Attorney General’s Opinions

Volume 22

Opinion Held Date
22- 1 The Labor Division cannot be transferred by legislative enactment to another department because Article XVII, Section 1 of the Montana Constitution is mandatory as to the provision establishing one Commissioner for the Department of Agriculture, Labor and Industry. December 21, 1946
22- 2 Traveling salaried employees may not act in the capacity of a special agent for a named company and local resident agent for the same company at the same time. December 23, 1946
22- 3 That the inclusion of a site for a high school gymnasium in the bond election ballot is surplusage and the location of the site must be determined as an independent matter. December 27, 1946
22- 4 The clerk of the district court cannot collect a fee on the entry of an order modifying a decree of divorce previously entered after payment of fee. January 3, 1947
22- 5 Revocation of a motor vehicle operator's or chauffeur's license upon such operator's conviction for failure to comply with the provisions of Chapter 210, Laws of 1939, is permanent, inasmuch as the legislative assembly has provided no maximum period as a limitation upon such revocation. January 3, 1947
22- 6 A county superintendent of of schools cannot occupy such office and also hold the position of teacher. January 4, 1947
22- 7 That a board of county commissioners may not, under the present law, rent, purchase or build a home for the county doctor and health officer. January 14, 1947
22- 8 That any increase of salary for the Clerk of Court by way of a straight raise in the salary or by allowing clerks of court to retain certain fees, which they now collect and cover into the general fund of the county, would be unconstitutional under Section 31 of Article V as interpreted by our Supreme Court, for those officers elected or appointed prior to its effective date. January 15, 1947
22- 9 The Stockman's Club, Cascade County, is a non-profit club, but the State Board of Equalization may go behind the certificate of incorporation in order to determine whether or not it qualifies within the provisions of Chapter 142, Laws of 1945. January 16, 1947
22- 10 That under Chapter 69, Laws of 1945, and Section 3 thereof, no expenditures for any purpose whatever shall be made from the special road and bridge fund provided for therein, by the board of county commissioners of any county in the state until after the date proclaimed by the President or by Congress as the date of the termination of the existing war emergency. January 21, 1947
22- 11 A school district may recover under the law the amount of the cost of educating a child in the elementary school from the school district of the child's residence when the requisite permission for attendance had been given. A school district is not required to permit the attendance of a child resident in another district at its elementary school when the child has not received the requisite permission for transfer from the county superintendent of the county of the child's residence. February 14, 1947
22- 12 The proposed amendment does not affect the validity of highway debenture bonds, nor does it increase the rate of five cents per gallon upon all gasoline used, allowable as refunds and drawbacks under the provisions of the act. February 15, 1947
22- 13 That Chapter 151 of the Laws of 1945 provides that the highest monthly salary fixed by the board of county commissioners for a particular deputy or assistant in 1946 shall be the lowest salary to be paid for that job after January 1, 1947. February 21, 2947
22- 14 A board of school budget supervisors has no authority to assign to a county superintendent of schools the power to approve or disapprove transfer of school district budget items. March 7, 1947
22- 15 Board of school trustees may enter into contracts with teachers at any time during the year, except as restricted. Board of school trustees have only such powers and authority as granted by statute, or reasonably implied, but has wide discretion in exercising same. When Board finds anticipated expenditures for year exceed anticipated revenue from authorized levy and other sources, it is its duty to submit question of an extra levy to electors of the district as provided by law. February 22, 1947
22- 16 That the acts done by the applicant were, by the full and unconditional pardon, purged of their criminality and the applicant is entitled to prove to the commission that he is now a man of good moral character. March 11, 1947
22- 17 The Commissioner of Agriture, Labor and Industry has the duty of appointing such personnel of the Apprenticeship Council, other than teachers and co-ordinators as may be necessary to aid the council in the execution of its functions. The compensation and tenure of all personnel is fixed by the State Board of Examiners. The Commissioner of Agriculture, Labor and Industry has the duty of approving all claims against the appropriation made to the council and of approving all requisitions for supplies needed by the Council. March 26, 1947
22- 18 Mixes of the type of the Kraft Powdered Basis Mix do not meet the pasteurization requirements unless it is again pasteurized after the addition of the water. Milk and milk products at a temperature of 32 degrees Fahrenheit or lower, must contain at least ten per centum of butterfat, but products made of ices or sherbets at a temperature at or below 32 degrees Fahrenheit need not contain the ten per centum butterfat requirement, though they still must conform to the acidity requirements. March 31, 1947
22- 19 The partners agreed that good will should have no value in determining the interest of a deceased partner. The agreement could be enforced among the partners, thus depleting the deceased's estate. For taxation purposes, the agreement transferred a portion of decedent's estate to his partners, the transfer to take effect at or after death. It is thus taxable under Section 10400.1 (3). The surviving partners, having received the good will, it is taxable to them. April 5, 1947
22- 20 Chapter 274, laws of 1947, authorizes the maximum budgets for high schools to be increased during the next two fiscal years by fifty per cent of the amount fixed by Section 1268.5, Revised Codes of Montana, 1935, as amended by Chapter 166, Laws of 1939, and Chapter 64, Laws of 1941, without a special levy approved by the qualified electorate. Funds in addition to the maximum budget above noted may be granted by the qualified voters at an election submitting the question of such additional levy. In districts maintaining high schools such question would be submitted to the qualified voters of the districts. The additional levy for county high schools, in counties not divided into high school building districts would be submitted to all of the qualified voters in the county, while the question for the levy for county high schools situate in high school building districts would be submitted to the qualified voters of such building district. April 2, 1947
22- 21 That the Board of Equalization, through the State Examiner, may provide for the setting up of a fund with the State Treasurer to be designated, "Trade Stimulator Use Tax Fund"; That proceeds from the sale of stamps by the several County Treasurers and the Board, may be remitted direct to the State Treasurer to be credited to the "Trade Stimulator Use Tax Fund"; That claims presented to the State and approved by the State Board of Examiners, chargeable to said fund, must be paid on warrants drawn by the State Auditor against said fund; That each thirty days, the balance in said fund must be deposited to the credit of the State General Fund; That the State Board of Equalization must set up and keep appropriate records to reflect the supply, deposits, purchasers, purchases, and movements of such Use Tax Stamps and payments therefor. April 7, 1947
