Power v. Board of County Commissioners

The opinion states the facts. Galbraith, J. At the June term of the board of county commissioners of Choteau County for 1886, respondent presented to it for allowance the account of Hon. Decius S. Wade for mileage as judge of the district court of said county, for traveling from Helena to Port Benton, to attend the term of said court for April, 1886. The board only allowed this claim at the rate of fifteen cents per mile. From this action of the board an appeal was taken to the district court, which sustained the appeal, and ordered judgment for the respondent for the difference of the mileage between twenty cents and fifteen cents per mile. From this judgment the board took this appeal. , The laws under which these decisions were made, so far as necessary to be stated for construction by the court, are as follows: “That whenever a court is appointed by the supreme court, .... to be held in any [87] county, .... it shall be the duty of the board of county commissioners of such county to pay to the chief justice or associate justice, so holding said term, mileage at the rate of twenty cents per mile, in going from his residence to the place where said court is held, and returning therefrom, as his expenses incurred for and on account of travel incurred for the benefit of said county.” Sec. 602, div. 5, Eev. Stats. 1879. And “county officers, jurors, witnesses, and all other parties that may be entitled to mileage from the several counties in the territory, shall be entitled to collect mileage at the rate of fifteen cents per mile for the distance actually traveled, and no more.” “All acts and parts of acts in conflict with the provisions of this act be and the same are hereby repealed.” Laws 1885, p. 71. It is both a common-law and a statutory rule of construction of statutes that the intention of the legislature must be discovered, and, if possible, pursued. The intention of the legislature in the passage of these acts must be the primary object of our inquiry. Upon an examination of the statutes of the territory providing for the payment of mileage by a county, besides those above mentioned, and prior to the date of the last-mentioned act, when a prolonged stay is contemplated at the place to and from which the mileage is to be paid, we find that in all such cases a per diem is allowed in addition to the mileage; but no such provision is made in the statute allowing mileage to the judges, either by way of a per diem or otherwise. The holding of a term of court necessarily requires some period of time for attention to and completion of the business. This may be a long or short period, as the necessities of the case require. For this purpose, expenses are necessarily incurred by the judge; and it is for these expenses, and not alone for the expenses of travel, that this act provides. The act providing for mileage to be paid to the judges allows the [88] mileage, not only for the actual travel and its attendant expenses, but also for expenses incurred for the "benefit of the county, which plainly includes, not only the travel, but also the expenses of living, and all other expenses which the judge is necessarily put to while holding his court. Certainly, the expenses reasonably incurred by the judge while holding court are just as necessary and as much for the benefit of the county as the expenses of travel. The act plainly contemplates that this is the purpose. It is as if the act read thus: “ It shall be the duty of the board .... to pay .... mileage, at the rate of twenty cents per mile, in going from his residence to the place where said court is held, and returning therefrom, as his expenses incurred ” for the benefit of such county, “ and on account of travel incurred for the benefit of such county.” This is more than what is . usually signified by the term “ mileage,” which means “ an allowance for traveling, as so much by the mile.” In the act of 1885, supra, the law-making power refers only to mileage proper, — that is, to mileage as it is usually defined; but the act allowing mileage to the judges makes its own definition of the term, and includes in its signification, not only allowances for traveling, as so much by the mile, but also reasonable expenses while holding court. The statutes, therefore, in relation to which it is claimed that the latter repeals the former, refer to two different things,.— two different subjects-matter. Effect should always be given, if possible, to the legislative will; and unless one statute plainly repeals another, either by express enactment or by implication, the latter should be allowed to stand. We think, therefore, that the statute of 1885 is only intended to apply to those cases where previous statutes had authorized the payment of mileage in the usual and common acceptation, and not to the statute providing for the payment of mileage to the judges, which places upon this term its [89] own more comprehensive and widely different signification. This view of the subject answers the argument of the appellant that the act of the legislative assembly giving mileage to the judges is affected by the foregoing act of 1885, for the reason that this legislation was had on account of the reduced rates of travel, by reason of the introduction of railroads into the territory. In the view we have taken of the former statute, the amount is not .excessive. More than mere mileage proper, as we have seen, is plainly intended by this statute. In our view, the statutes are not inconsistent or repugnant. We are, therefore, of the opinion that it was not the intention of the legislative assembly, by enacting the law of 1885, to repeal the law allowing mileage to the judges. The judgment is affirmed, with costs. Judgment affirmed. McConnell, 0. J., and McLeary, J., concur.