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Attorney General's Opinions - 1985 & 1986 (Volume 41)


In the table below, click on a specific opinion number to view the full opinion issued by the Attorney General.  The full opinions are in PDF format.

Volume & Opinion Number Opinion Held Date Issued
41 A.G. Op. 95 (1986) A city court may issue an arrest warrant in the name of the State of Montana when a violation of section 61-8-401, MCA, is charged. 12/11/1986
41 A.G. Op. 94 (1986) 1.    Signatures may be withdrawn from a recall petition up to the time when the filing officer finally determines that the petition is sufficient and so notifies the official named in the petition.
2.    Signatures may be added to a recall petition within three months after the form of the petition is approved under section 2-16-617, MCA.
12/4/1986
41 A.G. Op. 93 (1986) 1.    A surviving spouse’s entitlement to the property tax exemption under section 15-6-211, MCA, terminates upon remarriage and is not reinstated upon conclusion of the second marriage.
2.    A surviving spouse’s entitlement to the property tax exemption under section 15-6-211, MCA, applies only to the residence as to which the veteran was granted the exemption immediately prior to death.
3.    A condition of a surviving spouse’s entitlement to the property tax exemption under section 15-6-211, MCA, is a determination that the veteran was 100 percent disabled due to a service-connected disability prior to death and was otherwise eligible for the exemption.
11/26/1986
41 A.G. Op. 92 (1986) 1.    Section 53-9-104(2)(a), MCA, authorizes the Workers’ Compensation Division to obtain confidential criminal justice information.
2.    The confidentiality of such information must be maintained when received by the Division.
11/14/1986
41 A.G. Op. 91 (1986) 1.    A board of county commissioners does not have the authority to modify the decision of county library trustees concerning wage and salary amounts for library employees.
2.    A board of county commissioners does not have the authority to modify an annual library budget adopted by county library trustees.
3.    A board of county commissioners does not have the authority to refuse, within statutory millage limits, to levy some or all of the property taxes necessary to satisfy an annual budget adopted by county library trustees.
11/13/1986
41 A.G. Op. 90 (1986) 1.    The word “such” in section 15-16-402(1), MCA, refers to any personal property in the possession of the owner of property which has been assessed.
2.    The exemption provisions of sections 25-13-601 to 617, MCA, do not apply when personal property is seized and sold for payment of delinquent personal property taxes.
11/5/1986
41 A.G. Op. 89 (1986) Survey plats submitted with a notice of intention to drill under section 82-11-122, MCA, must be completed in conformance with the Corner Recordation Act, §§ 70-22-101 to 110, MCA. 10/31/1986
41 A.G. Op. 88 (1986) 1.    A proposed municipal commission-executive form of government is not restricted by the structural characteristics listed in section 7-3-113(1), MCA.
2.    The ballot division required by section 7-3-150(2), MCA, must be done according to precinct boundaries.
3.    Where the existing office of city treasurer is a nonelected position, and the proposed plan of local government calls for an elected city treasurer, the election schedule required by section 7-3-160, MCA, must be followed for that office.
10/17/1986
41 A.G. Op. 87 (1986) An officer who sees a minor commit a traffic offense should issue the minor a ticket charging him with unlawful operation of a motor vehicle, a violation of section 61-12-601, MCA. In stating the facts of the offence, the officer should also describe the underlying traffic offense and city the statute which sets forth the underlying offense. 10/16/1986
41 A.G. Op. 86 (1986) 1.    When a determination of nonsuitability has been made under section 76-3-609(2)(a), MCA, are the involved county, school districts, and other political subdivisions prohibited from providing the services as to which access or easements have been found inappropriate?
2.    May services provided by sheriff’s or police departments constitute “similar services” under section 76-3-609(2)(a)(ii)(E), MCA?
9/29/1986
41 A.G. Op. 85 (1986) The Department of social and Rehabilitation Services has authority to initiate legal proceedings to prevent the withholding of medically indicated treatment for disabled infants with life-threatening conditions. 9/23/1986
41 A.G. Op. 84 (1986) An incorporated town may not enact an ordinance prohibiting persons under the age of 19 years from being on licensed premises where alcoholic beverages are sold and consumed.