22- 22 That all county employees that are employed on a monthly basis shall receive their regular monthly salaries, without increase or decrease, whether or not they work on such holidays, unless there is a prevailing custom or supplemental agreement to the contrary. April 7, 1947
22- 23 That the failure of a school trustee to qualify within the time fixed does not of itself create a vacancy in the office and that his qualification prior to an appointment to the office precludes there being any vacancy in the office. April 8, 1947
22- 24 Where the classification fund now amounts to $6,666 and the 1947 levy will add approximately $4,400 thereto and approximately $4,284 from the general fund for revaluation procedure, that a contract for land classification and revaluation, in the amount of $15,350, may be let by the board of County Commissioners without submitting the proposed expenditure to the voters, without violating Section 5, Article XIII of the Constitution of Montana, since the expenditure does not constitute an "indebtedness or liability" in excess of the constitutional limitation. April 9, 1947
22- 25 That the extra levy authorized by Chapter 274, Laws of 1947, for County High Schools may be submitted to the qualified electors of a high school building district under the provisions of Chapter 114 of the Political Code of the Revised Codes of Montana, 1935. That the election submitting the question of an extra levy for county high schools in counties not divided into high school building districts must be held in conformity with the general election laws. April 9, 1947
22- 26 Gasoline tax refund claims are to be determined by the board of equalization in the manner set out in Section 10516 of the Revised Codes of Montana, 1935, when the "original" or top impression of the invoice or invoices on which such claims are founded has been lost or destroyed. April 11, 1947
22- 27 A county must have an interest in airport land to devote tax funds to it; April 11, 1947
22- 28 The deputy of a county treasurer must have the same qualifications as the principal under whom he serves, and therefore be at least twenty one years of age. April 24, 1947
22- 29 Section 1204, Revised Codes of Montana, 1935, as amended by Chapter 272, Laws of 1947, does not apply to the apportionment of funds realized from Section 1202, Revised Codes of Montana, 1935, for the school year 1946-1947. April 24, 1947
22- 30 The County Clerk and Recorder must charge veterans a fee for copies of honorable discharges, birth certificates and death certificates unless they are to be furnished for the purpose of determining eligibility for benefits made under the Veterans' Administration. April 25, 1947
22- 31 That distribution of moneys received upon leases in the Red Lodge-Rosebud Irrigation District should be accordance with Chapter 81, Laws of 1943. May 1, 1947
22- 32 The members of the Board of County Commissioners are entitled to one mileage to and from their homes to the county seat when attending meetings as county commissioners and also when attending meetings as a welfare board, after public notice given, provided the members actually make such trips, regardless of the number of days each such meeting is in session, or whether one session immediately follows the other. May 3, 1947
22- 33 Under the holding in the Glacier Park case, supra, that Chapter 49, Laws of 1989, is not applicable to stores within Glacier National Park. May 14, 1947
22- 34 The board of trustees of a county high school is not authorized to pay insurance premiums in an amount in excess of the amount appropriated for such item unless a transfer of funds may be made in an amount sufficient to pay the premium charge. May 14, 1947
22- 35 Exception number (5) of part (g) of Section 1 of Chapter 193, Laws of 1945, excepts from the definition of "livestock market" places where breeders or associations of breeders of livestock assemble and sell such livestock-but does not except individuals or associations of individuals who raise livestock merely for a particular use, such as for rodeo purposes, slaughtering and canning, pack purposes, and similar special uses. May 15, 1947
22- 36 That soil conservation districts are exempt from paying taxes on earth moving equipment, real estate and city lots owned by them. May 23, 1947
22- 37 The limit of distance noted by Chapter 226, Laws of 1947, applies to the number of saloons or liquor dispensaries which can be located within a town or city, and its five (5) mile radius, and does not refer to a limitation as to the inhabitants who may carry on such business. May 24, 1947
22- 38 The Board of Supervisors of a soil conservation district has authority to employ legal counsel to represent the district in litigation. May 29, 1947
22- 39 Those drivers who purchase their licenses before July 1, 1947, cannot be required to purchase the new license provided for in Chapter 267 under the restrictions contained in Article I, Section 10 of the Constitution of the United States and Section 11 of Article III of our State Constitution. June 5, 1947
22- 40 The salary as provided by law of a District Judge, and the one-half of the salary of a County Attorney have been appropriated by law and may be paid out of the general fund of the State, upon warrants issued by the State Auditor's office. June 5, 1947
22- 41   June 9, 1947
22- 42 The excess funds in the salaries item of an elementary school budget cannot be transferred to the transportation budget, and any excess in the transportation budget cannot be transferred to any item in the general fund. June 23, 1947
22- 43 A school site 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, 1985, as amended, or under the provisions of Chapter 106, Laws of 1989, as amended, and that the fact the site and property may be desirable for school purposes for schools other than those maintained by the district will not preclude the sale by the district. June 24, 1947
22- 44 The residence of a child committed to the State Orphans' Home is that of his parents. If the parents move from the state of Montana the county of the former residence of the parents is no longer under obligation to transfer funds to the high school at Twin Bridges in Madison County. The expense of such education is the obligation of the State of Montana. July 11, 1947
22- 45 Free Textbooks must be furnished in elementary schools, but there may be no special textbook levy as Section 1199, Revised Codes of Montana, 1935, was repealed by Chapter 146, Laws of 1931, the elementary school budget act. Section 1198, Revised Codes of Montana, 1935, was not affected by passage of the budget act. Therefore, the item for free textbooks should be included under item 13 of Section 1 of the budget. July 12, 1947
22- 46 If monies remain in the funds appropriated to the Oil Conservation Board for the biennium, July 1, 1945 to July 1, 1947, under the provisions of House Bill No. 325, Chapter 40, Laws of 1947, authorizes said board to pay the employer contribution to the retirement system from such funds. July 12, 1947
22- 47 Upon the hearing of the petition, if landowners owning 51% of the agricultural lands, within the district, have or shall file written consent for the creation of the district at the time of the hearing, the county commissioners shall proceed to hear the said petition, and they shall, by an order duly made and entered on their minutes, after they find that landowners owning 51% of the agricultural land within the district have filed their written consent for the creation of the district, declare the district created, setting forth the name and boundaries of the district and the land contained therein. The term "agricultural lands" as used in the act means land being cultivated or those lands which are susceptible of cultivation for the production of food or feed crops. That lands on Indian Reservations, wherein the United States retains or withholds title, may not be included, either to make un the 25% of petitioners or the 51% necessary to create the district, and may not be taxed in any manner by the State or its subdivisions. July 14, 1947
