Attorney General’s Opinions

Volume 23

Opinion Held Date
23- 1 Where Governor has made no nomination to fill office of Chairman of Industrial Accident Board of the State of Montana, and where the Governor has not submitted a nomination in writing to the Senate and request for confirmation thereof, as by law required, or at all, there being no nomination legally before the Senate there can be no confirmation and any attempt on the part of the Senate to confirm a nomination which has never been made is null and void, has no legal effect, and is futile. January 18, 1949
23- 2 The Secretary of State has authority to grant certificate of perpetual existence to religious corporations, where corporation is duly organized and existing and has fully complied with Laws of Montana. January 18, 1949
23- 3 An expenditure by a Mayor of $100.00 and itemized as "Good will trip to Alaska $100.00", is not authorized expressly by statute, nor is it an implied authorization contemplated by law and therefore improper. January 18, 1949
23- 4 That Chapter 153, Session Laws of 1947, does not repeal all of Chapter 59, Session Laws of 1941, but only repeals that part which is in conflict with Chapter 153, Session Laws of 1947. That the paragraphs in Chapter 59, Session Laws of 1941, dealing with "contracts payed in installments" and "rental contracts construed as sale contracts" still stands. January 21, 1949
23- 5 Chapter 291, Laws of 1947 authorizes any of the six units of the University of Montana to merge funds accruing from college facilities and to pledge such funds to retire loans outstanding against such facilities. January 29, 1949
23- 6 (1)  Section 4465.20, Revised Codes of Montana, 1935, requires publication of the full amount of salary paid each person and it is not sufficient to publish the net amount, being the amount of salary less deductions.  (3)  Publication of claims of airport boards and commissions is not mandatory since such claims are ordered paid by the airport boards and commissions and not by the County Commissioners. January 28, 1949
23- 7 That Referendum measure No. 52 providing for a five million dollar ($5,000,000.00) bond issue requires enactment by a subsequent legislature to create the debt, and to levy the tax; that control over issuance of the bonds and the disposition of the funds is placed in the discretion of the State Board of Examiners and that subsequent Legislatures do not have the power to substantially amend such a referendum. January 28, 1949
23- 8 That the purchase by the Board of County Commissioners of a road grader, together with accessories thereto, which will cost more than ten thousand ($10,000.00) dollars, does not violate Article XIII, Section 5 of the Constitution of the State of Montana. Such a purchase, although not provided for in the fiscal budget, may be purchased under the emergency provision of the Budget Act, when in fact such emergency does exist. February 23, 1949
23- 9 In computing the additional excise tax of 6% imposed by House Bill No. 16. Chapter 15 of the Session Laws of Montana, 1949, it will be appropriate to apply 14% against the retail selling price of liquor, and divide the proceeds on the basis of 8/14 to the State and 6/14 to the Counties, Cities and Towns. March 17, 1949
23- 10 1.  Under the provisions of House Bill No. 304, Chapter 76, Session Laws of 1949, the State of Montana cannot match funds with individuals to provide for eradication of grasshoppers.  2.  It is necessary that the several counties each establish and administer a fund, which fund may consist of county funds and/or private donations. March 18, 1949
23- 11 (1)  Cost of examination, committal, and taking an indigent insane person to the Insane Asylum is an expense of the County, to be paid out of the County general fund.  (2)  Maintenance of an indigent person in the Tuberculosis Sanitarium is an expense of the County, to be paid from the County poor fund.  (3)  Hearing, transportation, clothing and necessary personal expense of an indigent person at the Montana Training School for feeble minded is a County expense, payable out of the County poor fund.  (4)  Maintenance of an indigent person at the State Insane Asylum is a State expense. April 1, 1949
23- 12 Under House Bill No. 449 the 31st Legislative Assembly has indicated that the appropriation for the Yellowstone River Compact shall be paid from the Carey Land Act fund. April 11, 1949
23- 13 The one-third contribution of school districts for their elementary school transportation budgets is to be paid from the five mill district levy authorized by Section 10, Chapter 199, Session Laws of 1949, if there are sufficient funds remaining after deducting the operation and maintenance costs of the budgets for the elementary schools. If there are not sufficient funds remaining, then an additional levy may be made without an election to meet the district's one-third obligation for transportation. The one-third contribution of the County for the transportation budgets of the elementary schools is to be paid from the ten mill levy authorized by Section 1202 of the Revised Codes of Montana, 1935, as amended by Section 11, Chapter 199, Session Laws of 1949, in accordance with the schedule set out in Chapter 200, Laws of 1949. The two-thirds contribution or balance of each county for the high school transportation budget is paid from a separate transportation County wide levy authorized by sub-section (b) of Section 14, Chapter 152, Session Laws of 1941, as amended by Chapter 189, Session Laws of 1943. April 11, 1949
23- 14 Section 3 and Section 5 of Chapter 150, Session Laws of 1945 are not conflicting insofar as the salary to be paid to a County Attorney of a County of less than four thousand (4,000) population is concerned. Such salary shall be one thousand five hundred ninety-six ($1.596.00) dollars as specifically provided for in Section 3 of Chapter 150. April 11, 1949
23- 15 Oleomargarine may not be used as a butter substitute or in imitation of butter in residence halls at Montana State University under Section 2620.37 of the Revised Codes of Montana, 1935. April 21, 1949
23- 16 Where a resident of Montana is injured and hospitalized in a County of Montana other than the County of residence, as between the County of hospitalization and the County of residence, the latter should pay the expense of hospitalization. April 25, 1949
23- 17 If a group of Counties form a district health unit, the County Treasurer of one of the participating counties may, but is not compelled to act as the disbursing agent of the "pooled resources" of the various counties. The Treasurer would not be acting in his official capacity as County Treasurer, but he would be designated as treasurer of the District Health Unit. May 3, 1949
23- 18 1.  A milk dealer who buys milk in one market area and sells it in another market area must pay the producer or producers of such milk the price set by the Montana Milk Control Board for the area wherein the dealer sells the milk.  2.  The transportation charges incident to shipping such milk from one market area to another must be borne by the milk dealer and cannot be charged against the producer or producers. May 6, 1949
23- 19 Article V, Section 31 of the Constitution of Montana has no application to an appointee to a public office so as to prevent him from receiving a salary increase provided for by law enacted and in full force and effect before the date of his appointment. May 9, 1949
23- 20 1.  The Board of County Commissioners cannot properly allow a claim for office rent for the office of County Attorney when such office is maintained outside of the Court House and suitable quarters are available in the Court House.  2.  The report of the State Examiner is not a final determination of legality or illegality of a course of action by the Board of County Commissioners. May 10, 1949
