Montana Attorney General Opinion 15-79

Opinion No. 79 Statutes - Construction - Deputies -County Officers. HELD: The Nepotism Act, Chapter 12, I~'lwS of 1933, is not retroactive and does not apply to nppointment of a deputy prior to approval of act. February 16. 1933. You have requested my opinion on the following question: -"May a deputy in a county offiel' continue to hold such office anll re- ceive comllensation, though related to ,his principal within the degrees men- tioned in Chapter 12, Senate Bill No. 19 of the present legislative session (0epotislll Hill) \vhere the appoint- ment of such deppty was made pI;or to said l\'evotism Bill going into ef- fect'!" Section 3, n. C. M. 1921, provides: "No law contained in any of the codes, or other statutes of nlontana, is retro- active unless expressly so declared." Chapter 12 was apvroyed on Febru- ar~' 10, 1933. and as provided therein, went into fnll force and effect from anel after its l)aSsage nnd apprm'al. Aft- er a careful rending of -this bill T am unable to find :my Innguage whatever in the act in which the legislature ex- pressly dec-Iared it to be retroactive. Section 2 of the act pro\'ides: "It sha II be unlawful for any pel'son '" * .. to apI}oint to any position of trust .. .. .." anel further pro\'ides: "Jot ~ha II he further unlawful for any per- son .. .. .. to enter into any agree- ment or any promise with other per- sons .. .. "." Section 3 provides: "Any public officer .. .. .. who shall make or appoint to such services, or enter into lillY agreel.nent or promise with any other person .. .. .. to ap- point any person .. .. .. " It is oln'ions from a rea{ling of the act -that the legislature did not express- ly declare it to be retroactive nor do I find any language in it from which one might infer tha t the le/,rislature intend· ('(I to make it retroactive in any way. I have been able to find one case where this question was considered. 66 OPINioNS OF THE ATTOR:\"EY GE~ERAL In Barton v. Alexander, 148 Pac. 471, the Idaho COUl't in construing an act somewhat similar in language to ours, held that the legislature did not in- tend the act to be retroactive, and said on pp. 475-476: "The first section of said act pro- yides that any officer therein named 'who appoints or "otes for the ap- pointment of any person related to him,' etc., is 'guilty of.a misdemeanor inYo!\ing official misconduct, and :Ipon conviction thereof shall be pun- ished by fine • .. • and shall for- feit his office and be ineligible for ap- llointment to such office for one year thereafter.' 'l'he legislature by using tha-t language evidently did not intend to make an official guilty for acts done prior to the date of said act that were not crimes at the time said acts were done, and the language, 'who appoints or votes for the appointment of a person reI a-ted to him.' clearly in- dica tes that the legisla ture did not' in- tend to make said act retrospective 01' cx post facto. If it did so intend. the la \\' would be absolutely void for at- tempting to make an act a clime when it was not a clime at the time the act was performed. Ex post facto laws are prohibited hy Section 16, Article I, of the O:lnstitution of this sta-te, and are also prohibited b~' the provi- ~ions of the Constitution of the Unit- ed Stu tes, nor is therc anything' in the title of .the act that would indicate that the legislature intended that the act should IUl\'e a retroactive effect." In Idaho the constitutional provision is not quite as broad as in Montana. Section 1)444 of the Idaho Law~, reads as follows: "No part of these compiled laws is retroactive unless expressly so declared." Since the le!,9slature has not express- ly declared the act to be retroactive and has used no language from which it might be inferred that such was their intention, it is unnecessary to deter- mine whether the act is • unconstitu- tional on that ground, nOl' do we find it necessary to consider the constitu- tionality of the act on any other ground. It is therefore my opinion that Chav- tel' 12, Laws of 1933, has no applica- tion to the appointment of a deputy made prior to February 10, 1933.