Attorney General’s Opinions

Volume 35

Opinion

Held

Date

35-1 The Board of Highway Appeals as a quasi-judicial board is an agency pursuant to the Administrative Procedure Act and must publish its organizational structure and procedural rules, concerning the hearing of personnel grievances and the hearing of disputes that result from the administration and enforcement of proportional registration agreements, in the Montana Administrative Register and Code. January 16, 1973
35-2 The Administrative Procedure Act does not apply to management memoranda issued by the Department of Administration pursuant to chapters 1, 19 and 33 of Title 82, R.C.M. 1947. January 17, 1973
35-3 1.  A convicted felon who has completed his sentence and been pardoned by the governor may carry, transport, receive, own or possess firearms in the state of Montana, but may not possess or transport firearms in interstate commerce unless the pardon by the governor specifically so states.  2.  A convicted felon whose imposition of sentence is deferred and who is placed under the supervision of the board of pardons is prohibited from carrying, transporting, receiving, possessing or owning firearms. January 19, 1973
35-4 1.  Contributions of present members to the Game Wardens' Retirement System cannot be increased without a corresponding increase in benefits which will accrue to members at retirement.  2.  Contributions by the employer to the Game Wardens' Retirement System may be increased without a corresponding increase in benefits which will accrue to members at retiremenL January 26, 1973
35-5 1.  Legislators, city and county elected officials and school teachers may not concurrently hold the office of city commissioner in a commission-manager form of city government and their current offices or employment.  2.  School trustees are exempted from the restrictions of section 11-3214, R.C.M. 1947, and, therefore, may hold the offices of city commissioner, in a commission-manager form of city government, and school trustee concurrently.  3.  Present city councilmen and the mayor of a city which is changing over to a commission-manager form of government may hold the office of city commissioner, as the terms of office do not run concurrently and, thus, the offices are not incompatible. February 5, 1973
35-6 Article V, section 6, Constitution of Montana, 1972, requires a written request of a majority of each house of the legislature to call the legislature into special session. February 6, 1973
35-7 The legislature may convene itself in special session by a recorded vote of the majority of each house. February 7, 1973
35-8 1.  A state plan prepared by the department of health and environmental sciences pursuant to federal law or regulations is a rule pursuant to section 82-4202 (2), R.C.M. 1947, and therefore is subject to the requirements of the Montana Administrative Procedure Act.  2.  Because of the size and changeable nature of a state plan the agency, with the consent of the secretary of state, need not publish the entire state plan but may, if copies of the state plan are made available to the public, publish a notice stating the general subject matter of the state plan in the Montana Administrative Code and Register, pursuant to section 82-4206 (3), R.C.M. 1947. February 8, 1973
35-9 Montana criminal abortion statutes are presumed to be constitutional and in full force and effect until ruled otherwise. February 22, 1973
35-10 The words "legislative seat" as used in Chapter 21, Section 11, Laws of 1973, apply only to a seat in the Montana state legislature. March 1, 1973
35-11 Section 11-1024, R.C.M. 1947, does not limit a school district to a maximum payment of ten dollars per month per employee for group insurance. March 2, 1973
35-12 1.  The reapportionment commission is empowered by the constitution to determine the size of the legislative assembly and the geographical makeup of the legislative and congressional districts.  2. The legislative assembly is without power to determine the size of the legislative houses under the Constitution of Montana, 1972.  3.  The reapportionment commission is not bound by legislative determination of the size of the legislative assembly, and sections 43-106.6 and 43-106.7, R.C.M. 1947, enacted prior to the adoption of the Constitution of Montana, 1972, are not controlling.  4.  Upon filing with the secretary of state, the apportionment plan adopted by the reapportionment commission shall become law and all previous statutory provisions are superseded. April 11, 1973
35-13 1.  Commencing July 1, 1973, a $4.00 fee for junk vehicle disposal, in addition to all other fees presently assessed, will be charged for each new application for title and for each transfer of title on passenger cars and trucks under 8001 pounds.  2.  Commencing January 1, 1974, a fee of $1.00 for junk vehicle disposal, in addition to all other fees presently assessed, will be charged for licensing each passenger vehicle and truck under 8001 pounds. May 22, 1973
35-14 1.  Fines and forfeitures assessed pursuant to the maximum limits of section 32-1123, R.C.M. 1947, should be deposited in the state general fund. All other fines and forfeitures collected under the remaining provisions of Title 32, chapter 11, R.C.M. 1947, should be deposited in the county general road fund.  2.  A percentage of fines and forfeitures assessed pursuant to the issuance of notices to appear issued by highway scalemen
should be deposited in the traffic education account.
