16-30
Montana Attorney General Opinion 16-30
Length: 535 wordsOfficial source
Cite as 16 Mont. Op. Att'y Gen. No. 30
Opinion No. 30.
Sheriffs -
Appointment of Under-
Sheriff-Statutes, Construction of.
HELD: 1. In counties of the seventh
and eighth classes, it is not manda-
tory that sheriffs appoint under-sher-
iffs, but they still retain the right to
do so.
28
OPINIONS OF THE ATTORNEY GENERAL
2. Where two acts of the legisla-
ture deal with the same subject ef-
fect must be given to both, if possible.
January 24, 1935.
Mr. Robert H. Allen
County Attorney
Virginia City, Montana
You have requested my opinion as
to whether the sheriff of a seventh
class county, is entitled to an under-
sheriff.
Section 4775, amended by Chapter
24, Laws of 1933, reads as follows:
"Section 1. * * * Section 4775. The
Sheriff, as soon as may be after he
enters upon the duties of his office,
must, except in counties of the sev-
enth and eighth classes, appoint some
person Under-Sheriff to hold during
. the pleasure of the Sheriff.
Such
Under-Sheriff has the same powers
and duties as a Deputy Sheriff."
Section 4873 fixes the annual com-
pensation of the under-sheriff of a
county of the seventh class at a rate
not less than $1,800.
Section 4875
provides: "* * * The whole number
of deputies allowed the sheriff is one
under-sheriff, and in addition not to
exceed the following number of depu-
ties: In counties of the first and sec-
ond classes, six; in counties of the
third and fourth classes, two; in coun-
ties of the fifth, sixth, seventh and
eighth classes, one.
The sheriff in
counties of the first, second and third
classes may appoint two deputies, and
in the fourth, fifth, sixth, seventh and
eighth classes, one deputy who shall
act as jailer and receive the same sal-
ary as other deputy sheriffs."
Reading these sections together, it
is my opinion that the duty of the
sheriff to appoint an under-sheriff
"as soon as may be after he enters
upon the duties of his office," in coun-
ties of the seventh and eighth classes
as provided by Section 4775, as
amended, is not mandatory but is op-
tional and that under Section 4875,
which has not been expressly amend-
ed, the sheriff still retains the discre-
tion of appointing an under-sheriff,
should he find it necessary to do so.
Section 4775, as amended, and Sec-
tion 4875 are not necessarily in con-
flict or repugnant to each other. This
construction is in line with the general
rules of construction. In 59 C. J. 918,
Section 519, the rule is stated: "One
of two affirmative statutes on the
same subject matter does not repeal
the other if both can stand.
The
court will, if possible, give effect to
all statutes covering, in whole or in
part, the same subject matter where
they are not absolutely irreconcilable
and no purpose of repeal is clearly
shown or indicated."
Our Supreme Court has likewise
said in State ex reI. Wynne v. Quinn,
40 Mont. 472, 107 Pac. 506: "Repeals
by implication are not favored. Where
two Acts of the legislature deal with
the same subject, effect must be giv-
en to both, if possible." See also 59
C. J. 904, Section 508, et seq.