Attorney General’s Opinions

Volume 36

Opinion

Held

Date

36-1 1.  The county treasurer may not collect a fee of two dollars for each application for original certificate of ownership.  2.  A fee of two dollars must be paid for each application for certificate of registration.  3.  An additional fee of two dollars must be paid for each application for a tax-paid decal.  4.  Only the two dollar fee collected for each tax-paid decal must be forwarded to the state treasurer for credit to the fish and game earmarked revenue fund.  5.  One-half of the two dollar fee collected for each certificate of registration and the entire one dollar fee collected for each duplicate certificate of registration issued by the county treasurer may be retained by the county treasurer.  6.  One-half of the two dollar fee collected for each certificate of registration, the entire one dollar fee collected for a duplicate certificate of ownerhip, the entire one dollar fee collected for each duplicate certificate of registration issued by the registrar and the entire two dollar fee collected for each application for transfer of ownership may be retained by the registrar of motor vehicles. January 28, 1975
36-2 1.  The provisions of sections 79-308 and 82A-204, R.C.M. 1947, relating to the investment of state moneys are applicable to the board of regents of higher education and the separate units of the Montana university system.  2.  The provisions of section 59-1001, et seq., R.C.M. 1947, relating to employee benefits and vacation leave are applicable to employees of the separate units of the Montana university system except those persons who would qualify as "school teachers" under the provisions of section 59-1007, R.C.M. 1947.
3.  The provisions of section 79-306, R.C.M. 1947, designating the state treasurer as the treasurer of every state agency and institution and requiring the daily deposit of all moneys, credits, evidences of indebtedness, and securities, either in financial institutions designated by the state treasurer or with the state treasurer, are applicable to the board of regents and the separate units of the Montana university system and the public funds under their control and supervision.  4.  The line-item appropriations and conditions attached thereto contained in House Bill 55, Montana Session Laws of 1973, are constitutionally permissible and binding on the board of regents of higher education and the separate units of the Montana university system.
January 31, 1975
36-3 1.  A private canal and ditch company which applies pesticides only to property owned and operated by that company is classified as a "farm applicator" within the terms of the Montana Pesticides Act and is consequently not required to license one of its employees as a "commercial applicator."  2.  A private canal and ditch company which applies pesticides only to its own property and to the property of adjoining landowners is not classified as a "commercial applicator" under the Montana Pesticides Act so long as the company does not receive any compensation or consideration for the application of pesticides to property not its own. March 14, 1975
36-4 When city employees are transferred to a city-county health department, they retain their status as city employees for the purposes of personal benefits such as vacation leave, sick leave, and retirement. March 27, 1975
36-5 An elementary school district composed entirely of property belonging to the North Harlem Hutterite Colony would be eligible to receive public monies for school purposes without violating any provision of the 1972 Montana Constitution. April 28, 1975
36-6 1.  Volunteer law enforcement groups which would perform the same duties as regular, full-time, salaried deputy sheriffs can be legally established by the sheriff of the county.  2.  Volunteer law enforcement groups which would perform the same duties as regular, full-time, salaried police officers can be legally established by the mayor or city-manager except in cities of the first and second class.  3.  No volunteer law enforcement group which would perform the same duties as regular, full-time, salaried police officers can be legally established in cities of the first or second class. May 8, 1975
36-7 The electronic machines currently distributed by Treasure State Games, Inc., which purport to duplicate the games of bingo and keno, constitute gambling games which are not authorized by the "Bingo and Raffles Law". June 23, 1975
36-8 1.  A gubernatorial veto may be overridden only upon a vote of two-thirds of the members present in each house of the Legislature.  2.  The Governor's veto of House Bill No. 155 was sustained. June 25, 1975
36-9 An Agency of the state of Montana is not liable for employees' moving expenses which were not specifically contracted for. August 5, 1975
36-10 The game of "10 Ball Bingo" is not authorized by the "Montana Bingo and Raffles Law", sections 62-715 through 62-726, Revised Codes of Montana 1947. August 6, 1975
36-11 The county in which a motor vehicle must be licensed is that county wherein the owner makes his permanent residence at the time of application for registration. August 7, 1975
36-12 1.  Under section 16-4307, R.C.M. 1947, an initial board of trustees for a public hospital district must be elected, unless no one files a nomination petition, in which case the county commissioners must appoint the trustees.  2.  The board of trustees of a public hospital district have a legal duty as set forth in section 75-6409, R.C.M. 1947, to inform the public of vacancies on the board, unless they occur in mid-term.  3.  The valuation used in determining the five percent (5%) limitations on the amount of bonds that may be issued
under section 16-4308(11), R.C.M. 1947, refers to assessed valuation.
