Montana Historical Law Guide

Contents

Legal Ages at a Glance

General Principles

An English legal system

Montana's law came from England. The First Territorial Legislature, meeting at Bannack in the winter of 1864–65, adopted the common law of England — judge-made law, handed down through court decisions rather than written by a legislature — as the rule of decision¹. The legislature restated it in 1872 in the form it kept: the common law of England, so far as it is applicable and not in conflict with the special enactments of the territory, is the law and the rule of decision². For any given year, then, the rule in force is the statute where one had been passed by then, and the common law of England otherwise.

Each spouse owned property separately in Montana, subject to the marital rights set out under Property Ownership and Inheritance below³.

Congress created Montana Territory by the Organic Act of 26 May 1864⁴, giving judicial power to a Supreme Court, District Courts, Probate Courts, and Justices of the Peace⁵. The county probate courts handled wills, estates, and guardianships until the Constitution of 1889 moved that work to the district courts⁶. Slavery was barred from the beginning: Congress had prohibited it in the territories⁷, and the First Territorial Legislature made it a crime to carry any person out of the territory in order to enslave them⁸.

The common law rewritten as a code

The turning point is 1895, when Montana adopted four codes at once — a Civil Code, a Code of Civil Procedure, a Penal Code, and a Political Code, all in force from 1 July 1895⁹. They descend from David Dudley Field's New York draft¹⁰ and restate nearly every rule in this guide, in several places changing it. These dates mark changes you will see in the records:

• 1864–65 — the common law of England received; Black, Chinese, and Native people barred from testifying where a white person was a party.
• 1871–72 — the racial bar on testimony repealed; the jury statute keeps its racial limit.
• 1876 — dower re-enacted, after the act of 1866 was set aside by Congress.
• 1889 — statehood; probate moves to the district courts.
• 1895 — the four codes take effect; the marrying age drops from majority to 18 and 16.
• 1909 — interracial marriage banned; repealed 1953.
• 1939 — women made eligible for jury service, from January 1940.

Legal Age of Adulthood

Twenty-one for men and eighteen for women

Full legal age in Montana was 21 for a man and 18 for a woman. The territorial legislature set it in those terms in an act approved 26 December 1864 — all males of 21 and all females of 18, under no legal disability, capable of entering into any contract and to all intents and purposes of lawful age — and the rule ran unchanged through 1950¹¹. Anyone below those ages was an "infant" in legal language. A woman of 18 could contract, sell her own land, and qualify as an executrix, while a man of the same age still needed a guardian for his. The two ages were made the same, at 18, in 1971.

A minor's legal capacity

A minor could own property. What the law limited was the minor's power to dispose of it.

• A minor had to pay the reasonable value of necessaries supplied to himself or his family, where he was not under the care of a parent or guardian able to provide them¹².
• A minor's deed or other contract was voidable — valid until the minor chose to undo it. He could disaffirm it either during minority or within a reasonable time after coming of age¹³. Because a buyer could not rely on such a deed, a minor's land was normally sold instead by a guardian under a court order, which leaves a petition, an appraisal, an order of sale, and a confirmation in the guardianship file.
• A minor could not appoint an agent to act for him, and a married woman under 18 could not execute a power of attorney — a written authority letting someone else act for her — to convey her separate property¹⁴.

Other ages that differed by sex

Because majority itself differed by sex, so did every age tied to it: the end of a guardianship, the age to qualify as an executor, and, until 1895, the age to marry at all.

Marriage

Who was old enough to marry in the territory

From the territory's first marriage act, passed in the Bannack session of 1864–65, the parties to a marriage had to be of the age of majority. Marriage was a civil contract requiring the consent of parties capable in law of contracting, and the statute added in terms that the parties were to be of full age¹⁵. That wording was carried forward without change through the codification of 1871–72, the Revised Statutes of 1879, and the Compiled Statutes of 1887. So for the whole territorial period the marrying age was 21 for a man and 18 for a woman — the same as majority, and a good deal higher than the figures that came later.

The territory also drew the family line wide: no marriage could be contracted while either party had a husband or wife living, nor between parties nearer of kin than second cousins, counted by the rules of the civil law¹⁶. First cousins were therefore barred from marrying in Montana Territory.

The territory ran a certificate system rather than a license system. The person who solemnized the marriage delivered a certificate within three months to the recorder of the county where it took place, who entered it in a book kept for that purpose¹⁷. For the territorial decades, look to the county recorder rather than the clerk of the district court.

Who was old enough to marry after 1895

The Civil Code lowered both figures. Any unmarried male of 18 or over, and any unmarried female of 16 or over, not otherwise disqualified, was capable of consenting to and consummating marriage, and that rule ran unchanged through the 1940s¹⁸. The code also narrowed the forbidden degrees, so that from 1895 first cousins could marry¹⁹.

Between the marrying age and majority a further step was required. Where either party was a minor — a man under 21 or a woman under 18 — the clerk could issue no license without the written consent of the father if living, and if not, of the mother, or of the guardian or the person under whose care the minor was, proved by at least one competent witness²⁰. Two lines therefore run through this subject after 1895. Sixteen and eighteen are the minimum ages, below which there was no capacity to marry at all. Eighteen and twenty-one is the consent threshold. The written consent belongs in the license file with the clerk of the district court.

An underage marriage was voidable: it stood unless someone went to court for a decree of annulment, and the parties could ratify it by living together after reaching the age of consent²¹. In practice an ancestor's underage marriage was almost certainly valid.

Common-law marriage

Montana recognized common-law marriage, and that changes what you should expect to find. In the territorial period this followed from the received common law of England, under which a marriage rested on the present consent of the parties and needed no ceremony; the territorial statute set out who might solemnize a marriage but never made solemnization the only way to marry.

The Civil Code of 1895 wrote the rule down. It defined marriage as a personal relation arising out of a civil contract, and provided that consent alone does not constitute marriage but must be followed by a solemnization — a ceremony before an authorized official — or by a mutual and public assumption of the marital relation²². The licensing article added that failure to license, solemnize, authenticate, or record a marriage does not invalidate any lawful marriage²³.

The courts required three things together: mutual consent by parties able to consent and competent to enter a ceremonial marriage; the assumption of the marital relationship, as of a time certain; and cohabitation and repute following it²⁴. A couple who married this way could execute a declaration of marriage, recorded like a marriage certificate, and either party could sue in the district court to have the marriage declared valid²⁵. Where no declaration was made, a valid Montana marriage may leave no county record at all, and its proof lies in census entries, in deeds and wills naming a wife or husband, and in the testimony of neighbors.

Marriages that were void or could be canceled

Marriages between parents and children, between ancestors and descendants of every degree, between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews were incestuous and void from the beginning, whether the relationship was through married parents or not¹⁹.

A second marriage contracted during the life of a former husband or wife was void from the beginning, unless the former marriage had been annulled or dissolved, or the former spouse had been absent and not known to be living for five successive years, or was generally reputed dead. In those two cases the second marriage stood until a court declared it void²⁶. A marriage valid where it was contracted was valid in Montana²⁷, except where a resident married out of state to evade the racial ban described below²⁸.

People of color and Native people

Marriage across racial lines was lawful in Montana until 1909, when the legislature banned it²⁹. By the code in force in the 1930s and 1940s the ban stood in three sections, which made void a marriage between a white person and a Black person, between a white person and a Chinese person, and between a white person and a Japanese person³⁰. Native people remained outside the ban throughout.

The Montana Supreme Court enforced the ban in 1942, holding void the marriage of a Japanese man and his white widow in a contest over his estate³¹. The legislature repealed it in 1953³². Children of a marriage voided under the ban were still legitimate, and still inherited, because the succession statute made the issue of any marriage null in law legitimate³³.

So an interracial couple in Montana between 1909 and 1953 may have married before 1909, married out of state, or left no Montana marriage record at all. Where Native people married by tribal custom and the tribal relation had not been severed, that custom governed and the marriage was recognized as valid even though it did not meet the state statute³⁴. The record of such a marriage is ordinarily kept by the tribe or the federal Indian agency rather than by the county.

Property Ownership

Which men could own land

The right to acquire, hold, and convey land belonged to every man of full age in Montana, of any race. The conveyancing statute asked only that the grantor be of lawful age and that the deed be signed, acknowledged, and recorded³⁵. Nothing had to come before it — no property qualification, no tax payment, no office, no vote. A foreign-born man's position turned instead on citizenship. The Constitution of 1889 guaranteed aliens the same rights as citizens in mines, mining property, and the land connected with mining³⁶, which in a mining state covered a great deal of ground, and from 1923 the alien land law described at the end of this section applied to the rest.

Women and land ownership

For the territory's first years a wife's position was governed by coverture, the common-law rule by which a wife's legal identity merged into her husband's, so that during the marriage she could not own property or contract in her own name. The married women's property act of 12 January 1872 ended that, and Montana thereafter went further than most states.

All property a woman owned before her marriage, and all she acquired afterward, was her separate property, and she could dispose of it without her husband's consent, agreement, or signature, including conveying the full title to real property³. Either spouse could transact with the other, or with anyone else, as if unmarried³⁷, and she could contract and relinquish any interest in real estate as if she were single³⁸. A couple could also settle their property before marrying, by a written settlement acknowledged like a deed and recorded with the county clerk of every county where affected land lay; such a settlement names both parties and often their children by earlier marriages.

Her separate property was free from her husband's debts, with one condition worth knowing. As to her separate personal property the exemption reached only property listed in an inventory she had made and filed with the county clerk of the county where she lived³⁹. That filed inventory names the wife and lists a household's movable goods, and the requirement is as old as the territorial act of 1872.

Her earnings were hers. Work performed by a married woman for anyone other than her husband and children was presumed to be on her separate account unless she had agreed otherwise in writing, and her earnings were not liable for her husband's debts⁴⁰. Where she lived apart from him, her earnings and those of her minor children in her custody were her separate property⁴¹, and she could sue in her own name to recover her wages⁴².

In the territorial period a married woman who wanted to trade on her own account became a sole trader by a declaration that was acknowledged and recorded⁴³. That declaration names the wife and her husband and fixes the date she began trading in her own right. The procedure had fallen away by the 1930s, because a wife could by then contract as freely as a single woman without it.

When a wife had to sign her husband's deed

The answer turns on dower, and the date matters more here than anywhere else in this guide. Dower is a widow's life estate in a share of her husband's land — the use of it for her lifetime, not ownership of it.