22- 48 Where no fair commission has ever been appointed, the board of county commissioners may appoint a county fair commission at a meeting other than the December meeting, since the words of Section 4545, Revised Codes of Montana, 1935 -"the board. .. may, at their regular meeting in December in 1927, appoint ... " -are permissive and directory only, and relate to the proper and ordinary conduct of business without requiring a mandatory construction. However, the direction of the legislature to the effect the board of county commissioners shall appoint members of the fair commission at the board's regular meeting in December must not be flaunted; and, therefore, original appointments of members of the fair commission, if made at any other time, should be planned so that members' terms will expire and new appointments be made at the time designated by the legislative assembly. July 23, 1947
22- 49 The marital relation may be legally entered into under the sections requiring solemnization, license and certificate, and under this procedure the requirements of Chapter 208, Laws of 1947, must be complied with. That the marital relation may also be entered under the provisions of Section 5724, Revised Codes of Montana, 1935, wherein no license, solemnization nor application of the provisions of Chapter 208, Laws of 1947, are necessary, and no fee is required for the filing and recording of the declaration. July 24, 1947
22- 50 Land sold for delinquent taxes, where a certificate of tax sale is issued to the purchaser, cannot be put up for bids and auctioned off to the highest bidder, but must be sold for the amount due for taxes, penalty, interest and costs. July 25, 1947
22- 51 A foreign-licensed motor vehicle which entered Montana in May of 1947 and was used on the highways of Montana at that time was required to be registered immediately upon its entry, and it cannot be registered for one-half the regular registration fee, even though application for registration is executed after July 1, 1947. August 2, 1947
22- 52 The security afforded the vendor under the terms of the conditional sales contract continues until the terms of the contract are complied with by the vendee, and upon the vendor receiving final payment on such conditional sales contract the vendor must file in the office of the Registrar of Motor Vehicles a satisfaction thereof within 15 days after receiving such final payment. If the vendor fails to file satisfaction within 15 days after final payment, he shall pay one dollar ($1.00) to the office of the Registrar of Motor Vehicles for each and every day thereafter that he fails to file such satisfaction. August 4, 1947
22- 53 1. The mere keeping or possessing of a slot machine is illegal, except when kept or possessed under the authority of Chapter 153, Laws of 1937, or Chapter 142, Laws of 1945; 2. Any officer authorized to make arrests has authority to seize slot machines kept or possessed illegally as herein held, and to arrest the person or persons actually or apparently in possession or control thereof, or of the premises in which the same may be found, if such person or persons be present at the time of the seizure. August 7, 1947
22- 54 Unless the Judge appoints a chief probation officer for his judicial district, whether his district comprises ONLY ONE COUNTY or more than one county, all of the duties of such chief probation officer under the act devolve upon the sheriff in his county, by operation of this law, and this makes it the duty of such sheriff to perform all the duties of such chief probation officer without additional compensation. This part of the act is mandatory. These duties devolving upon the sheriff are to be performed as direct by the Court. August 7, 1947
22- 55 (1) A Board of Trustees of a school district may set up a school in a church building for temporary use and to meet an emergency. The selection of a permanent school site and the construction of a school building must be authorized by the qualified electors of the district at an election called for that purpose, within a reasonable time. (2) School trustees must purchase and furnish free textbooks for the use of the schools in their districts. (3) School trustees must hire a teacher or teachers for the schools in their districts even though the teachers will be employed in a new school temporarily located. August 11, 1947
22- 56 A cemetery district established under Chapter 221, Laws of 1943, as amended by Chapter 16, Laws of 1945, may hold TITLE to property by grant, gift, devise or any other method--but leasing of property should be done only with great caution due to the constitutional provisions cited herein, and then only where complete control is vested in the district. August 12, 1947
22- 57 The alteration of the transportation schedule in accordance with subsection 8 of Section 7 of Chapter 152, Laws of 1941, as amended, is discretionary with the County Superintendent of Schools. Such an alteration must be approved by the State Superintendent of Public Instruction and cannot be demanded as a matter of right by the parents of the children concerned. August 19, 1947
22- 58 A retired officer of the United States Army (Regular Army) shall be deemed a resident of Montana for the purpose of securing resident hunting and fishing licenses, and shall pay the resident fees for such licenses. August 19, 1947
22- 59 The procedure for cash payment of meter machine settings is within the authority of the state board of equalization as follows: 1. Remittance by the distributor or dealer of the amount of tax to be set in the machine; 2. Issuance by the state board of equalization of a tax receipt for said payment to the distributor or dealer; 3. Instruction to the proper county treasurer to set the meter machine in accordance with the amount of payment. The state board of equalization may adopt rules and regulations requiring security in addition to the $5,000.00 surity bond provided in Sec-9 of Chapter 289, Laws of 1947, when distributors or dealers of cigarettes require tax stamping meter machine settings which will cause the amount of tax due on the packages of cigarettes for which tax stamping meter machines are set to stamp for the month to be in excess of $5,000.00. August 20, 1947
22- 60 1. A school district is not required to advertise for bids in the purchase of a school bus, although it may do so where the trustees deem it for the best interests of the district. 2. A school district may purchase a school bus under a conditional sales contract and pay for the same over a period of three years. August 20, 1947
22- 61 An Abstract of title must be prepared and filed with the plat, such abstract of title to be prepared and certified to, by an abstractor who has been duly qualified to engage in the business of compiling abstracts of title to real estate in the state of Montana, and that a title insurance policy may not be used or filed in lieu thereof. August 26, 1947
22- 62 The provisions of Section 2169, Revised Codes of Montana, 1935, as it applies to the county treasurer giving the notices therein mentions, are directory and not mandatory. The failure of the county treasurer in giving the notices as therein provided will not affect the legality of the tax, nor the lawful interest and penalty accruing thereon, as provided by law. September 5, 1947