August 11, 1975
36-13 The provisional estimate of county population issued by the Bureau of Census as Series P-26 should be the basis for determining the population of the counties of this state for purposes of Section 25-605, Revised Codes of Montana.  
36-14 State, city and county full-time employees are entitled to annual vacation leave with pay pursuant to section 59-1001(1), Revised Codes of Montana, 1947, provided they have been "continuously employed for a period of six (6) calendar months" computed from the date of employment rather than July 1, 1975, the effective date of Chapter 62, Montana Session Laws of 1975. August 20, 1975
36-15 A Cooperative State Grazing District organized under Chapter 23, Title 46, R.C.M. 1947, is not required to file a C-4 Annual Corporation Report with the Secretary of State. August 25, 1975
36-16 A non-profit, charitable organization may not sell pull tab devices for distribution to bars and taverns wherein the bar or tavern retains a portion of the proceeds. August 26, 1975
36-17 An employer cannot withhold the wages or any portion thereof due and owing to an employee as wages earned, and apply such wages for damages caused by employee negligence during the course of his employment, for truck mileage which was not authorized by the employer, for both costs in retrieving property abandoned by the employee during the course of his employment and per diem fines therefor, for costs of avoidable cargo losses caused by employee poor judgment and for liability insurance deductible costs occasioned by employee negligence, which the employee has contracted to have deducted as a condition to the employment. August 27, 1975
36-18 1.  A paramedical specialist may not engage in the practice of nursing without being licensed under the provisions of the Montana Nursing Practice Act.  2.  If a paramedical specialist practices nursing without being
licensed, he is subject to the penal provisions of section 66-1243, R.C.M. 1947.  3.  Persons engaged in professions enumerated in section 66-1012(2)(c), (d), (e), (f), and (g), R.C.M.1947, are exempt from the licensing provisions of the Montana Nursing Practice Act.
August 28, 1975
36-19 1.  A prisoner may apply for participation in the work furlough program at any time but he is not eligible for release on work furlough until he has completed half of the time required for eligibility for parole.  2.  The Board of Pardons has the authority to release prisoners on furlough.  3.  The Department of Institutions has final authority to approve or disapprove applications of prisoners for release on work furlough.  4.  The applicant is responsible for locating an agency which will supervise his release on work furlough. September 2, 1975
36-20 1.  The Montana Legislature may constitutionally authorize county commissioners to issue, by resolution, revenue bonds in excess of $40,000 without an election.  2.  Chapter 511 authorizes the commissioners of a county having a population of less than 10,000 to levy, without an election, three (3) mills in addition to its present funding in the event the bonds issued under Section 16-1045 become delinquent or cannot be paid from ordinary revenues of the facility. September 3, 1975
36-21 1.  A vendee under an installment contract is not a "lessee" under the Act and is therefore not required to file a bond.  2.  A vendee under a trust deed or mortgage transaction is not a "lessee" under the Act and is therefore not required to file a bond. This is true regardless of the amount of secured notes, liens, judgments, or other interests which may be held against the value of the property.  3.  Where a corporate officer's signature appears on a license issued to a corporation in his capacity as an officer of that corporation, that officer is not thereby required, under the Act, to file a bond. September 4, 1975
36-22 Section 77-2104, Revised Codes of Montana 1947, requires that state, city or county employees be allowed leave of absence with pay for annual military training sessions, regardless of whether the employee has fulfilled all mandatory military service and reserve obligations and has extended his service by a contract of re-enlistment or continuation of service. The leave taken may not be charged against annual vacation time. September 8, 1975
36-23 The registered owner of a motor vehicle may not transfer registration of the license plates from the vehicle to which such plates are registered to another motor vehicle without transferring ownership of the first vehicle. September 16, 1975
36-24 1.  Section 31-215, Revised Codes of Montana 1947, must be interpreted to the effect that a patrolman who is discontinued from service, not voluntarily, after having completed ten (10) years of service, but before reaching age 60, may elect to take either of the following as his retirement allowance: (a) The full amount of accumulated deductions standing to his credit; or (b) the actuarial equivalent of the accrued portion of the service retirement allowance which would have been payable to him commencing at age 60, pursuant to section 31-216, Revised Codes of Montana 1947, had he not discontinued service.  2.  The beneficiary of a deceased patrolman, who dies of natural causes before attaining age 60, regardless of his len~th of
service has a choice under section 31-219(b), Revised Codes of Montana 1947, of either: (a) Taking the full amount of the accumulated deducttions standing to the decedent's credit; or (b) taking an annuity which would be the actuarial equivalent of the accrued portion of the service retirement allowance which would have been payable to the decedent commencing at age 60, pursuant to section 31-216, Revised Codes of Montana 1947, had death not discontinued his service.  3.  Retirement allowances heretofore granted under an erroneous interpretation of section 31-215, Revised Codes of Montana 1947, must stand unchanged by this subsequent reinterpretation of said section.
