Montana Attorney General Opinion 17-71

Opinion No. 71. Gambling-Exemptions from License Fee. HELD: Charitable, fraternal and religious organizations, and private homes are exempt from the payment of the license fees under the pro- visions of Chapter 153. Laws of 1937. March 29, 1937. Mr. Warren A. Lepper Treasurer, Hill County Havre. Montana Dear Mr. Lepper: You have submitted a request for an opinion on the interpretation of certain provisions of Chapter 153 (HB-241) anr\ state that there is a discrepancy in or conflict between certain provisions of said Act. Among other things, this act pro- vides that: "It shall be lawful for cigar stores, fraternal organizations, charitable or- ganizations, drug stores, and other places of business upon the payment of a license fee therefor to the county treasurer in the sum of $10.00 an- nually, per table used or operated in such places of business to maintain and keep for the use and pleasure of customers and patrons, card tables." Section 3 of said Act provides: "That any religious, fraternal, or charitable organization and all pri- vate homes are not included within the provisions of this Act." Tn other words, the paragraph first above quoted, requires fraternal or- OPINIONS OF THE ATTORNEY GENERAL 75 ganizations and charitable organiza- tions, among others, to pay a li- cense fee to the county treasurer, of $10.00 annually, per table used or operated in such places, and sec- tion 3 expressly excludes fraternal or charitable organizations from the re- quirements of this act. It is obvious and apparent that section 3 is in con- flict with the first quoted language of said act. As to whether or not fra- ternal or charitable organizations are required to pay this license fee must be determined by ascertaining the effect of the act under the rules of constru- ing conflicting sections of a statute. Section 10520 provides: "In the construction of a statute, the intention of the legislature, and in the construction of the instrument the intention of the parties, is to be pursued if possible and when a gen- eral and particular provision are in- consistent, the latter is paramount to the former. So a particular intent will control a general one that is in- consistent with it." Section 3 is a particular provision, and also specific. While its terms are not as definite as the quoted language in section 1, yet it is apparent that the language used in section 3 is the language of a particular nature. There- fore we have the situation where in two particular provisions or sections of one act have particular provisions, and each is inconsistent and in con- flict with the other. Section 10710 provides: "The rule of the common law, that penal statutes are to be strictly con- stu ed, has no application to this code. All its provisions are to be construed according to the fair im- port of their terms, with a view to effect its object and to promote justice." It has been held in the case of State ex reI Kurth v. Grinde, 96 Mont. 608, that the common law rule re- quiring penal statutes to be strictly construed has no application to the penal code. The general rule is recog- nized, however, that penal statutes must be strictly construed, see State v. Bowker. 63 Mont. I. In the case of Lerch v. Missoula Brick & Tile Com- pany, 45 :'I'font. 314, the Court has laid down the rule that the intention of the legislature is to be pursued, if possible. I n conjunction with this rule, it appears that thruout the entire act, the legislature deliberately and ex- pressly excepted religious organiza- tions from the provisions of the same, and the language, "religious organizations," is not included in section 1 of said act, but is expressly used in section 3 of said act. It would appear, therefore, that it was the in- tention of the legislature that fra- ternal or charitable organizations should be placed upon the same basis as religious organizations. These two organizations, fraternal or charitable, would not be operating under the pro- visions of this act for profit, and their patronage would be more or less re- stricted, and distinguished from the patronage received by a person opera- ting a private business such as a cigar store. For if a person was prosecuted as having operated a charitable or fraternal organization without having procured the 'requisite license, under the rule of reasonable doubt that he as a defendant would have, it would necessarily follow that repugnancy in the statute must be resolved in favor of the defendant, and the defendant would be entitled to a liberal interpre- tation of said statute. Therefore, it is my opinion, that fraternal, religious and charitable or- ganizations, and private homes are expressly exempted from the payment of license fees under the provisions of Chapter 153, Laws of 1937.