23- 21 1.  The State of Montana may tax automobiles purchased by Crow Indians with the funds received from leasing of trust patented lands provided that the automobiles are not purchased with restricted funds issued to non-competent Indians.  2.  The individual Indian has the burden of establishing his exemption.  The County Assessor must tax all automobiles and can only exempt property from taxation upon receipt of conclusive proof of non-taxability.  3.  The County Assessor may use and require a certificate signed by an official of the Crow Reservation setting forth the restricted nature of the funds used to purchase the property for which an exemption is claimed. May 10, 1949
23- 22 Senate Bill 106 of the Thirty-First Legislative Assembly provides that from and after passage and approval, each employee of State, County or City is entitled to annual vacation leave of one and one-quarter working days for each month of service, with a maximum allowable accumulative total of thirty days. The service is to be computed from the date of employment. May 12, 1949
23- 23 Under the provisions of the Teachers Retirement System, a member is compelled to retire on the 1st day of September following his or her seventieth birthday. May 13, 1949
23- 24 The cost of maintenance and operation of Junior Colleges must be included in the County or District High School Budget. The maximum mill levy allowed for Junior Colleges is thereby limited and controlled by the maximum mill levy allowed under the High School Budget System. May 24, 1949
23- 25 That under the provisions of the Workmen Compensation Act a claimant entitled to compensation shall not have such compensation terminated on the ground that the claimant is receiving a pension or other benefits not derived from the act itself, or on the ground that the claimant is now residing in a private home for the aged. May 12, 1949
23- 26 A State Senator or State Representative may be employed by the State Liquor Control Board as a Liquor Inspector. Such appointment does not violate Section 7, Article V, of the Montana Constitution, as a Liquor Inspector is not a civil officer within the meaning of the above mentioned constitutional provision. June 2, 1949
23- 27 Parking meters are personal property and are assessable and taxable to the vendor after having been installed in a city since under the contract of sale title to the property remained in the vendor.  A provision in the sale contact calling for reimbursement by the city to the vendor of any taxes paid by said vendor cannot alter the status and taxability of the property. May 27, 1949
23- 28 The Trustees of the District in which a high school is located are the trustees for the high school building district, and such trustees are to be elected by the electors of the common school district. High school building district, comprising a whole County, may be established under the provisions of Chapter 275, Montana Session Laws of 1947. June 27, 1949
23- 29 The boundaries of a high school building district are not altered by the merger of two common school districts and the boundaries of an established high school building district can be altered only in the manner provided in Section 1, Chapter 130, Laws of 1949. June 27, 1949
23- 30 The Board of County Commissioners may properly allow the claims of an osteopathic and chiropractor for a set sum per month for services rendered to indigent residents of the County, regardless of the number of patients treated. The Board has discretion to select an appropriate mode of procedure when a power is conferred by statute and no set procedure is defined. July 6, 1949
23- 31 Board of County Commissioners has no authority to levy a tax for the interest and sinking fund of a School District in excess of the amount necessary to meet the interest and principal due for current year. July 9, 1949
23- 32 (1)  Chapter 44, Montana Session Laws, 1949, does not apply Section 9029, Revised Codes of Montana, 1935, to delinquent hail insurance accounts.  (2)  Hail insurance premiums are not taxes, but are obligations owed to or held by the counties. July 6, 1949
23- 33 Whether a particular structure in a highway is a bridge or a culvert depends upon its essential purpose and characteristics. If a change in any bridge places it into the category of a culvert, expenditures made thereon are no longer properly chargeable to the bridge fund. July 14, 1949
23- 34 County High Schools come under the provisions of Section 3 of Chapter 130, Laws of 1949. providing for special tax levies for high school purposes. July 8, 1949
23- 35 Where an individual who retains a General Relief Residence in one County of the State of Montana is hospitalized in another County of the State of Montana, the County of General Relief Residence must be responsible for the expense of hospitalization even though the individual is receiving Old Age Assistance benefits from the County wherein he was hospitalized. July 7, 1949
23- 36 The determining factor in deciding if the property used by a Hospital Association is entitled to exemption from taxation as provided for in Article XII, Section 2 of the Montana Constitution and Section 1998, Revised Codes of Montana, 1935, is whether or not the dominant and substantial use of the property is for benevolent and non-profit purposes rather than to make a profit for the individuals who control the Hospital Association. July 18, 1949
23- 37 Chapter 275, Montana Session Laws of 1947, which provides for creation of High School Districts is mandatory in terms and leaves no discretion in the Commission, consisting of the Board of County Commissioners and the County Superintendent of Schools, as to the creation of such Districts. The Districts must be established if requested by a High School Board of Trustees in the County. July 21, 1949
23- 38 The right to obtain at cost to the state one copy of the 1947, Revised Codes of Montana, adheres to the office of member of the Thirtieth Legislative Assembly as an emolument of that office and such right is not a proper subject of assignment. July 20, 1949
23- 39 Under the provision of Chapter 131, Laws of 1945, as amended by Chapter 161, Laws of 1947, the funds transferred into the deferred maintenance fund cannot be spent for new building construction and equipment, but the expenditure thereof is limited to the maintenance and repair of buildings and the maintenance, repair and replacement of school equipment." July 22, 1949
23- 40 1.  Chapter 208, Montana Session Laws of 1949, which imposes a use tax upon trucks, trailers, semi-trailers, and automobiles operating over and upon the highways of the State of Montana does not apply to (A) school busses owned by a school district, and (B) school busses owned by a private individual and used exclusively for the purposes of transporting school children.  2.  Chapter 208, Montana Session Laws of 1949, does apply to school busses owned by a private individual and used partly for the transportation of school children and partly for other purposes. July 23, 1949
23- 41 In a situation wherein the Clerk of the District Court resigns and his son is appointed to fill the vacancy, the son cannot appoint the father as a Deputy in such office without violating the provisions of the Nepotism Act. July 26, 1949
23- 42 (1)  The territory of a Third Class School District which is annexed to a First or Second Class District does not assume any of the bonded indebtedness of the First or Second Class District; but the bonded indebtedness of the Third Class District is assumed by the First or Second Class District to which the Third Class District is annexed.  (2)  If a Third Class School District, or any other Class District, is consolidated with one or more School Districts and a new District formed, the bonded indebtedness of each of the component Districts is assumed by the new District and all of the territory of the new District is liable for the payment of such bonds. July 30, 1949
