amended by Chapter 84, Laws of 1939, and as interpreted in substantially its present form by our Supreme Court in the case of State ex rel. Smith v. Duncan, 55 Mont. 376, 380, 177 Pac. 248, gives authority to the county central committee of the political party concerned to fill a vacancy in nomination for the office of State Senator caused by the death of the nominee. 2. Pasters or stickers may be printed and distributed in the manner set out by Section 680, Revised Codes of Montana 1935, for substitution in the proper place on each ballot to indicate the nominee who succeeds the deceased. August 30, 1946
21- 204 Rejected ballots at a bond election are not considered in ascertaining the majority vote cast at such election. September 10, 1946
21- 205 The State Water Conservation Board, the State Prison, the Montana State Agricultural College and other like institutions are not eligible under Section 2396.4, Revised Codes of Montana, 1935, as amended, but Soil Conservation Districts are eligible under said Section 2396.4, for such refunds and drawbacks. September 11, 1946
21- 206 Missoula County is correct in retaining in its tax deed accounts the land to which it had taken tax title prior to the enactment of Chapter 223, Laws of 1943, even if some of such tax title land by the provision of said Chapter 223 thereafter was within the confines of Granite County. September 20, 1946
21- 207 A person convicted under the provisions of Section 1746.1, as amended, of operating a motor vehicle while under the influence of intoxicating liquor may apply for a driver's license thirty days from the date of such conviction; but such person so convicted shall not be eligible to receive such driver's license until he has complied with the provisions of Chapter 129, Laws of 1937. September 23, 1946
21- 208 A deputy sheriff appointed by the sheriff must have been a resident of the state for at least one year, and a resident of the county where such appointment is made for a period of at least six months prior to the date of said appointment. October 5, 1946
21- 209 The State Examiner and exofficial Superintendent of Banks--by reason of his duty of supervision of credit union associations--may make and enforce such reasonable recommendations as may be necessary to reduce the risk of unwarranted losses to the membership of such association. 2. Credit union associations may employ such employees as are necessary for proper and efficient operation. 3. Credit union associations have the power to own and hold real and personal property; and, hence, they may purchase necessary equipment and may make needed alteration in office and working quarters. October 15, 1946
21- 210 The Livestock Sanitary Board has authority to promulgate and enforce a regulation prohibiting the sale at a public sale yard of animals found infected with infectious or contagious diseases to slaughterers other than those who operate under federal or state meat inspection. October 16, 1946
21- 211 A summary distribution may be had of the estate coming within the provisions of Chapter 57 of the Laws of 1941, although a claim for old age assistance may have been allowed as a claim against the estate of such person. October 18, 1946
21- 212 To be included in the category of "operational" expense, an expenditure must be one which is "necessary" for the operation of the department, board, bureau, etc., to which the appropriation applies. This question of what is "necessary" in regard to a new proposal is a question for the legislature to pass upon. Until this new proposal is defined by the legislature as "capital" or a "capital replacement," or until such time as the legislature approves the project, the present appropriation cannot be used for the payment of an architect's drawings, sketches or plans of a proposed building. October 22, 1946
21- 213 A board of county commissioners may not agree to purchase or contract for supplies, furnishings or replacement unless it receives a bid or contract in a certain and definite amount. October 24, 1946
21- 214 An absent voter's ballot for a school district bond election has not been authorized by our legislature and therefore the only ballots which may be counted at such election are those cast by qualified electors who are present at the polls and vote in person. October 30, 1946
21- 215 A county attorney cannot employ his brother to assist him in the job of county attorney, nor can he make any agreement or promise with the board of county commissioners to employ his brother, even though such employment be without compensation. October 31, 1946
21- 216 An election to abolish a county high school shall be submitted to the registered voters of the county, without the requirement that their names appear on the assessment rolls. The poll books for such election are the same as those used for the election of county officers, without the requirement of the preparation or posting of a separate list. November 1, 1946
