152 P. 761 | Mont. | 1915
Lead Opinion
delivered the opinion of the court.
In June of this year a petition signed by mpre than one-third of the electors of Richland county was presented to the board of county commissioners, praying that an election be called to determine whether intoxicating liquors should be sold within that county. At the time the petition was presented there were on the last assessment-roll of the county the names of 1,654 qualified electors. Of those who signed the petition, 573 were listed on such assessment-roll. Joe Eagye, a tax-paying elector of the county, protested to the board a'gainst an order calling the election, but the protest was overruled, the petition granted, and the election called for October 13. Eagye thereupon secured a writ of certiorari to review the action of the board. Upon the
The proceedings before the county board were instituted in pursuance of the local option statute, which is found in sections 2041-2049, Revised Codes. Section 2041 provides: “Upon application by petition, signed by one-third of the voters who are qualified to vote for members of the legislative assembly in any county in the state, the board of county commissioners must order an election to be held at the places of holding elections for county officers, to take place within forty days after the reception of such petition, to determine whether or not any spirituous or malt liquors, wine or cider, or any intoxicating liquors or drinks may be sold within the limits of the county. No election, under this chapter, must take place in any month in which general elections are held. The county commissioners must determine on the sufficiency of the petition presented by the last assessment-roll of the county.”
Appellant insists that this section contemplates a petition
With these principles in view, we think the intention of the legislature may be ascertained with reasonable certainty. The petition is merely the means by which the election machinery is set in motion. It docs not have any influence upon the result of the election. When the board acts, either granting or denying it, the petition becomes at once functus officio. In the absence of constitutional restriction, the legislature was left free to
In 36 Cyc. 1073, the same doctrine is stated: “Where two legislative Acts are repugnant to, or in conflict with, each other, the one last passed, being the latest expression of the legislative will, must govern, although it contains no repealing clause. But it is not sufficient to establish such repeal that the subsequent law covers some, or even all, of the eases provided for by the prior statute, since it may be merely affirmative, or cumulative, or auxiliary. Between the two Acts there must be plain, unavoidable and irreconcilable repugnancy, and even then the old law
There does not appear to be any further conflict between the registration law and the local option statute, and the elimination of the forty-day period within which the election was required to be held does not so far emasculate the entire measure that it may not be enforced in the absence of that provision.
It is further contended that, by submitting the question of
We think the judgment of the district court correct, and it is affirmed.
Affirmed.
Concurrence Opinion
I concur in the result above announced and, for the most part, in the reasoning through which it has been reached. But I cannot assent to the meaning given the last sentence of section 2041. From the obvious ease with which the legislature could have expressed the intention ascribed to it in the foregoing opinion, from the clear, established meaning of the phrase “voters who are qualified to vote for members of the