Montana Attorney General Opinion 16-80

Opinion No. 80. Constables-Salary-Statutes, Enact- ment of-Legislative Assembly, Examination of Journals. HELD: Where the House Journal shows that amendments proposed by a Joint Committee on Conference were regularly adopted by a majority of the members of the House, and where the Senate Journal fails to dis- close that the report of the committee on conference was ever submitted to that body, a law may not be attacked on the ground that is was irregularly passed, for the reason that the vote on the adoption of a conference com- mittee report or on amendments adopted by another house is not a "vote on final passage" and courts may only examine the journals to determine whether the aye and no vote was recorded upon final passage. Chapter 152, Laws of 1935, providing for fees and salaries of constables is not vulnerable to attack upon that ground. Hon. Harry Meyer State Senator Butte, Montana April 17, 1935. I have your letter of March 30, rel- ative to Chapter 152, Laws of Mon- tana, 1935. We have been requested to render an opinion as to whether or not the provisions of this chapter, which pro- vide for the payment of a salary to constables in townships having a cer- tain population, apply to incumbent constables. We have prepared an opinion in which we held that under Article V, Section 31 of the Constitu- tion of Montana, these provisions do not apply to incumbent constables. This opinion has not yet been issued however, but as soon as it has, I shall be glad to see that a copy of it goes forward to you. As you requested in your letter of March 30, we have followed the his- tory of this bill in both the Senate . and House Journals. The amendment to Section 4932, R. C. M. 1921, made in the bill as intro- duced, was as follows: "That con- stables in townships having a popula- tion of 10,000 people and not exceed- ing 20,000 people, shall each receive a salary of $900.00 per annum, pay- able monthly from the county treas- ury. Constables in townships hav- ing a population of more than 20,000 people shall each receive a salary of $1,500.00 per annum, payable month- ly from the county treasury, and con- stables in such townships shall re- ceive no other fees for civil suits or criminal actions except mileage in the performance of their duties. Any such fees received by the constables shall be turned over to the County Treas- urer." The biII passed the House without amendments and was referred to the Senate. On February 20, the following re- port of the Committee of the Whole in the Senate was adopted: "That House Bill No. 76 be amended in Sec- tion 1 by striking out in line 42, the figures '10,000' and inserting in lieu thereof the figures '12,000'; and, as so amended, recommend said House Bill No. 76 be concurred in." The biII as amended was then pass- ed on third reading and sent back to the House and the House refused to concur in the Senate amendment; thereupon a Conference Committee was requested and appointed. On March 1, 1935, we find the fol- lowing entry in the House Journal: "Mr. Speaker: "We, your Committee on Confer- ence of House Bill No. 76, beg leave to report as follows: "Amend Section 1 by inserting in line 46, after the word 'townships', the following: 'where the population is twelve thousand (12,000) people and not more than thirty-five thou- sand (35,000)'. And as amended, do pass. Signed: Meyer, Campbell, Armstrong for the Senate. Conner, Gordon, Pad bury for the House. "On motion of Conner, duly sec- onded, report of the Conference Com- mittee on Senate amendments to House Bill No. 76, was adopted by OPINIONS OF THE ATTORNEY GENERAL 75 the following vote: Ayes 68; noes 2; not voting 32." The bill was thereupon enrolled and signed by the Speaker of the House and the President of the Senate, con- taining the Conference Committee amendment. Our search of the journal and the history and title as shown on the en- rolled bill, did not disclose that the Conference Committee's report was ever submitted to the Senate. Whatever may be the rule when construing or interpreting a statute (see Nichols v. School District, 87 Mont. 181, 287 Pac. 624; Murray Hos- pital v. Angrove, 92 Mont. 101, 10 Pac. (2d) 577), our supreme court has said with emphasis: "It is there- fore apparent that, when the consti- tutionality of an Act is questioned on the ground of irregularity of legisla- tive action, the only purpose for which the courts may examine the journals of that body is to determine whether the ayes and noes vote was entered." (State ex rel. Woodward v. Moulton et al., 57 Mont. 414, 189 Pac. 59.) The reason for this rule is that the requirement of Section 24, Article V of the Constitution of Montana is mandatory and not directory only. (Palatine Ins. Co. v. Northern Pac. Ry. Co., 