Montana's dower statute has a broken history. The territorial legislature enacted dower in March 1866; Congress set that act aside the following year; the territory enacted it again in 1876; and the compilers then left it out of the Revised Statutes of 1879 and the Compiled Statutes of 1887⁴⁴. That is why the territory can look as though it had no dower at all. It did. The probate machinery of the 1871–72 codification assumes throughout that a widow takes dower, paying her out of the rents until her dower is assigned, making descent subject to it, and giving her an allowance in addition to dower⁴⁵. Congress also extended dower to every United States territory by the Edmunds–Tucker Act of 1887, whose dower section was printed among the federal laws in the Montana compilation of that year⁴⁶.

The Civil Code of 1895 re-enacted dower in settled form: a widow shall be endowed of the third part of all lands of which her husband was seized of an estate of inheritance — owned outright, in a form that could pass to his heirs — at any time during the marriage, unless she has relinquished the right in legal form⁴⁷. That wording passed unchanged into the Revised Codes⁴⁸ and stood until 1974, when the state adopted the Uniform Probate Code and abolished dower⁴⁹.

Dower ran one way only. A husband took no corresponding interest in his late wife's land: the Civil Code provided that no estate is allowed the husband as tenant by curtesy — the widower's equivalent of dower — on the death of his wife, and that rule held from 1895 through 1950⁵⁰.

The reach of Montana dower is what decides the deed question. It attached to every parcel the husband held at any time during the marriage, not merely to what he owned at his death, so a buyer needed the wife's release on every sale. The same section says how she gave it: a wife who joins her husband in a conveyance relinquishes her inchoate right — the claim she holds while he is alive, which becomes a real interest only if she outlives him⁴⁷. Where a husband sold without her joining, her dower followed the land into the buyer's hands, valued as of that sale⁵¹.

So a wife's signature on a Montana deed from 1876 onward is a dower release, and it tells you the grantor — the person making the deed — was married. Look closely at deeds from the years between 1867 and 1876 as well, because the probate statutes of that decade provided for assigning a widow her dower even though the defining section had been set aside.

One exception explains a puzzling deed. In the territory a man whose wife was living in another state or territory could convey full title by his own signature, and the want of her signature did not invalidate the deed. The Civil Code narrowed the rule: from 1895 a married man could convey alone only where his wife had never been in the state or territory of Montana, and no dower attached to that land⁵². Either way, a sole signature on a Montana deed may mean the man's wife was living elsewhere.

Two further rights round out the widow's position. Where her husband died leaving no children or their descendants, she could elect to take, instead of dower, one-half of all his real estate absolutely, after his debts were paid⁵³. And a gift to her in his will barred her dower unless the will said otherwise, though she could renounce it by delivering a written renunciation to the district court within one year after the will was proved⁵⁴. That renunciation, or its absence, sits in the probate file and shows which she chose.

The husband's protection ran the other way and was narrower: a wife could not, without her husband's written consent, deprive him by her will of more than two-thirds of either her real or her personal estate⁵⁵.

The homestead

A homestead is the family residence, declared as such on the record and protected from creditors. The husband or other head of a family could declare one, and so could the wife where the husband had not⁵⁶. "Head of a family" also reached any person of 60 or over residing on the premises and any person supporting dependent relatives there⁵⁷. It could run to 320 acres of agricultural land outside a town, or a quarter-acre inside one, and by 1937 its assessed value could not exceed $2,500⁵⁸. It descended to the heirs or to those named in the owner's will, subject to its use by the widow or widower for life⁵⁹. A recorded declaration names the family and the land and is filed with the county clerk and recorder.

Which children could own land

A child could own land at any age, taking it by inheritance, gift, or purchase just as an adult did. Conveying it was the constraint, because a minor's deed could be disaffirmed¹³, and a sale of a minor's land accordingly went through the guardianship proceeding described under Inheritance. Own at any age; convey freely at majority.

Witnessing and acknowledging a deed

No Montana deed ever needed a witness. The territorial statute required only a written deed signed by the grantor — the person making it — or by an agent authorized in writing, and it required the grantor to be of lawful age³⁵. The Civil Code of 1895 kept the writing and the signature but dropped the age requirement, because the general rule on minors' contracts had taken its place: a minor could convey in the same manner as anyone else, subject only to his power to undo the deed afterward⁶⁰.

What made a deed good against the world was recording. A conveyance acknowledged before an authorized officer, or else proved by a subscribing witness who had signed it, and then recorded, gave notice from the time it was filed with the county clerk. An unrecorded conveyance lost to a later good-faith purchaser who recorded first⁶¹. Where a deed was proved by a witness rather than acknowledged, that witness qualified on competency rather than age, under the test given under Courts below. There was no minimum age for the job.

A married woman acknowledged a deed on exactly the same terms as anyone else, using the ordinary form; in the territory a husband and wife conveyed her land by joint deed in the same manner as she might have done alone if unmarried⁶². A Montana deed book records her signature and nothing further.

Land owned by Native people and by immigrants

Land held by Native people and Native nations was, and is, administered federally. The Enabling Act and the Constitution of 1889 carried forward the declaration that all such lands remain under the absolute jurisdiction and control of Congress until the federal title is extinguished⁶³. Allotments, heirship findings, and the probate of allotted and trust land are federal records rather than county ones, so for a family on any of the reservations the land trail runs through the agency.

Montana enacted an alien land law in 1923 restricting landholding by aliens ineligible for citizenship — a class that under the federal naturalization law of the day reached Chinese and Japanese immigrants. Land held in violation was forfeited to the state, though land bought before the act was safe. The Montana Supreme Court held the act unconstitutional in 1955⁶⁴.

Inheritance

One statute for land and personal property

When a person died without a will (intestate), Montana divided land and personal property under a single statute, and husband and wife took from each other on identical terms⁶⁵. Title passed to the heirs at the moment of death, subject to the control of the district court and to the possession of any administrator appointed to settle the estate. The scheme below is the one written into the Probate Practice Act of the 1871–72 codification, restated in the Revised Statutes of 1879 and again in the Civil Code of 1895, and it governed with one change until the end of this period. In the statutes below, a person's "issue" means their children and the children's descendants.

Taking "by representation" means the children of a child who died before the person whose estate is being divided share out the part their parent would have taken. Where no relative at all could claim, the property went to the state⁶⁶.

Two points are worth attention. The first concerns the widow with no children. Before 1941 she took one-half where a parent or a brother or sister of her husband survived, but she took the whole estate where none of them did⁶⁷; the amendment of 1941 gave her the whole estate in either case⁶⁸. So the size of a pre-1941 widow's share tells you something about which of her husband's relatives were still alive. The second is that the widow's statutory share did not absorb her dower — the two stood independently⁶⁹, which is why a Montana widow so often holds both a life interest and an outright share.

What the widow lived on while the estate was settled

Until letters were granted — the court's written authority for someone to settle the estate — and the inventory returned, the widow or minor children could stay in possession of the homestead, the family clothing, and the household furniture, and the court ordered a reasonable allowance for their support⁷⁰. On the return of the inventory the court set apart to the surviving spouse or minor children the property exempt from execution, including a homestead, and could allow more for the family's maintenance⁷¹.

Property set apart belonged to the surviving spouse where no minor child survived; where minor children survived, half went to the spouse and half to the children; and where there was no surviving spouse the whole went to the children⁷². An estate of $1,500 or less was assigned whole to the widow and minor children⁷³. These allowance and set-aside orders name the widow and each surviving minor child, which is their value to a researcher.

Guardians and the age of fourteen

The district court appointed guardians for minors who had no guardian named by will or deed, on the petition of a relative or other person on the minor's behalf, or of the minor himself if he was 14⁷⁴. The father if living, and the mother on his death, were entitled to the guardianship if competent and not otherwise unsuitable⁷⁵. But no person, parent or otherwise, had any power as guardian of a minor's property except by appointment⁷⁶. A living father is therefore no reason to skip the guardianship records: where a child came into property, the appointment creates a court file.

Fourteen is the age to watch. If the minor was under 14 the court named the guardian; if he was 14 he could nominate his own, and the court had to appoint the nominee if it approved him⁷⁷. A minor who had been younger when a guardian was appointed could nominate his own at any time after reaching 14⁷⁸. A guardianship file in which the child chooses is therefore evidence the child had reached 14, which brackets a birth year. If the nominee was rejected, the court appointed as though the minor were under 14⁷⁹.

A guardian could also be nominated by will or deed, to take effect on the death of the parent nominating: for a child of married parents by the father with the mother's written consent, or by either parent where the other was dead or incapable of consenting; for a child born outside marriage by the mother⁸⁰.

The guardian gave bond, inventoried the minor's estate, accounted within three months of appointment and whenever the court directed, and settled his accounts at the end of the trust⁸¹. Guardianship ran until the minor reached majority — 21 for a boy, 18 for a girl — or married, whichever came first⁸². A court-appointed guardian was not entitled to his discharge until one year after the minor's majority⁸³, so the closing papers fall a year later than the birthday. That final settlement dates the minor's majority, approximates a birth year, and frequently reveals a young woman's married surname. Territorial guardianships are in the probate court records; from 1889 they are with the district court.

Children born outside marriage

A child born outside marriage was an heir of the man who, in writing signed before a competent witness, acknowledged himself to be the father, and in all cases was an heir of the mother, inheriting as if born to married parents. The child inherited from the wider kindred of either parent only where the parents afterward married and the father then acknowledged the child or received it into his family. Where that happened, the child and the other children were treated as brothers and sisters for inheritance in every direction³³. Where such a child who had not been acknowledged died intestate without lawful issue, the estate went to the mother, or on her death to her heirs⁸⁴.

Legitimation by the later marriage of the parents is territorial and dates from 1872⁸⁵, so it runs through 1950. The written acknowledgment, signed before a witness, is the document that opens a paternal line, and it is worth hunting for in the probate and deed records.

Where paternity was contested it was settled in a proceeding against the putative father, the man alleged to be the father⁸⁶. The file names the father, which is the point of looking for it.

Making a will

Every person over 18 of sound mind could dispose of all of their estate, real and personal, by will. The territorial legislature set that age and the codes kept it⁸⁷. The same age applied to both sexes, so a woman could make a will at majority and a man three years before it.