22- 63 The Montana Milk Control Board may not allow an alteration or revision of prices for milk set by it in marketing areas without first holding a public hearing on the matter in the same manner provided by law for the original fixing of prices. September 6, 1947
22- 64 A joint airport board may sign an agreement with the federal government pertaining to development of airport projects on behalf of its constituent public agencies and bind its constituent public agencies thereby, provided it does not exceed any of the limitations placed upon it by sub-section (d) of Section 14 of Chapter 288, Laws of 1947, and provided it does not attempt to obligate its constituent public agencies beyond the terms of their agreement executed pursuant to sub-section (b) of Section 14, Chapter 288, Laws of 1947. September 9, 1947
22- 65 The Montana Milk Control Board may establish a "market" which includes all the cities, towns, or communities of an entire county if the board determines in its sound discretion all such cities, towns, or communities of such county are a "NATURAL marketing area." September 16, 1947
22- 66 Chapter 270, Laws of 1947, of the State of Montana consisting of Sections 1 to 20, both inclusive, constitute the sole statutory authority for the making of a hospital survey and the development of a hospital construction program in the State of Montana. September 24, 1947
22- 67 1. Members of the state and county public welfare departments may, when the public interests would be benefited rather than damaged thereby, be compelled to testify as to matters within such representatives' knowledge, and give any information in such court proceeding. 2. The court has authority to appoint a trustee, but the trustee must be willing to accept the trust, and if the county treasurer is unwilling to accept the trust he cannot be compelled to accept the fine and administer the trust. September 26, 1947
22- 68 The status, tenure in office and civil service rights of firemen and policemen were not changed by any provisions of Chapter 151, Laws of 1947, or by Chapter 152, Laws of 1947, but the same remain the same and apply in all cities and towns in the State regardless of the form of government. September 29, 1947
22- 69 A state bank cannot issue and sell its capital notes or debentures to its shareholders under Section 6017.1, Revised Codes of Montana, 1935. September 29, 1947
22- 70 A "container charge," to be fixed for milk sold in paper containers as distinguished from milk sold in glass bottles, cannot be fixed arbitrarily by the Montana Milk Control Board. To come within the objects and purposes of the Montana Milk Control Act any such "container charge" must be based upon clear and satisfactory evidence that in the long run paper containers are more costly than containers of glass or of other materials which can be used more than once, so that a dealer who sells milk in paper containers furnishes to his customer a different and more expensive service than one who sells the same milk in some other container and is therefore reasonably entitled to the benefit of a higher price fairly proportional to the higher cost. October 16, 1947
22- 71 A county is not liable for unpaid rural improvement district warrants resulting from the failure of the county officers to levy on all the property within the improvement district and to take the necessary steps for the collection of the assessments. October 18, 1947
22- 72 The territory of a school district which is attached to another school district by reason of abandonment in accordance with the provisions of Section 970, Revised Codes of Montana, 1935, as amended, is not liable for the bonded or warranted indebtedness of the school district to which the abandoned district is attached. October 20, 1947
22- 73 A family which moves from one county to another county, which change of habitation is on the same ranch, results in the family becoming residents of the latter county and the children should be included in the latter county. October 31, 1947
22- 74 That by the conveyance in question it was intended to convey to the county and that it can be established by extrinsic evidence that such was the fact, and therefore the deed in question is valid. It may be that, in order to establish title so that it might be considered to be marketable, an action in the nature of a quiet title action should be brought, but the title in the county is sufficiently good as an equitable title. October 31, 1947
22- 75 Osteopaths and chiropractors are not authorized under Montana law to give a standard serological test for syphilis, as that term is used In Chapter 208, Laws of 1947; and hence they are not authorized to execute the certificate required by Chapter 208, stating an applicant for a marriage license has been given such an examination, including a standard serological test, as may be necessary for the discovery of syphilis. November 6, 1947
22- 76 Where there are no hospital facilities at all in a county and the board of county commissioners exercising their sound judgment and discretion, determine that it is for the best interests of the county and necessary to provide such hospitalization for the indigent sick, they have the power and authority to lease a building or a part of a building for such county hospital purposes. November 10, 1947
22- 77 No county business coming within the purview of the board of county commissioners may be lawfully transacted unless at least two members of the board of county commissioners are present at a regular, adjourned or special meeting of such board. November 12, 1947
22- 78 County Commissioners have no authority under the Noxious Weed Control Act to collect from a municipal corporation which has created a weed control district under Section 8 of the Act, the costs of weed control expended on streets and alleys of the city even though the city council has orally contracted to pay such costs. The Noxious Weed Control Act specifically provides such work be handled by the county commissioners and the total cost paid from the noxious weed fund. The legislature has not granted to city or town councils the authority or power to make or enter into such a contract or contracts. November 12, 1947
22- 79 The claim of a county treasurer for special compensation for performing the duties required under Chapter 298, Laws of 1947 is unauthorized by legislative act and therefore should be denied. November 13, 1947
22- 80 1. The board of trustees of a county high school has the authority to sell real property owned by the district and undesirable for school purposes under the provisions of Chapter 106, Laws of 1939, as amended by Chapter 232, Laws of 1947. 2. The board of county commissioners has the power to purchase real property necessary for county purposes under the authority granted in Section 4465.7, Revised Codes of Montana, 1935, and in conformity with the provisions of the "Budget Act." November 18, 1947
22- 81 A motor vehicle, whether old and used or wholly new and unused, not taxable in Montana on January 1st, is not taxable thereafter in the current year as a condition for original registration. November 20, 1947
22- 82 A county is not a "person," as that term is used in Section 159, Revised Codes of Montana, 1935, and a county treasurer is not required to deposit the indemnity bond mentioned therein as a condition precedent to securing a duplicate warrant when the original warrant issued by the State Auditor in payment of a claim by a county has been lost or destroyed. November 24, 1947
22- 83 The state board of equalization is, by the Title and terms of Chapter 142, Laws of 1945, authorized, empowered and directed to enforce the provision of said Chapter 142, Laws of 1945, by making effective the provisions of the Act by its agents gathering the information of violations thereof and making complaint to the proper county attorney and sheriff, and furnishing to such officers the necessary evidence for prosecution of any violations. November 24, 1947