23- 43 The Board of Plumbing Examiners is authorized and directed to issue State plumbing licenses to present holders of city plumbers licenses. The Board of Plumbing Examiners is authorized to make any rules and regulations reasonable and necessary to effect the intention of the Legislature that a uniform system of plumbing examinations and licensing be established in the State. August 8, 1949
23- 44 Under the provisions of Chapter 59, Montana Session Laws of 1949, a sheriff who uses a privately owned vehicle to transport prisoners to the State Prison and the State Reform School, or insane persons to the State Insane Asylum shall receive as a part of his expenses nine cents (9c) per mile for each and every mile actually and necessarily traveled.  2.  The sheriff shall not receive an additional nine cents (9c) for each mile the prisoner or insane person is transported. July 26, 1949
23- 45 1.  Persons sentenced to the State Prison for a term less than life automatically regain their civil rights at the expiration of the sentence. In such cases the action of the Governor is not necessary to restore such persons to citizenship.  2.  Persons sentenced to the State Prison for life and then pardoned by the Governor may at any time thereafter be restored to citizenship by the Governor.  3.  Persons sentenced to the State Prison for life and then paroled may not be restored to citizenship by the Governor while the life imprisonment is still in effect. August 11, 1949
23- 46 1.  When a position requiring a written or oral examination is under consideration, the preference accorded to veterans, disabled veterans, and certain dependents of such veterans by virtue of Chapter 26; Montana Session Laws of 1949, the Veterans Preference Law, shall consist of an additional ten percent (10%) for disabled veterans, their wives, and widows of veterans and an additional five per cent (5%) for all other veterans, their wives and dependents, such percentage to be added to the examination ratings. The Joint Merit System must recommend the applicants in the order of the final examination ratings, i.e. actual examination grades plus percentage additions as provided by statute.  2.  Disabled civilians do not have a statutory authorization for additional percentages and therefore in the case of a written or oral examination cannot be accorded a percentage preference.  In the event of a tie in the final examination ratings, a preference for the position should be granted to the disabled civilians. August 11, 1949
23- 47 An applicant for General Relief may under the provisions of the Public Welfare Act appeal from a determination of the County Public Welfare Board and, after a fair hearing, the State Department of Public Welfare may fix the amount of relief to be granted and such decision shall be binding upon the County Public Welfare Board and shall be complied with by the County Department of Public Welfare. August 25, 1949
23- 48 When the County Commissioners authorize a levy for airport purposes and the budget appropriation for capital outlay for such airport purposes is unexpended at the end of the fiscal year for which it was appropriated, such surplus may be carried over and expended in the following year for the original purpose for which it was appropriated. August 29, 1949
23- 49 1.  Chapter 103, Laws of 1949, increasing the amount the sheriffs receive for boarding prisoners does not repeal Section 12472.2, Revised Codes of Montana, 1935, which provides for the amount the sheriff shall receive for subsistence of Federal Prisoners in his custody.  2.  Chapter 103, Laws of 1949 is a general statute and Section 12472.2 is a special statute on the same subect and a general statue wlil not repeal a special statute by implication unless the intention of the legislature that the special statute be repealed is clearly manifested. September 6, 1949
23- 50 1.  Territory in a School District may be transferred to an adjoining School District even though the territory to be transferred is within three miles of a school house in which school has not been held for the last four years.  2.  The prohibition of Chapter 61, Laws of 1943 against transferring territory within three miles of a school refers to an established school and in my opinion a school house wherein school has not been held for the past four years is not an established school. September 7, 1949
23- 51 1.  Under the provisions of Section 1 of Chapter 192 of the Session Laws of 1949 a person carried on the allowance roll of a company, such allowance being in the nature of a pension, is eligible to receive silicosis benefits.  2.  A person suffering from silicosis so as to be unable to do manual labor cannot pursue a gainful occupation within the Legislative contemplation. September 6, 1949
23- 52 1.  The County Surveyor in a County having a total registered vote of 15,000 or over is entitled to fees over and above his regular salary for work performed in the surveying, engineering, and supervision of Rural Improvement Districts. Such services are not a part of the official duties placed upon the County Surveyor by Statute.  2.  The County Surveyor is also entitled to fees for the surveying of private roads and other duties not an official county nature.  3.  The Board of County Commissioners may exercise their discretion as to the manner of providing for the maintenance of Rural Improvement Districts.  The Board need not call for bids from private contractors for such work but may provide for such maintenance in any suitable and proper manner.  4.  The Board of County Commissioners may not authorize the use of County employees and equipment for use in building roads and maintenance of roads and streets, or for improvements on privately owned land if such land is not included in a Rural Improvement District. September 7, 1949
23- 53 1.  An inmate of the State Prison, who had been convicted of a felony other than the one for which he is now serving time, but received a suspended sentence after the first conviction and served no time with respect to such conviction is not eligible for parole under the provisions of Section 1226.4, Revised Codes of Montana, 1935, since he had previously been convicted of a felony other than the one for which he is serving time.  2.  An inmate who was convicted of a felony and then received a suspended sentence and who then commits another felony may be eligible for parole if he is now committed to the State Prison under his original sentence, the suspended sentence having been revoked.  However, if he is convicted of and sentenced under the second felony, then he is not eligible for parole as he would then be serving time for one felony and would have been previously convicted of another felony. September 12, 1949
23- 54 It is mandatory upon the Board of County Commissioners to cause any honorably discharged veteran, whether male or female, and including nurses who shall have served in any branch of the armed services of the United States and who may hereafter die, to be given a decent and proper burial the cost of which shall be $150.00 A payment by other government sources, Federal or State, shall relieve this burden only to file extent of the payment, and the balance up to $150.00 is to be paid by the County. A complete burial by the Federal Government or the Veterans Administration with all of the expenses paid, if authorized by the proper parties, relieves the County of any obligation and constitutes a waiver of the County benefits. The honorably discharged deceased veteran must be qualified under the statute. The payment shall be made to the executor, administrator, heir, or veterans burial supervisor, as the case may be, who causes and contracts the funeral services to be conducted. September 12, 1949