An attested will — one signed in front of witnesses — had to be signed at the end by the testator, the person making the will, or by someone in his presence and at his direction. The signature had to be made or acknowledged in front of the witnesses, the testator had to declare to them that the instrument was his will, and two witnesses had to sign at the end at his request and in his presence⁸⁸. A witness could be of any age, and was to write his place of residence with his name, though a failure to do so did not affect the will⁸⁹ — a small gift to researchers, since it places the witness.

Two rules kept witnesses disinterested, meaning they had nothing to gain under the will. A gift to a subscribing witness — of land, money, or goods — was void unless two other competent subscribing witnesses signed; and where such a gift failed, a witness who would have taken a share had there been no will still took that share, up to the amount of the gift⁹⁰.

Montana recognized the holographic will, and Montanans used it. A holographic will is one written, dated, and signed entirely in the testator's own hand, and it needs no witnesses⁹¹. The courts read the requirements strictly, especially the complete date, but were generous about form: a letter, if written, dated, and signed throughout in the testator's hand and showing an intention to dispose of property at death, was a valid will⁹². When a Montana estate appears to have passed under a scrap of correspondence, this is why. Montana also allowed an oral will in narrow circumstances, chiefly for a soldier in the field or a person expecting immediate death from an injury received that day⁹³.

No person was competent to serve as executor who at the time the will was admitted to probate was under the age of majority, convicted of an infamous crime, or adjudged incompetent for drunkenness, improvidence, or want of understanding or integrity; the rule is territorial and the 1895 code kept it⁹⁴. Because majority differed by sex, a woman could qualify as executrix at 18 and a man only at 21. Where the sole executor failed to qualify, the court issued letters of administration with the will annexed — that is, it appointed someone else to settle the estate under the terms of the will — so the person who settled the estate is not always the person the will named.

Whether a married woman could serve changed over the period. Territorial law barred it: a married woman was not to be appointed administratrix, and an unmarried woman appointed administratrix lost her authority if she married. By the code in force in the 1930s she could serve as executrix, administratrix, guardian, or trustee without any act or assent from her husband⁹⁵. A change of administrator right after a wedding, in an early file, is often this rule at work.

Taxation

What was taxed

Three taxes on individuals leave usable records. The property tax was assessed by the county on real and personal property and entered on the annual county assessment rolls, which name the taxpayer, describe the property, and place a person in a county in a given year. The poll tax, and its close relative the road-poll tax, were flat charges on the person rather than on property; a capitation tax is the same thing under a Latin name, and a "poll" is the taxable person. An individual income tax arrived in 1933, at rates then running from 1 to 4 percent⁹⁶.

For genealogy the poll tax is the most useful of the three, because it reaches men who owned nothing and so appear on no property roll.

Who was a poll and at what age

The territory's first revenue act, passed at Bannack in 1864–65, laid a poll tax of three dollars on each white male inhabitant over 21 and under 50 not otherwise exempt, for the use of the Territory and county. It was gathered with the other taxes, and the treasurer could seize the personal property of a man who refused or neglected to pay⁹⁷. So a Montana poll list from the first territorial decade is a list of white men of those ages.

The road tax came next and set the figures that governed for most of the period. From the Act of 11 February 1876 each county levied one to two mills on the dollar of taxable property and, on top of that, a special road tax of three dollars on every able-bodied man between 21 and 45 residing in the road district⁹⁸. A man could work the tax off at three dollars a day; one who neither worked nor paid answered before the probate judge or a justice of the peace, with no property exempt from execution⁹⁹. Members of an organized fire company were exempt on producing a certificate that their dues were paid¹⁰⁰.

From 1891 a second and separate exaction ran alongside it: a $2 county poll tax on men between 21 and 60, upheld in 1916 and applied to a single purpose, the care of the county poor. It reached neither paupers, insane persons, Indians not taxed, nor members of the organized militia¹⁰¹. Any one of those exemptions explains a man of taxable age missing from a poll list.

The Political Code of 1895 carried the $3 road tax forward and dropped its upper age limit, so that for two years the county special road tax reached every able-bodied man over 21. An amendment of 1897 restored the upper age limit of 45 and let a man discharge the tax by one day's labor. A separate city and town road poll tax of up to $3 ran alongside it, on men of 21 to 45¹⁰². The act of 1903 replaced the county road tax outside incorporated cities and towns with a $2 tax on men of 21 to 50, payable to the county treasurer or worked off in a day's labor¹⁰³; the act of 1921 amended the county poll tax in place¹⁰⁴.

Two things follow. The tax fell on men: county commissioners were advised that they need not include women within the taxable ages, and poll taxes levied on men alone had been upheld¹⁰⁵. And the county officer who gathered it changed. The assessor took in the poor-fund poll tax under the earlier statute, while by the late 1920s collection was the county treasurer's duty¹⁰⁶, so look in both officers' records.

The tax outlasted 1950. The code in force in the 1930s still let a city or town levy up to $3 a year on every able-bodied male resident between 21 and 45, and let him work it off on the streets¹⁰⁷, while the county poll tax stood in its own chapter, amended as late as 1937¹⁰⁸. So the town figure of 21 to 45 and the county figure of 21 to 60 ran side by side in the same years, one for the roads and one for the poor fund.

Courts

Jury service

The territorial rule states the qualification plainly: every white male person of lawful age who was a citizen of the United States, a taxpayer, and a bona fide resident of the county was competent to serve as a grand or trial juror¹⁰⁹. Names were drawn from the county assessor's books¹¹⁰, which is where the taxpayer qualification comes from and why it outlived the territory.

From 1895 a person was competent to act as juror if he was a male citizen of the United States aged 21 to 70, resident in the state one year and in the county 90 days before being selected, in possession of his natural faculties, of ordinary intelligence and not decrepit, possessed of sufficient knowledge of the English language, and assessed on the last assessment roll of the county on property belonging to him¹¹¹. A man who lacked any of those qualifications, or who had been convicted of malfeasance in office — misconduct in a public post — a felony, or other high crime, was not competent¹¹².

That assessment requirement is the one to notice. A man who owned nothing assessable was not on the roll, and so was not on the jury list, which makes a Montana jury list a rough guide to who held property in the county.

A long list of occupations could claim exemption, among them public officers, attorneys, ministers and priests, editors, teachers, physicians and druggists, mail carriers, telegraph operators, railroad engineers and conductors, National Guardsmen, and a quota of firemen from each company. The territorial list was shorter¹¹³.

Women became eligible for jury service by an act of 1939, taking effect for service from January 1940, with an exemption for a nurse on duty and for a person caring directly for children¹¹⁴. A companion act of 1945 required a separate retiring room where female jurors were kept overnight¹¹⁵. A Montana jury list before 1940 is a list of men.

Witnesses

A witness of any age could testify, if the witness understood what was being asked and could relate it truly. The statute admitted all persons and then excluded a short list: those of unsound mind at the time they were produced for examination, children under ten who appeared incapable of receiving just impressions of the facts they were examined about or of relating them truly, and, in the territorial version, persons convicted of a felony¹¹⁶. So a child of ten or over testified as a matter of course, and a younger child testified once the judge was satisfied the child understood and could tell the truth. A very young child's uncorroborated word carried little weight, but that was a question of weight rather than competency.

The one standing restriction reached spouses rather than age. A husband could not be examined for or against his wife without her consent, nor a wife for or against her husband without his, and neither could be examined during the marriage or afterward about communications made between them, except in a proceeding brought by one against the other¹¹⁷. Women were competent witnesses throughout the period.

People of color as witnesses and jurors

In the territory's first years a Black, Native, or Chinese person could not testify where the parties to the action were white. They could testify against one another: where a party was Native, Black, or Chinese, a witness of the same race could be called against them. The criminal act put it flatly, barring any Black or Native or Chinese person from giving evidence for or against any white person. Both acts defined the classes by fraction of ancestry, reaching a person of one-eighth or more Black ancestry and a person of one-half or more Native or Chinese ancestry. The 1867 session re-enacted the same bar¹¹⁸.

The territorial legislature repealed it in 1871–72, and the repeal is plain on the face of the compilations: the 1879 witness section keeps the other exclusions of the 1867 list and simply drops the racial one¹¹⁹. Montana law drew no racial line on competency to testify afterward.

Jury service took longer. The legislature extended the vote to all male citizens of 21 and over in 1871–72¹²⁰, but the jury statute passed in that same codification kept the word "white," the legislature re-enacted it in that form in 1873, and it was still printed as the territorial qualification in the Revised Statutes of 1879¹⁰⁹. The word is gone from the state qualification adopted in 1895, which reaches any male citizen¹¹¹, and what survived into the state codes as the practical barrier was the taxpayer test.

Criminal responsibility

The territory drew the line at fourteen from the beginning. Under the Criminal Practice Acts of 1864–65 a person was of sound mind, and so answerable, once he had reached fourteen, or before that age if he knew the difference between right and wrong; and a child under fourteen was presumed not to know that difference unless the contrary was clearly shown¹²¹.

The Penal Code of 1895 kept that scheme and added a minimum age beneath it. All persons were capable of committing crimes except, among others, children under the age of seven, who were not capable at all, and children between seven and fourteen, in the absence of clear proof that at the time of the act charged they knew its wrongfulness¹²². At fourteen a young person stood as an adult and was tried and punished as one, and that remained the rule through 1950.

Sources and Where to Verify

Constitutions

• Montana Constitution (current). Justia. https://law.justia.com/constitution/montana/ (accessed 27 July 2026).
• Montana Constitution of 1889, with Ordinance No. 1 (Indian lands). Art. III, § 25 (aliens and mining property); art. VIII (probate jurisdiction in the district courts); art. XVI, § 5 (county treasurer). Digital images. Montana Supreme Court Law Library. https://courts.mt.gov/external/library/docs/1889cons.pdf (accessed 27 July 2026).