June 11, 1973
35-15 Upon implementation of the Constitution of Montana, 1972, July 1, 1973, the salaries of county attorneys shall be payable monthly, one-half from the general fund of the county and the other half from the state treasury, upon the warrant of the state auditor, as provided for in section 25-601, R.C.M. 1947. June 19, 1973
35-16 1.  County commissioners cannot appoint themselves to the county tax appeal boards created in section 84-601, R.C.M. 1947.  2.  Members of the county tax appeal boards created in section 84.601, R.C.M. 1947, are only entitled to travel and per diem as provided in sections 59·538 and 59·801, R.C.M. 1947. June 26, 1973
35-17 The holding of the Supreme Court of the United States in Vlandis v. Kline, U.S. , does not render sections 75-8701 through 75-8704, R.C.M. 1947, violative of the Fourteenth Amendment to the United States Constitution. July 18, 1973
35-18 1.  In order to qualify for the ratable distribution of surplus public moneys in time and savings deposits pursuant to section 16-2618, R.C.M. 1947, a bank must pay on the public moneys deposited the same rate of interest paid on money from private sources deposited on the same terms.  2.  Chapter 298, Montana Session Laws, 1973, does not restrict or prevent the investment of public funds which qualify for investment under the provisions of sections 16-2050 and 16.2618, R.C.M. 1947, nor do sections 16·2050 and 16·2618 restrict or prevent the investment of public funds which qualify for investment under the provisions of Chapter 298, supra. July 30, 1973
35-19 1.  The Montana statute providing for confidential applications under the Hard Rock Mining Act is constitutional under Article II, section 9, Montana Constitution, 1972.  2.  Confidential information contained in an application to the department for a hard rock mining permit cannot be made public through an environmental impact statement. August 7, 1973
35-20 Certain activities by a strip mining operator, prior to removal of overburden or mineral, do not constitute strip mining under the Montana Strip Mining and Reclamation Act. August 8, 1973
35-21 The salary of a deputy sheriff of a first, second or third-class county may be set by the county commissioners between a minimum of 75% of the sheriff's salary and a maximum of 90% of the sheriff's salary, provided that a deputy sheriff may not be paid less than he was making on July 1, 1971. August 10, 1973
35-22 In computing the salary of deputy sheriffs, which are based upon the sheriff's salary, the salary of the sheriff includes the $1,200 provided for in section 25-605, R.C.M. 1947. August 23, 1973
35-23 A county treasurer is eligible to hold office for a succeeding term. August 24, 1973
35-24 The county commissioners must set the salary of the county attorney by resolution, and must forward a copy of the resolution to the state auditor for proper payment of the county attorneys. August 27, 1973
35-25 County clerk and recorder may not refuse to record a deed that has not met the prerequisite set forth in Chapter 500, Session Laws of 1973, requiring that an approved, certified plat be filed before land is transferred. August 30, 1973
     
35-27 The board of nurses must issue lists of registered nurses and licensed practical nurses to members of the public who wish to purchase them. September 21, 1973
35-28 1.  Only one justice of the peace will be elected in each county in the 1974 elections, unless otherwise specified by the action of the 1974 legislature.  2.  Only the legislature may provide for additional justices of
the peace and no such power lies with the county commissioners.
September 24, 1973
35-29 1.  All owners of agricultural land must submit an application by October 1 to have such land taxed as agricultural.  2.  Land separated or split.off from agricultural land and no longer used for agricultural purposes is subject to a roll-back tax. September 27, 1973
35-30 1.  If the aggregate market value of an estate of a deceased person is fifteen hundred dollars or less, the public administrator is entitled to a commission of fifteen percent of the total amount of any such estate in which he serves as administrator.  2.  If the aggregate market value of an estate exceeds fifteen hundred dollars, the fees allowed the public administrator for administering the estate are determined by the provisions of section 91-3407, R.C.M. 1947.  3.  A court may grant additional allowances to a public administrator if deemed necessary, in those instances where compensation for the administrator is determined on the basis
of section 91-3407, R.C.M. 1947.
