Montana Attorney General Opinion 17-79

Opinion No. 79. Public Accounting, License to Engage in-Statutes-Construction. HELD: Section 3241.1 as amended by Chapter 90, Laws 1935, does not require that applicant for certificate as certified public accountant shall have engaged in public accounting or audit- ing for five years immediately before making application for license. Where the words of a statute are plain and unambiguous there is no occasion for construction. Statute's abrogating common law rights, particularly the right to engage in one's occupation, should be strictly construed. April 1, 1937. Board of Examiners in Accountancy University of Montana Missoula, Montana Gentlemen: Section 3241.1 as amended by Chap- ter 90, Laws of 1935, provides: "All persons are certified public accountants of this state who are entitled to practice as certified public accountants therein, and every per- son is entitled to be certified by the state university of Montana (herein- after referred to as the university) as a certified public accountant who shall have been engaged in public accounting or auditing exclusively and continuously for at least five years before making application to the university for a certificate as a certified public accountant, * * * ." From March, 1920 to July, 1933, George H. Platt was engaged ex- clusively and continuously in public accounting or auditing in the State of Montana; as a result of the de- pression and the necessity of support- ing his family, he took part-time work running- an auto street sweeper in Great Falls, for about ten days each month, or a total of sixty days from July, 1933 to April, 1934. In April, 1934 to October, 1934, he was em- ployed as a timekeeper on a \V.P.A. Project for the State Highway De- partment, and from October 1934 to December, 1934, he was employed as accountant to Clapper Motor Company at Cut Bank, thus for a period of nine months he was em- ployed full time at other work altho he claims that at all times he main- tained outside connections in ac- countancy. On September 24, 1935, he made application to the university for a certificate as required by said Section 3241.1 as amended, but his application was denied on the ground that he had not been engaged in public accounting or auditing ex- clusively and continuously for five years immediately before making his application. The action of the board in denying the application seems to have been OPINIONS OF THE ATTORNEY GENERAL 85 based upon its construction of the statute and informal opinion or let- ter written by G. J. Dousman as Assistant Attorney General, ex- pressing the view that "the terms 'exclusively' and 'continuously' in the statute should mean immediately preceding the date of the application." No reaSOn was stated for this view except that he did not believe that the intent of the legislature was other- wise. Whether Mr. Platt is entitled to a certificate depends upon the construc- tion to be placed upon the language of the statute above quoted. Does the statute mean that applicant shall have been engaged in public account- ing or auditing exclusively and con- tinuously for any five-year period be- fore making application, or does it mean that applicant shall have been engaged exclusively and continuously for at least five years immediately be- fore making application? Whichever interpretation is placed upon the statute leads to injustices and absurdi- ties. It is pointed out that if any period of five years may be taken, then a person may go back ten or fifteen years, or any number of years to find his qualifications. It is argued that one who has for so many years been out of the work would not be quali- fied and should not be given a cer- tificate. Against this it may be said that while this is possible, such a situation is largely theoretical and, so far as we are advised, actually has not occurred at any time prior to the amendment to the statute made in the Laws of 1937. On the other hand, if the word "immediately" is supplied as expressing the intention of the legislature, grave injustice may occur to persons who, on account of illness, other necessity or reason, were tem- porarily unable or unwilling to engage in public accounting or auditing im- mediately before the passage of the Act, and that their efficiency to en- gage in such occupation has not been thereby impaired. There are two difficulties to con- struing the statute so as to include the word "immediately" before the word "before" so that it would read "im- mediately before" instead of "before," and both of them seem to us insuper- able. First: The phrase "who shall have been engaged in public accounting or auditing exclusively and continuously for at least five years before making app:ication * * *" is plain, unam- biguous, direct and certain. It speaks for itself and there is nothing to con- strue. Our Supreme Court, speaking by Chief Justice Callaway, in Chmiel- ewska v. Butte & Superior Mining Co., 81 Mont. 36, 260 Pac. 616, said (p. 42): "Our duty is not to enact but to expound the law, not to legislate but to construe legislation; to apply the law as we find it, to maintain its integrity as it has been written by a co-ordinate branch of the state government.' (Cooke v. Holland Furnace Co., 200 Mich. 192, L. R. A. 1918E, 552, 166 N. W. 1013.) When the terms of a statute are plain, un- ambiguous, direct and certain, the statute speaks for itself; there is naught for the court to construe. So it is here; * * * ." Again in Maki v. Anaconda Copper Mining Co., 87 Mont. 314, 287 Pac. 170, our court, speaking by Mr. Justice Matthews, said (p. 324): "No rule of construction can justify the disregard of the plain mandate of the law. 