Montana Attorney General Opinion 16-63

Opinion No. 63. Highways-Engineers-Air Compressors. HELD: Any person who operates any air compressor operated by any power, except in emergencies, as pro- vided in Section 2728, R. C. M. 1921. must obtain an engineer's license as required by Sections 2731-2732. R. C. M.1921. March 21. 1935. Mr. R. D. Rader State Highway Engineer The Capitol We have your letter of March 18. requesting the opinion of this office upon the following matter: "The question has been raised by one of our highway contractors as to whether or not a licensed engi- neer is required to operate air com- pressors which are used to drive jack hammers and other drills on highway work. Section 2730 of the Montana Codes does not seem to be entirely clear. but it can be read to make an exception of 'any air com- pressor operated by any power· ... Section 2730 provides: "It shall be unlawful for any person to operate an electric hoisting engine. or any air hoisting engine, or any hoisting engine operated by gas, oil, or any product of oil, of over five horse- power when used in lowering or hoisting men, except in operating ele- vators in buildings, or any air com- pressor operated by any power, with- out first obtaining a license therefor from a boiler inspector as herein pro- vided. Except that in emergencies the provisions of Section 2728 relat- ing to the employment of unlicensed engineers shall apply to the operation of the engines and machinery named herein." Although this is a penal statute, the common law rule that it must be strictly construed has been abrogated in this state by Section 10710, R. C. M. 1921, which also provides that: "All its provisions are to be con- strued according to the fair import of their terms with a view to effect its object and to promote justice." (See Continental Supply Company v. Abell, 95 Mont. 148, 24 Pac. (2d) 133; State ex rel. Kurth et al. v. Grinde et al., 96 Mont. 608, 32 Pac. (2d) 15.) The duty of the courts is to as- certain the intention of the legisla- ture (Section 10520, R. C. M. 1921; Conley v. Conley, 92 Mont. 425, 15 Pac. (2d) 922), and in construing a statute a court must elicit its pur- pose and intent from the terms and expressions employed, if this is pos- sible, calling to its aid the ordinary rules of grammar. (Jay v. School District No.1 of Cascade County, 24 Mont. 219, 61 Pac. 250.) Applying these rules to the statute quoted above we believe it is clear that the phrase "except in operating elevators in buildings" is a restrict- ive prepositional phrase qualifying the sentence in so far as it refers to hoisting engines. Since the excepting phrase is followed by the disjunctive "or any air compressor operated by any power" we think that the legis- lature did not intend to extend the OPINIONS OF THE ATTORNEY GENERAL 59 exception to both elevators used in buildings and to all air compressors. If such was the intention appropriate and unambiguous language could have been readily employed. ' The legislature could have used the con- junctive instead of the disjunctive, or could have said "or except any air compressor." The use of the word "any" is significant. If it was the in- tention to exempt all air compres- sors, instead of to regulate the oper- ation of any such compressor, the legislature could have said "and air compressors." Accordingly, it is our opinion that any person who operates any air compressor operated by any power, except in emergencies, as provided in Section 2728, R. C. M. 1921, without first obtaining the license required by Sections 2731-2732, R. C. M. 1921, is guilty of a misdemeanor and upon conviction thereof should be pun- ished as provided by Section 2736, R. C. M. 1921.