September 28, 1973
35-31 1.  The offices of county treasurer and county superintendent of schools may be consolidated into one office.  2.  An officeholder of the consolidated offices of county treasurer and county superintendent of schools must meet the minimum qualifications of both offices.  October 4, 1973
35-32 District court judges may not receive a fee for writing, research, and lecturing under programs funded by the Board of Crime Control. October 5, 1973
35-33 1.  Salaries of county officers are set each year for the following fiscal year in conformity with the statutory schedule in effect on July 1 of the fiscal year.  2.  County officers' salaries are not retroactively adjusted
following the property valuation in August of each fiscal year.
October 16, 1973
35-34 1.  Legislative candidates who reside in a district crossing county boundaries may run in another district in the county of residency which is wholly contained within that county.  2. Legislative candidates who reside in a district crossing county boundaries may not run in another district in the county of residency which also crosses into another county.  3.  Legislative candidates who reside in a district wholly contained within the county of residency may not run in another district in the county of residency which also crosses into another county.  4.  Legislative candidates who reside in a district wholly contained within the county of residency may run in another district in the county of residency which is also wholly contained within that county. November 1, 1973
35-35 Abstract examination and certificate from licensed abstractor is not required when lands outside city are surveyed and certificate of surveyor plat is prepared for one or more tracts with no dedication for streets, alleys, playgrounds or other purposes. November 14, 1973
35-36 1.  A general election for the election of members of the United States House of Representatives and members of the United States Senate is a federal election.  2.  A primary election for the nomination of candidates for the office of United States Senator and United States Representative is a federal election. November 20, 1973
35-37 1.  Unexpended monies remaining in a county's classification and appraisal fund as of July 1, 1973, may be transferred to other county funds; and  2.  The state department of revenue may not utilize such
unexpended monies for classification and appraisal of taxable lands and improvements.
November 21, 1973
35-38 A county with a total registered vote of less than 20,000 at the last general election cannot pay the elected county surveyor a salary or fee that exceeds 812.00 per day, unless the surveyor is directed to perform road and construction inspections. November 21, 1973
35-39 County commissioners may adopt reasonably stricter sanitation regulations for subdivisions than those adopted by the department of health and environmental sciences. November 21, 1973
35-40 1.  Proceeds from work or chemical sales of weed control districts must be credited to the noxious weed fund for reuse within the fiscal year.  2.  The county weed control board may expend monies from the noxious weed fund only with the approval of the county commissioners. December 6, 1973
35-41 1.  The department of administration may not dispose of any interest in state lands without the approval of the state board of land commissioners.  2.  No legal method or procedure exists for a lease-purchase plan for construction of a social and rehabilitation services building as authorized by section 82-1918, R.C.M. 1947, as
the plan would create a debt or liability which has not been approved as required by Article XIII, section 2, Constitution of Montana, 1889, or Article VIII, section 8, Constitution of Montana, 1972.
December 7, 1973
35-42 An appeal before the county superintendent of schools is an original proceeding and de novo consideration of a controversy, and not merely a review of a decision by a school board. December 10, 1973
35-43 A one-time segregation of a single parcel of land, ten (10) acres of less, for sale, rent or lease from the original tract, does not create a subdivision. December 13, 1973
35-44 1.  The annual property tax permitted under section 82-4309 may be used to pay premiums on liability insurance, but may not be used to pay premiums on property insurance of school districts.  2.  A fund separate from the general fund is created when a property tax is levied pursuant to section 82.4309 to pay for
insurance premiums.  3.  Section 75-5939 has not been specifically repealed but has been superseded and incorporated into the Montana Comprehensive State Insurance Plan and Tort Claims Act, sections 82-4301, et seq.  4.  A school district may pay for property and liability insurance out of the general fund, subject to the maximum levies allowed by law.