An incorporated town may not enact an ordinance which provides a minimum fine of $300 for a person under the age of 19 years who is convicted of possession of alcoholic beverages.
9/10/1986
41 A.G. Op. 83 (1986) 1.    A mortgage or lien holder is not generally required pursuant to section 15-16-402(2), (3), and (4), MCA, to file annual notices to prevent taxes on personal property that is valued in excess of $1,000 from becoming a first and prior lien against the real property.
2.    Section 15-16-402(5), MCA, requires that where the taxes have been delinquent for one or more years the owner of a mortgage on real property must comply with the procedural requirements of the section on an annual basis in order to prevent any personal property from becoming a lien upon the real estate.
9/9/1986
41 A.G. Op. 82 (1986) A justice of the peace may not be appointed to serve as a city judge in a town in which he does not reside. 9/5/1986
41 A.G. Op. 81 (1986) 1.    There is no inherent conflict of interest when a city employee is also an elected city councilman in a city which has a municipal council-mayor form of local government.
2.    A municipality may not enact an ordinance which prohibits city employees from holding office on the city council.
9/4/1986
41 A.G. Op. 80 (1986) A local government study commission’s supplement recommendation to consolidated services is submitted to the appropriate governing bodies rather than to the voters. 8/18/1986
41 A.G. Op. 79 (1986) An elected mayor holds a “public office of a civil nature” as that phrase is defined in State ex rel. Barney v. Hawkins, 79 Mont. 506, 257 P. 411 (1927), and is thereby prohibited by article V, section 9 of the Montana Constitution from serving as a member of the Legislature while serving as mayor. 8/15/1986
41 A.G. Op. 78 (1986) A lease with an option to purchase is subject to the requirement of section 7-5-4302, MCA, that it be competitively bid. 8/4/1986
41 A.G. Op. 77 (1986) 1.    A city must pay all delinquent taxes, including special assessment, to a county to effect an assignment of the rights of the county in property struck off following a tax sale.
2.    A county is not required to take a tax deed to subdivision property struck off following a tax sale.
3.    Following issuance of a tax deed to a county, the county is not responsible for payment of accelerated delinquent special assessments due prior to issuance of the deed.
8/1/1986
41 A.G. Op. 76 (1986) 1.    The Montana Department of Social and Rehabilitation Services does not have jurisdiction to provide child protection services to Indian children subject to exclusive tribal jurisdiction under the Indian Child Welfare Act or residing on the reservation and eligible for tribal membership.
2.    The Montana Department of Social and Rehabilitation Services may not make payments under Title IV-E of the Social Security Act to Indian children whose foster care or adoption placement is subject to exclusive tribal jurisdiction under the Indian Child Welfare Act.
3.    The Montana Department of Social and Rehabilitation Services may not provide child protection services and benefits funded solely by state and local monies to Indian children whose foster care or adoption placement is subject to exclusive tribal jurisdiction under the Indian Child Welfare Act or who are eligible for comparable assistance under Bureau of Indian Affairs programs.
4.    The Montana Department of Social and Rehabilitation Services may not continue to provide child protection services or benefits to an Indian child whose child custody proceeding has been transferred from state district court to tribal jurisdiction under the Indian Child Welfare Act.
5.    The Montana Department of Social and Rehabilitation Services has the authority to license foster care homes maintained by nontribal members on Indian reservations. The Department has the authority to license foster care homes operated by tribal members on a reservation only if the tribe does not engage in such licensing activity.
7/30/1986
41 A.G. Op. 75 (1986) 1.    The State’s authority under the Twenty-first Amendment to regulate the sale of liquor has not been delegated to municipalities with general powers.
2.    A municipality with general powers may not punish a violation of its obscenity ordinance by suspending or revoking the liquor license of the offender.
3.    The validity of a city ordinance regulating activities such as live dance performances in establishments licensed to serve liquor must be measured against free expression standards imposed by the United States and Montana constitutions.
4.    A proposed city ordinance prohibiting any live performance involving dance or the removal of clothing in establishments licensed to serve liquor would be an unconstitutional abridgement of free expression because (1) it fails to distinguish carefully between protected and unprotected conduct and (2) the requisite governmental interest in regulating such conduct has not been sufficiently established.