34 Mont. 268.) We then come to the question, does the Senate Journal show that on final passage of Chapter 152, supra, an aye and no vote was taken with the names of those voting entered there- in? The question is not without its perplexities. At page 93, Lewis' Sutherland Stat- utory Construction, Volume 1 (2d), it is said: "As to what is the 'final passage of a bill' within the meaning of the constitution, there is a differ- ence of opinion. Some courts hold that the final passage of a bill is when it is first passed in each house, and that concurrence in subsequent amendments made by the other house, or in the report of a conference com- mittee, may be made without a yea and nay vote, and without entering the result in the journals. Other courts hold that it is the last vote in each house which gives efficacy to the bill." Again, at 59 C. J. 570, we read: "The vote on the appointment of a conference committee, or on the adop- tion of its report, or on the concur- rence in amendments made by the other house, is not a voting on the final passage of the bill such as to require the taking of the yeas and nays as upon final passage, at least where the amendments are immate- rial or are only of a trivial 'nature, such as correcting tautology. There is other authority, however, that the constitutional provision regulating the mode of voting on the final passage of bills is applicable to the concur- rence in amendments made by the other house." There is but one decision of the supreme court of this state in which this question has been considered. In Johnson v. City of Great Falls et al., 38 Mont. 369, 99 Pac. 1059, it was held: "After a bill has, on third read- ing, passed the house in which it orig- inated, the vote being taken by ayes and noes and the names of those vot- ing entered on the journal, as re- quired by Section 24, Article V of the Constitution, and is amended in the other house of the legislative assem-' bly, and then returned to the first for action on the amendments, it is not necessary that the vote on the adop- tion of the amendments thus made be again taken by ayes and noes and the names entered on the journal." In the Johnson case the court adopted this statement from 26 American and English Encyclopedia of Law 544: "The final passage of a bill, within the meaning of such a provision, is the vote on which each house adopts the bill after it has passed its first and second readings and after it has been read again for the purpose of being put upon its pas- sage, and where a bill has been passed in one house and amended and passed in the other, it is not necessary that the vote on the adoption of such amendment by the house in which it was first passed shall be taken by yeas and nays and entered on the journal." Mr. Justice Holloway, speaking for tl:1e court, distinguished and refused to follow the leading Kentucky case of Norman v. Ky. Board of Managers, 93 Ky. 537, 20 S. W. 901, 18 L. R. A. 556, wherein the following reasoning, 76 OPINIONS OF THE ATTORNEY GENERAL which appeals to us, is set forth: "It is true it has been held that the 'final passage' of a bill means when it first passes the body, and not when it re- turns to it, after amendment, for adoption; and it is said that the con- stitutional provision as to the number of votes, and the entry of the yea and nay vote on the journal, does not apply to amendments or the report of conference committees. If so, then no matter how material the change, a majority vote of a quorum may pass the bill. The words 'final passage', as used in our constitution, mean final passage. They do not mean some pas- sage before the final one, but the last one. They do not mean the passage of a part of a bill, or what is first in- troduced, and which may by reason of amendments become the least impor- tant. If so, then the body may pass what is practically a new bill in a manner counter to both the letter and spirit of the constitution." There is a possibility that the case before us might be distinguished from the Johnson case, since it is apparent from the opinion itself that the court took notice of the house journal to show that the amendment was at least submitted to the consideration of the members of the house even though that journal did not show the aye and no vote thereon. In this case the journal of the Senate does not even show that the report of the com- mittee on conference, or the amend- ment proposed by it, was ever sub- mitted to the Senate. However, in view of the position that has been taken by our supreme court, as well as the supreme courts of other states, and in view of the rule adopted by many courts that the entire silence of the journal respect- ing a concurrence will not render the act void (State ex reI. Bray v. Long, 21 Mont. 26, 52 Pac. 645; 59 