September 19, 1975
36-25 Military service may be purchased pursuant to section 31-223(2), Revised Codes of Montana 1947, and used for the computation of the eligibility or length of service period required under section 31-213, Revised Codes of Montana 1947, provided the member has met the minimum criteria for vesting in interest under section 31-215, Revised Codes of Montana 1947. September 30, 1975
36-26 1.  A pickup truck, even though specially modified so as to qualify as an "implement of husbandry", is a "motor vehicle" under Title 53 and is subject to registration and licensing before being operated on public roads.  2. The driver of a pickup truck need not have a valid driver's license if such vehicle is an "implement of husbandry". October 2, 1975
36-27 Upon a transfer of title and license plates to a newly acquired vehicle, the county treasurer must collect from the applicant the registration fees provided for in sections 53-122 and 53-106. November 5, 1975
36-28 The salaries of teachers and administrators of a public school district are subject to inspection by the public. October 6, 1975
36-29 The state employee classification plan, established pursuant to Chapter 440, Laws of 1973, is applicable to employees of state agencies administered by the Merit System. October 7, 1975
36-30 1.  A city or firemen's relief association has no authority to deduct firemen's relief association dues from the wages of a probationary fireman.  2.  A probationary fireman may not willingly contribute to a firemen's relief association and thereby receive benefits from that association.  3.  Probationary firemen are not entitled to the minimum wage provided by Section 11-1932, R.C.M. 1947. October 8, 1975
36-31 After July 1, 1975 the state of Montana and its subdivisions need not comply with any fee or bonding requirements of the Open Cut Mining Act. October 9, 1975
36-32 A county attorney, for purposes of administration, is jointly employed by both the county and the state. October 10, 1975
36-33 County commissioners of a Montana county have the authority to zone land areas which include patented mining claims under section 16-4701, conditional, however, upon the provisions of section 16-4710. October 14, 1975
36-34 1.  Funds obtained from general road taxes by a county, pursuant to Chapter 36, Title 32, Revised Codes of Montana 1947, may not be transferred to funds other than the County Road Fund.  2.  Vehicle license and registration fees collected by the county pursuant to Chapter 37, Title 32, Revised Codes of Montana 1947 may not be transferred to funds other than the County Road Fund.  3.  Proceeds of county highway bonds issued pursuant to Chapter 38, Title 32, Revised Codes of Montana 1947, may not be transferred to uses other than the particular construction or maintenance purposes for which said bonds were sold.  4.  National forest receipts received by a county under Chapter 2, Section 500, Title 16, U.S.C., may be used only for public school and road building purposes. These funds may not be transferred to other uses pursuant to the general authority contained in section 16-1904(4), Revised Codes of Montana 1947, relating to the County Budgeting Act. October 15, 1975
36-35 Section 77-2104, Revised Codes of Montana 1947, entitles a public school teacher to regular pay for a period not exceeding fifteen (15) working days during the school term when he is called on active duty for training with the Montana National Guard. October 16, 1975
36-36 1.  The charges for grain storage which a warehouseman, licensed under the United States Warehouse Act, may impose cannot be regulated by state law. Title 2, Chapter 3, Revised Codes of Montana 1947, remains effective as to persons licensed under the United States Warehouse Act in those areas which are not regulated by the Act, i.e., those activities not confined to the storage of grain.  2.  A warehouseman licensed under the United States Warehouse Act may not be required to execute a warehouseman's bond by state law.
3.  Section 3.229, requiring intervention by the Montana Department of Agriculture on behalf of grain producers, is not applicable where the injury was caused by a person licensed under the United States Warehouse Act.
October 21, 1975
36-37 The office of the county attorney is covered by the county printing contract and is required to purchase its stationery and office supplies exclusively from the printer who holds the county printing contract. November 5, 1975
36-38 1.  A county park board may not sell county park property.  2.  A board of county commissioners may sell land that has been dedicated to the public for park purposes in accordance with the procedures set out in section 16-4808, and it may sell county land which has been used or purchased, but not dedicated, for park purposes subject to the limitations set out in section 16-1009.  3.  A county park board may expend its funds only for the
improvement of any park land to which the county holds legal title.  4.  Montana law does not require a county park board to develop every parcel of park land or any particular parcel of park land.  5.  Generally, a county park board may not restrict the use of any county park to the residents of any particular area, although the
history and circumstances of each park must be reviewed to determine whether there are any special circumstances that would create an exception to this general rule.