22- 84 In conformity with the law as given to us by our legislature, in an election, on the consolidation of school districts, voters in the district which would assume an indebtedness by reason of consolidation must have the qualifications set out in Section 1002, Revised Codes of Montana, 1935, as amended by Chapter 65, Laws of 1941, and also the qualifications required by Section 5199.1 Revised Codes of Montana, 1935. Thus, in additions to the requirements of Section 1002, Revised Codes of Montana, as amended, the voters in such district must be registered and their names must appear on the last preceding assessment roll. In districts not assuming an indebtedness, the voter need only have the qualifications under Section 1002, Revised Codes of Montana, 1935. In other words, when no indebtedness is assumed the voter need not be a taxpayer, or registered voter. December 11, 1947
22- 85 A city or county deputy officer may accept employment from a state agency with the consent of the City Council or Board of County Commissioners, where such employment is of a nature not to interfere with such deputy's regular employment by the city or county. December 19, 1947
22- 86 The Public Employees Retirement Board may legally promulgate a regulation defining the word "retirement" as it is defined in the statute (Section 2 (ad) Chapter 212, Laws of 1945, as amended by Chapter 297, Laws of 1947) and recognizing such "retirement" may be effected voluntarily by an elective officer who is a member of the retirement system by his resignation from such office upon his reaching retirement age. December 19, 1947
22- 87 In view of the provisions of the Constitution of the United States, the Constitution of the State of Montana, the statutes of the State of Montana, the decision of the Supreme Court of the State of Montana, and the decision of the Supreme Court of the United States, the state of Montana has no jurisdiction over Fort Missoula and the Military reservation thereof retained by the federal government for those purposes, except the reservation to the state of the right to serve all legal processes of the state, both civil and criminal, upon persons and property found within said reservation, and therefore, the state may not enforce any tax or license upon any property located upon said Fort Missoula Military Reservation as retained by the federal government as such. December 20, 1947
22- 88 The only lawful salary the present Judge of the Eighteenth Judicial District under his appointment is entitled to is the salary which was fixed by law at the time of his appointment and the assuming of his official duties, namely, Forty Eight Hundred Dollars per annum. December 23, 1947
22- 89 As the law now stands, a person who served as a member of the United States Merchant Marine during World War II is not entitled to free fees and tuition in the units of the University of Montana, under Chapter 44, Laws of 1945, since he is not honorably discharged within the meaning of that Act. December 30, 1947
22- 90 The use of the method of payment provided by Alternative 3, of the rules and regulations of the Veterans Administration promulgated in pursuance to the provisions of Public Laws 16 and 346, 78th Congress, to non-profit institutions for veterans enrolled, does not violate any of the laws or other legal requirements of the State of Montana. January 5, 1945
22- 91 Chapter 37, Laws of 1937, being criminal in nature, and it being the duty of the county attorney to prosecute all criminal matters, the county attorney is required to enforce the provisions of said Chapter 37, Laws of 1937. January 6, 1948
22- 92 1. The state and local boards responsible for vocational education have the responsibility of furnishing and providing related and supplemental instruction for apprentices, and the coordination of instruction with job experience, and the selection and training of teachers and coordinators for such instruction. 2. The state board of education is designated as the state board for vocational education and has the authority to make all rules and regulations governing the establishment, conduct and administration of vocation courses, including the power to fix the qualifications of instructors and the course of study to be followed, in conformity with the requirements of the federal board of vocational education. 3. The Apprenticeship Council is authorized to make rules and regulations must be limited in their purpose and effect as aid in the administration of the law. 4. It was the purpose and intent of the legislature that all departments of state and federal government concerned with the administration of the act, or its fulfillment, to cooperate to the fullest extent within their respective fields, to the end that the apprentice may receive the full benefits of the act. January 6, 1948
22- 93 A game in which tickets are sold to customers who mark a fixed number of the symbols or numbers on the face of the tickets and then a drawing made whereby the holders of tickets who had numbers marked corresponding to the numbers drawn receive a cash award, constitutes a lottery under our laws, and is thereby prohibited. January 7, 1948
22- 94 Registration is not one of the necessary qualifications to vote upon the question of an extra levy for school purposes. It is not necessary for the County Clerk and Recorder to prepare in advance poll-books with the names of registered electors for an election to vote an extra levy for school district purposes. January 7, 1948
22- 95 Funds transferred to a hospital building fund from the general fund, even though approved by the qualified voters of the county, should be returned to the general fund. January 7, 1948
22- 96 The Mental Hygiene Department may legally be brought under the Montana Joint Merit System and in view of the fact United States grants provided for in the act may not be made unless the Mental Hygiene Department is included under the act, said department MUST be brought under the act if United States funds are to be sought. January 8, 1948
22- 97 The Unemployment Compensation Commission may enter into reciprocal agreements with other states whereby the Benefit Fund of the Unemployment Compensation Commission will be used to pay benefits to workers whose wage credits and earnings were required in another state and the amount of such benefit payments charged in an account and billed to such other state at the end of each quarter, with a like arrangement with respect to Montana workers filing and claiming benefits in another state, provided such other state agency or agency of the federal government has agreed to reimburse the compensation fund for such portion of benefits so paid. January 20, 1948
22- 98 Under our present statutes, the board of county commissioners may not appoint a roving deputy clerk and recorder for the purpose of registering voters, but it is mandatory for the board of county commissioners to appoint in each precinct of each respective county a deputy registrar, other than notaries public and justices of the peace, which deputy registrar shall be a qualified, taxpaying resident elector in the precinct for which he is appointed who shall register eligible electors in such precinct only, and such registrar shall receive twenty-five cents from the county for each elector so registered by him, as compensation for his services. January 20, 1948
22- 99 Chapter 40, Laws of 1947, constitutes an appropriation of monies previously appropriated to all departments, boards, bureaus, commissions and other agencies of the state and unexpended by them during the biennium July 1, 1945 to July 1, 1947, in an amount equal to the percentage of total compensation paid their respective employee-members of the public employees' retirement system designated in the provisions of Chapter 212, Laws of 1945. Such appropriation under our Constitution expires two years after the date of the approval of Chapter 40. January 26, 1948
