Montana Attorney General Opinion 15-532

Opinion No. 532 Highways-Stock Passes-Cattle Passes -Class I,egisIation-County Commissioners. Hl~LD: If there is allY conflict be- tween Chapter 158, Laws of InS:3. per· mitting county commissioners to install "stock passes" over highways, and Sec· tion 165S, R. C. M., 1921, then the former, being the last expression of the Legislath'e will, would control. Chapter 153, Laws of 1!l3S, contains Ilothing which lllakes it ohnoxious as <.:lass legislation. May 10, 19:34 \Ve acknowledge receipt of yours of the 19th of April in whic:h you request lin opinion by this office as to whether there is any conflict hetween Chapter ]58, Laws of HIS8, and Section 1685, H. C. 1\1. 1921. You state that it is your opinion Chapter 15H is class leg· islation and that it also conflicts with Section 1635. Sectioll 1635, It C. 1\1. 1921, provides as follows: "Any tell, or a majority of the free- bolder" of a road district, taxable therein for road purposes, may peti· tion in writing the board of county commissioners to estaulish, change, or discontinue any comlllon or public high WilY therein. \Vhen such It high- way is petitioned for upon the dh'id- ing line between two counties, the sallle course must be pursued as in other cases, except that a copy of the l:lCtition must he presented to the hoard of county commissioners of each county, whu shall a~t jointly." 368 OPINIONS OF THE ATTORNEY GENERAL Chapter 153, Laws of 1933, provides: "Section 1. Where a public road or roads connects with a state high- way, which state highway is fenced on hoth sides, the County Commissioners. of the county in which said roads are located, ma~: cause to be constructed and maintained thereon extensions of the fence on the sides of the state highway and across the intersecting road leaving in such fences a pass across which must be constructed II passage which will lJermit the passage of automobiles and trucks but shall prevent and exclude loose li\'estock from drifting upon said state high- way, and there shall also lJe main- tained in said extensions a gate to permit the passage of livestock, wag- ons or other \·ehicles. "Section 2. County Commissioners may construct, or cause to be con- structed under their direction, on pub- lic or county roads, passes across which such roads may continue and which shall be so constructed that automobiles and trucks may cross same and which shall be impassable for Ih-estock. Where necessary, gates shall also be maintained as provided in Section 1 of this Act; provided, that it is the spirit and intent of the stat- ute, that the discretion granted to Boards of County Commissioners under this Act shall consider primarily the use and benefit of public roads to the general public. "Section 3. There may be main- tained in a legal fence a pass so con- structed that automohiles and trucks may pass over the same and which will prevent the passage of li \'estock across said opening without deprh'ing snch fence of the character of a legal fence under the laws of this state." There is no Constitutional question involved here, in onr opinion, and if there is any conflict between the 1933 Act and Section 1635, the 1933 Act, heing the last expression of the Legis- lature, would controL (59 C. J. Sec. 621, page 1051, and cases cited.) Section 1622, R. C. U. 1921, as amended by Chapter 59, Laws of H)29, vests in Boards of County Commis- sioners general supervision over public highways in their respective conn ties. Chapter 153, in Section 2, leaves it to the discretion of the county board as to whether or not, and in what in- stances and cases, they will install "stock passes" over highways as pro- vided in the 1933 Act. The Board is the chief executive authority of the County. (Hersey v. Neilson, 47 Mont. 132), and are presumed to act for. the best interests of the county as a whole, and may install such passes or not as they. in their judgment, deem best in the interests of all concerned. We find nothing in Chapter 153 that makes it obnoxions as class legislation. 'l'here is nothing in its provisions to indicate it shall be applied to any par- ticular class to the detriment of an~' other class. Obviously the Act is in- tended to prevent livestock from run- ning at large upon the highways and yet at the same time permit the unoh- structed passage of motor Yehicles, and possibly to enable stockmen to control their stock and save fencing where a highway passes through grazing trncts of land. It affects all stockmen alike. Class legislation is said to "consist of those laws which are limited in their operation to certain persons or classes of persons, • ,. • or to certain districts of the territory of a state." (12 C. J. Sec. 855, page 1128.) "As a matter of fact class legislation is not for- hidden. All, indeed, that is required is that there shall be a I'easonahle pub- lic necessity for the law or statute. and that it shall apply generally to all who are equally affected." (Gunn v. Minneapolis Hy. Co. 34 N. D. 418, 158 N. W. 1004.) 'Ve think the Act a clear and valid exercise of Legislative power.