November 6, 1975
36-39 A court imposing a fine in a fish and game violation case must pay the money collected to the fish and game commission. November 7, 1975
36-40 Insurance premiums paid on behalf of firemen are not part of their "regular monthly salary" for purposes of computing pension benefits under section 11-1927.2(2), R.C.M. 1947. November 10, 1975
36-41 1.  Section 11-1927.2, R.C.M.1947 requires the treasurer of a fire department relief association to request and the state auditor to issue from the earmarked revenue fund an amount equal to the sum total of the annual dollar difference between what the retirees or their widows and orphans received from the fund of the relief association for the fiscal year just preceding and one-half (1/2) of the sum paid by the respective city or town to the position of a confirmed active fireman for the fiscal year just preceding.  2.  Although the provisions of Section 11-1927.2 are in conflict on the issue of whether the funds to be paid to the various fire relief associations are to be used by the associations to supplement retirees' pensions or reimburse the associations' treasuries for pension adjustments already paid out, the practical effect of that law, at least for the first few years of its operation, is to provide the associations with funds at the beginning of the fiscal year from which it can supplement the pensions of the retirees for that fiscal year. November 20, 1975
36-42 1.  The scope of the Commissioner of Campaign Finances and Practices investigative, enforcement, and prosecutorial powers and duties extends to all of Title 23, R.C.M. 1947.  2.  The Commissioner of Campaign Finances and Practices has jurisdiction over all violations in Title 23, with section 23-4701 extending his prosecutorial power over all willful and knowing violations by an election official of any election law. December 1, 1975
36-43 The phrase "within forty-five (45) days prior to the closing of registration" in section 23-3014 (1) (c) means "at any time not less than forty-five (45) days prior to the close of registration". December 9, 1975
36-44 The Montana Highway Commission is empowered to make the final route decision with regard to the federal-aid secondary system. The Commission, however, must work with local county officials in evaluating the possible alternative routes prior to final determination. December 10, 1975
36-45 In computing a sheriff's salary under the 1975 amendment to section 25-605, last years' salary should be subtracted from the sum of columns A and B plus $1,200 to determine the total salary increase. One-half of this increase shall be effective July 1, 1975, with the remainder effective July 1, 1976. December 22, 1975
36-46 The longevity provisions of House Joint Resolution No. 37 would accrue to the benefit of a person who had been employed by the State of Montana for a continuous period of twenty years but who had been terminated for a period of one year and then rehired for a period of at least two years prior to the enactment of the statewide wage and salary plan for public employees if his termination was required to achieve a necessary reduction in force and he subsequently accepted re-employment with the State when a bona fide offer of employment was made. December 29, 1975
36-47 1.  A county attorney need not file and prosecute every individual's complaint when there is insufficient evidence to warrant prosecution or when such a prosecution would not be in the interests of justice.  2.  A justice of the peace cannot allow a private citizen to prosecute a complaint.  December 30, 1975
36-48 A county commissioner of a first, second, third, or fourth class county may not reduce his work load relative to the work loads of the other commissioners and have his pay reduced accordingly. January 7, 1976
36-49 1.  A witness at a coroner's inquest may be accompanied and advised by counsel; however, this counsel does not have the right to participate in the inquest or cross-examine other witnesses.  2.  Counsel for a witness at a coroner's inquest does not have the right to comment on the coroner's instructions to the jury. January 8, 1976
36-50 1.  Actual expenses, referred to in section 10-1234, include the reasonable amount expended for subsistence, meals and transportation by a juvenile probation officer while on necessary travel incident to official duties.  2. Section 10-1234 governs the payment of expenses and mileage for the juvenile probation officer. January 13, 1976
36-51 The filing of a subdivision plat does not, by that fact alone, foreclose the possibility that land within that subdivision may qualify as "agricultural" property under section 84-437.2. January 20, 1976
36-52 1.  "Public" in section 66-2366 refers only to the buildings of the state and its political subdivision.  2.  Plans and specifications for the construction of privately owned buildings need not bear the seals of the professional
persons specified in section 66-2366.