23- 55 1.  When a recipient of Old Age Assistance moves away from, a County with the intention of changing his residence, he shall receive assistance from said County for a period of six months after which the County to which he has moved shall be charged by the State Department of Public Welfare with the County share of such assistance.  2.  If the recipient moves to another County intending only to remain there temporarily to take advantage of medical facilities and then to return to his original County, the original County will continue to be responsible for the benefits to be paid to such recipient. September 14, 1949
23- 56 Vacation pay which has been earned and is now owing is considered to be wages and is collectable in the same manner and under the same statutes as any other kind of wages. September 17, 1949
23- 57 1.  Under Chapter 200, Laws of 1949, the Board of Trustees of any School District or County High School has discretionary power in the furnishing of transportation to the students of the District.  2.  If the Board of Trustees elects to furnish transportation to any students within the District, they must furnish such transportation to all students with the District. September 21, 1949
23- 58 Slot machines legally owned and legally operated by veterans' organizations are not exempted from taxation by virtue of the provisions of Section 1998, Revised Codes of Montana, 1935, wherein the clubhouse or building together with the furniture and the library necessarily used therein are exempt from taxation if the property is used exclusively for educational, fraternal, benevolent, or purely public charitable purposes, rather than for gain or profit. However, should the Supreme Court of the State of Montana hold that slot machines are lotteries, then slot machines could not be legally owned or legally operated by anyone or any organization, including veterans' organizations, and slot machines would not be suject to taxation of any kind and being prohibited by the Constitution would be subject to confiscation and destruction by proper law enforcement officials acting under court order. A lottery can only be legalized by a Constitutional amendment. September 22, 1949
23- 59 The State Board of Land Commissioners may not invest permanent funds under its jurisdiction in investments other than those enumerated by Section 1805.98, Revised Codes of Montana, 1935. Bonds of States other than those of the State of Montana are not listed under Section 1805.98 and therefore are not allowable investments. September 24, 1949
23- 60 The salary to be paid to a person appointed to fill a vacancy in the office of State Treasurer shall not be limited by Article V, Section 31 of the Montana Constitution, where the vacancy and appointment occurred after the passage, approval, and effective date of a law increasing the salary to be paid the State Treasurer, since the vacancy and appointment were both subsequent to the passage and approval of the law authorizing the salary increase. September 27, 1949
23- 61 Individuals and or agents of companies who, as a part of their commercial business, fly parties of hunters or fishermen to and from hunting and fishing areas in the State of Montana, must be licensed as outfitters by the State Fish and Game Commission if they deliver such hunting and fishing parties in close proximity to hunting and fishing areas and the responsibility for such parties is not thereafter assumed by a guide or outfitter licensed by the State of Montana. If such parties are delivered into the hands of a guide or outfitter licensed by the State of Montana, the purpose of the act requiring such licenses is subserved and the persons providing the air transportation need not be licensed. September 28, 1949
23- 62 1.  When a motor vehicle is driven on any public highway contrary to the restrictions as to size and load limits imposed by Chapter 123, Laws of 1947, and such vehicle is driven by an agent of a firm or corporation, the agent has violated the law and the firm or corporation employing such agent is also guilty of violating the law and both the agent and the firm or corporation employing him shall be charged with a misdemeanor as provided for by the act.  2.  When the charge is violating Chapter 123, Laws of 1947, by excessive speeding, the person operating the vehicle should be charged with the misdemeanor since the act makes the operation of the vehicle the offense and does not provide that one who causes such operation or knowingly permits such operation shall be guilty of an additional offense. September 29, 1949
23- 63 1.  It is compulsory for Fire Department Relief Associations to pay a service pension in all cases where the applicant meets the qualifications for length of service and attained age.  2.  Members of a Fire Department whose sole remuneration is $1.50 for each fire attended are volunteer firemen and when such volunteer firemen qualify for a pension they shall receive a pension in an amount not the exceed $75.00 per month.  3.  A Fire Department wherein the Fire Chief is paid a monthly salary of $20.00 per month and the remainder of the firemen are paid $1.50 for each fire attended is a partly paid and partly volunteer Fire Department and the members thereof must meet the requirements as to an attained age before thy shall be eligible to retire. October 12, 1949
23- 64 Boards of County Commissioners have the authority to purchase an automobile for the official use of the County Surveyor since an automobile is necessary equipment for the performance of the Surveyor's duties. October 15, 1949
23- 65 A claim which is not acted upon for purposes of the Workmen's Compensation Act, because not filed within the statutory period is not eliminated as a disability claim under the Public Employees Retirement System. The Industrial Accident Board is by statute called upon to make factual determinations for purposes of the Retirement System without regard to the statute of limitations established for purposes of payment under the Workman's Compensation Act. October 15, 1949
23- 66 An applicant for the certificate of Certified Public Accountant shall be entitled as a matter of right to only one examination in each year. The Board of Examiners in Accountancy and the University of Montana may, in the exercise of their discretion, allow an applicant who has failed to pass the examination in Accountancy to retake the examination in the same year in which he has previously failed. October 28, 1949
23- 67 The Interim President Pro Tempore of the Montana Senate, when serving as acting Governor of the State of Montana, due to the absence of the Governor and Lieutenant-Governor from the State, shall receive per diem based upon the $10,000.00 per year salary authorized by Chapter 182, Laws of 1949. November 5, 1949
23- 68 Chapter 212, Montana Session Laws of 1945, places upon the Industrial Accident Board the duty to determine questions of fact regarding the origin of a disabling injury or disease in cases certified to it by the Public Employees Retirement Board. November 5, 1949
23- 69 A permanent zoological garden is not to be classified in the same category as a menagerie within the meaning of Section 2434 of the Revised Codes of Montana of 1935, as amended by Chapter 74 of The Session Laws of Montana of 1949, and therefore is not required to pay a license fee of $125.00 a day as in said section provided for. November 4, 1949
23- 70 1.  The fee for the use of the highways of the State of Montana imposed by Section 3 of Chapter 208, Laws of 1949, upon out-of-State trucks, trailers and semi-trailers do not apply if such vehicles are lawfully registered and licensed in a country, State or territory which has a reciprocity agreement with the State of Montana.  2.  The use tax imposed by Section 3A of Chapter 208, Laws of 1949, on new passenger motor vehicles which have not been otherwise assessed and are not subject to taxation in the State of Montana applies to all such vehicles which are required to be registered and licensed in the State of Montana.  3.  Section 12 of Chapter 208, Laws of 1949, exempts all motor vehicles operating exclusively for transportation of persons for hire within the limits of incorporated cities or towns and within two miles from such limits from the operation of the act.  This exemption is general and applies to all the fees and taxes imposed by Chapter 208. November 19, 1949