21- 217 Board of canvassers must determine successful candidate primarily from tally sheets before it. Conflicting tally sheets from Precinct No. 9 prevent determination of election and Board must certify it is unable to determine from the returns which candidate was elected. November 8, 1946
21- 218 The term "REGULARLY LICENSED DENTIST" under Chapter 125, Laws of 1943, requires that the director of the dental department of the State Board of Health shall be a dentist regularly licensed by the Board of Dental Examiners of the State of Montana. November 14, 1946
21- 219 Based upon the holding of the Supreme Court in the case of State ex rel. Dunne v. Smith, 53 Mont. 341, 163 Pac. 784, it is my opinion: 1. During the interim between election day (the day upon which the appointee's term ends) and the first Monday in January (the day on which the new fixed term begins) the office of sheriff in Valley County is vacant. 2. It is the duty of the board of county commissioners of Valley County to appoint a sheriff to serve during the interim. His term of office will be from the day of appointment to the midnight preceding the first Monday in January, upon which date the duly elected sheriff will take office. November 15, 1946
21- 220 The county central committee does not have power to designate a candidate for state senator where the person who received the highest number of votes by write-in in a primary election fails to accept the nomination (Section 640, Revised Codes of Montana, 1935, as amended by Chapter 27, Laws of 1945)--or fails to designate the party upon which his name shall appear at the general election when he receives the highest number of votes by both parties at the primary (Section 651, Revised Codes of Montana, 1935)--for no vacancy by resignation occurs, as required by Section 662, Revised Codes of Montana, 1935, as amended by Chapter 84, Laws of 1939. November 19, 1946
21- 221 A county clerk and recorder may receive instruments for recording at any time during the twenty-four hours and must endorse upon them the time at which received, in accordance with Section 4805, Revised Codes of Montana, 1935. November 21, 1946
21- 222 A person elected to the office of clerk of the district court in the election November 5, 1946, to fill the unexpired term of one elected to that office in 1944 should be paid under the salaries fixed by Chapter 150, Laws of 1945. November 21, 1946
21- 223 Money received as insurance for the destruction by fire of a high school building may not be expended for the building of an elementary school without authority therefor having first been procured from the electorate voting at an election called for that purpose. Money received as damages for destruction of elementary school buildings may be used for the purchase of a site and building a new elementary school to take the place of one destroyed, without a vote of the electorate. November 23, 1946
21- 224 1. Alteration or change of an instrument after recording creates a new instrument which must be recorded by the clerk and recorder as set out in Section 4805, Revised Codes of Montana, 1935. 2. The county clerk and recorder is a ministerial officer and it is not his province to pass upon the legality of instruments presented to him for recording. 3. To record or correctly copy, the county clerk must make for his records an exact duplication of any instrument deposited with him for recording and entitled to record under our laws. November 25, 1946
21- 225 The board of county commissioners does not have discretionary power in issuance of bonds authorized by qualified electors, but must issue bonds in an amount sufficient to accomplish the purpose of the bond issue. A county hospital may be constructed by a county for the care of the indigent sick and such hospital shall not be constructed in size in excess of present need with reasonable provision for future requirements. November 27, 1946
21- 226 The Industrial Hygiene Division of the State Board of Health is not given authority to make regulations establishing threshold limits for toxic dust, fumes, vapors and gases in industries in Montana because: The provisions of Section 4, Chapter 127, Laws of 1939, provide for an unconstitutional delegation of power to such a board since no definite standard has been set. The contemplated action of the board is not of the type which can be allowed under broad general powers since no such necessity exists. December 12, 1946
21- 227 The Veterans' Welfare Commission may not expend or authorize the expenditure on its behalf of funds which may be used for any purpose other than the welfare and affairs of veterans and their families. The Veterans' Welfare Commission--broad though its powers are--may not exercise the legislative power of appropriating money to other departments. December 14, 1946
  • 3 October 2018
  • Author: Cook, Kevin
  • Number of views: 1344
  • Comments: 0
Categories: Uncategorized
Tags:
Print