January 21, 1976
36-53 An Indian reservation, represented by a tribal council, is not a political subdivision of the state of Montana for purposes of receiving aid and assistance pursuant to the state Civil Defense Act (Chapter 23, Title 77, Revised Codes of Montana 1947). February 9, 1979
36-54 The legislature's action in House Bill No. 289 constituted it's "consent" to discontinue the Montana Children's Center at Twin Bridges. February 10, 1979
36-55 The merger of two third class school districts, neither of which contains a high school, cannot be considered an annexation conducted pursuant to section 75-6507, R.C.M. 1947 for purposes of administration of the federal Social Security Act. February 11, 1979
36-56 A deceased state employee who has served eight months of state employment is entitled to that portion of the death benefit allowed under the Public Employees Retirement Act described in section 68-2302(2), Revised Codes of Montana 1947. February 17, 1976
36-57 The right to a refund of contributions of a retired police officer under section 11-1847, Revised Codes of Montana 1947 of the Montana Statewide Police Reserve Fund is confined to police officers whose service with the city was discontinued after July 1, 1975, the effective date of amendments to the Metropolitan Police Law, by other than death or placement upon the reserve list. Therefore, the individual here in question is ineligible for a refund because his service with the city was discontinued prior to July 1, 1975. February 18, 1976
36-58 1.  The retail branch of this chain is not liable for payment of the producer's and/or distributor's assessment specified in section 27-409, R.CM. 1947 with respect to the dairy products imported from another state for ultimate sale within this state.  2.  The licensed manufacturing and distribution branch of the chain is liable for the payment of the distributor's assessment specified in section 27-409, R.C.M. 1947 with respect to raw
milk or finished product imported from another state for ultimate sale within this state.  3.  A producer, distributor or producer-distributor resident of another state may be required to obtain a license from the
Department of Business Regulation under section 27-408, R.C.M. 1947 before marketing its products in this state.
March 1, 1976
36-59 1.  An appointment made by county commissioners to fill an unexpired term of a legislator, under authority of section 43-215, R.C.M. 1947, is for the entire unexpired term.  2.  An appointee to the legislative assembly must fulfill the requirements of section 59·301, R.C.M. 1947 and Article V, Section 4, 1972 Montana Constitution. March 10, 1976
36-60 1.  The state of Montana is not required to provide, as an option to its officers and employees, a policy or benefits including long-term disability insurance.  2.  Only departments, bureaus, boards, commissions, and
agencies of the state which by law may not or which vote not to approve the department of administration's insurance plan may enter into group contracts providing for long-term disability coverage independent of the contract entered into by the department of administration.
March 11, 1976
36-61 1.  Those cities which elect to finance their operations by adopting an all-purpose levy under section 84-4701.1, may not exceed the 65 mill limit contained therein in order to finance city responsibilities which are not specifically exempted from inclusion in that levy.  2.  If taxes have been collected which are not permissible as
being in excess of the 65 mill limit, the county commissioners should refund those taxes. However the individual taxpayers must strictly comply with the procedural requirements of section 84-4176 before they are entitled to such refund.
March 12, 1976
36-62 1.  The firemen's relief association may decide whether retired firemen should remain members of the association and what rights and duties they should have in it.  2.  Retired firemen are ineligible for the blanket policy of insurance which the firemen's relief association is authorized to purchase under section 11-1928(7), R.C.M. 1947.  3.  Funeral expense money provided for in section 11-1928(5), R.C.M. 1947 is payable to the deceased fireman's estate. March 25, 1976
36-63 1.  Deputy county officers who receive the full 90% salary allowed by section 25-604, R.C.M. 1947 cannot collect additional compensation for overtime.  2.  Deputy county officers who receive the full 90% salary
allowed by section 25.604, R.C.M. 1947 may receive local registrar fees in addition to their salary.
March 31, 1976
36-64 Section 84-4907.2 R.C.M. 1947 exempts from state income tax the salary received by members of the Montana Air National Guard who are called into active duty with the United States Air Force pursuant to §672 of Title 10; U.S.C.A. April 1, 1976
36-65 Religious groups can use public school facilities on an occasional and short-term basis during nonschool hours upon securing permission from the school district trustees and paying a fair rental. April 2, 1976
36-66 The next general election for county officials will be held in 1977, and a county commissioner appointed to office until the next general election will hold office until the 1977 election. April 5, 1976
36-67 An appointed justice of the peace will hold office for the remainder of the unexpired term pursuant to section 93-406, R.C.M. 1947. April 7, 1976
36-68 1.  The burden of maintaining the office of county assessor rests with the department of revenue.  2.  Section 84.401(4) mandates that the salaries of the deputy county assessors be the same dollar amount as those of the deputy clerk and recorders.  3. The department of revenue has the sole authority to set the salary level of the remainder of the county assessor's staff. April 8, 1976
36-69 The lien on personal property authorized by section 84-3808 is not extinguished when the property against which the tax was assessed is transferred to a third party. April 9, 1976
36-70 Under section 16-2723 and 25-226, R.C.M. 1947, a sheriff may be reimbursed for actual expenses for which he has vouchers incurred in renting an aircraft to transport prisoners to the Montana State Prison or to transport prisoners from the Montana State Prison to the county jail for trial, provided flying is the least expensive reasonable means of transporting the prisoners. April 12, 1976
36-71 Justices of the peace and city judges have no jurisdiction to commit persons charged with criminal offenses for psychiatric examination. April 13, 1976
36-72 1.  Section 11-403 was repealed with the passage of the Planned Community Development Act of 1973 and is no longer a proper procedure for annexation.  2.  Sections 11-511 through 11-513 remain in effect and
provide the procedure for the annexation of government property.