22- 100 The classification of a city cannot be changed without a census having first been made in compliance with the provisions of Section 4960, Revised Codes of Montana, 1935, and "direct enumeration" as used in that section means an accurate count of the population by the direct counting of the individual inhabitants of the city. January 28, 1948
22- 101 A foreign corporation cannot qualify and do business in the State of Montana as a foreign corporation, using the term cooperative as a part of its corporate firm name. To do business as a cooperative the State of Montana said corporation must incorporate under the provisions of the Revised Codes of Montana, 1935. January 29, 1948
22- 102 If, in the judgment of the State Board of Food Distributors, Ex Officio Montana Trade Commission, a conference will aid the Commission in carrying out the purposes of the Act, it is within the implied powers of the Commission to provide by rule for the calling and holding of such a conference. Expenses necessary for such a conference would come within the term "operation" as used in the appropriation bill and therefore may be paid from the appropriation made to the Commission. February 9, 1948
22- 103 Time spent by a county road employee in moving road equipment or in driving a truck or any other county owned motor vehicle, from a warehouse to and from the location where work is being done, is working time and comes within the meaning of a "day's work" as that term is used in the statute. February 9, 1948
22- 104 1. Since the amendment of Section 5025, Revised Codes of Montana, 1935, a city clerk may not draw more money from the city for salary and compensation than that provided by ordinance for the office of city clerk, regardless of whether or not he takes his vacation or performs additional duties not ordinarily identified with the office of city clerk. 2. A public officer may not claim additional compensation for a vacation not taken where there is no statutory authority for such claim. 3. City officers receiving payment of increase in salary, not authorized by law, must make refund of the unauthorized amount to the city. February 27, 1948
22- 105 Where a board of county commissioners establishes a fire district and makes the special levy as provided in Section 5148, Revised Codes of Montana, 1935, as amended, the levy is impressed upon all of the property as expressed in Section 17 of Article XII of the State Constitution, and Section 16, Revised Codes of Montana, 1935, and includes both real and personal property. March 13, 1948
22- 106 The maximum amount for mileage, which may be tendered a witness in a criminal case for attendance from another state in a trial in this state, is the sum of ten cents per mile as provided in Section 3 Chapter 188, Laws of 1937. March 25, 1948
22- 107 A High School Equivalency Diploma granted to a veteran meets the requirements that a veteran applicant for a license to practice embalming be a high school graduate. April 8, 1948
22- 108 Emergency warrants may be issued by a county or city for the purpose of continuing the operation of a City-County Health Department when the operation of the isolation hospital, ordered by the State Board of Health, is in danger of being discontinued. Before such warrants are issued a resolution must be adopted by the governing body of the city or county by the unanimous vote of all members present at any meeting, the time and place of which all members shall have had reasonable notice, stating the facts constituting the emergency and entering the same upon their minutes. In the case of emergency expenditures by cities, the resolution must also contain an estimation of the amount required to be expended and the fund against which emergency warrants are to be issued. April 10, 1948
22- 109 The property assessment of rural electric co-operatives must be determined as follows: (1) 7% of the true value of all lines and equipment used exclusively in rural areas; (2) 7% of the true value of all lines and equipment used exclusively to service governmental agencies and political subdivisions, regardless of where located; (3) 7% of true value of all lines and equipment used exclusively to service other persons not to exceed in number a figure equal to 10% of the corporation's members; (4) 7% of the true value of that portion of the plant and equipment used in generating electricity for those above mentioned, figured on a percentage of service given to those above mentioned as compared to others not in such classes; (5) 40% of the true value of that portion of the plant and equipment used in generating electricity for that portion of the persons served who do not fall within the three classes set forth in subsection (d) of Section 3 of Chapter 172, figured on a percentage of service to those who do not come within such classes; (6) On all lines and equipment wherein mixed service is included as above enumerated the tax shall be divided according to the percentage of service given to those in the classes and those outside the same as determined in respect to the plant and generating equipment. April 17, 1948
22- 110 On the consolidation of two or more co-operative associations under Chapter 38, Revised Codes of Montana, 1935, an entirely new corporation comes into being and the fee to be collected by the Secretary of State for the filing of the certificate thereof is five dollars $5.00. April 23, 1948
22- 111 Whether or not any applicant is a non-profit corporation for the purpose of procuring a license under the provisions of Chapter 142, Laws of 1945, as amended by Chapter 285, Laws of 1947, is--under the said legislation--for the State Board of Equalization to decide, after the Board has developed all of the facts and circumstances which it deems necessary for making its determination. April 23, 1948
22- 112 The machine described and known as Roto-Lette, is a slot machine, and the mere possession or keeping of the same is unlawful unless kept and possessed under the provisions of Chapter 153, Laws of 1937, or under the provisions of Chapter 142, Laws of 1945. Further, said machine is a mechanical device and cannot be considered as a trade stimulator or punch board under Chapter 298, Laws of 1947. April 24, 1948
22- 113 A charitable institution is not entitled to an exemption from taxation on property which it leases out or holds for revenue, such property not being necessary to nor used for the purposes of purely public charity, and this is true even though the proceeds from the rental be devoted to the charitable purpose. If the facts disclose that part of the property comes under the exemption, it is not taxable, and the assessor should segregate and divide the property so that only that portion which is not exempt will be taxed. April 26, 1948
22- 114 Funds appropriated under the budget and specifically detailed under the budget item "Capital Outlay," for a specific purpose, may not be used for any other purpose during the fiscal year for which appropriated. April 27, 1948
22- 115 The commission which divides the county into high school building districts under the provisions of Chapter 275, Laws of 1947, must divide the whole county without omitting any portion and may create high school building districts which, at the time of the division, do not have high schools. April 27, 1948
22- 116 A soil conservation district, being a government subdivision of the State, has no power or authority under the law to donate its funds for the purpose of assisting in the construction of a hospital, and such a donation would be illegal.  