Territorial and State Codes and Compilations

• Acts, Resolutions and Memorials, of the Territory of Montana, Passed by the First Legislative Assembly. Virginia City, Mont.: D. W. Tilton & Co., 1866. The Bannack session of December 1864, cited throughout as the Territorial Laws of 1864–65. Conveyances at p. 140; age of majority at p. 329; Civil Practice Act witnesses at pp. 110–11; Criminal Practice Acts at pp. 176 and 178; kidnapping at p. 186; marriage at p. 408; elections at p. 375; poll tax at p. 429, § 61. Digital images. Internet Archive. https://archive.org/details/lawsresolutions05tergoog; also Google Books. https://books.google.com/books?id=rtsgAAAAIAAJ (accessed 27 July 2026).
• General Laws, and Memorials and Resolutions of the Territory of Montana, Passed at the Fourth Session of the Legislative Assembly. Helena, Mont.: State Publishing Co., 1915. An exact reprint of the 1867 original. Jury qualifications at p. 70, § 8; qualification of voters at p. 96, § 1; witnesses at p. 210, § 372. Digital images. HathiTrust. https://babel.hathitrust.org/cgi/pt?id=mdp.35112204567913 (accessed 27 July 2026).
• Laws, Memorials, and Resolutions, of the Territory of Montana, Passed at the Seventh Session of the Legislative Assembly. Deer Lodge, Mont.: "New North West," James H. Mills, Public Printer, 1872. The session began at Virginia City on 4 December 1871 and closed on 12 January 1872, which is the date carried by the derivation notes in later compilations. The codification of 1871–72, cited above in short form as the Codification of 1871–72: the Civil Practice Act (witnesses, §§ 443–453, at p. 125), the criminal laws (§§ 48–53), the Probate Practice Act (widow's allowance § 102, dower assigned § 244, descent § 252), the elections chapter (p. 460), the jury act (pp. 505–506), and the conveyancing provision excusing a non-resident wife (p. 404, § 52). Digital images. Internet Archive. https://archive.org/details/lawsmemorialsres00unse (accessed 27 July 2026).
• Other territorial session volumes, cited above by session and page, are digitized at HathiTrust. Second session 1866, https://babel.hathitrust.org/cgi/pt?id=mdp.35112203963774; third session 1866, https://babel.hathitrust.org/cgi/pt?id=uc1.a0005193230; fourth session 1867, https://babel.hathitrust.org/cgi/pt?id=mdp.35112204567913; seventh session 1871–72, https://babel.hathitrust.org/cgi/pt?id=uc1.a0005193248; ninth session 1876, in which dower was re-enacted, https://babel.hathitrust.org/cgi/pt?id=uc1.a0005193271; first session 1864–65, https://babel.hathitrust.org/cgi/pt?id=uc1.a0005193214 (accessed 27 July 2026).
• The Revised Statutes of the Territory of Montana. [Helena, Mont.]: Helena Independent, 1879. The essential territorial volume: common law adopted at 5th Division, § 144; conveyances at §§ 178–181; wills at §§ 432–473; succession at §§ 534–537; witnesses at §§ 628–629; lawful age at § 700; jurors at §§ 780–783; marriage at §§ 854–865; married women and sole traders at §§ 866–870; road tax at §§ 1070–1080; family allowance and homestead at §§ 133–139 and 311–319; Probate Practice Act at §§ 44–60 and 401–430. The volume carries no section defining dower, which is the evidence for the compilation history stated above. Digital images. Internet Archive. https://archive.org/details/revisedstatuteso00unse (accessed 27 July 2026).
• Compiled Statutes of Montana. Helena, Mont.: Journal Publishing Co., 1887. Marriage at 5th Division, § 1411; the absent wife at 5th Division, § 287. Reprints in its front matter the sections of the Edmunds–Tucker Act, including the dower provision, then in force in the territory. Digital images. Internet Archive. https://archive.org/details/compiledstatutes00unse (accessed 27 July 2026).
• The Complete Codes and Statutes of the State of Montana in Force July 1, 1895. Helena, Mont.: W. F. Sanders, 1895. The central volume for this guide: Civil Code (minors and majority, §§ 10–25; marriage, §§ 50–58 and 70–73; husband and wife and dower, §§ 210–257; guardian and minor, §§ 350–351; transfers of real property, §§ 1500–1504; acknowledgments, §§ 1606–1612; recording, §§ 1640–1644; wills, §§ 1720–1737; succession, §§ 1850–1871); Code of Civil Procedure (jurors, §§ 230–234; executors, § 2401; proof of holographic wills, § 2331; guardians of minors, §§ 2950–2960; witnesses, §§ 3162–3163); Political Code (county road tax, §§ 2640, 2680–2684; National Guard exemption, § 2104; city and town road poll tax, §§ 4875–4879); Penal Code (capacity to commit crime, § 30). Digital images. Internet Archive. https://archive.org/details/completecodessta00unse (accessed 27 July 2026).
• Laws, Resolutions and Memorials of the State of Montana, Passed at the Second Regular Session of the Legislative Assembly. Helena, Mont.: Journal Publishing Co., Public Printers and Binders, 1891. The poll tax at §§ 163–169. Digital images. Internet Archive. https://archive.org/details/lawsresolutions04montgoog (accessed 27 July 2026).
• Laws, Resolutions and Memorials of the State of Montana, Passed at the Fifth Regular Session of the Legislative Assembly. Helena, Mont.: State Publishing Company, 1897. House Bill 280, p. 176 (road taxes, Political Code §§ 2640, 2642, 2643, 2680); House Bill 203, p. 203 (§ 4800, powers of cities and towns). Digital images. Internet Archive. https://archive.org/details/lawsresolutions03montgoog (accessed 27 July 2026).
• The Revised Codes of Montana of 1907. 2 vols. Helena, Mont.: State Publishing Co., 1907. Road taxes at §§ 1341–1355, the poll tax at §§ 2692–2714, and the city and town road poll tax at §§ 3361–3365 in vol. 1; dower at § 3708, renunciation at §§ 3714–3715, and curtesy disallowed at § 3737 in vol. 2. Digital images. Internet Archive. Vol. 1, https://archive.org/details/revisedcodesofmo01unse; vol. 2, https://archive.org/details/revisedcodesofmo02unse (accessed 27 July 2026).
• The Revised Codes of Montana of 1921. San Francisco: Bancroft-Whitney Company, 1921. The poll tax at § 4465, in vol. 2. Digital images. Internet Archive. https://archive.org/details/revisedcodesofmo02unse_0 (accessed 27 July 2026).
• The Revised Codes of Montana of 1935. 5 vols. Helena, Mont.: State Publishing Co.; Great Falls, Mont.: Tribune Printing and Supply Co., 1935. The code in force for the last decades covered here. Vol. 1: the county poll tax at §§ 2238–2252.2 and the income tax at § 2295.2. Vol. 2: minors at §§ 5673–5681; marriage at §§ 5695–5730; married women's property at §§ 5786–5811; dower at §§ 5813–5829; guardians at §§ 5873–5874; the city and town poll tax at § 5039.48; conveyances at § 6834; the alien land law at §§ 6802.1–6802.8. Vol. 3: homestead at §§ 6969–6975 and succession at §§ 7071–7082. Vol. 4: provision for the family at §§ 10144–10150, administration at §§ 10059–10073, guardians at § 10405, and witnesses at § 10536. Vol. 5: the paternity proceeding at § 12273. Digital images. Internet Archive. Vol. 1, https://archive.org/details/revisedcodesofmo01unse_1; vol. 2, https://archive.org/details/revisedcodesofmo02unse_1; vol. 3, https://archive.org/details/revisedcodesofmo03unse_0; vol. 4, https://archive.org/details/revisedcodesofmo04unse_0; vol. 5, https://archive.org/details/revisedcodesofmo05unse (accessed 27 July 2026).
• Revised Codes of Montana, 1947, Annotated. Indianapolis, Ind.: A. Smith Co., 1947. Wills at 91-101 and 91-108; succession at 91-403; the alien land law at 67-1001 to 67-1008; the interracial marriage sections at 48-106 to 48-110. The volume digitized is the 1953 replacement of vol. 3. Digital images. Internet Archive. https://archive.org/details/revisedcodesofmo3195unse (accessed 27 July 2026).
• Revised Codes of Montana, 1947, Annotated. 1953–1955 supplement. Indianapolis, Ind.: A. Smith Co., 1953. The compiler's note at §§ 48-106 to 48-110 gives both the 1909 enacting chapter for the interracial-marriage ban and the 1953 repeal. Digital images. Internet Archive. https://archive.org/details/19531955rcmsupplunse (accessed 27 July 2026).
• Montana Code Annotated. Each section printed with its full citation chain, which is the fastest route backward. Montana Legislative Services. https://mca.legmt.gov (accessed 27 July 2026). See 1-1-108 (common law as the rule of decision), 41-1-101 (majority), 72-2-521 (age to make a will), and 72-2-122 (dower and curtesy abolished, 1974).
• "Historic Montana Statutory Law." The Advancing Genealogist. Links to every Montana territorial and state session-law volume and code, 1864–1959, including the Bannack statutes of 1864–65 and the codification of 1871–72. https://advancinggenealogist.com/historic-montana-statutory-law/ (accessed 27 July 2026).

Session Laws and Federal Statutes

• Organic Act of the Territory of Montana. Act of 26 May 1864, 13 Stat. 85. Montana Legislative Services. https://archive.legmt.gov/content/Laws%20and%20Constitution/MCA%20Supplements/organic_act_of_the_territory_of_montana.pdf (accessed 27 July 2026).
• Edmunds–Tucker Act. Act of 3 March 1887, ch. 397, 24 Stat. 635. Section 18 established dower in every United States territory. Transcription. B. H. Roberts Foundation. https://bhroberts.org/records/0O4NVz-S7u6yb/full_text_of_the_1887_edmunds_tucker_act (accessed 27 July 2026). The dower section is also reprinted in the Compiled Statutes of Montana (1887) listed above.
• Enabling Act. Act of 22 February 1889, 25 Stat. 676. FindLaw. https://codes.findlaw.com/mt/the-enabling-act/mt-st-enabling-act-1889/ (accessed 27 July 2026).
• Other acts cited above by chapter and page: Laws of 1866, ch. 36, p. 38 (dower); Laws of 1876, p. 63 (dower re-enacted) and the Act of 11 February 1876 (road tax); the Act of 7 May 1873 (jurors); Laws of 1903, ch. 44 (county road tax); Laws of 1909, ch. 49 (interracial marriage); Laws of 1921, ch. 261 (poll tax); Laws of 1923, ch. 58 (alien land law); Laws of 1933, ch. 181 (income tax); Laws of 1937, p. 518 (homestead value) and ch. 47 (poll tax); Laws of 1939, ch. 203, p. 508 (women on juries); Laws of 1941, ch. 57 (small estates) and ch. 140 (succession); Laws of 1945, ch. 29, p. 38 (jury rooms); Laws of 1953, ch. 4 (repeal); Laws of 1971, ch. 240 (majority); and Laws of 1974, ch. 365 (Uniform Probate Code). The state session volumes are reachable through the Advancing Genealogist page above and through HeinOnline; for finding them, see the Georgetown Law Library guide, https://guides.ll.georgetown.edu/c.php?g=275853&p=1839185 (accessed 27 July 2026).