April 14, 1976
36-73 1.  The trustees of a fire district incorporated under Chapter 20 of Title 11, R.C.M. 1947, have the authority and power to submit a proposed budget for capital outlay to the county under Chapter 19 of Title 16.  2. It is advisable that the trustees of such a fire district solicit
bids by advertising for the purchase of equipment.
April 21, 1976
36-74 Only counties, incorporated cities and towns, consolidated governments created pursuant to Chapter 34 of Title 11, R.C.M. 1947, and school districts are "local government units" which qualify for assistance under Chapter 18 of Title 50. April 22, 1976
36-75 Prior to July 1, 1973, nonteaching school district employees who worked less than twelve months during the year were not entitled to annual vacation leave as a matter of right under section 59-1001, but such vacation leave was governed solely by school district policy and regulations. May 3, 1976
36-76 The university system must carryover the balances in the following nongeneral fund accounts (earmarked revenue, private income, land grant income, Agriculture Experiment Station income, and Federal income) from the 1973-1975 biennium to the respective funds in the 1975-1977 biennium. The Board of Regents may expend these funds by approved budget amendment. May 7, 1976
36-77 1.  Teachers who are employed by a school district in federally-funded programs are eligible for tenure status upon satisfying the conditions of section 75-6103.  2.  Such tennure teachers are subject to dismissal in cases of genuine econmic necessity, as where federal funds are terminated by the United States government. May 10, 1976
36-78 The state of Montana must adhere to the full market value requirement of the Enabling Act in disposing of the territorial prison site at Deer Lodge, absent a congressional waiver. May 11, 1976
36-79 A school district may not charge deposit fees for any course or activity for which credit may be applied toward graduation. May 12, 1976
36-80 A candidate for state representative may also be placed on the ballot as a candidate for precinct committeeman. May 13, 1976
36-81 A county clerk and recorder must provide an opportunity for absentee voters to apply for an absentee ballot up to 12:00 noon on May 31, 1976 pursuant to section 23-3703 Revised Codes of Montana 1947. May 19, 1976
36-82 The reproduction of the list of registered voters required by sections 23-3012 and 23-3023, R.C.M. 1947 is "printing" as defined by section 19-103.1, R.C.M.1947, and must be done by the county printing contractor. May 25, 1976
36-83 The process of legal adoption does not affect the relationship by consanguinity under section 59-519. May 28, 1976
36-84 1.  The Department of Agriculture may refuse to grant a "restricted registration" under MAC 4-2.34(1)-S3410, with petitioned amendments, if the establishment of such apiaries would constitute a danger of the spread of disease or interfere with the proper feeding and honey flow of established registered apiaries.  2.  Consideration should be given by the Department, in determining the maximum number of apiaries allowable under a restricted registration, to the general danger of disease spread and feeding interference which might be caused by a given number of hives per acre. June 2, 1976
36-85 The board of county commissioners is authorized and empowered to appoint an acting county attorney to replace, for the period of the suspension, a county attorney who has been suspended pursuant to section 94-7-401(4). June 8, 1976
36-86 1.  On the facts given, a self-propelled golfcart type vehicle used by an invalid individual is exempt from the motor vehicle registration provisions of Title 53, ch. 1, R.C.M. 1947.  2.  Any invalid operator of a self-propelled wheelchair or similar vehicle under Chapter 369, Laws of 1974, is exempt from the driver's license provisions of Title 31, ch. 1, R.C.M. 1947, but may be required to obtain a city permit to operate such vehicle. June 9, 1976
36-87 Payment of the disabled Vietnam veterans honorarium authorized by Chapter 342, Session Laws of 1975, can and must be made from the appropriations contained in House Bill 1116, Session Laws of 1974, and House Bill 692, Session Laws of 1975. June 14, 1976
36-88 While the 5% limitation in section 16-4308 (11), R.C.M. 1947 refers to the bonded debt of a hospital district, a hospital district may only incur debt through the issuance of bonds. June 21, 1976
36-89 The Montana Department of Agriculture does not have legal authority to define a grain merchandising operation within the state of Montana as an "annex" of a North Dakota operation licensed under the North Dakota statutes so as to exempt said operation from the licensing and other grain storage obligation set forth in various sections of Title 3, R.C.M. 1947. June 22, 1976
36-90 The department of labor and industry is not authorized by section 41-1605, R.C.M. 1947, or section 41-701, R.C.M. 1947, to issue subpoenas duces tecum, compelling a public works contractor to transmit to your office time sheets and payroll records of all employees engaged in its public works contracts including subcontractors, to assist you in determining if a violation of section 41-701, R.C.M. 1947, has occurred. June 23, 1976
36-91 Saturday should not be considered a banking day for the purpose of determining midnight deadlines for banks open on Saturday for limited teller-type transactions. July 6, 1976
