Montana Attorney General Opinion 15-251

Opinion No. 251 County Commissioners-Bridges, Repair of-Bids, Advertising for- Emergency-Highways. HELD: Chapter 8, Laws of 1933. dol'S not require a board of count,· commis· sioners to ad'l"ertise for hills 'either for thp rna terials or the work of repairin" a bridge damaged by fiI'e, where th~ hoard considers it a case of emergency, a nd by the unanimous consen t of all its memhers, the board may IH'oceed forth· with to repair !'aid bridgp. .Tune 23. 1933. You have set forth facts concerning the steel hridge across the ;\iissomi Hi,'p,r at the mouth of 'l'rout Creek, thp flool' of which bl'idge was burned re- cently. According to the facts whieh ~'01l present, it would seem that they constitute an emergency. You inqnir~' "do the provisions of Chapter 8. JM'l\y~ of 1933, require the advertisement by the county cOIllmissioners for bids fo'r the work 'of repairing the Trout Creek bridge, or for the purchase of the ItUll- her necessary to make such repairs?" Section 1705, R. C. M. 1021, proddes for the construction or repair of bridge costing more than $200.00, and Section 1706 provides for the letting of the con- trnct. The last two sentences of the last namell section. read as follows: "The contract and bond for its pel1'orm- anee ,must he entered into all(1 avproved h.v the said board, except in case of l!rpat emergency, and by thc unanimous consent of all its memhers. The sairl honrd may proceed at once to construct. replace, and repair any and all struc- tures of whatever nature without no- tice." As these two sentences are IHlllC- tuatf~d. thcy hardly make good sense. In checking" over the histor~' of thi;.: section, I find in the codes of 181)5 (Section 2813) that these two sentences l'ead as follows: '''.rhe contract and bond for its performance must hc en· tered into and apl)roved by the hoard. except in cases of great emergency. and hy the unanimous consent of all its members, the board may proceed at once to construct, re-place or repair any and all structures of whatever nature without notice." 'l'he same language and punctuation was used when this chapter was 174 OPINIOXS OF TRIO] ATTOH~EY GENERAL amended in 1903. (See Chapter 44, Sec- tion 78, page 88, Laws of 1903). 'l'he same punctuation and language appears [I~ Section 1414 R. C. M. 1907. The first change in punctuation appeared in the 1\Jl3 Session Laws. (Section 4 of Chap- ter 5, page 154). This latter punctua- tion was carried into the 19"21 Codes as a])pears above. According to the punc- tuation in the 1921 Codes, the next to the la"t sentence appears unintelligible and the last sentence would give the county commissioners power to act in all cases regardless of whether there is an emergency or not. Inasmuch as there have been no other changes in these two sentences, except with the ad- rlition of the word "said" before the word "board" and the word "or" has heen changed to the word "and" hefOl'e the wonl "repair," it is my opinion that the insertion of the period instead of the comma after the word "members" was an inadvertence and that the legiS- lature intended that the county commis- sioners should ha "e additional powers only in cases of emergency and by unanimous consent of all its members. Considering the two sections . together, it is only reasonable to suppose that the legislature would grant the commissioll- ers greater 'power in cases of 'emergency. Under the provisions of these two sections, I am therefore of the opinion that the board of county commif;f;ioners of Lewis and Clark County, if they consider this a case of an emergency, may, by unanimous consent of all its members, proceed a t once to construct. replace and repair the said bridge. In 59 C. J. 989, the general rule in regard to punctuation, is stated as follows: "Punctuation is no part of a statute and cannot control its construc- tion against the manifest intent of the legislature, and the court will punet\!- ate or disregard punctuation as may he necessary to ascertain and gi "e effect to the real intent." There is no express repeal or amend- ment of Sections 1705 an{} 1706, supra. as there is no reference to them or to the subject-matter covered by them either in the title or Section 1 of Chap- ter 8, Laws of 1933. In the title, ref- erence is made to the "purchase of automobiles, trucks, vehicles, road, high- way or other machinery, apparatus, ap- pliances, equipment, materials, and sup- plies." Section 1 rcalls in part: "No· contract shall be enterpd into bv a hoard of ('ountv commissioners for' the purchase of mi'y automobile, truck, or other vehicle, or road, highway; or other maChinery, apparatus. appli- ances or equipment, or materials, or supplies of any kind. * * *." Evidently the words "materials, supplies, and sup- plies of any kind," being general words following particular words, refer to things of the same general nature or class as those enumerated, or must he construed in connection with the words with which they are associated. (See Heetions 579,·580 and 581. 59 C .. T. p. 97!) et seq.) It has been generally held that repeal hy implication is not fa"ored and that the legislature in enacting a statutI'. acted with full knowledge of existing statutes relating to the same subject. and where ex·press terms of repeal are not used. the presumption is a lwa.\'i' against an intention to repeal fin earlier ~tatute. unless there is such inconsist- ency or repugnancy between the stat- utes as to preclude the presumption. (59 C .. T. 905; 59 C. J. 909 et seq.) In view of the heavy duties imposell on the county commissioners with ref- erence to roads and bridges, their con- sequent responsibilities in case of fail- ure or neglect to discharge them, and the serious consequence::; resulting to thE' public generally from the destruc- tion of bridges anll the failure to im- mediately repair them, I cannot escape the conclusion that if the legislature had intended to repeal or amend Sec- tions 1705 and 1706, it would have clearl~' expressed its intention to t.hat effect.