December 19, 1973
35-45 If public buildings do not comply with the fire safety rules and regulations promulgated by the state fire marshal bureau, those rules and regulations may be enforced by judicial action enjoining the use of buildings or portions of buildings until there is compliance with those rules. December 19, 1973
35-46 1.  Grand and trial jurors should be paid eight cents (8¢) per mile for travel to and from their residence and the county seat.  2.  The mileage allowance provided by section 59·801, R.C.M. 1947, does not apply to grand and trial jurors. December 19, 1973
35-47 A district school board may not incorporate under the Montana Nonprofit Corporation Act. December 19, 1973
35-48 1.  Section 69-4505, R.C.M. 1947, applies only to cities of the first and second class, and requires them to establish and maintain boards of health.  2.  Section 11-946, R.C.M. 1947, permits all cities and towns to
establish and maintain boards of health.  3.  Pursuant to section 69-4506, R.C.M. 1947, a city-county board of
health may not be created other than between cities of the first and second class, and counties.  4.  Pursuant to section 69-4507, R.C.M. 1947, cities, other than first and second class cities, cannot participate in a district board of health.
December 24, 1973
35-49 State agencies who apply pesticides in the same manner as commercial applicators need not comply with the financial responsibility requirements of section 27-232, R.C.M. 1947. December 26, 1973
35-50 1.  The reapportionment plan should be submitted, with a cover letter signed by each commission member, to each house of the legislature by the tenth day of the 1974 legislative session.  2.  Within 30 days of the return of the reapportionment plan from the legislature, the final plan should be submitted, with a cover letter signed by each commission member, to the secretary of state for filing. December 26, 1973
35-51 1.  A board of county commissioners does not have the discretionary authority to pay in excess of the statutorily prescribed $10.00 per month toward the premiums of group insurance entered into for each county employee pursuant to section 11-1024, R.C.M. 1947.  2.  A county must remit union employees' benefits in lieu of wages to the union trust to which employees assign those benefits instead of paying them to the employees as wages.  3.  A county, as employer, may enter into a valid contract with an employees' union, or individual members thereof, to provide for assignment in lieu of wages to the union's health and welfare trust and pension trust.  4.  A county, as employer, is prohibited by section 68-1602 (8), R.C.M. 1947, from making a contribution to both P.E.R.S. and a private union pension trust.  5.  Unionized county employees may make individual contribution to private union pension trust by assignment of benefits due them even though the county made contribution to P.E.R.S. for county employees. December 27, 1973
35-52 A county may incur single purpose indebtedness up to forty thousand dollars ($40,000) without approval of a majority of electors voting at a lawful election if such indebtedness together with existing county indebtedness does not exceed five (5) per centum of the assessed value of the county's taxable property. December 27, 1973
35-53 1.  A transcript, although not necessarily a verbatim stenographic report, is required on an appeal from a decision of the county school transportation committee to the state superintendent of public instruction.  2.  A transcript of a proceeding before a county school transportation committee may not be waived in the absence of express regulations promulgated by the state superintendent of public instruction. December 28, 1973
35-54 The Montana Strip Mining and Reclamation Act is not applicable to the prospecting for, mining by strip mining methods, or removal of coal on lands within the Northern Cheyenne Indian Reservation covered by a coal lease from the Northern Cheyenne Tribe. December 28, 1973
35-55 Sections 11-3849 through 11-3876, R.C.M. 1947, do not govern recording of deeds prepared and executed under contracts for deed prior to July 1, 1973, but not presented for recording until after June 30, 1973. December 31, 1973
35-56 1.  An elector in a school election may be challenged on election day by any registerd elector of the district.  2. A challenged elector in a school election may be disqualified from voting by the election judges if he is not a resident of the school district in which the election is held.  January 2, 1974
35-57 Eight hours constitutes a day's work for road crew employees, and section 41-1121, R.C.M. 1947, precludes the county commissioners from authorizing a ten-hour workday for such employees. January 8, 1974
35-58 The statutes relating to the board of public accountants, contained in chapter 18 of Title 66, R.C.M. 1947, were amended by implication by the Executive Reorganization Act of 1971, contained in Title 82A, R.C.M. 1947, thereby transferring the duties specified in sections 82A-1603 and 82A-1604, R.C.M. 1947, from the board of public accounts to the department of professional and occupational licensing and the director thereof. January 10, 1974
35-59 The Constitution of Montana, Article II, section 9, does not require the department of revenue to release information to the public regarding supplemental bank assessments that were issued against Montana banks as a result of an examination of such banks pursuant to section 84-708.1 (13), R.C.M. 1947. January 10, 1974
35-60 A public school teacher who holds a "life certificate" has tenure after being elected to the fourth consecutive year of employment, regardless of when that teacher received a college degree. January 14, 1974
35-61 1.  In an election for justice of the peace, the ballot must be the same, in form, as the ballot used to elect district court judges.  2.  A justice of the peace shall run against himself, if unopposed, as is required for district court judges. January 17, 1974
35-62 The publication by county officers of a list of delinquent taxpayers in a newspaper for purposes of embarrassment would be an excessive exercise of their statutory powers and an invasion of privacy in violation of Article II, section 10, Constitution of Montana. January 18, 1974
35-63 1.  Section 16-1038, R.C.M. 1947, does not require county boarding or nursing homes to provide care for indigent aged regardless of county residence.  2.  A county may restrict entry into the county boarding or
nursing home to only those indigent aged who are bona fide residents of the county.
