Attorney General’s Opinions

Volume 28

Opinion

Held

Date

28- 1 A petition for a county planning and zoning district need not include zoning regulations that the petitioners desire for the district. The county planning and zoning commission has the exclusive duty to make and adopt a development pattern for the district. February 13, 1959
28- 2 Article XII, Section 1b of the Montana Constitution does not prohibit the expenditure of Highway funds to defray the cost of an audit of Highway Department receipts and expenditures for the use of the legislature in connection with a legislative investigation. January 26, 1959
28- 3 Selection, tenure and compensation of the Chairman of the Unemployment Compensation Commission may be set by the Legislative Assembly. January 27, 1959
28- 4 A referendum calling for a constitutional convention is not an amendment within the meaning of Article XIX, Section 9 of the Montana Constitution. The referendum and three constitutional amendments can be referred to the people at the next general election. February 4, 1959
28- 5 1.  It is the duty of the county superintendent of schools to determine the sufficiency of a petition requesting the transfer of territory from one school district to another and such petition must be signed only by resident taxpayers who are registered electors and whose names appear upon the last completed assessment roll.  2. The names of the signers who are neither taxpayers nor residents cannot be considered and also the names of resident taxpayers who are not registered are not qualified signers of a petition under Sub-section (5) of Section 75-1805, RCM, 1947, as amended. February 26, 1959
28- 6 1.  A constitutional amendment proposed by the legislature need not be submitted to the governor for approval.  2.  Article XIX. Section 9 of the Montana Constitution is complete by itself and details the steps to be taken to amend the constitution. No other requirement can be imposed. February 27, 1959
28- 7 All fees derived from extension programs authorized by the State Board of Education must be placed in the General Fund. March 25, 1959
28- 8 1.  When a county is established as a county of the Fourth Class it must have an office of County Auditor.  2. When through oversight, there has been no election for the office of County Auditor in a county of the Fourth Class, and there is no incumbent to this office, a vacancy exists which must be filled immediately by the County Commissioners.  3.  The office of County Auditor is excluded from the list of county offices which may be consolidated. March 31, 1959
28- 9 1.  Delinquent personal property taxes for prior years need not be paid as a condition of registering or reregistering a motor vehicle.  2.  That personal property taxes must be paid on new house trailers and new trucks if such vehicles are in the hands of private individuals on the first day of January or in the possession of dealers on the first Monday in March, but such motor vehicles may be registered without the payment of the
sales tax found in Section 53-617, R.C.M .. 1947, as amended by Chapter 103, Laws of 1959.  3.  Gross vehicle weight and license fees must be paid on new house trailers and trucks.
September 30, 1959
28- 10 1.  Where a statute is amended by two separate acts enacted by the same legislative assembly and neither act refers to the other, both amendments shall be given effect unless their provisions are irreconcilable. 2. House Bill 348 of the 1959 assembly is not incompatible with House Bill 480 of the same session. The new provisions of each of these acts shall be given effect as amendments to Section 87-148, RCM, 1947.  April 13, 1959
28- 11 District Court Judges are entitled to actual travel expenses permitted by Sections 93-305 and 93-313. The mileage allowance of 7c per mile provided by Sections 59-801 and 59-802 is not applicable to District Court Judges. April 16, 1959
28- 12 1.  That the authority of the board of trustees of a district high school to select a site for a high school shall be exercised under the direction of the qualified electors voting at an election conducted in the same manner as the annual election of school trustees in school districts of the first class.  2.  That the determination as to whether a bond issue exceeds the constitutional limitation is determined at the time of the delivery of the bonds and not at the time of the election. May 8, 1959
28- 13 It is permissible for the sheriff and county commissioners to budget for and expend money for the acquisition and maintenance of uniforms for the sheriff and his deputies. July 1, 1959
28- 14 The authority granted by the electors for a special levy under Chapter 22 of Title 16, Revised Codes of Montana of 1947, permits one levy to be made and that no subsequent levy for this special tax may be made unless approved by the voters at a special election. July 2, 1959
28- 15 The Montana Consumer Loan Act enacted as Chapter 283, Laws of Montana, 1959, permits the Montana Consumer Loan Commissioner to adopt rules regulating the sale of credit life and/or health and accident insurance on loans of more than three hundred dollars. July 1, 1959