36-92 So that the state will not commit a breach of trust under the Enabling Act and Montana Constitution, the state must actually compensate its school trust in money for the full appraised value of any school trust lands designated as or exchanged for natural areas pursuant to the Montana Natural Areas Act of 1974. Such compensation can only be avoided by securing the consent of Congress. July 7, 1976
36-93 A city council, in its sound discretion, may combine two or more improvement districts into a single contract, provided the competition of bidders is not suppressed thereby. July 15, 1976
36-94 The levies required by sections 11-1024.1 and 11-1024.2, R.C.M. 1947 (group insurance for firemen), sections 11-1024.3 and 11-1024.4, R.C.M. 1947 (group insurance for policemen), section 11-1832, R.C.M. 1947 (minimum wages for policemen), and section 11-1932, R.C.M. 1947 (minimum wages for firemen), must be included within the sixty-five (65) mill all-purpose levy authorized by sections 84-4701.1 and 84-4701.2, R.C.M. 1947. August 9, 1976
36-95 The Yellowstone County Constables' elected terms will expire on December 31, 1976, regardless of whether or not an alternative form of government is selected. At that time the commissioners will have the discretion to appoint to the position or leave it vacant. August 18, 1976
36-96 A private attorney, who is not licensed by the Department of Social and Rehabilitation Services as an adoption agency, may not accept a relinquishment of custody for a child and then place or attempt to place the child with a family chosen by the attorney for adoption. August 19, 1976
36-97 1.  State conservation districts do not have jurisdiction over state waters.  2.  The Lakeshore Protection Act, Title 89, Ch. 37, R.C.M. 1947 does not conflict with the statutory powers of conservation districts. August 24, 1976
36-98 1.  A county is financially responsible for a voluntary commitment proceeding of an indigent person.  2.  A county is financially responsible for an involuntary commitment proceeding of a person who has sufficient financial resources. September 9, 1976
36-99 1.  An owner of an underground well completed between January 1, 1962 and July 1, 1973, for which no previous filing had been made, may acquire a water right by appropriation by filing a "GW -2" notice of completion after July 1, 1973, under section 89-2913. Revised Codes of Montana 1947 (repealed July 1, 1973).  2.  An owner of an underground well completed between January 1, 1962 and July 1, 1973, for which no previous filing had been made, may secure a water right by filing a notice of completion, form 602, after July 1, 1973, pursuant to the Montana Water Use Act, section 89-865 et seq., Revised Codes of Montana 1947, in lieu of any filings under section 89-2913, Revised Codes of Montana 1947 (repealed July 1, 1973).
3.  An owner of an underground well completed between January I, 1962 and July 1, 1973, for which no previous filing had been made, may secure a priority date as of the time of filing a notice of completion, either form "GW-2" or form 602, pursuant to section 89-2913, Revised Codes of Montana 1947 (repealed July 1, 1973).  4.  An owner of an underground well completed between January 1, 1962 and July 1, 1973, for which no previous filing had been made, may not secure a "use right" in the well, with a date of priority dating from the first day the water was put to a beneficial use. The owner of such a well may obtain a water right with a date of priority dating from the time of filing a notice of completion pursuant to the statutory procedure for
appropriating groundwater under section 89-2913, Revised Codes of Montana 1947 (repealed July 1, 1973).
September 10, 1976
36-100 State Tax Appeals Board members may generally be considered public officers, but for the specific purposes of determining the applicability of Montana vacation, sick leave, and working hour statutes, they are to be considered state employees who are subject to the provisions of Chapter 10, Title 59, R.C.M. 1947, and §59-510(1), R.C.M. 1947. September 14, 1976
36-101 A county may not lease its hospital facilities for a term over five (5) years, pursuant to section 16-1032 R.C.M. 1947. September 29, 1976
36-102 1.  The Montana State Merit System Council is not empowered to act on behalf of an employee who has refused to abide by the conditions of a negotiated, ratified contract and issue an order that the employee not be discharged for failure to contribute to the expenses of his elected bargaining representative.  2.  The Montana State Merit System Council does not have the power to order immediate reinstatement of an employee discharged for failure to contribute to the costs of representation in collective bargaining. September 30, 1976
36-103 1.  A county weed control district must serve a written notice pursuant to §16-1714, R.C.M. 1947, prior to entering land within the county for weed control purposes and comply with §16-1715, R.C.M. 1947, prior to actual entry, unless it is in receipt of a prior written permission from the person owning, occupying, or controlling the land to enter said land.  2.  A county weed control district may enter state and local, lands or highway lands to control noxious weeds, but not federal lands without permission of the federal government unless there is a private lessee on the land. It may not assess a local, state, or federal government agency for weed control work unless the agency voluntarily offers to pay for the work performed.  3.  A county weed control district may not expend noxious weed fund monies to control weeds not classified as noxious
pursuant to §16-1701, R.C.M. 1947.