Attorney General Opinions

• Montana. Attorney General. Opinion of 1 June 1906 (road tax, $3 per capita on able-bodied males 21 to 45). https://courts.mt.gov/Portals/189/ag-opinions/01/346.pdf (accessed 27 July 2026).
• Montana. Attorney General. Opinion of 24 September 1909 (road and poll tax, $2 on male residents 21 to 45, collected by the county treasurer). https://courts.mt.gov/external/ag-opinions/03/198.pdf (accessed 27 July 2026).
• Montana. Attorney General. Opinion of 29 December 1914 (marriage by tribal custom where the tribal relation is unsevered). Opinions of the Attorney General, vol. 6, p. 18. https://courts.mt.gov/external/ag-opinions/06/18.pdf (accessed 27 July 2026).
• Montana. Attorney General. Opinion of 15 December 1915 (widow's dower under the Revised Codes of 1907, § 3708, and renunciation under §§ 3714–3715). https://courts.mt.gov/external/ag-opinions/06/293.pdf (accessed 27 July 2026).
• Montana. Attorney General. Opinion construing the poll tax under the Revised Codes of 1921, § 4465, and ch. 261, Laws of 1921 (males over 21 and under 60; counties need not include women). Opinions of the Attorney General, vol. 9, p. 445. https://courts.mt.gov/Portals/189/ag-opinions/09/445.pdf (accessed 27 July 2026).
• Montana. Attorney General. Opinion of 3 February 1928 (alien land law, ch. 58, Laws of 1923; land acquired before the act not forfeited). https://courts.mt.gov/external/ag-opinions/12/212.pdf (accessed 27 July 2026).
• Montana. Attorney General. Opinion of 8 July 1929 (collection of the poll tax is the county treasurer's duty). https://courts.mt.gov/Portals/189/ag-opinions/13/140.pdf (accessed 27 July 2026).

Court Cases

• Conley v. Conley. 92 Mont. 425 (1932). Digital images. Caselaw Access Project. https://static.case.law/mont/92/html/0425-01.html (accessed 27 July 2026).
• Dahlman v. Dahlman. 28 Mont. 373 (1903). Digital images. Caselaw Access Project. https://static.case.law/mont/28/html/0373-01.html (accessed 27 July 2026).
• Elliott v. Industrial Accident Board. 101 Mont. 246 (1936). Digital images. Caselaw Access Project. https://static.case.law/mont/101/html/0246-01.html (accessed 27 July 2026).
• Hannon v. Hannon. 46 Mont. 253 (1912). Digital images. Caselaw Access Project. https://static.case.law/mont/46/html/0253-01.html (accessed 27 July 2026).
• In re Mahaffay's Estate. 79 Mont. 10 (1927). Digital images. Caselaw Access Project. https://static.case.law/mont/79/html/0010-01.html (accessed 27 July 2026).
• In re Noyes' Estate. 40 Mont. 190 and 40 Mont. 231 (1909). Digital images. Caselaw Access Project. https://static.case.law/mont/40/html/0190-01.html (accessed 27 July 2026).
• In re Takahashi's Estate. 113 Mont. 490 (1942). Digital images. Caselaw Access Project. https://static.case.law/mont/113/html/0490-01.html (accessed 27 July 2026).
• In re Van Voast's Estate. 266 P.2d 377 (Mont. 1953). Justia. https://law.justia.com/cases/montana/supreme-court/1953/266-p-2d-377.html (accessed 27 July 2026).
• Kerlee v. Smith. 46 Mont. 19 (1912). Digital images. Caselaw Access Project. https://static.case.law/mont/46/html/0019-01.html (accessed 27 July 2026).
• Koopman v. Mansolf. 51 Mont. 48 (1915). Digital images. Caselaw Access Project. https://static.case.law/mont/51/html/0048-01.html (accessed 27 July 2026).
• Mennell v. Wells. 51 Mont. 141 (1915). Digital images. Caselaw Access Project. https://static.case.law/mont/51/html/0141-01.html (accessed 27 July 2026).
• Pohl v. Chicago, Milwaukee & St. P. Ry. Co. 52 Mont. 572, 160 P. 515 (1916). Digital images. Caselaw Access Project. https://static.case.law/mont/52/html/0572-01.html (accessed 27 July 2026).
• State v. Dietz. 343 P.2d 539 (Mont. 1959). Justia. https://law.justia.com/cases/montana/supreme-court/1959/343-p-2d-539.html (accessed 27 July 2026).
• State v. Oakland. 287 P.2d 39 (Mont. 1955). Justia. https://law.justia.com/cases/montana/supreme-court/1955/287-p-2d-39.html (accessed 27 July 2026).
• Trogdon v. Hanson Sheep Co. 49 Mont. 1 (1914). Digital images. Caselaw Access Project. https://static.case.law/mont/49/html/0001-01.html (accessed 27 July 2026).

Secondary and Reference Works

• Best, Jacque W. "Holographic Wills in Montana — Problems in Probate." Montana Law Review 24, no. 2 (1962–63). https://scholarworks.umt.edu/cgi/viewcontent.cgi?article=1073&context=mlr (accessed 27 July 2026).
• Caselaw Access Project. Every volume of the Montana Reports in scanned page images, full text, and per-case reading copies. Volume 52, containing Pohl, is at https://static.case.law/mont/52.pdf; the volume list is at https://static.case.law/mont/VolumesMetadata.json (accessed 27 July 2026).
• Eruteya, Glenda Rose Spearman. "Racial Legislation in Montana: 1864–1955." M.A. thesis, University of Montana, 1981. ScholarWorks at the University of Montana. https://scholarworks.umt.edu/cgi/viewcontent.cgi?article=9660&context=etd (accessed 27 July 2026).
• Library of Congress. Montana: Local History & Genealogy Resource Guide. "Courthouse Records" and "Vital Records," giving the custodian of each county series. https://guides.loc.gov/montana-local-history-genealogy/courthouse-records (accessed 27 July 2026).
• Montana Historical Society. "Property Research Guide." Montana History Compass. The record guide relied on above for the custody of deeds, mortgage and tax records (county clerk and recorder, county treasurer) and of probate records and wills (clerk of the district court in each county), with the Society's own microfilm holdings listed county by county. https://mths.mt.gov/Research/Compass/Guides/Property; other guides at https://mths.mt.gov/Research/Compass/Guides/index (accessed 27 July 2026).
• Montana Historical Society. "Racial Legislation in Montana that Affected African Americans in Particular." Session-law page and section references for the territorial suffrage, poll tax, witness, and jury provisions, the act of 1909, and the repeal of 1953. https://mhs.mt.gov/Shpo/AfricanAmericans/AfAm_docs/Laws/RacialLegislationMT.pdf (accessed 27 July 2026).
• Montana Supreme Court. Montana Judicial Branch. "Supreme Court History." The Organic Act's courts and the 1889 transfer of probate to the district courts. https://courts.mt.gov/courts/supreme/about/history (accessed 27 July 2026).
• Morriss, Andrew P., Scott J. Burnham, and James C. Nelson. "Debating the Field Civil Code 105 Years Late." Montana Law Review 61 (2000): 371. https://scholarship.law.tamu.edu/cgi/viewcontent.cgi?article=1171&context=facscholar (accessed 27 July 2026).
• U.S. Department of Labor. Women's Bureau. The Legal Status of Women in the United States of America: Report for Montana. Bulletin 157-25 (revised); the law stated as of 1 January 1948. Precise section citations to the Revised Codes of 1935 and the session laws of 1937–1947, cross-checked against those volumes for this guide. Digital images. FRASER, Federal Reserve Bank of St. Louis. https://fraser.stlouisfed.org/files/docs/publications/women/b0157-25-rev_dolwb_1949.pdf (accessed 27 July 2026).
• Whelan, Robert K. A Guide to Montana Legal Research. Describes each Montana code and revision and what it contains. https://courts.mt.gov/External/library/guides/guide.pdf (accessed 27 July 2026).
• "Women and Jury Service — 1939." Montana's Early Women Lawyers. https://mtwomenlawyers.org/mt-milestones/women-and-jury-service/ (accessed 27 July 2026).

