No. 13596 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

STATE OF MONTANA on the relation of May Jenkins, Treasurer for Yellowstone County, State of Montana,Plaintiff and Respondent,

CARISCH THEATRES, INC., Defendant and Appellant.

Appeal from: District Court of the Thirteenth Judicial District, Honorable C. B. Sande, Judge presiding. Counsel of Record: For Appellant: Crowley, Haughey, Hanson, Gallagher and Toole,

Billings, Montana For Respondent: Harold Hanser, County Attorney, Billings, Montana Cause submitted on briefs.

Submitted: May 

### 4, 1977 Decided:

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### Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court: This appeal from the district court, Yellowstone County, concerns the licensing of motion picture theaters. From 1971through 1976 CarkhTheatres, Inc. (Carisch) operated

one drive-in theater and three theaters in the Cine 

### 3 complex within the city 

### limitsof Billings, Montana. The treasurer of Yellowstone County, May Jenkins, claimed $100per theater per year must be paid

as a license fee, pursuant to section 84-3201(2), R.C.M, 1947. Carisch remitted payment of $25 per theater per year for the years 1971, 1972 and 1973. No payment was made to the treasurer inthe succeeding years. Thereafter, this actionwas filed against Carisch to collect the alleged license taxes due. The case was submitted to the district court on a stipulationby the parties stating that Carisch's business atthe theaters was limited to the exhibition of moving picture shows and the 

### sole questionwas whether Carisch 

### is a theater, as contemplated by section 84-3201(2) and therefore required tobe licensed for four theaters under that section, orwhether Carisch 

### is an exhibitor of moving pictures as contemplated by section 84-3205, R.C,M. 1947, and only responsible for a license under that section. The district court entered an order requiring Carisch topay a license tax for the years 1971through 1976 for its fourr theaters in the totalamount of $2,400 pursuant to section 84-3201(2). Carisch appealed from this order contending that section 84-3205 and not section 84-3201(2) 

### is the only statutewhich could require a license tax for motion picture theaters. Furthermore, Carisch argues section 84-3205 isno longer in effect and consequently no license tax 

### is due for the operation of the Carisch theaters.

### A brief history of legislation concerning the licensing ofmotion picture theaters inMontana will enable us to analyze the issuespresented. Section 84-3201(2) reads: 

### "2. The manager or lessee of every theater (not a variety or concert theater) one hundred dollars ($100.00) per annum; except that in towns of a population of three thousand five hundred (3500) or less, in caseswhere no monthly license is paid, a license of two dollars ($2.00) for each single performancemust be paid; for each single exhibition of opera or concert singer (not exhibited in any theaterwhere a yearly license is paid), three dollars ($3.00); forminstrels, legerdemain, or showsnot herein provided for, five dollars ($5.00) for each single performance (when not in a theaterwhere a yearly license is paid); for each variety or concert theater, whether an admittance fee is charged ornot, seventy-five dollars ($75.00) per month; for every traveling show exhibiting in tents, open air or other than a regular theater, such as circuses,menageries, side shows, carnivals,wild west shows, animal shows or tent shows, traveling in less than twenty-five

(25) railroad cars, seventy-five dollars ($75.00) per day, over twenty-five (25) railroad cars, two hundred dollars ($200.00) per day, traveling on highways in ten 

### (10) trucks or less, twenty-five dollars ($25.00) per day, eleven (11) to twentyfive (25) trucks, fifty dollars ($50.00) per day,more than twenty-five (25) trucks, seventy-five dollars ($75.00) per day; but no licensemust be collected from any amateur exhibition or concert for school or charitable or religiouspurposes, from any county, district or state agricultural fairs, rodeo associations, or from any veterans' organizationsnot conducted for private gain. "Provided the county treasurer shallnot issue any license for circuses, side shows, carnivals, menageries,wild west shows,animal shows or tent shows to be held or performed within a period of thirty days justprior to or during the holding of any local, county,district or state fair or rodeowithout first obtaining the written consent of the board of county commissioners of the countywhere application ismade for such licenses to operate such shows." (Emphasis supplied.) This sectionwas enacted in 1903 and was amended four times, in 1935, 1945, 1949 and 1953. Those parts of the section emphasized above show the result of those amendments. In 1913, the legislature adopted section 84-3205. This section has never been amended. It provides: "No license shallbe required for the operation or exhibition of moving picture shows in any city, town,or village where the population does not exceed one thousand five hundred. In all other cities the license shallbe twenty-five dollarsper year.II

### In 1937,Chapter 91,Laws of 1937was passed by the legislature, entitled: 

### "CHAPTER 

### 91 "AnAct Requiring Licenses for the Operation, Maintenance, Opening or Establishment ofMoving PictureTheatres;Relating to Exemptions Erom Such License Requirement;Relating to the Collection and Disposition of License Fees,and RepealingAll Acts and Parts ofActs in Conflict Herewith." This entire act, comprised of ten sections,was concerned solely with the licensing ofmotion picture theaters. The actmade it unlawful to operate a moving picture theaterwithout procuring a license from the state board of equalization. The licenseswere to be issued quarterly,with the fee based upon 

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### 114% of the gross proceeds from the sale of tickets in excess of $3000 per quarter. These fees were to be turned over to the state treasurer,and deposited in the general fund. This act was amended in 1953, by raising the quarterly exemption from $3000 to $20,000 per quarter. Chapter 74,Laws of 1953. In 1957, the legislature expressly repealed Chapter 91,Laws of 1937. Chapter 33,Laws of 1957. As to Carisch's first contention,we agree a motion-,picture theater is not a "theater" as contemplatedby section 84-3201(2). That sectionwas adopted in 1903,wellbefore the existence of motion picture theaters. Further,the amendments to section 84-3201(2),

as previously set forth, were not directed atmotion picture theaters and innoway indicate an intent to includemotion picture theaters within the meaning of "theater" as4,