28- 16 The Montana Consumer Loan Act does not require the licensing of all individuals who wish to contract for consumer loans in amounts of $1000 or less but only those individuals who engage in the business of making loans or advances and who charge more than ten per cent (10%) for interest, compensation, consideration or expense per annum. July 1, 1959
28- 17 District Court Stenographers are entitled to actual and necessary expenses permitted by Section 93-1906. The mileage allowance of 7c per mile is not applicable to District Court Stenographers. July 8, 1959
28- 18 The State Vocational School for Girls must accept all girls legally committed to it by a district court or judge. July 9, 1959
28- 19 Employees or their bargaining representative may be parties to a hospital contract under Section 92-610, RCM, 1947. August 6, 1959
28- 20 It is beyond the powers of the State Board of Examiners or any other civil executive board to reduce the sum to be expended for the salary of a particular State officer when the salary has been fixed by a line item in the legislative appropriation. August 8, 1959
28- 21 1.  The petition for the creation of a herd district must be filed with the county clerk but need not be recorded.  2. The boundaries of a proposed herd district can not overlap an existing district.  3.  The term "government section" as used in the herd district law is land lying within lines marked by government survey.
4.  Not more than fifteen per cent (15%) of the tract of land proposed for withdrawal from the herd district can be under cultivation.  5. When a change of time for a herd district is sought the area of the district at the time the petition for change is presented is the area which is to be used as the qualifying basis for the petition.
6.  Land owners may withdraw or add their names to the petition to organize or change a herd district up until the hour set for hearing the petition.
August 10, 1959
28- 22 The Montana Consumer Loan Commissioner does not have authority to regulate loans entered into before July 1, 1959, by firms or individuals who are now licensees under the Consumer Loan Act. August 12. 1959
28- 23 An additional trustee on the board of trustees of a high school district, who has ceased to be a member of the board of trustees of the common school district where he resides is not eligible to continue in office as additional trustee and there is a vacancy in such office. August 14, 1959
28- 24 1.  Tuition for elementary transfer students who attended school in the year 1958-59 shall be computed at the rate found in Section 75-1630, Revised Codes of Montana of 1947, prior to its amendment by Chapter 99, Laws of 1959.  2.  The budget adopted after July L 1959, must contain a provision for payment of tuition at the rate in existence prior to the amendment of Section 75-1630, Revised Codes of Montana, 1947, by Chapter 99, Laws of 1959.  3.  Tuition for high school students who were authorized to attend a high school in a county other than that of their residence for the year 1958-59 is to be computed at the rate found in subsection (e) of Section 75-4230, Revised Codes of Montana, 1947, prior to amendment by Chapter 70, Laws of 1959, and
payment is to be made from the transfer budget at such rate in the budget adopted after July 1. 1959_
August 21, 1959
28- 25 1.  Chapter 266, Laws of 1959, requires that the State Board of Education act in two capacities and at separate meetings. In dealing with all duties imposed by law which do not pertain to the University of Montana, the Board acts under the name "State Board of Education" and the Superintendent of Public Instruction is the secretary for such board.  2.  In dealing with matters pertaining to the University of Montana,
the State Board of Education must act under the name and style of "State Board of Education, ex-officio Regents of the University of Montana." The executive secretary of the University of Montana must serve as secretary of the Board in this capacity, keep the minutes, prepare the agenda, give notices, and perform all acts which the Board directs be done.  3.  A seal may be adopted by the Board of Education to authenticate
its acts when it sits as Regents of the University of Montana.
June 12, 1959
28- 26 1.  The Board of County Commissioners has no authority to borrow money from a bank for the purpose of constructing a courthouse.  2.  The proper method of financing the construction of a courthouse is by the issuance of county bonds under the procedure fixed by statute. September 28, 1959
28- 27 A duplicate warrant to replace a lost or destroyed warrant may be issued by the trustees of a school district if the payee or assignee of the warrant deposits with the county treasurer a bond to indemnify the school district from any loss. September 28, 1959
28- 28 Excess funds of a bond issue, after the full accomplishment of the purpose for which the bonds were sold, should be placed in the school district sinking fund and used to redeem bonds or purchase bonds of the issue. September 30, 1959
28- 29 1.  Funds realized from the sale of school property under the provision of Section 75-1634, RCM, 1947, may be placed in a building fund by resolution of the Board of Trustees of the school district.  2.  Monies in a building fund may be expended only after the adoption of a subsequent budget, whether it be an emergency
budget or the budget for the ensuing fiscal year.