Citations

1. State v. Dietz, 343 P.2d 539, 541 (Mont. 1959), dating the territorial adoption to 11 January 1865; Justia (https://law.justia.com/cases/montana/supreme-court/1959/343-p-2d-539.html : accessed 27 July 2026) ↩
2. The Revised Statutes of the Territory of Montana ([Helena, Mont.]: Helena Independent, 1879), 5th Division, § 144, receiving the common law of England as the rule of decision; digital images, Internet Archive (https://archive.org/details/revisedstatuteso00unse : accessed 27 July 2026). Cited hereafter as Revised Statutes of 1879. The compilers trace the rule to the territorial laws of 1864–65, p. 356, and carry it through the Compiled Statutes of 1887, 5th Division, § 201, the Political Code of 1895, § 5152, and the Revised Codes of 1907, § 3552, to the Revised Codes of 1935, § 5672, now MCA 1-1-108 ↩
3. The Revised Codes of Montana of 1935, 5 vols. (Helena, Mont.: State Publishing Co.; Great Falls, Mont.: Tribune Printing and Supply Co., 1935), vol. 2, § 5792, a married woman's property her own, to be disposed of without her husband's consent; digital images, Internet Archive (https://archive.org/details/revisedcodesofmo02unse_1 : accessed 27 July 2026). Cited hereafter as Revised Codes of 1935. The territorial rule is at Revised Statutes of 1879, § 866, from the Act of 12 January 1872 ↩ ↩
4. Organic Act of the Territory of Montana, Act of 26 May 1864, 13 Stat. 85; Montana Legislative Services (https://archive.legmt.gov/content/Laws%20and%20Constitution/MCA%20Supplements/organic_act_of_the_territory_of_montana.pdf : accessed 27 July 2026) ↩
5. Organic Act, § 9 ↩
6. Montana Constitution of 1889, art. VIII, abolishing the probate courts and vesting probate jurisdiction in the district courts; Montana Supreme Court Law Library (https://courts.mt.gov/external/library/docs/1889cons.pdf : accessed 27 July 2026) ↩
7. Organic Act, § 6, proviso, reciting the congressional prohibition of slavery in the territories by the act of 19 June 1862 ↩
8. Acts, Resolutions and Memorials, of the Territory of Montana, Passed by the First Legislative Assembly (Virginia City, Mont.: D. W. Tilton & Co., 1866), p. 186, Criminal Practice Acts, §§ 50–51, making it kidnapping to carry a person of color or a Native person out of the territory for the taker's own use; digital images, Internet Archive (https://archive.org/details/lawsresolutions05tergoog : accessed 27 July 2026). Cited hereafter as Territorial Laws of 1864–65. The sections are reprinted in the same numbering at Laws, Memorials, and Resolutions, of the Territory of Montana, Passed at the Seventh Session of the Legislative Assembly (Deer Lodge, Mont.: James H. Mills, Public Printer, 1872), the codification of 1871–72 ↩
9. The Complete Codes and Statutes of the State of Montana in Force July 1, 1895 (Helena, Mont.: W. F. Sanders, 1895), in force from 1 July 1895; digital images, Internet Archive (https://archive.org/details/completecodessta00unse : accessed 27 July 2026). Cited hereafter as Codes of 1895 ↩
10. Andrew P. Morriss, Scott J. Burnham, and James C. Nelson, "Debating the Field Civil Code 105 Years Late," Montana Law Review 61 (2000): 371 ↩
11. Territorial Laws of 1864–65, p. 329, "An Act fixing the age of majority," § 1, approved 26 December 1864: all male persons of the age of twenty-one years and all females of the age of eighteen years, under no legal disability, capable of entering into any contract and held to be of lawful age. Reprinted word for word at Revised Statutes of 1879, ch. XXIX, "Infants and Lawful Age," § 700; restated at Codes of 1895, Civil Code, §§ 10–12, then Revised Codes of 1907, §§ 3584, 3586, and Revised Codes of 1935, vol. 2, § 5673; made 18 for both sexes by ch. 240, Laws of 1971, now MCA 41-1-101 ↩
12. Codes of 1895, Civil Code, § 19; carried to Revised Codes of 1935, vol. 2, § 5681 ↩
13. Codes of 1895, Civil Code, §§ 17–18: a minor may make a conveyance or other contract in the same manner as any other person, subject only to his power of disaffirmance, which he may exercise before majority or within a reasonable time afterwards; carried to Revised Codes of 1935, vol. 2, §§ 5678–5679 ↩ ↩
14. Codes of 1895, Civil Code, § 16, a minor cannot give a delegation of power; for a married woman under 18, Revised Codes of 1935, vol. 2, § 6801 ↩
15. Territorial Laws of 1864–65, p. 408, "An Act to authorize certain persons to solemnize Marriage," § 1: marriage, as far as its validity is concerned, is a civil contract to which the consent of the parties capable in law of contracting is essential, and the parties shall be of the age of majority. The same words are carried forward in the Codification of 1871–72, p. 520, § 1, and at Revised Statutes of 1879, ch. XLIII, "Marriage," 5th Division, § 854, where they are noted to the Act of 12 January 1872, and again at Compiled Statutes of 1887, 5th Division, § 1411 ↩
16. Territorial Laws of 1864–65, p. 408, § 2; restated at Revised Statutes of 1879, § 855, barring marriage while either party has a husband or wife living, and between parties nearer of kin than second cousins by the rules of the civil law, whether of the half or the whole blood ↩
17. Territorial Laws of 1864–65, p. 408, §§ 3–6; restated at Revised Statutes of 1879, §§ 856–859: who may solemnize, and the certificate to be delivered to the county recorder within three months and entered by him in a book kept for the purpose ↩
18. Codes of 1895, Civil Code, § 51, headed "Minors capable of contracting marriage"; carried through the Revised Codes of 1907, 1921, and 1935 as Revised Codes of 1935, vol. 2, § 5696 ↩
19. Codes of 1895, Civil Code, § 54; carried to Revised Codes of 1935, vol. 2, § 5699 ↩ ↩
20. Codes of 1895, Civil Code, § 73; carried to Revised Codes of 1935, vol. 2, § 5712. The application recorded by the clerk under § 74 names the parents of both parties, including the mother's maiden name ↩
21. Revised Codes of 1935, vol. 2, § 5729; and see §§ 5728, 5730 on actions to declare a marriage void and the time for bringing them ↩
22. Codes of 1895, Civil Code, § 50; carried to Revised Codes of 1935, vol. 2, § 5695 ↩
23. Codes of 1895, Civil Code, § 70; carried to Revised Codes of 1935, vol. 2, § 5709 ↩
24. Elliott v. Industrial Accident Board, 101 Mont. 246, 254 (1936); digital images, Caselaw Access Project (https://static.case.law/mont/101/html/0246-01.html : accessed 27 July 2026) ↩
25. Codes of 1895, Civil Code, §§ 71–72, the declaration of marriage and the action to have a marriage declared valid; carried to Revised Codes of 1935, vol. 2, §§ 5710–5711 ↩
26. Codes of 1895, Civil Code, § 55; carried to Revised Codes of 1935, vol. 2, § 5705 ↩
27. Codes of 1895, Civil Code, § 57; carried to Revised Codes of 1935, vol. 2, § 5707 ↩
28. Revised Codes of 1935, vol. 2, § 5703 ↩
29. Ch. 49, Laws of 1909, §§ 1–5. The chapter number is taken from the history lines printed under Revised Codes of 1935, vol. 2, §§ 5700–5702, each of which reads "En. Sec. 1 [2, 3], Ch. 49, L. 1909," and from the compiler's note to Revised Codes of Montana, 1947, Annotated, 1953–1955 supplement (Indianapolis, Ind.: A. Smith Co., 1953), §§ 48-106 to 48-110; digital images, Internet Archive (https://archive.org/details/19531955rcmsupplunse : accessed 27 July 2026) ↩
30. Revised Codes of 1935, vol. 2, §§ 5700, 5701, 5702, with § 5703 on such marriages contracted outside the state and § 5704 on the penalty for solemnizing one ↩
31. In re Takahashi's Estate, 113 Mont. 490 (1942); digital images, Caselaw Access Project (https://static.case.law/mont/113/html/0490-01.html : accessed 27 July 2026) ↩
32. Sec. 1, ch. 4, Laws of 1953, effective 2 February 1953, repealing §§ 48-106 to 48-110 of the Revised Codes of 1947; compiler's note, Revised Codes of Montana, 1947, Annotated, 1953–1955 supplement ↩
33. Codes of 1895, Civil Code, § 1853, which also provides that the issue of all marriages null in law, or dissolved by divorce, are legitimate; the rule is territorial, Revised Statutes of 1879, § 536 ↩ ↩
34. Montana Attorney General, opinion of 29 December 1914, Opinions of the Attorney General, vol. 6, p. 18, advising the superintendent of the Tongue River Agency that where tribal relations had not been severed the customs of the tribe governed marriage, and that a marriage so made was to be recognized even though it would not satisfy the state statute (https://courts.mt.gov/external/ag-opinions/06/18.pdf : accessed 27 July 2026) ↩
35. Territorial Laws of 1864–65, p. 140, conveyances act, § 1, land conveyed by deed signed by the person from whom the interest passes, "being of lawful age," or by a lawful agent, and acknowledged or proved and recorded; restated at Revised Statutes of 1879, § 178 ↩ ↩
36. Montana Constitution of 1889, art. III, § 25, giving aliens and denizens the same right as citizens to acquire, hold, convey, and inherit mines, mining property, and the real property connected with the business of mining; Montana Supreme Court Law Library (https://courts.mt.gov/external/library/docs/1889cons.pdf : accessed 27 July 2026) ↩
37. Revised Codes of 1935, vol. 2, § 5786; Koopman v. Mansolf, 51 Mont. 48, 55 (1915); digital images, Caselaw Access Project (https://static.case.law/mont/51/html/0048-01.html : accessed 27 July 2026) ↩
38. Revised Codes of 1935, vol. 2, § 5811; for marriage settlements, §§ 5804–5806, from §§ 248–250 of the Civil Code of 1895 ↩
39. Revised Codes of 1935, vol. 2, §§ 5793, 5794, 5799; the territorial requirement that the property be listed on record with the register of deeds is at Revised Statutes of 1879, § 866 ↩
40. Revised Codes of 1935, vol. 2, §§ 5795, 5797; Conley v. Conley, 92 Mont. 425 (1932); digital images, Caselaw Access Project (https://static.case.law/mont/92/html/0425-01.html : accessed 27 July 2026) ↩
41. Revised Codes of 1935, vol. 2, § 5796 ↩
42. Revised Codes of 1935, vol. 2, §§ 5791, 5809; Trogdon v. Hanson Sheep Co., 49 Mont. 1, 6 (1914); digital images, Caselaw Access Project (https://static.case.law/mont/49/html/0001-01.html : accessed 27 July 2026) ↩
43. Revised Statutes of 1879, §§ 867–870, married women as sole traders: the declaration to be acknowledged and recorded, with the rights and liabilities following from that record ↩
44. The history line printed at Revised Codes of 1935, vol. 2, § 5813 gives the sequence: enacted by ch. 36, p. 38 and following, Laws of 1866, approved 21 March 1866; that act set aside by act of Congress of 2 March 1867; enacted again as § 1, p. 63, Laws of 1876; omitted from the Revised Statutes of 1879 and the Compiled Statutes of 1887; re-enacted as § 228 of the Civil Code of 1895 ↩