5.    A proposed city ordinance prohibiting live entertainment containing performance of specified sexual acts in establishments licensed to serve liquor may, if carefully drafted and supported by sufficient evidence, be shown to further an important and substantial governmental interest unrelated to the suppression of free expression and may be upheld as the least restrictive means of furthering the interest.
7/16/1986
41 A.G. Op. 74 (1986) 1.    The procedures in section 50-60-206, MCA, do not apply to boards of building code appeals established by municipalities.
2.    A municipal board of building code appeals constituted in accordance with section 204 of the 1982 Uniform Building Code has authority to review the refusal of a building official to allow modifications pursuant to section 106 of the 1985 Uniform Building Code and, if appropriate, to permit such modification.
7/11/1986
41 A.G. Op. 73 (1986) 1.    A city or town must have an election pursuant to section 7-7-4221, MCA, to issue general obligation bonds for the purpose of furnishing a municipal swimming pool. However, an election is not required for the city or town to borrow money for that purpose my means other than issuing general obligation bonds.
2.    A city or town may not borrow money for the purpose of maintaining or repairing a municipal swimming pool.
10/7/1986
41 A.G. Op. 72 (1986) A community college board of trustees has authority to lease and/or lease/purchase property for school purposes and to sell unused school property. 5/30/1986
41 A.G. Op. 71 (1986) 1.    A candidate for county superintendent of schools may not assume office unless at the time he assumes office he holds a valid teacher certificate.
2.    A former superintendent of school may not be hired by a county to conduct hearings involving disputes of teachers and school boards.
6/23/1986
41 A.G. Op. 70 (1986) “Holdover” officers of an existing governing body are not permitted to remain in office once a new form of local government has been adopted and the new governing body has been elected and qualified, unless the exclusive exceptions found in section 7-3-158(3), MCA, are implemented. Other elected or appointed officers and employees whose positions are not abolished by the new form of government continue to perform their duties unless special provisions are made for the discontinuance of those duties. 6/20/1986
41 A.G. Op. 69 (1986) 1.    School bus contractors and school districts which employ school bus drivers are not responsible for paying the cost of the medical examination required for certification of school bus drivers.
2.    School districts are not responsible for paying the cost of the physician’s certificate required for the certification of teachers.
6/18/1986
41 A.G. Op. 68 (1986) Section 76-2-305, MCA, applies to proposed zoning amendments affecting nonrectangular or nonsquare parcels of land. Identification of the statutorily-defined protest areas affected by the proposed amendments must be made with reference to the particular facts. 6/17/1986
41 A.G. Op. 67 (1986) 1.    Proceeds under the February 1986 Atlantic Richfield Company settlement agreement payable to Butte-Silver Bow County must be allocated to each taxing jurisdiction within the county proportionally to the mill levies of all such jurisdictions’ funds in effect during the fiscal year when such proceeds are contractually required to be paid.
2.    Proceeds under the February 1986 Atlantic Richfield Company settlement agreement may be allocated in proper portion to any appropriately established building reserve fund of school districts within Butte-Silver Bow County. Such proceeds may not be allocated to any building fund of those school districts.
6/16/1986
41 A.G. Op. 66 (1986) Section 32-6-105(1), MCA, does not preclude the county attorney from compelling disclosure of customer information by a financial institution pursuant to an investigative subpoena. 6/4/1986
41 A.G. Op. 65 (1986) A hunter who has been given permission to enter onto private property to hunt only for a specific kind of big game animal and who exceeds that permission by hunting another kind of animal may be charged with failure to obtain the landowner’s permission. 6/2/1986
41 A.G. Op. 64 (1986) A county commission may not delegate the approval, conditional approval, or rejection of subdivision plats to a planning board or to an administrative officer on the planning board staff. 5/30/1986
41 A.G. Op. 63 (1986) Counties must give notice to the Department of Fish, Wildlife, and Parks of planned repairs and maintenance to bridges and roads in accordance with section 87-5-502, MCA, except when an emergency threatens such bridge or road. 5/27/1986
41 A.G. Op. 62 (1986) In accordance with the Natural Streambed and Land Preservation Act of 1975, an irrigator must apply for a 310 permit before altering a stream channel to divert water. 5/19/1986
41 A.G. Op. 61 (1986) 1.    A rural special improvement district may be created to improve a county road which has been established by petition.
