Montana Attorney General Opinion 15-202

Opinion No. 202 Constables-Mileage. HEIJD: A consta'ble is entitled to mileage at the rate of eight and one- half cents per mile, the same as sheriffs. May 10, 1933. You have inquired as to the mileage to be allowed to a constable. In the Revised Codes of Montana, 1921, Section '4916 fixed sheriffs fees at ten cents per mile. Section 4884 fixed fees of others at ten cents per mile, and section 4932 provided: "Fees of constable. * * * For mileage the same as sheriff and under the same con- ditions. * • *." Therefore, at that time the fe.es of all officers were fixed at ten cents a mile. Chapter SO, Laws of 1923, permitted officers using. their own automobiles to collect twelve and one-half cents per mile. Section 4916 was amended by Chapter 8\), Laws of 1929, to also fix a sheriffs auto mileage at twelve and one-half cents per mile. Therefore, prior to the Laws of 1933 the fees of a con- stable were fixed by the statutes which determined the mileage of a sheriff rather than by R. C. 4884 which fixed the salaries of "other officers." The specific controlled and not the general. The laws of 1D33, Chapter 121, amended Section 4916 and reduced the sheriff's mileage to eight and one-half cents. Chapter 16 thereof amended sec- tion 4884 and provided that all offi- cers other than sheriff should receive sevcn cents PCI' mile. The question is, are constables en- titled to mileage at the rate of seven cents per mile or eight and one-half cents per mile the same as sheriffs. S·ection 4884, as amended, is a gen- eral statute and refers to officers gen- erally. Section 4916, as amended, is a special statute and refers to sheriffs. Section 4932 is also a special statute which refers to constables. Repeals by implication are not favored. (State v. Board of County Commissioners, 89 lVlont. 37 (76) and cases cited.) The rule is generally adopted (sub- ject to many exceptions) that a general statute will not repeal a special stat- ute. The following excerpts from Suth- erland, Statutory Construction, have been quoted with approval by the Mon- tana Supreme Court: "Unless there is a plain indication of an intent that the general act shall repeal the special, the latter will continue to have effect and the general words with which it con- flicts will be restrained and modified accordingly." (Sec. 158, quoted in Equi- table Life Insurance Co. v. Hart, 55 Mont. 76, 87.) "It is always assumed that the legislature aims to promote convenience, to enact only what is rea- sonable and just. Therefore, when any suggested construction necessarily in- volves a flagrant departure from this aim, it will not be adopted if any other is possible hy which such pernicious con- sequences can be avoided. • * *In such a matter as the construction of a stat- ute if the apparent logical construction of its language leads to results which it is impossible to believe that those who framed or those who passed the statute contemplated, and from which one's own judgment recoils, there is in my opinion good reason for believing that the construction which leads to 142 OPINIOXS UF THE ATTORXEY GENERAL such result~ cannot be the true con- struction of the statute." (2 Lewis' Sutherland, 2d FAI. Sec. 487, quoted in State et nl. Y. Board of Conll's., 89 )Iont. 37, 87.) Applying this reasoning it must be concluded that the legislature intended that a constable was to receh-e exactly the same mileage for doing the same work as when it was done by a sheriff. Therefore n constable is entitled to mileage at the rate of eight and one- half cents per mile.