October 7, 1976
36-104 1.  Real property acquired by the Board of Investments through the foreclosure of a PERS mortgage is state land as defined by section 81-102 (4), Revised Codes of Montana 1947.  2.  The administration, control and disposition of real property acquired by the Board of Investments through the foreclosure of a PERS mortgage comes under the jurisdiction of the Board of Land Commissioners.  3.  The proper state official to execute deeds of conveyance on real property acquired by the Board of Investments through the foreclosure of a PERS mortgage is the governor, and in his absence or inability, the lieutenant governor. November 12, 1976
36-105 1.  Public employees, including nonteaching school district employees, who are covered by the vacation, sick leave, and holiday provisions of Title 59, Chapter 10, are entitled under section 59-1009 to days off on legal holidays.  2.  For nonteaching school district employees, such holidays are the "school holidays" in section 75-7406 rather than the "legal holidays" in section 19-107.  3.  All public employees entitled by section 59-1009 to legal holidays off are also entitled to pay for such days off. November 15, 1976
36-106 1.  Section 80-114 gives the board of public education complete control over the ultimate disposition of gifts to the School for the Deaf and Blind.  2.  Pending such disposition, Article X, Section 10, and the statutes governing state finance require that cash and similar gifts to the school be deposited with the state treasurer.
3.  Section 80-114, read in light of Article X, Section 10, permits the board of public education to utilize gifts deposited with the state treasurer whenever its discretion is so moved, without a specific appropriation.
4.  If the board of public education chooses to invest any gifts, investment must be done pursuant to the unified investment program set forth in section 79-308 et seq.  5.  Article X, Section 10, requires that gifts to the school be used only for the school's benefit, and thereby prohibits any diversion, direct or indirect, of such gifts.
November 16, 1976
36-107 1.  Your appointment as county attorney is valid until the next general election pursuant to section 16-2406 R.C.M. 1947.  2.  The next general election for county officials will be held in April of 1977.  3.  The person who is elected in April of 1977 to fill the vacancy in the office of county attorney will be elected for the
remainder of Mr. Olson's original unexpired term.
November 17, 1976
36-108 The Department of Institutions is liable, under section 16-3802 (2), R.C.M. 1947, for that portion of a Deputy County Attorney's salary spent on prosecuting offenses committed at the Montana State Prison. November 18, 1976
36-109 The board of county commissioners has the power and authority to determine whether a proposed special improvement district lies within an area which is a "thickly populated locality" and there need not be any inhabitants living in the proposed district itself. November 30, 1976
36-110 1.  The taking of grand jury testimony is not an official duty of the official court reporter.  2.  Any work an official court reporter performs as an employee of the grand jury entitles the reporter to additional
compensation for such work performed.
December 3, 1976
36-111 1.  A primary election is required in non-partisan elections pursuant to section 16-5115.13(2), R.C.M. 1947, except in cities and towns with less than a population of 3,499 and where less than twice the number of candidates to be elected file for an office.  2.  The proper method for placing a candidate's name on the
primary ballot is by certificate of nomination pursuant to section 23-3318, R.C.M. 1947. The filing deadline set by section 23-3318, supra, is superseded by the specific deadline set by section 16-5115.13(4), R.C.M. 1947.
3.  If no more than twice the number of candidates to be elected file for an office in a non-partisan primary, the primary need not be held.  4.  In a non-partisan primary, candidates who receive the greatest number of votes will advance to the general election in a number not to exceed double the number of vacancies to be
filled.
December 6, 1976
36-112 The Montana Fish and Game Commission does not have the authority to regulate the hunting and killing of privately owned deer, elk, antelope and big horn sheep on a private game ranch through the imposition of licensing requirements on individual hunters, the declaration of open and closed seasons, and bag limit restrictions in the absence of any definitive statutes, rules or regulations. December 7, 1976
36-113 In order for the state to transfer title of the state prison and connected lands to the City of Deer Lodge, legislation authorizing this type of transaction must be enacted by the Montana legislature. December 8, 1976
36-114 A justice of the peace may not withhold or collect for fees or court costs, $7.50 from any criminal action filed in his court, unless such court costs or fees are withheld or collected from fines or forfeitures pursuant to §25-310, R.C.M. 1947.  
36-115 The appointed or elected successor to a county attorney who chose, under Section 5, Chapter 102, laws of 1975, to serve as a part-time county attorney, and who resigned before completing his term, may complete that term on a part-time basis. December 28, 1976
  • 21 February 2018
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