Montana Attorney General Opinion 15-117

Opinion No. 117 Nepotism Act-Construction-Melit. HELD: In case of prosecution for violation of Nepotism Act, where rela- tive is appointed, it is not a defense to I)1"OI'e appointment was made. hecause of merit. March 16, 1933. You have asked my· opinion on the following question: "In order to find a viola tion of the nepotism act would it not be necessary to prove that an ap- pointment of a relatil"e was made be- cause of relationship rather than be- ("ause of merit?" The so-called Nepotism Act, Chapter 12, Laws of 1933, is a peculiarly worded act. The title reads: "An act to define nepotism and to prevent such practice in the State of :\iontana and prescribing the penal- ties thereof." Section 1 defines nepotism as fol- lows: "Nepotism is the bestowal of po- litical patronage by reason of relation- ship rather than of merit." Sections 2 and 3 of the act, however, make no l'eferenc'€ to nepotism as de- OPINIOXS OF THE ATTORXEY GEXERAL 89 fined but simply m3ke it unlawful to appoint any person related to the per- son making the apPointment within the second degree. In view of the wording of sections 2 and 3, which omit all ref- erence to merit and which fail to pro- vide a defense when an appointment is made by reason of merit, it is my opin- ion that proof of an appointment be- cause of merit would be no defense to one who is charged with a violation of the Nepotism Act, and who has ap- pointed a person related to him as specified in sections 2 and 3. I am therefore una hie to advise that an officer who appoints a brother-in- law, even though the appointment is made because of merit rather than re- lationship, would not be violating the law. .