23- 71 1.  A Justice of the Peace can be disqualified in criminal actions brought by the State under sub-division one, two and three of Section 8868 of the Revised Codes of Montana, 1935, but not under sub-division four of Section 8868.  2.  A change of venue to another Justice Court in the same Township or to another Township in the same County can be obtained on a showing of bias and prejudice of such Justice, under Section 12307 of the Revised Codes of Montana, 1935. November 25, 1949
23- 72 1.  The State Water Conservation Board may select any qualified engineer as its chief engineer and although the State Engineer is ex officio a member of the State Water Conservation Board, he need not be the Chief Engineer for the Wafer Conservation Board unless the Board so prescribes.  2.  The State Water Conservation Board has the authority to assign duties to the State Engineer in addition to his regular duties as State Engineer, and to pay an additional salary for such duties when they are performed by the State Engineer. November 29, 1949
23- 73 County Superintendent of Schools must declare a school district abandoned where school has not been held for three (3) consecutive years, and the School Trustees have not provided transportation in school bus operated under contract let by school district. Furnishing of any service in lieu of transportation to children of district will not preclude district from being declared abandoned. December 1, 1949
23- 74   November 30, 1949
23- 75 Mileage expenses incurred by the County Attorney in preparing for the defense of an action in which the State is beneficially interested are a legitimate charge for which the County is liable. The fact that the trip takes the County Attorney out of the County does not affect the liability of the County. December 5, 1949
23- 76 Funds which remain unexpended after the abandonment of a District High School should be transferred to the general fund of the elementary schools of the district. December 29, 1949
23- 77 The Division of Labor of the Department of Agriculture, Labor and Industry has the duty of enforcing the provisions of Section 4 of Article XVIII of the Montana State Constitution relating to the eight hour day. In occupations and pursuits wherein the Legislature has failed to provide legislation making it a criminal offense to violate the eight hour provision, the Division of Labor should proceed in equity and enjoin any violation of such eight hour provision. December 28, 1949
23- 78 A City does not have the power to establish a separate account in its Special Improvement District Revolving Fund to be used only as aid to designated Special Improvement Districts. The fund must be maintained for the benefit of all Special Improvement Districts. January 6, 1950
23- 79 A tax erroneously collected due to errors in the Treasurer's books which show a deficit and registered warrants for a school district when in fad there were no registered warrants and deficit, may be refunded under the provisions of Section 2222, Revised Codes of Montana, 1935, as amended by Chapter 201, Laws of 1939 (now Section 84-4176, Revised Codes of Montana, 1947). Such refund can only be made where there is strict compliance with the statute as to the time and manner of making claim for refund. January 7, 1950
23- 80 1.  That if a motor vehicle which is in the hands of a dealer prior to January l, and upon which the dealer pays the property tax as provided in Section 53-114, Revised Codes of Montana, 1947, is sold subsequent to January 1, the purchaser is not required to pay the use tax provided in Section 3A, Chapter 208, Session Laws of 1949.  2.  That the 5% of the tax collected and retained by the County Treasurer under the provisions of Section 7, Chapter 208, Session Laws of 1949, can only be expended by the County Treasurer in conformity with the County Budget Law and under appropriations detailed in the County Budget. January 11, 1950
23- 81 1.  Any surplus in an elementary school general fund may be used in the next fiscal year to meet the deficiency in the State aid for the foundation program, but such surplus cannot be used to pay the twenty per cent permissive excess over the foundation program.  2.  Any surplus in a high school general fund may be used in the next fiscal year to meet the deficiency in the State aid for the foundation program and also the fifteen per cent permissive excess over the foundation program. January 13, 1950
23- 82 Montana State College may properly use legal gift, regular in all respects, for the construction of an all-denominational chapel provided that no preference shall be given to any religious denomination or mode of worship which would violate Section 4 of Article III of the Montana Constitution. January 19, 1950
23- 83 A substitution cannot be legally made in the records of the State Board of Health when an adoption is made through an Indian Tribal Court and is approved by the Indian Agency Superintendent. January 20, 1950
23- 84 The payment for transportation to be made by the parents or guardian of a studen£ attending a private or parochial school may be determined by dividing the total number of students using the bus, including those attending the private or parochial school, into the cost of operating the bus as fixed by the current transportation budget. January 21, 1950
23- 85 1.  All passenger motor vehicles in the State prior to twelve o'clock noon January 1st are subject to assessment for property taxes but are not required to pay the $32.00 tax imposed by Chapter 208, Laws of 1949.  2.  All new passenger motor vehicles brought into the State of Montana after twelve o'clock noon January 1st are subject to the tax specified in SEction 3-A of Chapter 208, Laws of 1949, and must also pay the use tax set forth in Section 3 of Chapter 208 if such vehicle is required to be registered. January 23, 1950
23- 86 Any surplus remaining in the reserve fund for post-war maintenance, repair and equipment created by Sections 75-3710 through 75-3714, Revised Codes of Montana, 1947, MUST be transferred to school general fund after July 1, 1950. January 31, 1950
23- 87 1.  When travel is by privately owned vehicle sheriffs shall receive an additional nine cents (9c) per mile for transporting a prisoner by order of court although such transportation is undertaken merely in the course of arresting the prisoner and bringing him to the County jail. However, this rule does not apply when the travel is to the State Prison, State Reform School, or State Insane Asylum.  2.  Sheriffs shall not receive an additional nine cents (9c) per mile for transporting a prisoner by privately owned vehicle when such transportation was not undertaken by order of court but rather was necessary for the apprehension and transportation of such prisoner to the County jail. February 1, 1950
