Montana Attorney General Opinion 15-355

Opinion No. 355 Schools - School Districts - BoJl(ls - School Site-Eloctions HELD: In a ~pecial election held for the purpose of""'increasing the hond- ed indebtedness of a school district, Chapter 147. Laws of 1927, should be followed rather than the general reg- istration laws. The general laws relating to the clos- i ng" of registra tion, prepa ra tion and de- Ih'ery of lists, etc.. must be followed in an election for the selection of a school site. October 6, 1933. You suinllit the following: "Should not the pro"isions of chapter 147, Laws of 1927, apply to a bond election held thereunder, insofar as such provisions conflict with sections 566, and with ;;cctions 567 and 568, as amended by Chapter 61. Laws of 1933, and Chapter n8; Laws of 1923, as amended by Chap- ter ,47, Laws of 1929?" Section 12, Chapter 147 of the Laws of 1927, defines the procedure in re- lation to elections for school bondS. This law makes an exception to the ~eneral law and provides that regis- tration books shall be closed on the 15th day prior to the election and further pro,ides that it shall not be necessar~' to give any notice of such closing of registration books; that after the closing of the registration books the county clerk shall promptly pre- pare a list of the registered electors of such district who are taxpayers up- on property therein and whose names shall appear on the last completed assesSlnent roll for state, county and school district taxes and who are en. titled to vote at such election and shall prepare poll books and deli"er them ·to the clerk of the school dis- trict and that in districts of the first class the school district clerk sha 11 post such lists in fi,e public places in the district at least ten days prior to the date of the election. The general procedure in relation to elections. and in particular as to the closing of registration, notice in rela- tion to same. printing, deliyery and posting of lists of registered electors. is set forth in sections 566, 567 and 568 of the Re,-ised Codes. This procedure is materially different from the pro- cedure as definitely set forth in Chap- ter 147 of the Laws of 1927 as noted a how. Section 582 Revised Codes provides: "The word 'election' as used -in this law where not otherwise qual- ified shall be taken to apply to ~en­ eraL special, priman- nominatin~. and municipal elections, and to elections in school districts of 'the first class." In the ~ase of Weber ,'. City of Hel- ena. 89 Mont. Ion. it was held that the general law in relation to notice of closing of registration and postin~ of yo tel's' lists governed rather than a ;;pecial statute which omitted sueh pro- visions. That was a case inyolyin~ a municipal bond issue. In that case another subsequent statute. enacted in 1923. was held to have rf'quired com- pliance with sections 566. 567 and 568. H.C., and ,lin election held without compliance therewith was declared to be invalid. No such statute is in- volved in this case. Chapter 147 of the Laws of 1927. was enacted subse- quent to Sections 566, 567 and 568 and b~- its enactment those sections of the Heyised Codes were modified and made inapplicable to an election of this character. This statute was also enacted subse' quent to Chapter 98, of the Laws of 1H2.3, which was the Chapter that in the case of Weber y City of Helena it was held required compliance with sec- tions 566, 567 and 568 of the Reyised Codes. Therefore, independent of the amendments which will be hereafter considered, the definite procedure in relation to bond issues of this character as set forth in Chapter 147 of the Laws of 1f127 -would control. OPI~IO:\S OF THE ATTOR~tW GENERAL 241 Chapter D8 of the Laws of 1D28 was amended by Chap. 41, Laws of 1929. This amendment is set forth in 89 Mont. page 118 and left such statute exactly the same as to city and school district bond issues and eliminated therefrom certain provisions as to county and state obligations. Sections 567 and 568 are likewise amended, same being contained in Chapter 61 of the Session Laws of ID88. The amendment to these sec- tions shortened the time in munici- pal primary nominating elections for the printing and posting of a list of electors from thirty to fifteen days and did away with the printing of such lists in such elections when no can- didates 11ad ffiled. Otherwise these statutes remain as hefore. Therefore neither of the amendments changed the laws amended in any particuar which might affect the question here involvd. Section 03, Revised Codes, provides as follows: "Where a section or a part of a statute is amended. it is not to be considered as ha \'ing been repealed and re-enacted in the amended form but the portions which are not altered are to be considered as having been the law from the time when they were enarted. and the new provisions are to be considered as hu \;ng been enacted at the time of the amendment." The Montana Supreme Court has said: "This section was recommended hy the Code Commissioners of New York in 1859, being adapted from the language of Chief Justice Denio in I~ly v Holton, 15 N. Y. 595, in which that learned jurist said: 'The form in whieh amendments, 'both of the Code and of the re\'ised statutes have gen- erally been made, by declaring that particular sections shall be amended so as to read in a given way, was adopted for the purpose of adjusting them to the original enactments, so that when the system should, after re- peated amendments, become complete, the different parts might be put to- gether without further revision, and thus form a perfect Code. The por- tions of the amended sections which are" merely copied without change, are not to be considered as repealed and again enacted, but to have been the law all along; and the new parts, or changed portions, are not to be taken to have been the law at any time prior to the passage of the amended Act. .. .... The theory of amendments, made in the form adopted in the present in- stance, we take to be this: The por- tions of tbe section which are repeated are to