45. Laws, Memorials, and Resolutions, of the Territory of Montana, Passed at the Seventh Session of the Legislative Assembly (Deer Lodge, Mont.: James H. Mills, Public Printer, 1872), Probate Practice Act, § 244 (until the widow's dower be assigned, the court to order sums paid to her out of the rent of the real estate in proportion to her interest), § 252 (descent subject to the payment of debts and the widow's dower), and § 102 (the widow's allowance, "in addition to dower"); digital images, Internet Archive (https://archive.org/details/lawsmemorialsres00unse : accessed 27 July 2026). Cited hereafter as Codification of 1871–72. The word survives in the Revised Statutes of 1879 at § 770, joint tenants' property being subject to debts and dower, although that volume carries no section defining dower ↩
46. Edmunds–Tucker Act, Act of 3 March 1887, ch. 397, § 18, 24 Stat. 635, establishing dower in every United States territory, reprinted among the federal statutes in Compiled Statutes of Montana (Helena, Mont.: Journal Publishing Co., 1887); digital images, Internet Archive (https://archive.org/details/compiledstatutes00unse : accessed 27 July 2026) ↩
47. Codes of 1895, Civil Code, § 228 ↩ ↩
48. The Revised Codes of Montana of 1907, 2 vols. (Helena, Mont.: State Publishing Co., 1907), vol. 2, § 3708; digital images, Internet Archive (https://archive.org/details/revisedcodesofmo02unse : accessed 27 July 2026). Cited hereafter as Revised Codes of 1907. The same wording is repeated at Revised Codes of 1935, vol. 2, § 5813, the dower chapter running to § 5829 ↩
49. MCA 72-2-122, enacted by ch. 365, Laws of 1974; Montana Legislative Services (https://mca.legmt.gov : accessed 27 July 2026) ↩
50. Codes of 1895, Civil Code, § 257, no estate allowed the husband as tenant by courtesy upon the death of his wife; carried to Revised Codes of 1907, vol. 2, § 3737, and Revised Codes of 1935, vol. 2, § 5812 ↩
51. Codes of 1895, Civil Code, § 238 ↩
52. Codes of 1895, Civil Code, § 233, carried to Revised Codes of 1935, vol. 2, § 5818, headed "Absent wife need not sign deed," which reaches a married man whose wife has never been in the state or territory of Montana. The territorial rule is wider: Compiled Statutes of 1887, 5th Division, § 287, marginal heading "Absent wife need not sign," lets any citizen conveying property in the territory who has a wife living in another state or territory convey the full title by his own signature, the want of her signature not invalidating the conveyance; noted there to the Act of 12 January 1872, printed at Codification of 1871–72, p. 404, § 52, and carried in the Revised Statutes of 1879 conveyances chapter under the heading "When wife lives out of territory she need not sign deed" ↩
53. Codes of 1895, Civil Code, § 236, carried to Revised Codes of 1935, vol. 2, § 5821, headed "Rights of widow when no issue"; Dahlman v. Dahlman, 28 Mont. 373, 378 (1903); digital images, Caselaw Access Project (https://static.case.law/mont/28/html/0373-01.html : accessed 27 July 2026) ↩
54. Codes of 1895, Civil Code, §§ 234–235, with the statutory form of renunciation at § 235; carried to Revised Codes of 1935, vol. 2, §§ 5819–5820 ↩
55. Revised Codes of 1935, vol. 3, § 6975; In re Mahaffay's Estate, 79 Mont. 10, 22 (1927); digital images, Caselaw Access Project (https://static.case.law/mont/79/html/0010-01.html : accessed 27 July 2026) ↩
56. Revised Codes of 1935, vol. 3, §§ 6970, 6971 ↩
57. Revised Codes of 1935, vol. 3, § 6969; Mennell v. Wells, 51 Mont. 141, 148 (1915); digital images, Caselaw Access Project (https://static.case.law/mont/51/html/0141-01.html : accessed 27 July 2026) ↩
58. Laws of 1937, p. 518 ↩
59. Revised Codes of 1935, vol. 3, § 6973 ↩
60. Codes of 1895, Civil Code, § 1500, an estate in real property transferable only by operation of law or by an instrument in writing subscribed by the party disposing of it or by his agent authorized in writing; carried to Revised Codes of 1935, vol. 2, § 6834 ↩
61. Codes of 1895, Civil Code, §§ 1640, 1641, 1644 ↩
62. Codes of 1895, Civil Code, §§ 1606, 1607, 1611, and see §§ 1502–1503, which require a married woman's grant and her power of attorney to be acknowledged in that same manner; the territorial rule is at Territorial Laws of 1864–65, p. 140, conveyances act, § 2, and Revised Statutes of 1879, § 179, a husband and wife conveying the wife's land by joint deed in the same manner as she might by her separate deed if unmarried ↩
63. Enabling Act, Act of 22 February 1889, 25 Stat. 676; FindLaw (https://codes.findlaw.com/mt/the-enabling-act/mt-st-enabling-act-1889/ : accessed 27 July 2026); and Ordinance No. 1 appended to the Montana Constitution of 1889 ↩
64. Ch. 58, Laws of 1923, as carried into Revised Codes of 1935, vol. 2, ch. 64, "Alien Land Law," §§ 6802.1–6802.8, whose history line reads "En. Sec. 1, Ch. 58, L. 1923." Section 6802.1 defines an alien as one neither eligible to citizenship nor having declared in good faith an intention to become a citizen, and excludes title taken by inheritance, in good faith under a mortgage or in the collection of debts, or by a female citizen afterwards expatriated by marriage to an alien; § 6802.2 provides that an alien shall not own land or take or hold title to it, and that no person shall hold land or title for an alien; §§ 6802.3–6802.8 reach aliens as trustee, executor, administrator or guardian, forfeiture, mortgages, penalties, and the disposal of forfeited land. The act is described in the Montana Attorney General's opinion of 3 February 1928 (https://courts.mt.gov/external/ag-opinions/12/212.pdf : accessed 27 July 2026); codified as Revised Codes of 1947, §§ 67-1001 to 67-1008, and held unconstitutional, as contrary to the equal protection clause of the Fourteenth Amendment, in State v. Oakland, 287 P.2d 39, 42 (Mont. 1955); Justia (https://law.justia.com/cases/montana/supreme-court/1955/287-p-2d-39.html : accessed 27 July 2026) ↩
65. Codes of 1895, Civil Code, § 1852, the five subdivisions summarized in the table; the scheme is territorial in origin, Revised Statutes of 1879, § 534, and Codification of 1871–72, Probate Practice Act, § 252; carried to Revised Codes of 1935, vol. 3, § 7073, headed "Succession to and distribution of property," then Revised Codes of 1947, 91-403; repealed on the adoption of the Uniform Probate Code by ch. 365, Laws of 1974 ↩
66. Codes of 1895, Civil Code, §§ 1869–1870 ↩
67. Codes of 1895, Civil Code, § 1852, subdivision 4: if the decedent leave a surviving husband or wife, and neither issue, father, mother, brother, nor sister, the whole estate goes to the surviving husband or wife; carried to Revised Codes of 1935, vol. 3, § 7073, subdivision 4 ↩
68. Ch. 140, Laws of 1941, amending Revised Codes of 1935, vol. 3, § 7073 ↩
69. Hannon v. Hannon, 46 Mont. 253, 262 (1912), holding that the widow's right under the succession statute does not affect her dower and that the two exist independently; digital images, Caselaw Access Project (https://static.case.law/mont/46/html/0253-01.html : accessed 27 July 2026) ↩
70. Revised Codes of 1935, vol. 4, § 10144; the rule descends from Revised Statutes of 1879, § 133, and Codification of 1871–72, Probate Practice Act, § 102 ↩
71. Revised Codes of 1935, vol. 4, §§ 10145–10146 ↩
72. Revised Codes of 1935, vol. 4, § 10148; the rule descends from Revised Statutes of 1879, § 137; Kerlee v. Smith, 46 Mont. 19, 22 (1912); digital images, Caselaw Access Project (https://static.case.law/mont/46/html/0019-01.html : accessed 27 July 2026) ↩
73. Revised Codes of 1935, vol. 4, § 10149, as amended by ch. 57, Laws of 1941; the rule descends from Revised Statutes of 1879, § 138 ↩
74. Codes of 1895, Code of Civil Procedure, § 2950; the territorial rule is at Revised Statutes of 1879, Probate Practice Act, §§ 401 and following ↩
75. Codes of 1895, Code of Civil Procedure, § 2954; carried to Revised Codes of 1935, vol. 4, § 10405 ↩
76. Revised Codes of 1935, vol. 2, § 5874 ↩
77. Codes of 1895, Code of Civil Procedure, § 2951 ↩
78. Codes of 1895, Code of Civil Procedure, § 2953 ↩
79. Codes of 1895, Code of Civil Procedure, § 2952 ↩
80. Revised Codes of 1935, vol. 2, § 5873 ↩
81. Codes of 1895, Code of Civil Procedure, § 2957 ↩
82. Codes of 1895, Code of Civil Procedure, § 2956; the territorial rule is at Revised Statutes of 1879, §§ 401, 427–428, the marriage of a minor terminating the guardianship ↩
83. Codes of 1895, Civil Code, § 351; the territorial rule is at Revised Statutes of 1879, § 430 ↩
84. Codes of 1895, Civil Code, § 1854; the rule is territorial, Revised Statutes of 1879, § 537; carried to Revised Codes of 1935, vol. 3, §§ 7074–7075 ↩
85. Revised Statutes of 1879, § 864, children legitimated by the subsequent marriage of their parents with each other, noted to the Act of 12 January 1872 ↩
86. Revised Codes of 1935, vol. 5, § 12273 ↩
87. Revised Statutes of 1879, § 432: every person over the age of eighteen years, of sound mind, may by last will dispose of all his estate, real and personal; restated at Codes of 1895, Civil Code, § 1720, and carried to Revised Codes of 1947, 91-101, quoted in In re Van Voast's Estate, 266 P.2d 377 (Mont. 1953); Justia (https://law.justia.com/cases/montana/supreme-court/1953/266-p-2d-377.html : accessed 27 July 2026); now MCA 72-2-521 ↩
88. Codes of 1895, Civil Code, § 1723 ↩
89. Codes of 1895, Civil Code, § 1725 ↩
90. Codes of 1895, Civil Code, §§ 1729–1730 ↩
91. Codes of 1895, Civil Code, § 1724; carried to Revised Codes of 1947, 91-108; for proof, Codes of 1895, Code of Civil Procedure, § 2331 ↩
92. In re Noyes' Estate, 40 Mont. 190, 201 (1909); and see 40 Mont. 231 (1909); digital images, Caselaw Access Project (https://static.case.law/mont/40/html/0190-01.html : accessed 27 July 2026) ↩
93. Codes of 1895, Civil Code, §§ 1734–1737; the territorial rule is at Revised Statutes of 1879, §§ 449–450 ↩
94. Codes of 1895, Code of Civil Procedure, § 2401; the rule is territorial, Revised Statutes of 1879, Probate Practice Act, § 45, no person competent to serve as executor who at the time the will is admitted to probate is under the age of majority, with § 59 for administrators ↩
95. For the territorial bar, Revised Statutes of 1879, Probate Practice Act, § 60, "Marriage disqualifies a woman," with § 47 on the effect of marriage where a woman had been appointed executrix. For the later rule, Revised Codes of 1935, vol. 2, § 5808, and vol. 4, §§ 10059, 10073, 10405 ↩
