Montana Attorney General Opinion 15-120

Opinion No. 120 Criminal Law-StipuIations-Waiver -Trial. HELD: Under the stipulation pre- sented, the defendant has effectively waived the light to invoke the pro\'i- sions of Sec. 12223 giving him the right to a tlial within a period of six months. March 20, 1933. We are in receipt of your request for an opinion as to whether or not a stipulation between the county attorney of Cascade county and the defendant and his counsel in State Y. Tirogolas to the effect that the case may be tlied dUling the next regular jury term of the district court in Judith Basin coun- ty (a change of venue having been granted) and that, so far as the de- fendant is concerned, a trial within six months after the filing of the informa- tion is wah'ed, prevents him from claim- ing the benefit of section 12223, Revised Codes of Montana, 1921. It is well settled that a defendant may lose the right to ill\'oke this stat- ute in anyone of at least three dif- ferent ways: (a) b.\· going to trial without objection after the passage of the six-month period; (b) by moving for and obtaining a postponement of the tria I; a ntl (c) by agreeing with the plaintiff that the trial may take place after the lapse of the six-month period. State \". Test, 65 Mont. 134; Htatc Y. 'l'urlok, 76 ;\lont. 549; Hay y. SUI)Cl'ior Court, 281 Pac. 391; People \'. Peter, 128 Pac. 475; Ex parte Baxter, 249 Pac. 610; Griffith v. State, 2.54 Pae. 112; State \. Clark, 168 Pac. 944; State \'. Rose, 261 Pac. 391; People v. Hucker, 8 Pac. (2d) 938; 16 C. J. 444. The stipula tion is so broad in its scope, so air-tight, as it were, in the language used, that only one conclusion can be reached under the autholities, namely, that the defendant has effec- tively wah'ed the right to invoke the provi~ions of said section 12223. Furthermore, we think the maxim, "he who consents to an act is not wronged by it," has peculiar applica- tion to a situation of this kind and strellgthens the position of the state. State Y. Roop, 73 Mont. 177. 'Opinion No. 121 County Commissioners--Emergency- APPl'Opl'iations--County TI'easurer -Salaries. HELD: Where the retiring county treasurer had excee,led his appropria- tion for the fiscal year, and where, as a consequence, there is not enough left to pay the salaries of his successor and a deputy in full for the I)ext three months and ten days, a public emer- gency exists or will shortly arise and should be met hy the board as pro- vided for by law. March 21, 1933. You have asked us for advice as to how the board of county commissioner~ of :F'allon County should proeeed in order to properly meet a situation pro- duced by a former public official who disregarded to some extent the proYi- sions of the Budget Law. It appears from your lettel' that the Treasurer of Fallon County who re- tired on March 6, 1933, expellded more of the amount appropliated by the Board of County Commissioners for the operation of the office during the fiscal year ending June 30, 1933, than he should have expended, and that as a consequence there will not be enough left to pay the salaries of his successor and a deputy in full for the next three months and ten days. The county tI'easurer must keep his office open for the transaction of pub- lic business from nine in the morning