23- 88 1.  A coroner is entitled to a fee for investigating a death even though he does not hold an inquest on the death, unless he is paid a salary in lieu of fees.  2.  "Investigation" as used in the statue providing for the coroner's fees means an inquiry into the cause of death.  3.  The coroner cannot charge $5.00 per day for the work he does relating to keeping his records, answering the telephone and answered the inquiries of friends and relatives of a deceased person.  4.  The coroner may not receive compensation for investigations performed by him after an inquest.  5.  Coroners, in other than first, second, or third class counties, are limited to one day's fee for an investigation.  6.  If a coroner conducts investigations into separate and unrelated deaths he may charge for two investigations on the same day.  If two or more deaths are the result of one accident, the general rule should be that the coroner may only charge for one investigation into the cause of death, however it is foreseeable that a situation could arise that would require more than one investigation and in such case the coroner could charge for two investigations when the deaths result from the same accident.  7.  The coroner must conduct and complete his investigation within a reasonable length of time.  8.  The coroner has power under statute to appoint deputies to serve without compensation.  9.  The County Commissioners are empowered to appoint a person to fill a vacancy in the office of County Coroner only when such office is vacated for one of the reasons set forth in Section 59-602, Revised Codes of Montana, 1947.  10.  The Board of County Commissioners may disallow the claim of a coroner for an investigation or an inquest only if the action of the Coroner is conducting such investigation or inquest was fraudulent or so arbitrary as to amount to a clear and manifest abuse of discretion. February 2, 1950
23- 89 Employees in industries designated as seasonal and employees of employers engaged in the first processing of certain products are within the contemplation of the Montana Eight Hour Day Constiutional provision and statutes enacted pursuant thereto and such Montana Law supersedes and takes precedence over a provision of the Federal Fair Labor Standards Act which sets a higher maximum hours standard. February 8, 1950
23- 90 A Certificate of Registration issued to an owner or possessor of an apiary may not be legally transferred or sold. Such Certificate is a license issued by the State of Montana and is a personal right of the holder thereof. February 9, 1950
23- 91 An elementary school may be constructed adjacent to an existing elementary school and on the same site after the qualified electors of a third class school district have authorized the construction of a new elementary school at a bond election, without the necessity of an election to designate the site for the new building. February 10, 1950
23- 92 The State Board of Examiners may not approve the transfer of the balance of Account No. 104-36 in the State Treasury to the Montana State College Research Foundation for the reason that the Montana Constitution prohibits the State of Montana from loaning its credit to or making any donation or grant to any corporation. February 18, 1950
23- 93 Grand jurors are entitled to pay for every day of attendance. If the court determines that the grand jury has been in attendance upon it on Saturdays, the jurors are entitled to be paid for Saturdays in the same manner as for any other day of attendance. February 28, 1950
23- 94 A deputy serving in a consolidated county office may, in the disecretion of the Board of County Commissioners, be compensated for his services at ninety per cent of the salary of the holder of such office if the deputy is in fact performing duties with respect to both of the offices which have been consolidated If such deputy is employed in such a capacity that he is performing the duties of only one of the individual offices which have been consolidated his compensation may not be based upon that of the holder of the consolidated office. March 2, 1950
23- 95 1.  Chapter 137, Montana Session Laws of 1949, providing for the assessing and taxing of the gross earnings of freight line companies shall be effective from and after July 1st, 1949.  2.  A statute shall not be given retroactive operation unless the statute expressly so declares. March 3, 1950
23- 96 (a)  Where a County will be classifed as a fourth-class County before the general election and a County Auditor will be chosen at the general election, petitions for nomination for the office of County Auditor may be accepted for the coming primary.  (b)  The term of office for County Auditor is two years in accordance with the provision of Art. XVI, Section 6, Constitution of the State of Montana. March 6, 1950
23- 97 The State Board of Equalization has the power to summon witnesses to appear and give evidence and to produce records, books, papers, and documents relating to matters which the Board has authority to investigate and determine. By virtue of these powers and in connection with the enforcement of the inheritance tax law, banks in the State of Montana are required to furnish information upon the request of the Board as to the amount of any bank balance a deceased person may have in a bank on the date of death. It is not necessary that the Board have the consent of the administrator or executor of the estate before requesting the aforementioned information. March 7, 1950
23- 98 Bidders upon Rural Improvement District Works, Special Improvement District Works, and upon the construction of State buildings or the alteration, repair and improvement of State buildings and grounds must accompany such bids with designated security in the form of a certified check. In addition to the aforementioned situations wherein the security is required by statute, a Board of County Commissioners and a Board of School District Trustees may in the exercise of their respective discretion and judgment require that bidders upon county and school district contracts deposit security with their bids as a means of insuring that all bidders are responsible parties. March 9, 1950
23- 99 1.  The School Trustees appointed to office after the creation of a new school district by consolidation and change of classification of the district hold office until the next school election.  2.  Where the terms of the five trustees of a second class district expire at the next school election due to the fact they were appointees, five trustees should be elected at the election, one of whom shall serve for one year, two for two years and two for three years. March 14, 1950
23- 100 The activity of Weed Control District is governmental in nature and thus there is immunity from liability for crop damage resulting from regular spraying of weeds along roads. In the absence of facts showing that Weed Control Board members acted beyond the scope of their authority, or directed or encouraged negligence which resulted in damage, the members of the Board are not personally liable for crop damage. March 21, 1950
23- 101 Mileage claims for the years 1933 through 1938 which were submitted to a Board of County Commissioners in 1940 are at the present time barred by the Statute of Limitations and may not be properly approved by such Board of County Commissioners. March 22, 1950
23- 102 The County Treasurer is charged with the duty of levying upon and taking into his possession such personal property upon which taxes are deliquent when such taxes are not a lien upon real property sufficient to secure the payment of such taxes. The Treasurer may not levy upon and sell for delinquent personal property taxes any personal property except that upon which the taxes were assessed. March 28, 1950
23- 103 Under the provisions of Sections 10-110 and 10-111 Revised Codes of Montana, 1947, fees for attendance at the units of the University of Montana must be waived for inmates of the Montana State Orphans' Home, the State Industrial School and the State Vocational School for Girls. Fees at any other institutions of higher learning need not be waived for such inmates. April 13, 1950
23- 104 The offices of County Clerk and Recorder and County Auditor may not be consolidated. April 17, 1950
23- 105 The exemption from fees and tuition at all units of the University of Montana provided for by Section 77-901, Revised Codes of Montana, 1947, shall apply to all honorably discharged persons who served with the United States forces in any of its wars and who were bona-fide residents of the State of Montana at the time of their entry into the United States forces. Inasmuch as World War II has never been officially concluded, any, person otherwise qualified, who serves in the United States forces before a treaty of peace ends the present state of war, shall, in the absence of future action by the Montana Legislature, be eligible for the benefits provided for by the said Section 77-901, Revised Codes of Montana, 1947. April 19, 1950