22- 118 A warehouseman who receives agricultural seed for storage during the time the same is being cleaned with the understanding that the same is to be returned to the owner when cleaned, or purchased by the warehouseman, must procure a license as required by Section 3592.1, Revised Codes of Montana, 1935, and furnish a bond as required by Section 3592.2, Revised Codes of Montana, 1935. May 5, 1948
22- 119 Since there is no public office in being for which a candidate is to be nominated, other than county attorney and county commissioner, the clerk cannot lawfully accept such nominating petitions in the usual way and collect the fees therefor. June 12, 1948
22- 120 The Montana Milk Control Board has been authorized by our legislative assembly to fix only the minimum prices to be paid by milk dealers to producers and others for milk and the minimum wholesale or retail prices to be charged for milk in its various grades and uses handled within the state for fluid consumption. June 23, 1948
22- 121 1. Persons who are eligible to receive educational benefits under the servicemen's readjustment act of 1944 (public law 346, 78th Congress, 1944), and acts supplementary and amendatory thereto, shall not receive free fees and tuition in the units of the University of Montana, as ruled in Official Opinion No. 121, Volume 21, Report and Official Opinions of the Attorney General. 2. Veterans who have been honorably discharged from service with the United States force in any of its wars and were bona fide residents of the State of Montana at the time of such entry into said forces--and who have exhausted all their benefits, and are no longer eligible to any benefits under the servicemen's readjustment act of 1944, supra, and as amended, shall have free fees and tuition in any and all the units of the University of Montana, in accordance with Chapter 44, Laws of 1945, and as interpreted in Official Opinion No. 155, Volume 20, Report and Official Opinions of the Attorney General. June 30, 1948
22- 122 Chapter 56, Laws of 1947, which grants permission for the use of the county hospital by the non-indigent sick does not authorize the county to construct hospitals in size in excess of the present and future needs for the care of the indigent sick. June 30, 1948
22- 123 A cemetery district cannot maintain a cemetery outside of the county and outside of the district. A portion of one county cannot be annexed within an existing cemetery district in another county. June 30, 1948
22- 124 Funds realized from the extra levy authorized by Section 2, Chapter 274, Laws of 1947, are for the sole use of the county high school and shall not be apportioned in part of any district high school within the county. June 30, 1948
22- 125 The property of rural electrical cooperatives, organized under the laws of Montana, which is used and owned thereby, shall be classified for taxation purposes as follows: 1. All personal property and such property as is specifically mentioned in Subsection B of Class 5 of Sec-1999, Revised Codes of Montana, 1935, as amended, including all improvements on land, at the rate of 7%. 2. All land at the rate of 30%. 3. The property of such organization is liable for Rural Improvement District taxes. July 6, 1948
22- 126 Where a board of county commissioners, in their discretion, and for the purpose of constructing roads and bridges, make an increased levy upon the taxable property of the county of ten mills or less, as provided in Sections 4713, 4714, 4715 and 4716, Revised Codes of Montana, 1935, the said levy is to be spread upon all of the taxable property within the county. July 8, 1948
22- 127 The Public Service Commission does not have any duty or authority to approve rates, rules or regulations relating to sewer service where such charges are made in accordance with the provisions of Chapter 149, Laws of 1943, as amended. July 22, 1948
22- 128 A retired officer of the United States Navy (Regular Navy) shall be deemed a resident of Montana for the purpose of securing resident hunting and fishing licenses, and shall pay the resident fee for such licenses. July 30, 1948
22- 129 1. It is the duty of the county clerk to provide separate poll books for each precinct in his county, which poll books shall contain only the names of the electors qualified to vote on referendums at an election. 2. The ballots for referendums must be numbered as required by the provisions of Section 684, Revised Codes of Montana, 1935. July 31, 1948
22- 130 Boards of county commissioners may not purchase county automobiles for their own official use, or the use of other county officers. August 4, 1948
22- 131 A public contract in an amount not in excess of $25,000.00 may be awarded to the holder of a Class C license even though an alternative bid submitted by said contractor on a variation of the project was for an amount greater than could be let to the holder of a Class C license. August 4, 1948
22- 132 Operators hauling logs over public highways, including county roads, must pay a registration or license fee based on the capacity of the truck or of the tractor and trailer, or semi-trailer, in accordance with the scale provided in Section 1760, Revised Codes of Montana, 1935, as amended by Chapter 201, Laws of 1945. A unit composed of a tractor and trailer, or semi-trailer, used to haul over the highway, must pay the license fee for the tractor, based on its capacity, plus the fee for the trailer, or semi-trailer, based on its capacity. August 10, 1948
22- 133 The secretary of state is required to certify nominations required to be filed with him to the county clerks during the 30 day period beginning 60 days prior to and ending 30 days prior to the date fixed by law for an election to fill public office. August 16, 1948
22- 134 A school district has the authority to operate and maintain a school located upon ground which has been leased to it by the United States government and the students attending such school will receive full credit for their work as in any public school of this state, if the school is supervised and accredited by the proper officers of the state. August 20, 1948
22- 135 Section 4465.20, Revised Codes of Montana, 1935, is mandatory in requiring the board of county commissioners, at the adjournment of each session of the board, to cause to be published in a newspaper, a complete list of all claims which said board has ordered paid for all purposes, including salary claims of all employees, other than elected county officers, showing the name, the purpose and the amount thereof, and a fair summary of the minutes and records of all of its proceedings, so the taxpayers of the county may have, after each session, an itemized account of county expenditures. August 20, 1948
22- 136 A person who receives write-in votes in a primary election, to qualify as a nominee and accept such nomination must receive at least five percent (5%) of the votes cast for such office at the last preceding general election at which election the office in question was filled. August 25, 1948
22- 137 One person cannot accept the nomination to more than one office and the offices of Justice of the Peace and Public Administrator are incompatible and may not be held by one person. August 31, 1948
22- 138 "Actual expenses" as used in Section 1632, Revised Codes of Montana, 1935, means that commissioners or county surveyors, when previously ordered or directed by the board of county commissioners, may properly charge for meals and lodging actually provided on highway and bridge contract inspection trips before contemplated work is commenced, during progress of the work, or after completion and before payment therefor, in addition to the per diem and mileage. September 2, 1948
