Montana Attorney General Opinion 15-180

Opinion No. 180 BanI,s and Banking-Assignment of Deposit-Notice--Pl'efeITed Deposit -Insolvent Banks. HELD: '1'he fact of assignment mar be questioned where officers of corpora- tion claim to offset a corporation bal- 130 OPINIONS OF THE ATTORNEY GENERAL ance against their notes to closed bank. and in case of doubt controversy should be decided by court. • No notice to bank of assignment of deposit is necessary where no right of the bank against assignor is af- fected thereby. April 25, 1933. You have submitted the following facts and question: "It seems that the Great Falls Paper Company, Great Falls, had on deposit in the Conrad Banking Company of that City approxi- mately $700.00 and the~' drew $400.00 of this in currency, leaving the balance in their corpol'fition account. Thev now claim that this wa~ turned o~er to their two officers and they desire that "'e apply their balance against the two notes of the officers of the bank. In other words, they are asking us to ap- ply the corporation balance against the personal notes, thereby making the cor- poration a preferred creditor in the bank. We are writing to ask TOU if we have authority to do this." . I understand from the letters and affidavits enclosed that the alleged as- signment was made on Fehruary 28, 1933, and that the bank was open until March 4. In Mitchie-Bank and Banking, Vol- ume 5, page 279, Seetion 147, the text writer states the law as follows: "No- tice to a bank of the assignment by a depositor is necessary only to prevent the hank from parting with the funds on the faith of the depMit still helong- ing to him, and therefore a failure to give such notice g!\'es the bank no right to apply a deposit to the deposit- or's debt which falls due after the as- signment." See also: Beckwith v. Union Bank, 6 N, Y. Superior Ct. (4 Sanford) 604. I am inclined to believe that the above statement of the law is in line wit? the law generally in regard to aSSIgnments. 'Where the bank is not affected in any of its rights against the depositor it would Eeem that there is no reason why it should have notice of the assignment. A similar situation would likely oc- cur where a depositor makes an assign- ment for the benefit of creditors. The facts, however, are so unusual in this instance that if you should allow the set-off the other depositors might charge that you were gi"ing a pref- erence to one depositor and therefore it might be acl\'isable to submit the question to the court for a judicial determination of the facts. Opinion No, 181 Cigarcttcs-Stores-licenses-Chain StOl'CS. HELD: A liccnse must bc obtained for each storc wherein cigarettes are sold in this sta teo April 26, 1933. This offiee is in receipt of your in- quiry as to whether or not a person who is the owner of more than one establishment at which cigarettes are sold shall pay more than one license. Section 2435, Revised Codes, pro- vides: "Every person, or persons, who is engaged in the business of selling cigarettes. cigarette paper, or the ma- terial used in the making of cigarettes except tohacco shall pay a license of $25.00 per annum." The language of this statute is that e"ery person en- gaged in such business shall pay one tax of $25.00. This might seem to per- mit a person holdir,g one license to operate one, or a dozen or more stores. I c10 not so interpret the law. Cert.'linly if an individual or corpora tion shoul<l operate a chain of stores or husiness. in justice and to be equitablv taxed with others in the same bus'iness it would seem that a lit-ense tax for each store should be required. Certainly at eaeh store conducted it will be necessary for at least one per- son to be engaged in the business of selling cigarettes and, as each person engaged in the business must pay a tax, therefore for e\'ery establishment at least one license fee must be paid. Section 2413, R. C. :\1., H)21, is a general statute in relation to procur- ing licenses, which statute in part pro- "ides as follows: "Separate licenses must be obtained for each branch es- tablishment or separate house of busi- ness located ill the same county." It is clear from these two statutes that a separate license is required for each place where cigarettes are sold. Xote: See Chap. 28, Laws of 1933-34.