Great Falls tribune. [volume] (Great Falls, Mont.) 1921-current, 1921-05-03
SUPREME COURT
HOLDS BANNER
C0UN TY VOID.
Justices Divide on De-
cision in Favor Of
Flanagan and Stevens.
Legal Notice Not Given
People Of Chouteau,
Is Majority Opinion.
Special to The Tribune.

Is Majority Opinion.
Special to The Tribune.
Helena, May 2.-The state supreme
court Monday declared null and void
all proceedings leading up to and the
election creating the county of Banner
out of Chouteau and Fergus The de
cision was rendered in the case of
George Fl. Stevens and Frank A. Elan
agan against the county commissioners
of Chouteau county.
The court was divided in the decision,
Chief Justice Theodore Brantly and
Associate Justice William Il. Holloway
dissented. Associate Justice Charles
II. Cooper wrote the opinion of the
court which was concurred in by JUS
tees Galen and Reynolds
Messrs. Stevens and Flanagan had
asked the court for a writ Of mandate
directing the county commissioners to
make an order multiplying all proceedings
leading up to the election creating Ban
ner county and to prevent the board
| from further proceedings in the erea-
ton of the county which was voted fa
vorable at the election held on March
20, 1921. The court has granted the
writ.
Legal Notice Not Given.
1t is held in the decision that legal
notice was not given the people of
Chouteau county by reason of a defec
tive publication in the River Press Of
Fort Benton of the hearing to be held
before the county commissioners Of
Chouteau county on the petition of resi-
dents of that county for the holding
of the election.
The chapter of the Montana law
providing for the creation of a new
hearing before the county commission
ers shall be published in the two weeks
next preceding the hearing. The
hearing before the commissioners was
held, the court says, on November 70.
1920 and there was no publication in
The River Press in the first week
next preceding the hearing. The only
publication coming within the provis-
ions Of the statute says the court was
in the second week next preceding
the hearing or on November IL. 1920.
In the opinion Of the court Justice
Cooper says in part: The statute
provides that the notice shall be pub
lished at least once week for two
weeks next preceding the date fixed
for the hearing A week consists Of
seven consecutive days. The two
weeks. or IA consecutive days. next
preceding the 29th day of November.
1920. the date for this hearing. began
on November Is and ended on Noyem-
Der %. During that period there was
but one publication Of the notice in
The River Press. to-wit: on Novem-
ber II. In the week next Immediately
preceding November 20, there was
not any publication. If we construe
In eyH0k 0ktrfn nnIn dow
the result is the same. The calendar
week next preceding November %,
began on Sunday, November q and
ended with Saturday. November -,
and during that week The River Press
did not publish the notice The statute
declares that the notice must have
been published at least once in this
week
Prevent Prolonged Litigation.
1The basis Of the whole proceed
ings the notice Of hearing before
the county board; and if defective by
reason of departure from the statu-
tory requirements, it may be set aside
by court of competent jurisdiction at
the suit of an interested tax payer for
the purpose. Should the board con-
tinue to act upon the assumption that
it has established Banner county upon
valid foundation and proceed to pro-
vide funds from the public revenues of
the county for the purpose of enabling
it to function, it's efforts may be re-
sisted at the first step by judicial pro-
ceedings instituted to restrain it. An
early decision in the present proceed
ing by this court may, therefore pre- !
vent multiplicity of actions and pro-
longed litigation between the board and
the tax payers opposing it.
Mulllfies All Proceedings.
1T must be conceded that If no not
ice were published at all, the attempt |
OF the county board to create a new |
county would be wholly insufficient.
Here 1T appears that the publication |
was not made for two weeks next pre-
cedlng the date of the meeting of the
board, as the statute requires. The
statutory requirement as to the publ
catlon Of notice of the hearing on the |
petitions for the creation of Banner
county not having been met as re-
qulred, it is in effect, the same as il
no notice whatever had been piyen,
such notice being urisdictional re-
election held carried by a substantial
election held carried by a substantian
majority, we, are constrained to de- |
clare the order Of the board Of the
county commissioners Of Choteau
county prOclaiming an election to be
held on March 20, 1921, and direct
ing notice thereof to be given, null and
void"
Il