22- 139 1. The vacancy to be filled in the county office shall be filled by a special election to be proclaimed by the proclamation of the board of county commissioners, which shall contain the matters required by the statute and given publicity by publishing in a newspaper, and also by posting at the polling places. 2. Such a special election may be held on the same date as a general election. 3. A special ballot shall be used for such a special election. 4. Candidates may be nominated by political parties, as provided by Section 612, Revised Codes of Montana, 1935; or as an independent candidate as provided by the terms of Section 615, Revised Codes of Montana, 1935. September 13, 1948
22- 140 1. The Garbage Fund is liable only for the payment under the contract of an amount for any fiscal year within the budget appropriation. 2. The county board has no authority to approve and order paid claims out of the budget of the current fiscal year for indebtedness incurred in the prior fiscal year, -- nor may the clerk draw warrants for such payment. September 27, 1948
22- 141 An employee who receives regular wages plus commission on sales and who delivers goods to retail dealers from wholesale house where employer sets the price, furnished the truck and pays all expenses, is such an employee as comes within the provisions of Section 3073.1. R.C.M., 1935. October 4, 1948
22- 142 That there is no irreconcilable conflict between sections 3298.18 and 3298.20 R.C.M., 1935, and that one who purchases the hide, carcass, or any part thereof of any beef or veal without the inspection or identification as provided in Section 3298.20, except from a licensed butcher or peddler in less than one quarter, is liable to the penalty imposed under Section 3298.24 R.C.M., 1935. October 4, 1948
22- 143 That there is no conflict between Chapter 139, Laws of 1937, as amended, and Chapter 267, Laws of 1947. Under Chapter 267 the Highway Patrol Board has the full and exclusive authority of revocation and suspension of operators' and chauffeurs' licenses, and the registrar of motor vehicles has the sole responsibility of revoking all registration certificates of automobiles owned by the offenders. In addition to this, before the Highway Patrol Board can reissue an operator's or chauffeur's license, the offender must file evidence of financial responsibility with the registrar of motor vehicles. October 5, 1948
22- 144 The legislature has provided where a district has been abandoned and the territory annexed to another district and the requirements, as amended have been accertained and determined it is mandatory on the Board of Trustees of the district to which the abandoned territory is attached to provide a school for such children when requested to do so by the parents of at least three of such children. October 15, 1948
22- 145 "That the Board of Commissioners should comply with the statutory directions to the fullest extent possible in order that the people may have the opportunity to express their choice to fill the vacancy, rather than have the same filled by appointment, and thus the public policy of this state will be carried out." October 25, 1948
22- 146 "That there is no statutory authority for allowance of mileage to a county treasurer or his deputy for the use of his own automobile in the collection of personal property taxes not a lien or real property or licenses, except upon seizure and sale as provided in Section 2243, Political Code of Montana, 1935." November 3, 1948
22- 147 Coupons given with each $1.00 purchase, one of which, upon holding of a drawing, will entitle the holder to an automobile, do not constitute a lottery with Section 11149, Revised Codes of Montana, 1935, as determined by the Montana Supreme Court in State ex rel. Stafford v. Fox Great Falls Theatre Corp. 114 Mont. 52, nor do they fall within the licensing provisions of Section 2430, Revised Codes of Montana, 1935, where no valuable consideration passes to obtain such coupon, where such coupon entitled the holder to nothing more than a chance to win a prize, and where such coupon cannot be redeemed in goods, ware or merchandise as a premium. November 19, 1948
22- 148 That the two methods available for the nomination of candidates are: the first, which is provided by Section 612 of the code, is the convention or a primary meeting; and the second, provided for by Section 615, is through the use of certificates of nomination signed by at least a required percentage of voters. The time limit within which any nomination petition may be filed with the county clerk, as must be done before this first municipal election, extends over the period included in the time between sixty and thirty days preceding the election." November 26, 1948
22- 149 Livestock inspection laws and fees, of the State of Montana are not applicable to livestock used in and transported from one county to another, or from state to state, where federal bureaus, departments and instrumentalities use and transport such livestock in performance of functions of the federal government and in pursuance of Congressional law. November 27, 1948
22- 150 Property located within school districts which are abandoned and annexed to an existing school district prior to the fixing of the levy for the latter district, shall be taxed at the same rate as all property within the then existing district, except in so far as prior indebtedness or outstanding bonds are involved. November 30, 1948
22- 151 "That Chapter 43, Laws of 1947, does not violate any constitutional provision which directs the Secretary of State to distribute one copy of the code to Code Commissioner and each member of the 30th legislative assembly, one copy upon the payment to the State of Montana by the Code Commissioner and by any member of the legislature receiving such copy, the actual cost price thereof to the State." December 7, 1948
22- 152 "The County Treasurer cannot obtain an increase in salary as provided for by Chapter 150 of the 1945 Session Laws during the present term of office. The newly-elected county attorney and clerk of the district court must have their salaries set with reference to the method laid down in Chapter 150 to correspond with the salary which would have been paid to the county treasurer if said treasurer had also been elected this year."  
22- 153 (1) Refund of three-fourths of the accrued interest on contributions to date of withdrawal should be made to persons who become members of the retirement system on or after September 1, 1937, (and before July 1, 1945) and who withdraw their accounts after July 1, 1945. (2) No interest could be refunded to persons who become members of the retirement system after July 1, 1945, and later withdraw their accounts, no provision being made for payment of interest under Chapter 137, Laws of 1945. December 20, 1948
22- 154 That sub-section d, of Section 4050 R.C.M., 1935, which fixes an annual fee based upon the total assets of an investment company is invalid in so far as it applies to a foreign corporation which has property outside of Montana, as to such property without the State. December 24, 1948
22- 155 That the member is granted an absolute right to make an election or revoke or change a previous election and may elect to come under any one of the options, at any time, until the first payment on account of any retirement allowance is made, such last written and duly executed election filed with the board shall be binding on the member, the beneficiaries, and the board, provided, however, that in the event the said member dies after retirement and within thirty (30) days from the date upon which his election or changed election is received at the office of the Retirement System in Helena, then said election is void and of no effect, and the death shall be considered as that of a member before retirement. December 28, 1948
22- 156 The sheriff, under-sheriff, or deputy sheriff may not be appointed as chief probation officer. In the absence of an appointment of a chief probation officer it is the duty of the sheriff of the county to perform all the duties of a chief probation officer without additional compensation, only as directed by the court. December 30, 1948
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