October 2, 1959
28- 30 1.  Boards of County Commissioners have the responsibility of reclassifying property under the supervision of the State Board of Equalization and no other state or county office has any responsibility to reclassify property by the provisions of Chapter 191, Laws of 1957.  2. The enactment of Chapter 191. Laws of 1957 did not create a new county office.  3.  After July I. 1962, the Boards of County Commissioners shall continue to reclassify property by the method of classification and appraisal supplied by the State Board of Equalization,
pursuant to the provisions of Chapter 191. Laws of 1957.
October 5, 1959
28- 31 The use of hypnosis in order to firmly fix a conditioned reflex against the ingestion of candies, high carbohydrate foods and excessive smoking is a violation of Section 66-1007, Revised Codes of Montana, 1947, prohibiting the practice of medicine without a license. October 6, 1959
28- 32 A sheriff who releases a prisoner under a court order pursuant to the provisions of Chapter 249, Laws of Montana, 1959, incurs no liability for injuries or damages to the prisoner or injuries or damages caused by the prisoner paroled under this act. October 9, 1959
28- 33 1.  The release of a mental patient pursuant to Section 38-506, RCM, 1947, is within the official discretion of the Superintendent of the Montana State Hospital and no liability may be imposed upon such public officer for wrongful acts committed by the incompetent while on convalescent leave.  2.  A private person charged with the custody of a mental patient on convalescent leave is not liable for the wrongful acts of the incompetent unless such conduct could have been reasonably anticipated by the sponsor. October 13, 1959
28- 34 1.  Attorney General's Opinion No. 118, Volume 18 of 1939 has not been changed by subsequent amendments to Section 11-2008, R.C.M ., 1947.  2. Section 28-603, R.C.M., 1941 is not in conflict with, or supplementary to, Section 11-2008, R.C.M., 1941. October 15, 1959
28- 35 The Director of the State Board of Pardons may enter into a compact with the territories of the United States and the District of Columbia for the supervision of parolees and probationers. October 20, 1959
28- 36 The State Soldier's Home is authorized to accept conditional bequests and the prescribed conditions must be fulfilled as far as possible. October 23, 1959
28- 37 County Commissioners do not have the power to declare a curfew regulating the hours that minors under the age of sixteen may be in or about the streets of an unincorporated city or town. October 26, 1959
28- 38 1.  Sheriffs seizing claimed exempt property may require an indemnity bond from the attachment creditor.  2. Sheriffs attaching property claimed as exempt may request attachment debtors to file their exemption affidavits in the Justice Court which has power to determine their validity.  3.  A debtor's refusal to file his exemption affidavit in court forces the sheriff to determine the validity of the claim. If the claim is questionable the sheriff may require a bond of indemnity from the attachment plaintiff.   October 27, 1959
28- 39 The State of Montana may participate in joint utilization projects with the Federal Government pursuant to the National Defense Facilities Act of 1950. October 29, 1959
28- 40 1.  "Reasonable Hospital Services", as that term is used in the Workmen's Compensation Act (Sec. 92-706, RCM, 1947) includes ambulance service in proper cases.  2. The Industrial Accident Board may not adopt a rule which arbitrarily limits payments for ambulance services to a single trip.  3.  Whether or not payment shall be made for ambulance service must be determined by the Industrial Accident Board according to the facts of the individual case. October 30, 1959
28- 41 A fireman's widow who remarries and whose remarriage is annulled ab initio has remained unmarried under Section 11-1928, RCM, 1947, and is entitled to the widow's pension under the fire department association pension plan retroactive to the day her pension was cut off. November 6, 1959
28- 42 The County Commissioners may in their discretion provide quarters for the sheriff in close proximity to the jail if they require him to be available for duty twenty-four hours per day. November 12, 1959
28- 43 Persons summoned for jury duty before Montana Justice Courts are entitled to statutory per diem fees for each day's attendance before the court even though dismissed before actually participating in the trial of a particular case. November 13, 1959
28- 44 1.  It is not a proper purpose of public school extra-curricular activities to accumulate funds for investment.  2. That the interest realized from investments heretofore made, should be distributed to each contributing funds on a pro rata basis.  3.  That extra-curricular school activity funds should be administered by the Board of Trustees of the school and the student government association. November 16, 1959