23- 106 Under the medical provisions of the Montana Workman's Compensation Act and in the absence of a hospital contract, an injured workman may choose his doctor. May 4, 1950
23- 107 A school district has the authority to enter into a contract for the repair of a school building and provide in the contract for payment over a period of three years. May 5, 1950
23- 108 In determining when seventy-five per cent (75%) of the townships in a county have established Livestock Disease Control Areas under the provisions of Section 46-212, Revised Codes of Montana, 1947, those townships which are in primitive areas and in which no stockowners reside should not be counted in the total number of townships within a county. Legislation must be interpreted so as to give effect to the intent of the legislature and to accomplish the obvious legislative purpose or object. May 16, 1950
23- 109 Where a tax lien exists on several items of personal property, the tax lien is against each individual item for the whole amount of the lien, and foreclosure may be had on one item to satisfy the tax lien against the whole. May 17, 1950
23- 110 Where a delinquent tax sale certificate is sold and assigned by the county and the purchaser institutes an action to obtain a tax deed and a decree granting the tax deed is issued, a certified copy of the decree granting the deed should be delivered to the County Treasurer. The certified copy of the decree granting the deed substitutes for the tax sale certificate and the tax receipts in the office of the County Treasurer. The County Treasurer should note the issuance of the tax deed on his records, but no specific form for this entry is required. May 18, 1950
23- 111 1.  If a person engaged by a County to operate a County owned ferry has the status of an independent contractor the provisions of the Montana Constitution and Statutes pertaining to the eight hour day have no application to the contract insofar as the hours of labor of the person contracting are concerned and the individual so contracting may work in excess of eight hours per day. However, any persons employed by such independent contractor come under the provisions of the eight hour day law.  2.  If the person engaged by the County to operate a County owned ferry is an employee of the County, the eight hour day provisions of the Montana Constitution and Statutes apply and it is unlawful for such person to work more than eight hours in any one day. May 22, 1950
23- 112 With respect to the redemption of real property sold for delinquent taxes, where the County is the holder of the tax sale certificate or certificates, the person seeking to redeem may do so without payment of taxes for the current year, or any part thereof.  However, if the tax sale certificate or certificates are held by another than the County and he has paid subsequent taxes, the redemptioner must pay all of the taxes represented by the tax sale certificate or certificates held by such other person, plus the subsequent taxes and interest that have been paid by him so that he will not suffer loss. May 24, 1950
23- 113 1.  County commissioners may acquire property for county cemtery purposes from an incorporated city or town only pursuant to Chapter 2 of Title 9, Revised Codes of Montana, 1947.  2.  The tax for the purpose of raising funds for operation of a cemtery district are to be levied pursuant to Section 9-209, Revised Codes of Montana, 1947.  3.  A primary election is not a general election within the meaning of Section 9-205, Revised Codes of Montana, 1947. June 2, 1950
23- 114 The purchaser of real property under an executory contract of sale is the "owner" of the property. Such purchaser is entitled to have his name placed on the County assessment rolls where he is in fact paying the taxes on the property. Where the name of the purchaser of real property under an executory contract of sale appears on the assessment roll of the County Assessor, even though not listed as the owner of property, but who is in fact the "owner" of property, and who actually pays the taxes on property is a taxpayer and his name should be placed on the poll book of the County and he is entitled to vote in County Bond Elections, if he is otherwise a qualified elector. June 13, 1950
23- 115 The resignation of a State Senator should be made to the Governor. The resignation of a State Senator will create a vacancy in that office from the effective date of the resignation, or if no effective date is set out in the resignation, then the vacancy exists from the acceptance of the resignation by the Governor. A vacancy created by the resignation of the incumbent in the office of State Senator can only be filled by a special election ordered by the Governor, and it is the duty of the Governor to issue an election proclamation at least ten (10) days before such special election. The Governor should proclaim a primary for the purpose of nominating candidates to be voted on at the special election. June 14, 1950
23- 116 The Montana State Highway Patrol and the Municipal Police Officers concurrently exercise authority to regulate motor vehicle traffic within the corporate limits of cities and towns. June 15, 1950
23- 117 The Board of County Commissioners does not have the power or authority under law to add adjacent unincorporated territory to an established fire district. June 15, 1950
23- 118 The clerk of the District Court is not entitled to the increase in salary provided for by Chapter 177, Laws of Montana, 1949, until the expiration of the term for which he was elected and which he is serving at the time of the enactment of Chapter 177, Laws of Montana, 1949. June 20, 1950
23- 119 Licenses, taxes and fees collected by the Dairy Division of the Department of Agriculture, Labor and Industry under the egg grading laws are to be paid over to the State Treasurer and deposited to the credit of the general fund. June 29, 1950
23- 120 A Board of County Commissioners has the power and authority to purchase an automobile to be used exclusively for general County purposes if in the opinion of such Board the automobile is necessary for the use of the County in the conduct of lawful County business. The use of said automobile for private purposes, or any other purpose, other than for lawful, necessary business of the County, by the members of the Board of County Commissioners or by anyone else would be a violation of the Laws of the State of Montana. July 6, 1950
23- 121 When a vacancy occurs in the Board of County Commissioners the judge or judges of the District Court in the District where the vacancy exists appoint a resident of the Commissioner district in which the vacancy has occurred to fill the vacancy until the next general election. The Governor's proclamation of the general election need not contain a proclamation of an election to fill vacancies occurring in County offices, but the proclamation of a general election by the Board of County Commissioners should contain a provision proclaiming an election to fill vacancies in County offices. Candidates to be voted on at a general election to fill vacancies should be nominated by the direct primary method if that method is reasonably available. July 14, 1950
23- 122 That by virtue of Section 7, Chapter 142, Laws of 1949, teachers who held state secondary certificates on May 1, 1949, are entitled to receive life certificates providing they meet the statutory requirements fixed by Section 75-2504, Revised Codes of Montana, 1947, and the rules and regulations of the State Board of Education. August 8, 1950
23- 123 The title to a school building erected on the land of an individual under a tenancy at will or sufferance remains in the district and can be removed by the district until title is divested as provided in Section 75-1624, Revised Codes of Montana, 1947. August 10, 1950