96. Ch. 181, Laws of 1933, § 2; re-enacted as § 2295.2 of the Revised Codes of 1935, vol. 1, now MCA 15-30-2103 ↩
97. Territorial Laws of 1864–65, p. 429, revenue act § 61, headed "Poll Tax": each white male inhabitant of the Territory over twenty-one and under fifty years of age, and not by law exempt, to pay a poll tax of three dollars for the use of the Territory and county, collected with the other taxes, the treasurer authorized by the same section to seize the personal property of anyone refusing or neglecting to pay; § 62 governs the application of the money ↩
98. Revised Statutes of 1879, § 1070, noted to the Act of 11 February 1876: a county levy of one to two mills on the dollar of taxable property, and also a special road tax of three dollars on each able-bodied man between the ages of twenty-one and forty-five years residing in each district, workable off at three dollars a day under the road supervisor ↩
99. Revised Statutes of 1879, §§ 1071, 1078: one day's work each year on notice from the supervisor, the delinquent liable for the tax in money and answerable before the probate judge or a justice of the peace, with no property exempt from execution for a delinquent road tax; and § 1080 for the supervisor's sworn September report of moneys collected and days worked ↩
100. Revised Statutes of 1879, § 783, noted to the Act of 11 February 1876, and the proviso to § 1070 ↩
101. Laws, Resolutions and Memorials of the State of Montana, Passed at the Second Regular Session of the Legislative Assembly (Helena, Mont.: Journal Publishing Co., Public Printers and Binders, 1891), § 163: every male inhabitant of the state over twenty-one and under sixty, except paupers, insane persons and Indians not taxed, to pay a poll tax of two dollars annually, with §§ 164–169 on collection by the assessor, the numbered receipts, and seizure and sale for non-payment; digital images, Internet Archive (https://archive.org/details/lawsresolutions04montgoog : accessed 27 July 2026). Carried into the compilations of 1895 and 1907 and upheld in Pohl v. Chicago, Milwaukee & St. P. Ry. Co., 52 Mont. 572, 160 P. 515 (1916), which also notes that § 1068 exempts members of the organized militia and that the proceeds go to the care of the county poor; digital images, Caselaw Access Project (https://static.case.law/mont/52/html/0572-01.html : accessed 27 July 2026) ↩
102. Codes of 1895, Political Code, § 2640: the county levies one to two mills on the dollar for road purposes and a special road tax of three dollars on each able-bodied man over the age of twenty-one years residing in each road district, the territorial upper limit of forty-five having been dropped; collected by the county assessor, with §§ 2680–2684 on his duty and on the exception of cities and towns. The separate city and town road poll tax is at §§ 4875–4879, § 4875 reaching able-bodied male inhabitants of a city or town between the ages of twenty-one and forty-five years at not more than three dollars a year, with § 2104 exempting the National Guard from poll, road and head taxes. Both were amended in Laws, Resolutions and Memorials of the State of Montana, Passed at the Fifth Regular Session of the Legislative Assembly (Helena, Mont.: State Publishing Company, 1897), House Bill 280, p. 176, amending §§ 2640, 2642, 2643 and 2680 and restoring the upper limit of forty-five, the tax payable to the assessor after 1 October or discharged by one day's labor of eight hours, and House Bill 203, p. 203, amending § 4800, the legislative powers of cities and towns; digital images, Internet Archive (https://archive.org/details/lawsresolutions03montgoog : accessed 27 July 2026) ↩
103. Ch. 44, Laws of 1903, approved 2 March 1903, as carried into Revised Codes of 1907, vol. 1, §§ 1341–1355, each section printed with the notes "Act approved March 2nd, 1903" and "8th Sess. Chap. 44"; digital images, Internet Archive (https://archive.org/details/revisedcodesofmo01unse : accessed 27 July 2026). Section 1344 levies one to three mills on county property for roads, and a special road tax of two dollars on every man over twenty-one and under fifty residing in the county, payable to the county treasurer on demand, the road supervisors acting as his agents to take it in cash in lieu of one day's work of eight hours, and the section not extending to incorporated cities and towns; the city and town road poll tax stays where it was, at § 3361 of the same code, still twenty-one to forty-five at not more than three dollars. The 1897 amendments and the act of 1903 are described in the Montana Attorney General's opinions of 1 June 1906 (https://courts.mt.gov/Portals/189/ag-opinions/01/346.pdf : accessed 27 July 2026) and 24 September 1909 (https://courts.mt.gov/external/ag-opinions/03/198.pdf : accessed 27 July 2026) ↩
104. Ch. 261, Laws of 1921, § 1, amending § 2692; levied under The Revised Codes of Montana of 1921 (San Francisco: Bancroft-Whitney Company, 1921), vol. 2, § 4465; digital images, Internet Archive (https://archive.org/details/revisedcodesofmo02unse_0 : accessed 27 July 2026) ↩
105. Montana Attorney General, opinion construing Revised Codes of 1921, vol. 2, § 4465, and ch. 261, Laws of 1921, in Opinions of the Attorney General, vol. 9, p. 445: the poll tax falls on males over twenty-one and under sixty, and counties need not include women within the taxable ages (https://courts.mt.gov/Portals/189/ag-opinions/09/445.pdf : accessed 27 July 2026) ↩
106. Montana Constitution of 1889, art. XVI, § 5, as construed in the Montana Attorney General's opinion of 8 July 1929 (https://courts.mt.gov/Portals/189/ag-opinions/13/140.pdf : accessed 27 July 2026) ↩
107. Revised Codes of 1935, vol. 2, § 5039.48, headed "Poll tax—limitation on amount—work for failure to pay" ↩
108. Revised Codes of 1935, vol. 1, §§ 2238–2252.2, as amended by ch. 47, Laws of 1937, referred to at § 5222 ↩
109. Codification of 1871–72, p. 506, jury act § 8: any white male person of lawful age who is a citizen of the United States, a taxpayer, and a bona fide resident of the county is competent to serve as a grand or trial juror. The same words appear earlier at General Laws, and Memorials and Resolutions of the Territory of Montana, Passed at the Fourth Session of the Legislative Assembly (Helena, Mont.: State Publishing Co., 1915), an exact reprint of the 1867 original, p. 70, jury act § 8; digital images, HathiTrust (https://babel.hathitrust.org/cgi/pt?id=mdp.35112204567913 : accessed 27 July 2026). The rule was re-enacted by the Act of 7 May 1873 and still printed at Revised Statutes of 1879, § 780, which adds a person who has declared his intention to become a citizen ↩ ↩
110. Codification of 1871–72, p. 505, jury act § 1, directing the county commissioners to select jurors from the county assessor's books ↩
111. Codes of 1895, Code of Civil Procedure, § 230; the same qualifications, with "male" struck out, appear in ch. 203, Laws of 1939 ↩ ↩
112. Codes of 1895, Code of Civil Procedure, § 231 ↩
113. Codes of 1895, Code of Civil Procedure, § 232; the territorial list is at Revised Statutes of 1879, § 781 ↩
114. Ch. 203, Laws of 1939, p. 508, approved 17 March 1939, effective for service from January 1940 ↩
115. Ch. 29, Laws of 1945, p. 38 ↩
116. Territorial Laws of 1864–65, p. 110, Civil Practice Act, Title XII, ch. I, § 320, listing as incompetent those of unsound mind at the time of their production for examination and children under ten who appear incapable of receiving just impressions of the facts they are examined about or of relating them truly, the court in its discretion still able to allow such a child to testify, the matter going to credibility; and, for criminal cases, p. 178, Criminal Practice Acts, ch. III, §§ 12–14. Restated at Territorial Laws of 1867, p. 210, Civil Practice Act § 372, and at Revised Statutes of 1879, § 628, which adds persons against whom judgment has been rendered on a conviction for a felony; restated again at Codes of 1895, Code of Civil Procedure, § 3162, which drops the felony class ↩
117. Revised Statutes of 1879, § 629, first subdivision; restated at Codes of 1895, Code of Civil Procedure, § 3163, and carried to Revised Codes of 1935, vol. 4, § 10536 ↩
118. Territorial Laws of 1864–65, p. 110, Civil Practice Act § 320, sixth clause, with the same-race proviso and the blood definitions printed at p. 111, and p. 178, Criminal Practice Acts § 13. The statutes are framed in the racial language of the day; the civil act made incompetent "a negro, Indian, or Chinaman" where the parties to the action were white persons, and the criminal act barred any "black or mulatto person, or Indian or Chinese" from giving evidence for or against any white person, defining a mulatto as a person of one-eighth or more negro blood and an Indian as one of one-half Indian blood. Restated at Territorial Laws of 1867, p. 210, Civil Practice Act § 372, third clause ↩
119. The repeal is visible on the face of the compilations: § 628 of the Revised Statutes of 1879 keeps the first, second, and fourth clauses of the 1867 section and drops the third, and the witnesses chapter of the Codification of 1871–72, Civil Practice Act, §§ 443–453, at p. 125, draws no racial line ↩
120. Territorial Laws of 1864–65, p. 375, elections act § 1: all white male citizens of the United States, and those who had declared their intention to become citizens, above the age of twenty-one years, entitled to vote; re-enacted in the same words by Territorial Laws of 1867, p. 96, § 1, marginally headed "Qualification of voters." The extension to all male citizens is at Codification of 1871–72, p. 460, where the elections chapter opens, indexed in Montana Historical Society, "Racial Legislation in Montana" ↩
121. Territorial Laws of 1864–65, p. 176, Criminal Practice Acts, ch. I, §§ 3–4: a person is of sound mind who is neither idiot, lunatic, nor insane and who has reached the age of fourteen years, or before that age if the person knows the distinction between good and evil; and an infant under fourteen is deemed incapable of knowing that distinction unless the contrary be clearly shown ↩
122. Codes of 1895, Penal Code, § 30, subdivision 1, which adds that children under the age of seven are not capable of committing crime ↩

Note: This law guide was created with assistance from multiple AI tools. Though a diligent effort was made to ensure the accuracy of the information provided, there may be unintentional errors. It's important to check the primary sources as needed to ensure accuracy.