January 18, 1974
35-64 The title to Senate Bill 254, as enacted by the 1973 Montana Legislature, sufficiently identified the subject matter of sections 2 and 3 of that bill so as to comply with Article V, section 11, Constitution of Montana, 1972. January 24, 1974
35-65 1.  Contracts to convey land made on or after July 1, 1973, in violation of Montana Subdivision and Platting Act are void.  2.  Deeds executed on or after July 1, 1973, are void if they convey land in violation of the Montana Subdivision and Platting Act. January 28, 1974
35-66 1.  Monies generated from the leasing of fairground buildings by the county commissioners must be deposited in the county poor fund.  2.  Monies generated from the operation and lease of fairgrounds and buildings by the county fair commission must be deposited in the county fair fund. January 28, 1974
35-67 1.  A first class city shall not supplement its paid fire department with volunteer firemen.  2.  A second class city may supplement its fire department with volunteer firemen.  3.  Volunteer firemen are entitled to all relief association benefits other than service pension. January 28, 1974
35-68 1.  Only the attorney general has specific authority to issue legal opinions to county attorneys or other agencies of state and county government.  2. Opinions issued by state officers or agencies which conflict
with the attorney general's opinion on the same question must yield to the attorney general's opinion.
January 29, 1974
35-69 1.  Full-time nonteaching employees of a school district are entitled to sick leave benefits under section 59-1008.  2.  School teachers are not subject to sick leave benefits under section 59-1008.  3.  Under the court decision in Teamsters v. Cascade County School District # 1, nonteaching school district employees are
entitled to vacation benefits retroactive for two years from the date of the original filing of that action.  4.  Group insurance plans apply to both teaching and nonteaching employees of a school district under section 11-1024.  5.  School district employees are eligible for group insurance benefits from the outset of their employment under section 11-1024.  6.  A school district may contribute up to but not exceeding $120 per annum for group insurance to employees under contract for a full academic year under section 11-1024.  7.  The contribution of the school district for group insurance plans must be included as part of the salary of an employee.  8.  A school district employee may pay additional premiums for group insurance as an assignment of wages.
February 4, 1974
35-70 The term "immediate family" as used in section 11-3862, R.C.M. 1947, means the spouse of the grantor and the children of the grantor by blood or adoption. February 6, 1974
35-71 1.  Salaried employees of a fire district are county employees.  2.  Fire district employees are entitled to vacation and sick leave benefits under section 59 -1001, et seq., R.C.M. 1947.  3.  Fire district employees are entitled to group insurance benefits under section 11-1024, R.C.M. 1947.  4.  Fire district employees are subject to the provisions of section 41-1121, R.C.M. 1947, regarding hours of employment.  5.  Fire district employees have tenure rights consistent with tenure rights of other paid fire companies.  6.  Salaried employees of a fire district are not volunteers under section 11-1908, R.C.M. 1947. February 21, 1974
35-72 1.  A police department within the meaning of section 11-1834 is a factual determination.  2.  Police services may be provided pursuant to an interlocal agreement between local governmental units.  3.  A contracting municipality in an interlocal agreement is eligible to receive state payments authorized in section 11-1834.
