Montana Attorney General Opinion 16-173

Opinion No. 173. Motor,Busses-Labor, Hours of Drivers and Attendants- Motor Vehicles. HELD: Chapter 76, Laws of 1935, covers all drivers and attendants, whether paid for their services in cash or in commissions, or whether driving their own busses. September 25, 1935. Mr.' J. E. McKenna County' Attorney Lewistown, Montana You have submitted the following: "Chapter 76 of the Laws of 1935 provides for the number of hours drivers or attendants of motor bus- ses shall be compelled to work in the 24-hour period, or one day. "Under the provisions of the said Chapter would motor bus drivers employed on a commission fall under the provisions of the said Chap- ter 76? "In your opinion would Chapter 76 above mentioned, apply to motor bus drivers who are paid by commission on the, business carried on, and who also furnish their own trucks?" Section I, Chapter 76, Laws 1935, reads as follows: "Drivers or attend- ants of motor busses employed in the State of Montana, shall not be employed for more than eight (8) hours in the twenty-four (24) hour period and drivers or attendants of motor busses shall be allowed a rest of at least twelve (12) hours be- tween the completion of their serv- ices in any twenty-four (24) hour period and the beginning of their services in the next succeeding twenty-four (24) hour period. * * *" Chapter 76 is an act enacted by the State under its police powers pri- marily for the protection of the traveling public, as well as the driv- ers and attendants on the busses. The legislature evidently thought it was unsafe for a driver or an attendant of motor busses to be engaged con- tinuously in such occupation for more than eight hourlj!. So far as concerns the safety of the driver and attendant, or the passen- gers on the busses, the nature of the contract under which the driver and attendant operate is immaterial. It does not make any difference whether they are paid in wages, com- missions, or from the profits in op- erating their own busses. The word "employ" is defined by Webster's dictionary as follows: "To enfold, involve, implicate, engage; l. to employ, to enclose, enfold, involve; 2. to make use of, as an instrument, 180 OPINIONS OF THE ATTORNEY GENERAL means or material; to apply, use; as to employ the pen in writing, bricks in building, words or phrases in speaking; 3. to occupy; busy; de- vote; concern; as to employ time in study; to employ one's energies to advantage; 4. to make use of the services of; to give employment to; to intrust with some duty or behest; as to employ one hundred workmen; to employ an envoy." In 20 Corpus Juris 1238 it is stated: "The word (employ) is used in divers significa.tions. Although it usually imports the relation of mas- ter and servant, or of employer and employee, this is not the universal rule, and the idea of compensation is not necessarily involved in the term." As a verb in the past tense ap- plied to persons it is defined: "En- gaged, or about to be engaged; en- gaged in service; engaged or occu- pied in the performance of work or duties; hired to perform labor; oc- cupied in any handicraft, whether for wages or not, under a master or parent; also either busy or occupied at work, or commissioned and in- trusted with the management of af- fairs; selected or designated; used as an agent or substitute in trans- acting business. * * *" Considering the object of the Act, it is my opinion that the legislature used the word "employed" in the broader sense of 'engaged in, or oc- cupied in the performance of work or duties' rather than in the narrow sense importing the relation of mas- ter and servant, or of employcr and employee. "In construing a statute to give effect to the intent or purpose ot thc legislature, the object of the statute must be kept in mind, and such con- struction placed UpO!! it as will, if pOSSible, effect its purpose, and ren- der it valid, even though it be some- what indefinite. To this end it should be given a reasonable or liberal con- struction; and if susceptible of more than one construction, it must be given that which wil best effect its purpose rather than one which would defeat it, even though such con- struction is not within the strict literal interpretation of the statute, and even though both are equally reasonable. * * *" (59 C. J. 961, Sec- tion 571.) See also: Mills v. Stewart, 76 Mont. 429, 247 Pac. 332; Swords v. Simineo, 68 Mont. 164, 216 Pac. 806; State v. Duncan, 55 Mont. 376, 177 Pac. 248; Great Northern Utilities v. Public Service Commission, 88 Mont. 180; 293 Pac. 294; State v. Cal- low, 78 Mont. 308, 254 Pac. 187; State v. Bowker, 63 Mont. 1, 205 Pac. 961. If the narrow construction import- ing the relation of master and servant, or employer and employee, were given to the word "employed" so as to make the Act apply only to those owners who did not drive their own busses, the Act would be clearly unconstitu- tional, being in violation of the equal protection clause of the Fourteenth Amendment of the United States con- stitution. Such a contruction should be given to an act so as to render it valid, if fairly possible to do so, and particularly where such construction will give effect to the purpose of the legislature. It is presumed that the legislature intended to act within the scope of its constitutional powers. See: Public Service Commission v. Helena, 52 Mont. 527, 159 Pac. 24; State v. Alderson, 49 Mont. 29, 140 Pac. 82; State v. District Court, 41 Mont. 357, 109 Pac. 438. The principles of construction above stated are supported by decisions in all jurisdictions. In 12 Corpus Juris 787, Section 220, it is stated: "When reasonably possible, a statute must be so constructed (construed) as to uphold its validity. Indeed, a statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts on that score. * * * If a statute is susceptible of two con- structions, one of which will render it constitutional and the other uncon- stitutional, it is the duty of the court to adopt that construction, which, without doing violence to the fair meaning of the language will render it valid. This rule is based on the presumption that the legislature in- tended to act within the scope of its constitutional powers, and to enact a valid and effective statute. * * * ." For the foregoing reasons it is my opinion that all motor bus drivers and attendants, whether paid in wages or OPINIONS OF THE ATTORNEY GENERAL 181 on a commission basis, rJr whethp.l' they are driving their own busses or trucks, come within the scope of said Chapter 76, Laws of 1935.