28- 45 1.  The State Fish and Game Department has authority to regulate the use and abandonment of ice-fishing facilities after proper findings of fact and pursuant to an agreement with the owner of the private waters involved.  2. Rules relative to safety and protection of property may be made effective immediately upon their passage by the Commission.  Regulations relating to public health and sanitation must be approved by the State Board of Health before becoming legally operative. November 19, 1959
28- 46 Only duly licensed medical practitioners, commissioned officers of the U. S. Armed Forces whose regular duty includes eye care and treatment and duly licensed optometrists may prescribe and fit contact lens or lenses or dispense ophthalmic lens or lenses in this state. November 23, 1959
28- 47 The provisions of Section 84-3507, R.C.M., 1947, requiring that all bidders upon public contract projects have valid Montana public contractors licenses and providing that no public contract may be awarded to a bidder who does not have at the time of the bid a valid license, are mandatory and prohibitory and may not be waived. December 15, 1959
28- 48 The Secretary of State must charge and collect a fee of five dollars for the filing of official bonds, except that no charge must be made for the filing of the bonds of state officers. December 7, 1959
28- 49 The cash balance on hand at the end of a fiscal year in the elementary transportation budget should be used to meet or reduce the amount contributed by the district, county or state or any or all of the three depending on the source of the accumulated cash balance. If the cash balance results from more than one source, then the allocation should be made in the ensuing budget on a proportionate basis so as to give a proper reimbursement. December 21, 1959
28- 50 A school district which has furnished transportation in conformity with the requirements of Section 75-1522, RCM, 1947, prior to its amendment by Chapter 121, Laws of 1959, cannot be declared abandoned until after non-operation of school for three consecutive years after July 1, 1959. January 5, 1960
28- 51 1.  An employee of the University system who now has a contract which provides for tenure after the third appointment may acquire such tenure upon receiving the third contract notwithstanding any amendments or alterations in the regulations of the board.  2. The State Board of Education has authority to alter or amend
its regulations pertaining to contracts of employment for the University system and such amendments or alterations will be binding on those employees who do not now have any contractual relations with the State Board of Education.
February 2, 1960
28- 52 1.  County Commissioners may set maximum speed limits on state highways within their jurisdiction, where such speed limits are established in the statutory manner.  2.  Speed limits established by local authorities are enforceable by the penal provisions of Section 32-21-157. February 10, 1960
28- 53 Korean veterans who became hospitalized or prisoners of war during active duty in the Korean Theatre during the Korean War, and who were continuously hospitalized or held prisoner of war after October 16, 1953, must be compensated for the time they were so hospitalized or held prisoner at the rate and in the manner specified in Section 2(b), Chapter 44, Laws of 1957, up to the maximum payment provided for by that section. February 10, 1960
28- 54 1.  An election submitting the question of a special levy for a county high school must be initiated by a resolution of the trustees of the county high school and the election conducted pursuant to the provisions of Section 75-3802 through 75-3805, R.C.M., 1947, which are the statutes prescribing the method for an election for an extra levy for school districts.  2.  It is not necessary for a qualified elector to be registered to vote on the question of an extra levy for a county high school. March 4, 1960
28- 55 The State Welfare Board has no power to change the amount of the monthly payments to victims of silicosis. March 8, 1960
28- 56 1.  Under Chapter 20 of Title 66, Revised Codes of Montana, 1947 (the Blue Sky Law) permits to sell securities are issued by the Investment Commissioner after investigation if the sale of such securities to the public will not subject the purchasers to fraud, inequities and no opportunity for profit.  2.  That receiving a permit from the Investment Commissioner under the Montana "Blue Sky Law" does not permit any investment company to conduct any business. advertising or acts in violation of the Montana Bank Act and the Superintendent of Banks has the authority and duty to investigate and proceed to collect the penalties specified in Sections 5-508 and 5-509. Revised Codes of Montana. 1947. and enjoin the violations by appropriate injunctive action. March 14, 1960