4.  A city council is responsible for promulgating rules and regulations relating to the expenditure of state funds received under section 11-1834 by a municipality not governed by the provisions of the police retirement system law.  5.  A municipality not governed by the provisions of the police retirement system law may expend state funds received under section 11-1834 for training and pensions for members of a police department providing law enforcement services pursuant to an interlocal agreement.
March 11, 1974
35-73 An individual must be eighteen years of age or older to qualify as a school bus driver. March 18, 1974
35-74 1.  Mandatory university system student fees are public funds.  2.  Mandatory university system student fees must be expended for a public purpose determined in the first instance by the Montana board of regents. March 20, 1974
35-75 1.  All candidates for public office may be rotated on election ballots within legislative districts within the county.  2.  A certified list of voters registered in each precinct is not required to implement the rotation of candidates' names on the election ballot. March 25, 1974
35-76 A member of the Montana legislature may run for another public office during the term for which the member has been elected, provided that the terms of the respective offices do not overlap. April 2, 1974
35-77 1.  A nonprofit organization's building which is rented out for gain or profit is not exempt from property taxes pursuant to section 84-202, R.C.M. 1947.  2.  A nonprofit organization which owns real property within a special improvement district is obligated to pay special improvement assessments. April 3, 1974
35-78 The term "travel expenses" as used in section 84-601, R.C.M. 1947, as amended by the 1974 legislative session, is restricted to an allowance for mileage alone. April 4, 1974
35-79 The provisions of sections 84-3807 and 84-4202, R.C.M. 1947, do not apply exclusively to the county where the original tax was assessed, and a writ of execution against a delinquent personal property taxpayer may be issued by the county treasurer to the sheriff of any county in the state of Montana. April 16, 1974
35-80 11.  A petition for a proposed constitutional amendment by initiative must be signed by ten percent (10%) of the qualified electors of the state, and that number shall include at least ten percent (10%) of the qualified electors in each of two-fifths of the house districts throughout the state, pursuant to Article XIV, Section 9, Constitution of Montana, 1972.  2. Legislative districts referred to in Article XIV, Section 9, Constitution of Montana, 1972, dealing with amendment of the constitution by initiative, are the same districts which existed at the time of the preceding general gubernatorial election.  3.  Initiative petitions for a constitutional amendment must be filed with the secretary of state on or before one hundred twenty (120) days prior to the election at which they are to be voted upon by the people, pursuant to section 37-203, R.C.M. 1947.  4.  A qualified elector may sign an initiative petition for a constitutional amendment and supply his residential address, while allowing someone else whom he has authorized and directed to fill in the proper precinct and representative district number on the petition. May 1, 1974
35-81 When an election for school trustee results in a tie vote, the school district board of trustees should conduct a special school election to fill the trustee position. May 3, 1974
35-82 1.  The statutory provisions relating to the appointment of county high school district trustees are invalid under Article X, section 8 of the Montana Constitution, 1972, which provides for the election of school district trustees.  2.  County high school district trustees should be elected at the next regular school election in compliance with applicable school district trustee election provisions. May 6, 1974
35-83 1.  The operation of a motor vehicle upon completed sections of interstate highway, in the nighttime, at speeds in excess of sixty-five (65) miles per hour, constitutes a violation of section 32-2144(b)(3), R.C.M. 1947, and subjects the operator upon conviction to the penalty provisions of section 32 -21-157, R.C.M. 1947.  2.  The operation of a motor vehicle upon the highways of this state, other than completed sections of interstate highway, in the nighttime, at speeds in excess of fifth-five (55) miles per hour, constitutes a violation of section 32-2144 (b) (3), R.C.M. 1947, and subjects the operator upon conviction to the penalty provisions of section 32-21-157, R.C.M. 1947. May 14, 1974
35-84 University motor vehicle records relating to vehicle registration, decals, permits, passes and traffic fines are public documents subject to public inspection. May 21, 1974