'In the construc- tion of a statute the office of the judge is simply to ascertain and de- clare what is in terms or in sub- stance contained therein, not to in- sert what has been omitted, or to omit what has been inserted. (Sec. 10519, Rev. Codes 1921),' (Chmiel- ewska v. Butte & Superior Mining Co., above.)" The court again had occasion to voice this principle in Clark v. Olson, 96 Mont. 417, 31 Pac. (2) 283. The court, speaking by Chief Justice Calla- way, said (pp. 431-432): "Sections 2838 and 2839 are plain and unequivocal. The intention of any legislation must be inferred in the first place from the plain meaning of the words used. If this intention can be so arrived at, the courts may not go further and apply other means of interpretation. (State v. Cudahy Pack- 86 OPINIONS OF THE ATTORNEY GENERAL ing Co., 33 Mont. 179, 82 Pac. 833, 144 Am. St. Rep. 804, 8 Ann. Cas. 717; State ex reI. Rankin v. Wibaux County Bank, 85 i\10nt. 532, 281 Pac. 341; Great Northern Utilities Co. v. Public Service Commission, 88 Mont. ISO, 293 Pac. 294.) 'If the legislature did not intend that the courts should accept and act upon this statute as it is written, then the legislature, and not the courts, should amend the Act and make it clearly express the legisla- tive will.' (Johnson v. Butte & Su- perior Copper Co, 41 Mont. 158, 108 Pac. 1057, 1061, 48 L. R. A. (N. S.) 938.) In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted. (Sec. 10519, Rev. Codes 1921.) 'Our duty is not to enact, but to expound the law, not to legislate, but to construe legislation; to apply the law as we find it, to maintain its in- tegrity as it has been written by a co-ordinate branch of the state government.' Cooke v. Holland Furance Co., 200 Mich. 192, 166 N. W. 1013, L. R. A. 1918E, 55~.)' (Chmielewska v. Butte & SuperIor Mining Co., 81 Mont. 36, 261 Pac. 616, 617.)" The court in that case quoted with approval the following language from Taylor v. Fidelity & Casualty Co., 246 Ky. 598, 55 S. W. (2d) 410,413: "The conclusion might appear to be harsh, but courts are not responsible for conditions brought about by statu- tory enactments. Their duty ceases when the task of construction is per- formed and when it is found that the statute transgresses no inhibition of the Constitution. Neither are courts authorized to inject into a statute a provision, or part of another inde- pendent one, upon the theory that there is no substantial reason for its omission from the statute under consideration, since they are not au- thorized to amend a statute to con- form to what may be concluded as a better reason for its enactment, nor to supply a reason when the legisla- ture enacting it has not done so." Not only is this a general principle recognized by all courts (see 59 C. ]. p. 952, Sec. 569) but it has been expressly expressed in a statute, Sec- tion 10519 R. C. M., 1935: "In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is in terms or in substance con- tained therein, not to insert what has been omitted, or to omit what has been inserted; * * * ." Second: Even if there were oc- casion for construction of the statute, it is the rule in such cases that it must be construed strictly, as an implied abrogation of common law rights is not favored. It is the general rule that laws which restrain the exercise of any trade or occupation are to be COn- strued strictly. Such rights are not deemed changed unless it appears by express words or plain implication that it was the intention of the legislature to change them. Such rights will be no further abrogated than the dear import of the language requires. We believe this rule is universally recog- nized. (See 59 C. ]. p. 1124, sec. 66\ and the numerous cases cited therein.) Applying this test it cannot be said that it was the clear intent of the legislature to require five years of work in public accounting or audit- ing immediately before making appli- cation, thereby depriving a man of the right to engage in his occupation after following that occupation for ovel' thirteen years exclusively and COll- tinuously. His rights were established under the law before it was again amended in 1937. The certificate should have been issued to him upon his ap- plication in September, 1935. He has not lost any of his rights by the last amendment, which is not retroa(~tive. For the reasons given, it is my opinion that the applicant, admittedly having produced satisfactory .evidel1~e of the other statutory reqUirements, is entitled to the certificate specified in said Section 3241.1.