28- 57 Section 94-4003, RCM, 1947, does not prescribe the closing hours for bowling alleys. March 16, 1960
28- 58 1.  Federal monies received under Public Law No. 874 may be used in the 30% permissive area above the foundation program in the elementary budgets to relieve the local tax burden; provided, however, that such monies may not be used above the amount that a 15 mill levy would produce unless approved by the electors.  2.  Federal monies received under Public Law 874 may be used in all independent budgets which are supported by local tax levies. March 28, 1960
28- 59 Chapter 91, Laws of 1957, has no effect upon the existing method of nominating and electing district court judges. April 13, 1960
28- 60 1.  Relatives of an inmate of the State Hospital who have been liable for the inmate's support and maintenance are also liable for the inmate's burial expense.  2.  The burial expense of an inmate of the Montana State Hospital, who is an honorably discharged veteran of the armed forces of the United States, must be paid by the county in which the veteran resided at the time of his commitment by the method and in the amount prescribed by statute.  3.  The State of Montana must pay the burial expense of indigent inmates of the State Hospital. April 14, 1960
28- 61 The acceptance of Chapter 191 of the Laws of 1959 by the voters would not in any way change or increase the power of the State Board of Education over the free public common schools and would not in any way diminish the authority or powers of local school boards or shift any of that power and authority to the State Board of Education. May 27, 1960
28- 62 1.  If the trustees of a district high school contemplate the voting of a special levy on the area of the high school district, authority for such election must be first obtained at a meeting of the trustees of the district and the chairman, or designates, of the common school districts comprising the high school district in conformity with Section 75-4609, R.C.M., 1947.  2.  The trustees of a district high school may call an election for an extra levy on the common school district within which the high school is situated without a meeting with the chairman, or designates, of the common school district comprising the high school district in accord with Section 75-3801, R.C.M., 1947, but the levy, if imposed, will be limited to the area of the common school district within which the high school is situated. May 31, 1960
28- 63 Exemption from fees authorized by Section 77-909, RCM, 1947, for the war orphans of Montana veterans includes non-resident fees. July 5, 1960
28- 64 Votes cast for a write in candidate must be counted if the voter's intentions are reasonably apparent from the ballot, whether the candidate's name as written on the ballot is in the same form as entered on the voter registration books or not. July 8, 1960
28- 65 1.  A railroad may not remove the safety glass windshield from a track motor car and substitute therefor a canvas windshield.  2.  If the climate is such as to require side curtains or similar protective devices for the complete protection of occupants of track motor cars from inclement weather. track motor cars must be equipped with such devices. August 3, 1960
28- 66 1.  Under the contract employing a principal submitted for my consideration, the principal is not entitled to additional compensation for one month's vacation when he resigned his position after service for one year of his two-year contract.  2.  The principal of a high school is a "school teacher" within the meaning of Section 59-1007, RCM, 1947. and so is excluded from the provisions of Chapter 10 of Title 59, RCM, 1947. September 16, 1960
28- 67 An absent voter's ballot should not be counted where the absent voter has died before the date of the election. November 4, 1960
28- 68 1.  A County Clerk may not refuse applications for absentee ballots before the regular closing hours of his office on the day before a general election if he is still in possession of the ballots for the applicant's precinct. 2.  In order to be counted, an absent voter's ballot must reach the judge of election of the absent voter's precinct before the closing of the polls. Mere receipt of the absent voter's ballot by the county clerk before the closing of the polls on election day does not, of itself, entitle the absent voter's ballot to be
counted. 
December 29, 1960
28- 69 1.  Neither the city attorney nor the county attorney is required to act as attorney for a joint city-county airport board.  2.  A city-county joint airport board may employ an attorney.  3.  A city-county joint airport board may employ as its attorney an attorney who is also employed by the county as a special bond and tax counsel and as a special deputy county attorney on a part-time basis. December 15, 1960
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