23- 124 The estate of a professor who dies while on a quarter out-of-residence is not entitled to payment of the professor's full salary for the entire quarter out-of-residence but should only receive such salary as is due and owing down to the date of death. August 10, 1950
23- 125 The officers of the County Central Committee who are elected at the organization meeting, which is held within thirty days after the candidates of their respective political parties are nominated, must have been elected committeemen or committeewomen at the preceding primary nominating elections. August 11, 1950
23- 126 Station Wagons are not to be registered as motor trucks unless such vehicles are used primarily for the transportation of commodities, merchandise, produce, freight or animals. If the owner of a station wagon seeks to register such vehicle as a motor truck he should be required to make an affidavit that the vehicle shall be primarily used for the transportation of commodities, merchandise, produce, freight, or animals. September 5, 1950
23- 127 School District employees with the exception of school teachers are entitled to vacation leave in accordance with the provisions of Chapter 131, Laws of 1949. September 5, 1950
23- 128 1.  High School Building Districts may be consolidated by virtue of Section 1, Chapter 130, Laws of 1949, and the procedure to be followed is found in Section 75-4602, Revised Codes of Montana, 1947.  2.  Surplus funds realized from the sale of a high school constructed with the proceeds of bonds issued by a High School Building District should be allocated to the component elementary school districts of the High School Building District if a high school is no longer operated within the High School Building District and the subsequent consolidation of the High School Building District Would not affect such distribution. September 30, 1950
23- 129 That if an election is not made by affirmative action by a member of the Teachers' Retirement System, who has ten years or more of service, to withdraw his accumulated contribution within six months after termination of service, otherwise than by death or retirement, such member cannot withdraw his contributions. Such member upon reaching retirement age will be entitled to a pension. October 2, 1950
23- 130 The County Treasurer-elect may be appointed to fill out the unexpired term of the incumbent and still hold office for the full term for which he was elected without contravening Section 5, Article XVI of the Montana Constitution. October 27, 1950
23- 131 A license tax on slot machines provided for by statute and voluntarily paid without protest cannot be recovered back from the State after such slot machines have been declared illegal. October 31, 1950
23- 132 When unforeseen and unanticipated emergencies consisting of increases in the number of recipients receiving Old Age Assistance benefits and in the cost of living arise, the State Board of Examiners may, in the exercise of its discretion, authorize the State Department of Public Welfare to expend an amount in excess of the sum appropriated by the Legislature, in order to insure that the recipients of Old Age Assistance will be maintained in a standard of living compatible with decency and health. November 13, 1950
23- 133 When it is necessary to register warrants that have been issued by a County, such registration should be made at the time the warrants are presented to the County Treasurer for payment. November 14, 1950
23- 134 When a motor vehicle is owned jointly by two or more persons, all of the co-owners need not sign the application for registration. November 22, 1950
23- 135 1.  When a School Board closes a school in a school district the Board is not required to furnish actual transportation by bus or rail, but rather may pay to the parent or guardian the cost of transportation in accordance with the schedule of payments provided by law.  2.  Sections 75-2901 and 75-2906, Revised Codes of Montana, 1947, provide a procedure for compelling a parent to send children within the school age to school. November 24, 1950
23- 136 The division of labor of the Department of Agriculture, Labor and Industry should not issue an age certificate to anyone under the age of sixteen years regardless of the nature of the employment for which such certificate is sought. November 30, 1950
23- 137 That the Montana State Highway Commission can abandon a State highway or a portion thereof, as distinguished from a County highway, without a joint order of the Board of County Commissioners of the County affected. December 1, 1950
23- 138 Neither the State Soil Conservation Committee nor the supervisors of a soil conservation district have the power to levy and assess a soil conservation district. December 7, 1950
23- 139 That the two sections of the by-laws of a Fire Department Relief Association, which sections are hereinafter set forth in this opinion do not conflict with provisions of Sections 11-1926, 11-1928, Revised Codes of Montana, 1947, when construed in connection with 11-1915, Revised Codes of Montana, 1947. December 9, 1950
23- 140 A Board of County Commissioners is without power to offer used equipment as a trade-in on the purchase of new equipment without first offering the used equipment for sale at public auction in accordance with the provisions of Section 16-1009, Revised Codes of Montana, 1947. December 20, 1950
23- 141 The Board of Trustees of a school district maintaining a district high school has the power to request the division of the County into high school building districts under Section 75-4602, Revised Codes of Montana, 1947. December 21, 1950
23- 142 The provisions of Section 16-2406, Revised Codes of Montana, 1947, providing that the officers mentioned in that section must take office on the first Monday of January next succeeding their election, except the County Treasurer, whose term begins on the first Monday of March next succeeding his election, do not contravene the provisions of Art. XVI, Section 5 of the Montana Constitution, which provides that these officers shall hold office for the term of four (4) years. December 23, 1950
23- 143 1.  When an elecion to fill the office of County Attorney results in a tie vote, the Commissioners of the County are vested with the power to fill that office by appointment.  2.  When an election to fill the office of County Attorney results in a tie vote, the Commissioners of the County are vested with the power to fill that office by appointment of any eligible person; which would include the power to appoint one of the named candidates for the office.  3.  When an election to fill the office of County Attorney results in a tie vote, the Commissioners of the County are vested with the power to fill that office by the appointment of any eligible person upon the expiration of the term of the incumbent. December 27, 1950
23- 144 When a fireman has served his probationary period, and has been appointed a fireman by the Mayor and City Council, he is not to be considered a substitute, when construing prohibitions against substitute firemen being eligible for membership in firemen relief associations, even though such fireman is merely taking the place of a fireman now serving in the Armed Forces. December 28, 1950
23- 145 In an action against a foreign corporation the Secretary of State of Montana, or, in his absence from his office, the Deputy Secretary of State, should decline service of process when such service is attempted pursuant to Section 93-3008, Revised Codes of Montana, 1947, as amended by Chapter 135, Laws of 1949, and when the foreign corporation being served has not filed a copy of its charter in the office of the Secretary of State of Montana. Therefore, in these cases, the duties imposed by Section 93-3010, Revised Codes of Montana, 1947, do not apply. December 30, 1950
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