The Butte inter mountain. [volume] (Butte, Mont.) 1901-1912, 1901-12-03
JUDGE NAPTON'S DECISION IN
THOMAS CASE TO STAND.
COUNTY ATTORNEYS OPINION
Clerk of District Court to Receive
Fourth Glass Office Salary - Others
Similarly Archaeological Would
Avail Nothing.
Especial to Inter Mountain.)

Anaconda, Dec. SIN the case of the
state of Montana on the relation of w. E.
Thomas, clerk of the district court,
against Phillip Greenan, county clerk and
recorder, and A. M. Walker, chairman
of the board of county commissioners,
County Attorney ]. H. Duffy this morn
ing submitted to the board of comn,is-
sioners his opinion in regard to an appeal
from the decision of Judge Napton,
which was in favor of Thomas.
AS a result the case will not be ap-
pealed and the annual stipend of Mr..
Thomas will be $25OO per year, the salary
allowed for such offices in counties of the
fourth class, which was the classification
of Deer Lodge county at the time Of the
election of Mr.. Thomas.
The opinion of Mr.. Duffy, as submitted
to the county commissioners, is as fol-
lows:
Opinion of Mr.. Duffy.
I'm the matter Of the appeal from the
decision Of Judge Napton, in the man
damus proceedings instituted by w. e.
Thomas, I most respectfully submit for
your consideration the following: That
/ have examined since the date Of the
decision of Judge Napton, carefully, the
law bearing upon the question involved
and submit:
"First-That the order made by the
board in September reclassifying and CIV
ing to Deer Lodge county it's proper
classification was and is a valid order.
"Second-Conceding said order to be
valid order, the next and most serious
question is presented. The facts in this
controversy are as follows:
Commissioners in Error.
1.-THE board OF county commissioners,
in September, 1900, and as required by
law, classified Deer Lodge county as q
county of the fourth class. This classi-
fication was an erroneous one. and was
made and based upon an error of the
county assessor in calculating the total
value Of the assessable property situated
in Deer Lodge county When the error
was discovered, the board at its Decem-
ber meeting corrected the same and gave
to Deer Lodge county it's proper classif1-
cation, tO-wit: That of a county of the
| fifth class.
! las heretofore submitted it Is my
| opinion that THE board possesses the au-
thority and had a lawful right to correct
the error aforesaid Before the error
aforesaid was corrected in December
1900. the above-named relator was duly
elected to the Office of clerk of the dis
trict court of Deer Lodge county and
duly filed his oath Of office and official
bond.
Entitled to Salary.
''At the time of his election and quail.
flying as aforesaid for the office aforesaid,
the order made by the board in Septem-
Der, 1900, designating Deer Lodge county
as county of the fourth class was in
full force and effect. The relator, having
no knowledge of the error committed as
aforesaid, and having been then duly
elected and qualified as clerk of the dis
trict court Of Deer Lodge county, and
While said Deer Lodge county was
county of the fourth class, Is entitled to
the salary attached to the Office of clerk
or the district court of a fourth class
county, to-wit: Deer Lodge county.
Appeal Would Not Avail.
From the examination of all the au-
thorities bearing upon the questions in
volved, I am satisfied that the board
could not make an order the effect of
which would be to decrease the amount
OF salary, to which the above-named re,
lator would be entitled as clerk of A
county OF the fourth class. 1 am. how.
ever. willing to abide by the Judgment
of your honorable body in the matter
OF appealing from the judgment of judge
Napton IN the above-named proceedings
to the supreme court OF the state.
10 appeal the case would necessitate
the expenditure OF considerable sun,
or money belonging to the taxpayers.
ana this expenditure would, in my judr.
ment, produce nothing but an affirmancs
of the judgment Of Judge Napton In thu
aforementioned proceeding"
This decision will also affect the sala.
ries of the clerk and recorder and county
assessor as well. The former Is increasel
5000 per annum; the latter, 5000 per
annum.