2.    If a district is created for that purpose, the district is responsible for the costs of maintenance and repair of the road.
5/2/1986
41 A.G. Op. 60 (1986) Interest accrued on amounts held in a protest fund established under section 15-1-402, MCA, must be distributed to the affected taxing units in the same proportion as the tax amounts in the fund are paid to those units. 4/18/1986
41 A.G. Op. 59 (1986) In order to collect the additional $10 charge required by section 46-18-236, MCA, a court may exercise its power under section 46-9-302, MCA, and increase the bail schedule for minor offenses in a like amount. 4/17/1986
41 A.G. Op. 58 (1986) 1.    State and local government employees who are covered by the Fair Labor Standards Act (FLSA) are not subject to the provisions of the Montana Minimum Wages and Maximum Hours Act (MWMHA).
2.    State and local government employees who are covered by the FLSA may reach agreement with their employers to receive compensatory time in lieu of cash overtime.
3.    Provisions of state law, other than the MWMHA, which set shorter workweeks for specified groups of employees, are to be given effect.
4/17/1986
41 A.G. Op. 57 (1986) 1.    The nepotism statutes, §§2-2-301 to 304, MCA, prohibit the rehiring of a tenured teacher where the teacher is within one of the prohibited relationships to a member of the school district board of trustees.
2.    The 1985 amendments to the Human Rights Act and the Governmental Code of Fair Practices, §§ 49-2-303(3) and 49-3-201(5), MCA, overruled 39 Op. Att’y Gen. No. 67 (1982), insofar as it holds that the nepotism law does not apply to relationships by affinity.
3.    34 Op. Att’y Gen. No. 3 (1971) is overruled insofar as it is inconsistent with this opinion.
4/11/1986
41 A.G. Op. 56 (1986) A local government study commission may not have an alternative form of local government placed on the ballot unless the study commission recommends adoption of the alternative plan. 3/21/1986
41 A.G. Op. 55 (1986) The Secretary of State should not certify to election administrators for the primary election ballot the name of an individual who cannot possibly meet the eligibility requirements for the office of Supreme Court Justice. 3/21/1986
41 A.G. Op. 54 (1986) The provisions of the Uniform Accident Reporting Act, Tit. 61, ch. 7, pt. 1, MCA, apply upon highways and elsewhere throughout the state, and the application of the Act is unaffected by section 61-8-101, MCA. 3/18/1986
41 A.G. Op. 53 (1986) The responsibilities of the state historic preservation officer in the identification of heritage properties on state-owned lands may not be limited by a state agency. 3/13/1986
41 A.G. Op. 52 (1986) An individual appointed by the Governor to the office of district judge need not run in the general election for the year in which Senate confirmation takes place if, at the time of confirmation, the filing date for judicial candidates has passed. 3/10/1986
41 A.G. Op. 51 (1986) A local government study commission may recommend that the terms of office for county commissioners be less than six years if the county has adopted the statutory county “commission form” of government. A local government study commission may not, however, recommend that the terms of office for county commissioners be less than six years if the county retained the form of government organized under the general statutes listed in section 7-3-111, MCA. 3/3/1986
41 A.G. Op. 50 (1986) A school district paying the tuition of a resident elementary pupil who attends a school outside the of the district pursuant to section 20-5-302, MCA, is not eligible to claim a tuition offset under section 20-5-303, MCA, for property taxes paid by the parents to the county or district in which the child attends school. 2/28/1986
41 A.G. Op. 49 (1986) Absent a court order, section 41-3-205, MCA, prohibits the Department of Social and Rehabilitation Services from disclosing case records and reports of child abuse and neglect to: (1) the natural parents or parent, or other person having legal custody of a child who is the subject of a dependency and neglect action filed under section 41-3-401, MCA; (2) health care professionals who are treating a child suspected of being abused or neglected; (3) the noncustodial parent of a child who has been removed from the custodial parent following an incident of abuse or neglect; and (4) the natural parents or parent, or other person having legal custody of a child who has been abused or neglected while in the care of foster parents. 2/27/1986
41 A.G. Op. 48 (1986) The local government study commission may not recommend that the number of city commissioners be increased from five to seven, unless it does so as part of a recommendation to adopt a form of government that permits a seven-member commission. 2/21/1986
41 A.G. Op. 47 (1986) The City of Helena may enact a mandatory seat belt ordinance which provides for a fine and/or jail sentence for violation of the ordinance, as long as the fine or penalty does not exceed $500 and the imprisonment does not exceed six months for any one offence. 2/14/1986
41 A.G. Op. 46 (1986) 1.    Personal property owned by an individual acquires its tax situs by reference to the residence of its owner absent specific statutory direction.
