Box v. Duncan , 98 Mont. 216 ( 1934 )

I cannot subscribe to the reasoning upon which either of the foregoing opinions is based. I think the opinion written by Mr. Justice Stewart is erroneous in holding that the effect of the order in question was to create a new school district. The order specifically denies any such purpose. It in part recites that, "It is further ordered that nothing herein contained shall be construed as a consolidation of the school districts hereinbefore mentioned and described otherwise than a consolidation of the high school systems heretofore and now existing therein as aforesaid."

The order was in strict compliance with section 95 of Chapter 148, Laws of 1931, which provides as follows: "Whenever it shall appear to the board of county commissioners to be for the best interest of any two or more high schools in the county and for the high school system in the county as a whole to effect a consolidation of such high schools it shall have the power and authority to effect such consolidation and to determine all questions involved in effecting such consolidation, provided, however, that before such consolidation shall become effective it shall be approved by the State Superintendent of Public Instruction."

I agree with the rule that a statute must be read and considered in connection with other statutes relating to the same general subject. I think that section 1023, Revised Codes 1921, as amended by Chapter 18, Laws of 1923, and Chapter 37, Laws of 1933, does not relate to the same subject as does section 95 of Chapter 148, Laws of 1931. Section 95 deals only with the matter of consolidating two or more high schools. It has nothing to do with the change of boundaries of districts or the consolidation of two or more districts. That this is so is made plainly apparent when we consider the fact that other statutes, unrepealed by Chapter 148, already made ample provision for changing boundaries of districts (sec. 1024, Rev. Codes 1921, as amended by Chap. 138, Laws of 1927), and for consolidating two or more districts (sec. 1034, Rev. Codes 1921). That these provisions were not repealed by Chapter 148 by implication, seems also to have been understood by the legislature, for in the 1933 session both sections were referred to as existing law (Chap. 163, Laws of 1933), and section 1024, as amended, was further amended (Chap. 175, Laws of 1933). Also this court has made the same assumption. (Grant v. Michaels, 94 Mont. 452, 23 P.2d

266.) To now hold that section 95 of Chapter 148, Laws of 1931, relates to changing of boundaries, or the creation of a new school district, is, I think, unwarranted.

Neither do I see wherein section 95 confers arbitrary power upon the board of county commissioners, as stated in the opinion of Mr. Chief Justice Callaway. Its action is subject to the approval of the state superintendent of public instruction. Also, section 37 does not cut down the plain language of section 95. Under section 37, no high school can be established without the approval of the superintendent of public instruction. Should the superintendent of public instruction approve of the establishment of a high school in any district, and there is no change of circumstances, it is entirely probable that approval of its consolidation with another would be withheld under section 95, and the confusion anticipated in the opinion of the Chief Justice would never arise.

It is my view that the order here complained of, made in strict conformity to section 95, simply amounts to a closing of the high school at Pony, and a direction that the pupils attend the school at Harrison. I think the only question before us here is, whether section 95, Laws of 1931, the terms of which are plain, certain, and specific and have been strictly complied with, is a valid legislative enactment. If it is valid, but lacking in wisdom, it must yet be sustained. The invalidity of the statute, and that alone, would warrant us in upholding the judgment of the lower court. Since this question, which I believe is the determinative one, has received no consideration in either of the foregoing opinions, no useful purpose would be subserved in considering it here.

Rehearing denied December 15, 1934, MR. JUSTICE ANGSTMAN dissenting.