35-85 1.  A candidate for the office of county surveyor must meet all requirements set forth in Article IV, section 4, Constitution of Montana, 1972, and sections 59-301,16-2401, and 16-3301, R.C.M. 1947.  2.  A candidate for the office of county surveyor must be at least twenty·two years old, a citizen of the state, a qualified elector of the state and county in which the duties of the office are to be exercised or for which he is elected, a professional engineer as defined by sections 66-2326 and 66-2336, R.C.M. 1947, and he must have actively practiced engineering in a responsible position for the statutory period. May 23, 1974
35-86 1.  (a) Legalized forms of gambling can be conducted on premises not licensed for the sale of liquor, beer, food, cigarettes or any other consumable products.  1.  (b) Cities, towns and counties have the power to license allowable gambling on premises other than those already licensed to sell liquor, beer, food, cigarettes or any other consumable products.  2.  Cities, towns and counties have the power to establish, by ordinance or resolution, regulations pertaining to the conduct of authorized gambling games regardless of the premises on which such games are conducted.  3.  Pursuant to an interlocal agreement, cities, towns and counties may adopt licensing procedures and regulations on a county-wide basis.  4.  Section 84-2708, allowing the county to retain only fifty percent of all license monies collected and transferring the remaining license monies to the state treasurer, does apply to licenses for gambling game issued pursuant to sections 62-707 and 62-719, R.C.M. 1947.  5.  The term "poker," as used in section 62-703, R.C.M. 1947, means studhorse poker and draw-poker.  6.  The definition of "bingo," as used in section 62-716, R.C.M. 1947, includes the game of "keno."  7.  Chips can be used in authorized card games if such chips are purchased with cash.  8.  (a) Selling chips to participants at more than the face value of the chips is not statutorily authorized.  8.  (b) Selling chips to participants at more than the face value of the chips is not an authorized rake-off as provided by section
62-705, R.C.M. 1947.  9.  The licensee establishes the rules governing the conduct of each game that is carried on pursuant to his license.  10.  The term "venue" as used in sections 62-713 and 62-735, R.C.M. 1947, means " jurisdiction."  11 and 12.  In regard to these questions, the district courts have exclusive jurisdiction over violations of the Montana Card Games Act, the Bingo and Raffles Law, and the Sports Pool
Act.  13.  The county attorney must prosecute, in the district court, all violations of the gaming acts, including ordinances enacted by cities and towns pursuant to these acts.  14.  Licenses to conduct allowable gambling on premises licensed to sell liquor, beer, food, cigarettes or any other consumable products shall not be effective for more than one year.  15.  The notice and hearing requirements of the Administrative Procedure Act, set out in section 82-4209, R.C.M. 1947, do not apply to cities, towns and counties for the issuance,
denial, revocation or suspension of gambling licenses.
June 4, 1974
35-87 1.  The ballot of a qualified elector who writes in a name on the ballot but neglects to mark an "X" before that name must not be counted toward the election of the person whose name is written in.  2.  An elector may write in the blank spaces of a ballot the name of any person for whom he wishes to vote, but he only votes for
that person by actually marking the square before that person's name pursuant to section 23-3606, R.C.M. 1947.  3.  A mark other than an "X" within the square before a candidate's name, or an election issue, may be used to express an elector's choice on an election ballot if his intention is clear to the election officers.
June 5, 1974
35-88 Section 23-4739, R.C.M. 1947, of the Montana Corrupt Practices Act, prohibiting public employees from paying or contributing to aid or promote the nomination or election of any other person to public office, is not in violation of Article II, section 4, Constitution of Montana, 1972. June 19, 1974
35-89 1.  The office of budget and program planning has the authority to make interpretative rules for the purpose of administering House Bill 747.  2.  The legislature did impair the obligations of contracts entered into between union bargaining units and state agencies by enacting H.B. 747 if the salary increases or benefits to be
received under those contracts would be diminished in any way.  3.  State employees under union contracts which have been impaired by H.B. 747 are entitled to the salary increases as provided for by their contracts and not as provided for in H.B. 747.
June 21, 1974
35-90 1.  A seat on a local government study commission is a public office.  2.  Members of the legislative assembly and the elected officials of the executive branch of state government as defined in Article VI, section 1, Constitution of Montana, 1972, may not hold the position of local government study commissioner.  3.  County or municipal officers, not specifically precluded by law from holding other public office, are prohibited from
holding the office of local government study commissioner if that position is incompatible under common law principle with their county or municipal office.