C. J. 572; Section 51, Lewis' Sutherland Statutory Construction, Vol. I (2d) p. 85; 25 R. C. L. 885), it is doubtful if this could be shown and the valid- ity of the act impeached for irregu- larity in its passage. (State ex reI. McTaggart v. Middleton, 94 Mont. 607.) Your second question is whether or not, under the act, a constable in a township having a population of more than 35,000 is entitled to a salary of $1,500 per annum and to retain also the fees he collects pursuant to said act. The applicable part of Chapter 152, supra, as passed and approved, is as follows: "That Constables in townships having a population of twelve thousand (12,000) people and not exceeding twenty thousand (20,- 000) people, shall each receive a sal- ary of $900.00 per annum, payable monthly from the County Treasury. Constables in townships having a pop- ulation of more than twenty thousand (20,000) people shall each receive a salary of $1,500.00 per annum, pay- able monthly from the County Treas- ury, and Constables in such town- ships where the population is twelve thousand (12,000) people and not more than thirty-five thousand (35,- 000) people shall receive no other fees for civil suits or criminal actions ex- cept mileage in the performance of their duties. Any such fees received by the Constables shall be turned over to the County Treasurer." Before replying to your question we shall briefly review the following rules of statutory interpretation as laid down by the supreme court of this state from time to time: While it is true that the first duty of the court is to give effect to the inten- tion of the legislature (Section 10520, R. C. M. 1921; McNair v. School Dis- trict No. I, 87 Mont. 423, 288 Pac. 188, 69 A. L. R. 866) the court must con- strue the law as it finds it (Great Northern Utilities Co. v. Public Serv- ice Commission et aI., 88 Mont. 180, 293 Pac. 294; Montana Beer Retailers Protective Assn. et ai. v. State Board of Equalization, 95 Mont. 30, 33 Pac. (2d) 563), and where the language of the statute is plain and unambigu- ous it may not resort to any rules of construction (State v. Cudahy Pack- ing Company et aI., 33 Mont. 179, 114 Am. St. Rep. 804, 8 Ann. Cas. 717; State ex reI. Peck v. Anderson, 92 Mont. 298, 13 Pac. (2d) 231; Chicago, Milwaukee, St. P. & Pac. R. Co. v. Custer County, 96 Mont. 566, 32 Pac. (2d) 8). All parts of an act must be made operative (County of Hill v. County of Liberty, 62 Mont. 15, 203 Pac. 500), and each word, phrase, clause, sentence, paragraph and sec- tion in a statute must be given mean- ing or effect if it is possible (Stange OPINIONS OF THE ATTORNEY GENERAL 77 v. Esval, 67 Mont. 301, 215 Pac. 807; State ex reI. Thatcher v. Boyle, 62 Mont. 97, 204 Pac. 378; Campbell v. City of Helena, 92 Mont. 366, 16 Pac. (2d) 1; State ex reI. Snidow et aI. v. State Board of Equalization, 93 Mont. 19, 17 Pac. (2d) 68). In doing this the fact that a literal construction of the act results in inequities is not de- terminative (Sullivan v. Anselmo Min- ing Corporation et aI., 82 Mont. 543, 268 Pac. 495). And although the pol- icy that motivates the passage of a statute is persuasive in some cases it is not decisive where the language of the act is free from doubt (Fergus Mo- tor Co. v. Sorenson, 73 Mont. 122, 235 Pac. 422) as the letter of an unambig- uous statute will not be disregarded under the pretext of pursuing its spirit (Cruse et aI. v. Fischl, 55 Mont. 258, 175 Pac. 878; State v. State Highway Com. et aI., 82 Mont. 382, 267 Pac. 499). In other words, our court holds that the supposed unexpressed inten- tion of the legislature cannot over- ride the clear import of the language it uses (Equitable Life Assur. Soc. of U. S. v. Hart, 55 Mont. 76, 173 Pac. 1062; State v. Anderson, supra). The court may not omit what has been in- serted (State v. Certain Intoxicating Liquors, 71 Mont. 79, 227 Pac. 472). Applying these rules, then, it will be seen from the act itself that so far as compensation is concerned the legislature has provided for four groups of constables: 1. Constables in townships hav- ing a population of less than 12,000 receive only the fees they collect, if any; 2. Those in townships having a population of 12,000 and not exceed- ing 20,000 shall receive a salary of $900 per annum and the fees they collect, if any, must be paid into the County Treasury; 3. Those in townships having a population of more than 20,000 and less than 35,000 shall receive a sal- ary of $1,500 per annum and the fees they collect, if any, must be paid into the County Treasury; 4. Those in townships having a population of more than 35,000, who shall receive a salary of $1,500 per annum and who may also retain the fees they collect, if any, except that they may not be allowed more than $500 per annum in criminal cases.