Montana Attorney General Opinion 15-104

Opinion No. 104 County Sm'veyOl'S - Salary - l\lileage and Expenses. HELD: The effect of the amend- ment to Section 1632, R. C. M. 1921, by Chapter 170, Laws of 1929, was to re- store to operation all of section 492,1 and thus permit the County Surveyor to receive only $7.00 per day for sery- ices rendered under the provision of that section. '1'hc county surveyor is not entitled to expenses or mileage while perform- i ng services rendered under this sec- tion. . March 8, 1933. You have requested an opinion from this office regarding the compensation to be paid to the county surveyor of '1'oole County. The statutes pertaining to this sub- ject are Sections 4921, 1639, R. C. 1\1., 1921, and Section 1632, R. C. 1\1., 1921, as amended by Chapter 176, Laws of 1V29. It will be observed that the words "and for all other work per- formed for the county under the direc- tion of the board of county commission- ers", contained in Section 1632 Origin- ally, were omitted in the amendment of 1929 above quoted, although the scope of the statutes was otherwise en- larged. In the case of Hicks v. Stillwater County, 84 Mont. 38, 274 Pac. 296, de- cided January 26, 1929, while the legis- lature was in session, it was held that the inclusion in Section 16:32 of the words which were omitted in Chapter 176, Laws of 1929. by implication amended Section 4921 inwfar as it ap- plied to surveys made for the county by order of the board of eonnty com- missioners and in that case the county surveyor was permitted to reco,er an additional $1.00 per day for 1396lh flays. This decision sustained the rul- ings of the Attorney General prmious- Iy made. amI found in Volume 8, Page 282 and Volume 9. Page 203 Opinions of the Attorney General.' Since the legislature in 192~ amend- erl Section 1632 by nmitting the worfls abm-e quoted. which by implication amended Section 4!l21. the question arises whether or not that portion of the latter section which was amended hy implication has been re,i\-ed. Section !l6, R. C. M. 1~21. provides: "No act or part of an act. repealed by another act of the legislative assemhly. is revi,ed by the repeal of the repeal- ing act ,yithout express words revivinlr such repealed act or part of an act". Tt has been held. however. that such a statute does not apply to certain cases. The rule is stated in 5!l C. J. 942. Sec- tion 557. as follows: "However, it ap- plies only to cases of ahsolute repeal. alHl not to cases where the ori):.,rinal act has been merely suspended. amended. supplemented. or modified. or excep- tions thereto haye ·been created". (Sec Xotes 5 to 10, inClusive, for authorities cited"). The rule is also stated in An- notated Cases 1918B. page 284: "A statute abrogating the common·law rule as to the revival of an act by the repeal of the repealing act, has no ap- plication where the effect of an act is not to ahrogate entirely a former act hut merely to withdraw from the oper- a tion of tlle earlier act a portion of the cases included within its terms, leav- ing the earlier act still in force except as to the cases specifically provided for by the later on€!. Under such cir- C"umstanees the reI>eal of the later act has the effect of again bringing the cases provided for by it within the op- ('ration of the original act." Citing cases in support thereof. This prin- ciple was recol.,"llized by Attorney Gen- eral Foot in his opinion in Volume 11, 84 OPI~IOl\S OF THE ATT( Ifi.XEY Gl<JXERAL Opinions of the Attorney General, page 182, wherein authorities are cited and the rule applied to the question under consideration by him in that case, It is my opinion therefore tha t the effect of the amendment to Section 16B2, R. C, M, 1921, as amended by Chapter n6, Laws of H)29, was to re- store to operation all of Section 4921 and thus permit the county sun-eyor to receh-e only $7.00 per day for sen-- ices rendered under the provisions of that section. It is my opinion further that the county surveyor is not entitled to ex- penses or mileage while l~rforming services rendered under this section as no expenses or mileage are expressly provided for therein. Wade v. Lewis and Clark County, 24 Mont. .3.35, 61 Pac. 879; Wight v. Board of County O:llllmissioners, 16 Mont. 47D, 41 Pac. 271.