Montana labor news., 1945-05-10
Decisions of the Montana
Supreme Court

For Week ending May S. 1945
April 30th--Herbert Dunbar and others VS.
Don Emigh Appealed from Gallatin county
Bozeman. Unanimous opinion of the court
prepared by Justice Albert H. A1gstman
FACTS: The district court issued an order
restraining Emigh from committing tres
pass by reason of his livestock going upon
the land of Dunbar and others. Emigh ap-
pealed contending that the restraining order
was not in accordance with the Montana law
in this regard. The order was modified
HELD. The single question presented by
this case involves the so-Called "opeu range
law" The Supreme Court reiterated the rule
which maintains in Montana under Section
3374 Revised Codes. that the landowners must
by lawful enclosure. fence OUT the livestock
OF others and the owner of the livestock is
liable only where his stock trespass on prop
erty within a lawful fence. unless he drive
them thereon, or (what is the legal equiva-
lent so treats them as to impel them to
trespass.
May ist-In re Emmett O'sulliyan. Appealed
from Wheatland County Harlowton Unani-
nous opinion Of the court prepared by jus
tice Albert II. Angstman.
FACTS Emmet O'Sullivan, attorney and
honorably discharged First World War veteran
on May n. 1913, applied to city council of
city Of Harlowton for the position of city
attorney under 1887 veterans Preference Act
tChapter 66l. City council refused his APP
pointment and he petitoned the district court
for an order Of appointment under Chapter
100 of the Laws Of 1913. Chapter 100 Of 1898
amended Chapter 66 of 1887 by including
World War II veterans and eliminating the
provision of notice Of hearing to the appoint
ing authority in the action in the district
court The district court held the failure Of
the 1913 Act to provide for notice and hear
ing to the employer rendered the Act uncon-
stitutional and the appeal is mainly on that
ground
HELD The Supreme Court held the 1913
Veterans Preference Act to be constitutional
but in so holding pointed out that the por-
tion Of the 1887 Act which provided for
notice and hearing was not repealed by the
1887 Act. The court held that the 1943 Act
would not be valid unless it provided for
notice and hearing to the appointing author
ity.
May 4th-Henry H. Bauer VS. r. G. Monroe
and others. Appealed from Phillips County,
Malta. opinion OF the Court prepared by
Justice Hugh r. Adair Justice Albert H.
Angstman prepared dissenting opinion, in
which Justice c. F. Morris concurred.
FACTS For many years Albert Tetrault
had leased a ranch TO Bauer In 1885 Bauer,
by written agreement, contracted to buy the
ranch. Payments on the contract ceased in
1888 but Bauer remained in possession ever
since. After Tetraults death in 1912 Bauer
sued the estate to specifically enforce
alleged oral contract by which Tetrault agreed
to deed the ranch to Bauer in return for
Bauer's promise to make a home for Tet-
rault for the rest Of his life. The district
court found that Bauer carried out this prom
Use and rendered judgment in favor of Bauer.
The Supreme Court reversed the judgment.
HELD; That to allow Bauer to maintain
his action on the oral contract would be a
violation of the statute which regulates the
modification of written contracts by oral tes-
timony. The judgment was reversed.
Prepared and released by Peter Meloy,
marshal, Supreme Court of Montana