be considered as having been the law from the time they were first enacted, and the new pro\-isions are to be understood as enacted at the time the amended Act took effect." (Snidow v Mont. Home fot· the Aged, 88 Mont. 887, 845.) In the enactment of Section 12, Chapter 141, of the Laws of 1921, it is plain that the legislature intended that in" a school bond election of this char- acter the provisions of Revised Codes 566, 567 and 568 are to be disregarded where they conflict with that statute and the provisions in relation to no~ tice of closing of registration and post- ing lists for thirty days were made inapplicable and to that extent modi- fied. When such statutes were sub- sequently amended and the statute also amended which required compli- ance therewith as construed In the case of Weber v City of Helena it cannot be held that it was the intent of the legislature to repeal by impli- cation the said section 12 of Chapter 147 of the Laws of 1927. These stat- utes were each amended in different particulars after they had been im- pliedly modified by the enactment of the 1927 statute. It would be a most strained construction to hold that their amendments, in particulars in no way connected with the question involved, would either modify or repeal section 12, Chapter 147 of the Laws of 1927. I therefore hold that such sections control and that the provisions of Re- \',ised Codes 566, 567 and 568 as amend- ed insofar as they in any manner con- flict therewith need not be complied with. This conclusion is reached although the Supreme Court of this state in 89 Mont. 123 makes the following state- ment: "It is worthy of note that by section 12, of Chapter 147, Laws of 1921, the notice of closing registration was shortened substantially as to school districts of the first class, but whether the provisions therein made have been repealed hy implication by Chapter 47, Laws of 1929, may present a serious question." This quotation from the 242 OPIXlOXS OF 'l'HE A'l'TOHXEY GEXERAL case of Weber v Cit~' of Helena must involve this matter in some uncer- tainty. To reach any other conclusion, however, would require a construction to the effect that the amendment made hy Chapter 47 of the Laws of 1929 also rendered invalid section 10 of Chapter 147 of the Laws of Ul27 wherein it is required that the board of trustees "fix the date of election which shall not be less than twenty (20) days nor more than thirty (30) days after the date of the passage and adoption of such resolution." You ask "does the opinion in 'Veber v the City of Helena, 89 Mont. 109, relating to municipal elections apply to elections to elect school trustees or vote upon school sites "I" I take it that this question includes the ques- tion as to whether or not the require- ments of sections 566, 567 and 568, Re- vised Codes, must be complied with in such elections. Revised Codes 1015, subsection 8, as amended by Chapter 122 of the Laws of 1931, permits trustees to purchase school sites, the same being in part as follows: "Pro- ,·hled that they shall not build or re- move school houses or dormitories, nor purchase, sell or locate school sites unless directed so to do by a majority of the electors of the district voting at an election held in the district for that purpose and such election shall be conducted and votes canvassed in the same manner as at the annual elec- tion of school officers, and notice there- of shall be given by the clerk by post- ing three notices in three public places in the district at least ten days prior to such election, which notices shall specify the time, place and pUl1)oSe of such election." Section 992, Revised Codes, relative to notices of election of trustees of school districts required a fifteen day notice. That statute certainly can- not apply to this case where the sub- sequent amendment of section 1015 ex- pressly provides for a ten day notice. ~ection 582, Hevised Codes, specifically states that the word "election" shall apply to elections in school districts of the first class. Section 566, Re- ,ised Codes, contains the following provision: "The county clerk shall close all registration for the full per- iod of forty-five days prior to and before any election." Sections 566 con- tinues and with sections 567 and 568 requires the publication of notice of dosing of registration, the prepara- tion and delivery of the list of regis- tered voters, the posting of a list of electors. I do not find in section 1015. as amended, or any other statute an intimation that in an election of this character any of the requirements of sections 566. 567 and 568 are dispensed with or made impossible of accomplish- ment. The case of Weber v the City of Hel- ena, 8!l ~font. 100, holds that compli- ance with these sections was neee,,· sary in that case. I can see no dis- tinction which would render that un- necessary in the present instance. In that case the Supreme Court quoted from the case of State ex reI. Kehoe v Stromme, 49 Mont. 25: "Its obyiou15 purpose is to pro,·ide a seheme for per- petua 1 registra tion suita hIe to a 11 elec- tions under all conditions, and the amendments consist IUl·gel~' in making the various prm·isions applica hIe to special as well as to general elections." I can find no authority which would warrant the omission of the require- ments of sections 566, 567 and 568, Re- yised Codes. To summarize: 1. It is our best judgment that Chapter 147, Laws of H127, which vrescrihes special proce- dure in the case of first-class school (listricts should be followed rather than the general registration la ws. Howeyer, in face of the length to to which the court went in the case of ,Yeber v City of Helena, and the state- ment made by the court in that case. quoted abo,'e. we cannot assert with complete confidence that the court will agree with our judgment. 2. The general laws relating to the dosing of registration, preparation Ilnd delivery of lists. etc .. must be followed in yoti~g upon Ii school site. We hayc not overlooked Nichols v School Dis- trict, 87 ~Iont. 181, in arriving at this conclusion.