2.    Personal property of a partnership of corporation acquires its tax situs primarily by the location of the property. If the current location is temporary or transitory, the tax situs becomes the principal place of business of the organization.
2/13/1986
41 A.G. Op. 45 (1986) Section 7-3-212(2), MCA, authorizes mayoral appointment of an administrative assistant without city council approval. 2/7/1986
41 A.G. Op. 44 (1986) 1.    A local government study commission is responsible for calling and establishing an election date for the purpose of voting on the study commission’s recommendations.
2.    Where a local government study commission proposal recommends that the county commission be increased in size from three to five members, the proposal may provide that incumbent county commissioners whose terms have not expired retain their offices for the remainder of the terms to which they were elected. If no such provision is made and the study commission proposal is adopted, the incumbent commissioners would lose their positions when the newly-elected commissioners take office.
3.    Recommendations of a local government study commission concerning an increase in the number of members on the board of county commissioners, alterations in commissioner districts, and a change to nonpartisan elections for commissioners would take effect upon adoption of the recommendations. Recommendations of a local government study commission to change to nonpartisan elections for other county officials would take effect at the beginning of the local government’s fiscal year.
4.    A local government study commission is responsible for setting the dates of a special primary and a general election to elect new officers required by the adoption of the study commission proposal.
5.    The residency requirements of section 7-4-2104(2), MCA, apply to candidates for county commissioner positions created by the adoption of a local government study commission proposal.
6.    The timetables for filing declarations of nomination and changing precinct boundaries, found in Title 13, MCA, apply to candidates for county commissioner positions created by the adoption of a local government study commission proposal.
2/5/1986
41 A.G. Op. 43 (1986) 1.    In divisions of land consisting exclusively of parcels 20 acres or larger, the landowners must apply to the local governing body for a determination of whether appropriate access and easements are properly provided.
2.    Where the landowner elects on his application to accept a written determination that access and easements are not suitable for the purposes for providing services to the divided parcels, the local governing body may attach this notation to the instrument of transference prior to recordation and forego any review of access suitability.
1/27/1986
41 A.G. Op. 42 (1986) Park dedication language in a subdivision plat dedicating certain lands “to the use of the public forever” creates a trust for specific purpose and under the terms of section 7-8-4201, MCA, a municipal election must be held before the city can dispose of the property. 1/24/1986
41 A.G. Op. 41 (1986) 1.    The board of county commissioners is required to pass a resolution of public interest upon receipt of a proper petition, under section 7-14-2702, MCA, requesting the creating of a local improvement district for a county road. The board may not hold a hearing for the purpose of making an independent determination of the public interest.
2.    The board may not refuse to create a local improvement district which has been properly petitioned where the requirements of section 7-14-2710(1), MCA, are met.
3.    The county’s share of the costs of the improvements may be paid either from county road fund or from the general fund.
4.    Pursuant to section 7-14-2714, MCA, the county may construct or improve the road and thereby meet its share of the costs by providing in-kind services. Otherwise, the county’s share must be paid from county funds in accordance with section 7-14-2733, MCA.
