Montana Attorney General Opinion 15-578

Opinion No. 578 Barbers-Police Power-Fort Peck -Examination of Barbers -Federal Reserves. HELD: The state exercises complete police power m"er territory within its boundaries except such as are specifi- cally resen"ed by the Federal GO\'ern- ment by the Enabling Act and in Acts of Congress on Federal Reserves. The Barbers Act is a reasonable ex" ercise of the police power and may be enforced in the ceded territory at Fort Peck. The Barbers' Boa I'd has power to promulgate rilles and regulations giv- ing applicants the right to re-examina- tion on payment of an additional $15.00 fee. July 21, 1034. You request our opinion in the fol- lowing matters: "1. Does or will the new city of Fort Peck and the barbers that will be established there come under our law gO\'erning the practice of barbering'! 2. If an applicant for examination and registration to prac- tice barbering has failed to make a passing gl'ade three consecutive times and said applicant still wishes to prac- tice barbering or try to secure license, must. he then re-apply and pay an ad- ditional fee of $15. or can he no longer practice in the State of Montana or make an attempt to re-apply?" In regard to question No.1, the State of Montana, of course, had full and complete jurisdiction over the waters of the Missouri Rh'er at the Fort Peck dam site and the adjacent lands, ex- cept such jurisdiction as the Federal Government retaiils over navigable streams for the purpose of regulating trade and commerce. By Chapter 50 of the Acts of the IDxtraordinary Ses- sion of 1!)33, the State ceded concurrent. jurisdiction to the United States over the waters of the rivel' and lands touch- ing thereon in the counties of Valley, Phillips, McCone, Garfield, Petroleum, and Fergus, SIlYing to the state, how- eyer, the right tu sene ci \'il aud cl1minal process within the limits of the grant. ",Ve do not see any essential dif- ference between the relath'e powers of the State and Federal Government at Ft. Peck in the matters invoh'ed in ~'our question, and such powers as the two governments have and exercise in all such matters in other territory. title to which is in the Federal Govern- ment. The State exercises complete po- lice power over territory within its boundaries except such as are specifi- cally reserved by the Federal Govern- ment by the IDnabling Act and in Acts of Congress on Indian lands. Military Reservations. Xational Parks and sim- ilar territol')~. Any offenses committed agninst the laws of the State on any such Federnl reserve within thc limits of the State are punishahle under stnte laws, unless a party to the action be a ward of the Federal Government. or suhject to military jurisdiction. If 'one white man kills another white man on an Indian Resermtion. or if a white kills an Indian who is' not a ward of the Federal Goyernment. the crime comes under the jurisdiction of the stn te go,ernment. In United States Y. ~lcBratney, 104 U. S. 621, it, was held that where a state was admitted to the Union and the Enahling Act contained no exclu- sive jurisdiction as to crimes committed on an Indian Reservation by others than Indinns or against Indians that the state had jurisdiction to try and punish such crimes. In Draper Y. United Stntes, 164 U. S. at page 247, it WHS held the I!Jnabling Act did not de- prive thc St!lte of Montana of juris- diction to try and punish crimes com- mitted on nn Indian Reservation where Indian wards were not involved. It is clearly the poliCy of the Federal Gov- ernment to leave to the state enforce- ment, within the boundaries of the state, of all laws coming under the police 'powers, except in such special matters as those referred to above. The Barbers Act is in the interest of the public health of the people of this state, and is a reasonable exercise of police power, and we think the en- fOl'cement of the Act at Ft. Peck would not. in any manner conflict with the juriSdiction of the Federal Govern- ment. 0 In Chapter 50, ceding concurrent jurisdiction to the United States, it is 402 OPINIONS OF THE ATTORNEY GENERAL provided that "jurisdiction shall not YE'st until the United States • * * no- tifies the GO"ernor of the State of Mon· tana that they assume police or mili· tary jurisdiction over said territory," hut this reference to "police" j uris- diction obviously does not apply to the enforcement of the Barber's Act in the ceded territory. In reply to your question No.2, Chapter 18, Laws of 1931. amends the Barber's Act (Chapter 127, Laws of 1929) and grants to applicants the right to three examinations for one fee o{ $15.00. No provision is made for a re-application and additional examina- tions after the third failure of an ap- plicant. but the hoard is authorized to mnke and promulgate rules and regulations not inconsistent with the Act and we think this grant of power to the Board would authorize the Hoard to give nn applicant further ex- amina tions, hut if further examinations are given it is clearly the intent that an additionnl fee of $15.00 shnll be charged.