July 12, 1974
35-91 1.  In order to qualify for the office of school trustee a person must be registered to vote as a resident of the school district in which he proposes to vote.  2.  Votes cast in a school election by persons who are residents
of the district but who are not registered to vote in that district are invalid.
July 19, 1974
35-92 1.  Section 59-501, R.C.M. 1947, does prhobit a county coroner who is also a licensed funeral director from assigning coroner cases to a mortuary in which he has an interest.  2. Section 59-501, R.C.M. 1947, does not prohibit a county coroner who is also a licensed mortician from assigning coroner cases to a mortuary in which he has an interest.  3.  A county coroner who is a licensed funeral director may be liable for the offense of official misconduct defined in section 94-7-401, R.C.M. 1947, if he knowingly assigns coroner cases to his own mortuary in violation of section 59-501, supra. July 25, 1974
35-93 The latest edition of the Revised Codes of Montana and all official supplements thereto must be supplied to each justice of the peace in each county. August 5, 1974
35-94 Section 25-232, R.C.M. 1947, permits the clerk of the district court to collect only one filing fee when multiple plaintiffs or defendants file a single complaint or answer or motion to dismiss respectively, and section 25-233, R.C.M. 1947, allows the clerk of court to collect only one filing fee when multiple petitioners file a single petition for letters testamentary, or letters of administration or guardianship, or when multiple parties file a single petition to contest a will. August 6, 1974
35-95 1.  The office of public service commissioner which became vacant upon the death of Louis Boedecker after the primary election must be placed on the November 5, 1974 general election ballot.  2. The elected successor to the office of public service commissioner will take office when elected and qualified and will serve out the unexpired term of Mr. Boedecker.  3.  Political party nominations for the general election may be
made in accordance with the customs of each political party.  4.  Nominations for independent candidates or candidates of parties not eligible for the direct primary shall be made in accordance with section 23-3318 (1-4), R.C.M. 1947.  5.  The time of 5:00 p.m., September 18, 1974, is the final date that certificates of nomination can be accepted by the secretary of state.  6.  The successor to the office of public service commissioner must be nominated by representatives representing Mr. Boedecker's selected district under the new Public Service Commission law.  7.  The successor to the office of public service commissioner must be elected by voters of Mr. Boedecker's selected district under the new Public Service Commission law.
August 13, 1974
35-96 1.  Parcels of land greater than ten (10) acres but less than twenty (20) acres, for which a certificate of survey has been filed prior to July 1, 1974, in accordance with the law in force at the time of the recording, may be conveyed without further compliance with the Montana Subdivision and Platting Act.  2.  Parcels of land greater than ten (10) acres but less than twenty (20) acres, which have been surveyed prior to July 1, 1974 but have not had a certificate of survey filed for record prior to that date, do not satisfy the conditions of section 11-3870, R.C.M. 1947, and must be conveyed in compliance with the Montana Subdivision and Platting Act. August 19, 1974
35-97 1.  A vacancy was created in Senator McKeon's office at the time of his conviction,  2. The proper procedure to declare that a vacancy exists in Senator McKeon's office is for the presiding judge who entered the order of judgment and commitment to the state penitentiary of Senator McKeon to notify the boards of county commissioners from Senatorial District No. 19 of that fact, and  3.  Any exercise by Senator McKeon of his voting privileges in his senatorial capacity after his conviction is a nullity and of no legal effect. October 15, 1974
35-98 An individual may be elected to a position on a local government study commission by write-in votes when the individual's name is written in and the ballot properly marked. The person receiving the largest number of votes shall be elected. October 23, 1974
35-99 The justice of the peace who is located at the county seat cannot close that court one day a week in order to hold justice court in another city. December 6, 1974
35-100 If a proposed constitutional amendment is to be submitted to the electorate pursuant to Article XIV, sec. 8, Constitution of Montana (1972), a two-thirds majority vote of the combined membership of both houses of the legislature would be sufficient. December 27, 1974
  • 21 February 2018
  • Author: Cook, Kevin
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