1/22/1986
41 A.G. Op. 40 (1986) When a parcel of land is divided into two parcels, each under 20 acres in size, and one of the parcels is sold as an “occasional sale” under the Montana Subdivision and Platting Act, the remaining parcel may not, in the absence of another legitimately claimed exemption, be sold without subdivision review within 12 months following sale of the first parcel. 1/10/1986
41 A.G. Op. 39 (1985) The fines and costs collected in justice court and paid to the county treasurer by the justice of the peace should be credited to the county general fund pursuant to section 46-18-235, MCA. 12/12/1985
41 A.G. Op. 38 (1985) A regularly scheduled meeting between the board of county commissioners and its staff is a meeting within the terms of the open meetings law. 12/10/1985
41 A.G. Op. 37 (1985) 1.    Malta’s local elections must be conducted on a partisan basis in the future, unless the voters adopt a different plan of government.
2.    Those local public officers who were elected on a nonpartisan basis after May 2, 1977, served as de facto officers and their official acts should be regarded as legal. Local officeholders who were elected on November 5, 1985, may exercise their duties in the same manner.
12/2/1985
41 A.G. Op. 36 (1985) 1.    Landowner permission is required before snowmobiling on the frozen surface of state waters between the ordinary high-water marks.
2.    The “Stream Access Bill,” 1985 Mont. Laws, ch. 556, does not apply to the trapping of fur-bearing animals. Rather, the state’s criminal trespass statutes apply, making the right to trap fur-bearing animals between ordinary high-water marks dependent upon whether the trapper has license, invitation, or privilege to enter or remain upon the land and whether a license to trap has been secured.
11/15/1985
41 A.G. Op. 35 (1985) The administrators of School District No. 7 do not have a constitutionally-protected right to privacy regarding the amount of merit pay awarded to them pursuant to the district’s Leadership Evaluation and Compensation Plan. Therefore, the amounts should be disclosed to the public. 11/13/1985
41 A.G. Op. 34 (1985) 1.    A county attorney may not unreasonably withhold his consent to the employment of another attorney by the board of county commissioners to perform legal services in connection with the civil business of the county. The decision of a county attorney to withhold his consent is subject to the supervisory authority of the Attorney General.
2.    An elected county officer is not required to obtain the consent of the county attorney or the county commissioners in order to retain counsel in defense of a suit brought by the county attorney pursuant to section 7-6-2323, MCA. The county must reimburse the officer for legal fees incurred in the defense of the action unless an exclusion, as provided in section 2-9-305(6), MCA, applies.
11/8/1985
41 A.G. Op. 33 (1985) 1.    A board of county commissioners may not provide additional compensation to a county clerk and recorder who is an election administrator in addition to the clerk’s statutory salary.
2.    A declaratory judgment by a district court does not supersede a previous Attorney General’s Opinion where the district court does not explicitly overrule the prior opinion.
11/8/1985
41 A.G. Op. 32 (1985) 1.    A county is required to maintain county roads which are petitioned for by freeholders. A county has the power and discretion to maintain all other county roads as necessary for the best interest of the county roads and the road districts.
2.    A county is not required by law to maintain a county road created by dedication to the public in 1913 and maintained by the county from 1952 until 1981.
10/31/1985
41 A.G. Op. 31 (1985) A county tax appeal board does not have jurisdiction to hear appeals of taxes on centrally assessed property. 10/30/1985
41 A.G. Op. 30 (1985) 1.    A board of trustees and a district superintendent may mutually terminate a three-year employment contract prior to the expiration of its term and enter into another three-year contract identical to the first except for date of expiration, without violating section 20-4-401, MCA.
2.    Section 20-4-401, MCA, does not authorize a board of trustees and a district superintendent to enter into a rolling three-year employment contract.
10/21/1985
41 A.G. Op. 29 (1985) Time served for temporary duty as a special officer counts toward a police officer’s requirements for the retired list under section 19-10-401(1), MCA. The city treasurer may not withhold contributions for the retirement fund from a temporary officer’s compensation, as the purpose of the retirement fund is to benefit active officers who have completed 20 years or more of service. 10/4/1985
41 A.G. Op. 28 (1985) The county commissioners of Yellowstone County may not impose a separate tax levy to fund local air pollution programs. 9/12/1985
41 A.G. Op. 27 (1985) Under article V, section 6, of the Montana Constitution, a majority of all of the members of the Legislature is required to request that the Legislature be convened in a special session. A majority of each house is not required to request that a special session be convened. 9/11/1985
41 A.G. Op. 26 (1985) 1.    Corporate license fees received by county treasurer between July 1, 1983 and June 30, 1984, under section 15-31-702, MCA, are properly distributed pursuant to tax levies adopted by the board of county commissioners for fiscal year 1984, including any levy promulgated pursuant to section 53-2-813, MCA.
2.    Motor vehicle fees subject to distribution under section 61-3-509, MCA, are properly allocated in the same manner as personal property taxes. Consequently, for fiscal year 1984 the state special revenue fund is entitled to receive under section 53-2-813, MCA, the appropriate proportional share of such monies collected between January 1, 1984 and December 31, 1984, from counties whose public assistance programs and protective services were assumed on July 1, 1983.
3.    State aid received pursuant to section 61-3-536, MCA, during March 1984 is, as to any county who public assistance programs and protective services were assumed on July 1, 1983, by the Department of Social and Rehabilitation Services, properly paid into the state revenue fund under section 53-2-813, MCA, in such amount as determined by fiscal year 1984 mill levies.
4.    Sections 53-2-322 and 53-2-323(7), MCA, govern the proper use of monies in a county’s poor fund and must be applied on a case-by-case basis.
8/30/1985
41 A.G. Op. 25 (1985) School districts, cities, and other government entities authorized to levy taxes are entitled to a pro rata share of the penalties collected on delinquent property taxes by the county treasurer. 8/27/1985
41 A.G. Op. 24 (1985) 1.    The Interstate Compact on Juveniles, as currently adopted in Montana at Title 41, chapter 6, MCA, does not apply to youths who have not been adjudged delinquent and have not run away, but who are charged with a felony offense in another state.
2.    Juveniles residing in Montana, and charged with a crime in another state, may be extradited under the Uniform Criminal Extradition Act, tit. 46, ch. 30, MCA.
8/26/1985
41 A.G. Op. 23 (1985) The Board of Nursing does not have the authority to require applicants for professional or practical nursing license to hold a specific college degree as a qualification for initial license. 8/7/1985
41 A.G. Op. 22 (1985) 1.    A district board of health formed pursuant to section 50-2-107, MCA, stands in place of the county boards of health of those counties that formed the district.
2.    A district board of health has the responsibility of providing its own legal advisor.
3.    The counties forming a district board of health are responsible for providing the insurance for the district board of health.
8/6/1985
41 A.G. Op. 21 (1985) 1.    Land within a parcel subdivided without subdivision review pursuant to the “occasional sale” exception in the Montana Subdivision and Platting Act may not again benefit from such exception during the 12-month period following the original transfer.
2.    When a parcel of land has been divided into parcels of 20 or more acres, the owners of the new parcels are entitled to use the “occasional sale” exception in the Montana Subdivision and Platting Act once during the 12-month period following the conveyance of such parcels.
7/31/1985
41 A.G. Op. 20 (1985) The City of Missoula does not have authority to enact an ordinance establishing a delinquent fee schedule for alcohol licenses. 7/12/1985
41 A.G. Op. 19 (1985) The county clerk and recorder is not required to attend the meetings of the board of county commissioners and take the original notes of the proceedings, unless the board so requests. She is required only to record the minutes into the minute books as a permanent record. 6/21/1985
41 A.G. Op. 18 (1985) 1.    Cities of the third class are not required to provide group health and life insurance for volunteer firefighters.
2.    Volunteer firefighters who do not work more than 20 hours per week are not eligible to belong to the group health insurance plan pursuant to Title 2, chapter 18, part 7, MCA.
6/18/1985
41 A.G. Op. 17 (1985) Irrigation district property, which is not related to or used in irrigation work, is not exempt from taxation under the general irrigation district exemptions in sections 15-6-201(1)(a)(ii) and 85-7-2011, MCA. 6/13/1985
41 A.G. Op. 16 (1985) Oil and gas well casings, which are permanently fixed in the well, are taxable property. Further, they are properly taxed as class four property. However, oil and gas well casing are exempt from taxation after December 31, 1984. 6/12/1985
41 A.G. Op. 15 (1985) The creation of a rural improvement district for the purpose of constructing and maintaining a public swimming pool is proper if the facility will specially benefit the property subject to the assessment associated with the district. 5/31/1985
41 A.G. Op. 14 (1985) The exception in section 75-10-214, MCA, to the Solid Waste Management Act does not apply to waste generated by members of the general public but applies only to waste generated by the owner or lessee of the disposal site for such waste, or to waste generated by persons in the family or to business-related waste generated by persons in the employ of such owner or lessee. 5/30/1985
41 A.G. Op. 13 (1985) Grain stored in a farmer’s granaries is taxable as class six property under section 15-6-136, MCA; however, it qualifies for the tax exemption provided in section 15-6-207, MCA if held in the possession of the original producer for less than seven months following harvest. Such grain does not qualify for the business inventories exemption provided in section 15-6-202, MCA. 5/16/1985
41 A.G. Op. 12 (1985) Court reporters, under Title 3, chapter 5, part 6, MCA, are not entitled to additional compensation, above and beyond traveling expenses, when traveling with their judge outside their judicial district. 5/10/1985
41 A.G. Op. 11 (1985) A county clerk and recorder may not refuse to accept for filing a trust indenture which does not include an amount secured and a maturity date. 4/26/1985
41 A.G. Op. 10 (1985) A city council may not enact an ordinance requiring a driver of a motor vehicle upon a federal-aid or state highway to stop for a pedestrian within a crosswalk when the pedestrian is not upon the half of the roadway upon which the vehicle is traveling and when the pedestrian is not close enough to be in danger. 4/22/1985
41 A.G. Op. 9 (1985) The Department of Revenue has authority to collect delinquent income taxes by levying on wages of nonresidents employed by a foreign corporation doing business in Montana. 4/17/1985
41 A.G. Op. 8 (1985) The Antiquities Act gives exclusive authority to the Preservation Review Board to determine which properties on state-owned lands are “heritage properties.” 4/4/1985
41 A.G. Op. 7 (1985) A county attorney may not enter into an agreement comprising or satisfying a support order, or an agreement to allow the sale of property on which a support order is a lien. 2/11/1985
41 A.G. Op. 6 (1985) When a county’s classification changes according to section 7-1-2111, MCA, the salaries of the county commissioners, as provided in section 7-4-2107, MCA, must change as of July 1, of the following year, the onset of a new fiscal year for the county. 2/7/1985
41 A.G. Op. 5 (1985) The board of county commissioners does not have authority to consolidate high school districts in a county. The procedure for such consolidation is set forth is section 20-6-315, MCA. 2/6/1985
41 A.G. Op. 4 (1985) A financial consultant may not receive a commission based on the value of bonds purchased by it for services performed in connection with the municipal revenue bond offering and sale to the extent the commission, when subtracted from the purchase price of the bonds, reduces the bonds’ effective selling price below par value. 1/21/1985
41 A.G. Op. 3 (1985) 1.    The construction of one duplex on a single tract of land for rental or sale purposes constitutes a “subdivision” under the Montana Subdivision and Platting Act unless otherwise excepted from “subdivision” status under section 76-3-207, MCA.
2.    The construction of a second dwelling for a family member on a single parcel of land constituted a “division of land” under the Montana Subdivision and Platting Act of the family member is intended to receive a legally enforceable possessory interest in such dwelling. If a “division of land” has occurred, such construction will constitute a “subdivision” unless otherwise exempted.
3.    The construction of an office building, with individual office spaces for rent, constituted a “subdivision” under the Montana Subdivision and Platting Act.
4.    The construction of a hotel does not constitute a “subdivision” under the Montana Subdivision and Platting Act.
1/18/1985
41 A.G. Op. 2 (1985) The act of registering to vote in Montana elections my military personnel may be considered as evidence that such personnel are Montana residents, and are therefore not exempt from property and income taxation under Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C. §§ 501-91. 1/10/1985
41 A.G. Op. 1 (1985) A condition of both appointment to and continued service on a local urban renewal agency board of commissioners is residency within the municipality which created the board under the Urban Renewal Act. 1/8/1985