### used therein. Additional evidence the legislature did not contemplate motion picture theaters to be included in section 84-3201(2) was the adoption of section 84-3205 in 1913, which specifically considered licensing the exhibition of

### moving picture shows, Therefore, we agree that if Carisch is 

### liable for any license tax on its

### motion picture theaters, the authorization for such taxmust existby virtue of section 84-3205. See: 16 Official Opinions Montana Attorney General 17 (1935). Therefore, we next determine whether section 84-3205 is 

### effective to date, This question 

### is subdivided into two issues: 1)Whether Chapter 91, Laws of 1937, repealed section 84-3205 by implication? 2) If so, whether section 84-3205 was revived by 

### the repeal of Chapter 91, Laws of 1937? The first issue cannot be answered by simply reading the general repealing clause in Section 10, Chapter 91, Laws of 1937. This clause adds nothing tothe repealing effect of the act, since, without the clause, allprior conflicting laws and parts of 

### laws would neverthelessbe repealed by implication. State ex rel. Charette v. District Court, 107Mont. 489, 86 P.2d 750; Stateex rel. Wetzel v. Ellsworth, 143Mont. 54, 387 P.2d 

### 442; LA Sutherland Statutory Construction, 4th Ed., 523.08. What must be decided is

### whether the two statutes

arewholly inconsistent, incompatible, and not capable of being reconciled. Teamsters Local 45 v. Montana Liquor Control Bd., 155 Mont. 300, 471P.2d 541, If so, the earlier statute isrepealed. Statev. Langan, 151Mont. 558, 445 P.2d 565. The key to solving such a dilemma 

### is the legislative intent inpassing the subsequent act. We have previously stated the intent to repeal allformer laws on a subject is

### made apparent by the enactment of subsequent comprehensive legislation establishing elaborate inclusions and exclusions, and allactsand parts of acts, inconflict therewith are repealed. Stateex 

### rel, Dahl v. District Court, 134 Mont, 395, 333 P.2d 495; Stateex rel. Wetzel v. Ellsworth, supra;1A Sutherland Statutory Construction, 4th Ed., $23.13. An examination of the two acts inquestion shows that such was the case with the enactment of Chapter 91, Laws of 1937. It 

### is stated in 18Official Opinions Montana Attorney General 208 (1940): "Section 2439 and not Section 2434 

### is the statute dealing with movie theater licenses. See opinion of the Attorney General, Vol. 16, p. 

### 17. Chapter 91, Laws of 1937, isin conflictwith Section 2439 in that it does not exempt a city, town orvillage where the population does not exceed 1500, and further inthat it computes the license fee on a percentage of the gross proceeds of sale, while Section 2439 fixes a flat fee of $25.00 inall cities over 1500 population. Furthermore, Chapter 

### 91 provides for the collection of the license feesby the StateBoard of Equalization and by the latterpaid to the StateTreasurer, who shall deposit allfees into the general fund; whereas, under Section 2420 the fees collected under section 2439 are tobe paid to the county treasurer, 50%of which are to be retained by the county and the balance paid to the StateTreasurer, 45%going tothe general fund and 5%to the bounty fund. "In view of these conflicts (1) inthe movie theaters tobe taxed; (2) in the amount of the tax tobe paid; (3) in the officers charged with collection; and (4) the use of the funds collected, it ismy opinion that Section 2439 isrepealed by Chapter 91, Laws of 1937, which, in Section 10, declares that allacts and parts of acts in con£ lict therewith are repealed

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When speaking of Sections 2439 and 2434, the attorney generalwas referring to the 1935 Code numbers of sections 84-3205 and 84-3201(2), R.C.M. 1947, respectively. While opinions of the attorney general, acquiesced inby the legislature, arenot binding upon this Court, yet such interpretation 

### ispersuasive and 

### willbe upheld ifnot erroneous. Statev. Schye, 130Mont. 537, 305 P.2d 350. We agree with the conclusion that section 84-3205 was repealed by implication for the reasons set forth inthe attorney general's opinion; for the reasons that any ambiguities involving tax laws are to be resolved infavor of the taxpayer and against the state; and, that nothing 

### is taxableunless clearly authorized by statute. Swartz v. Berg, 147Mont. 178, 411 P.2d 736; Cherry Lane Farms v. Treasurer, Gallatin Co., 153Mont. 240, 456 P.2d 296; Magnuson v. StateBd. of Equalization, 162Mont. 393, 

### 513 P.2d 

### 1. Considering the second issue--whether section 84-3205 was revived by the repeal of Chapter 

### 91, Laws of 1937,

# -- 1A Sutherland Statutory Construction, 4th Ed., 523.31 states: "Under the common law rules of interpretation, the repeal of a repealing statute operates torevive the original enactment where the repeal of the repealing statute 

### isaccomplished by express provision without additional legislationupon the subject matter. However, where the repeal of the repealing statute 

### is achieved by specific provision orby implication with new additional legislation on the subject matter, the original legislation isrevived only to the extent to which it 

### is consistent with the new legislation. "The majority of thejurisdictions inthe United Stateshave enacted general interpretiveprovisions to the effect that the repeal of a repealing statute does not revive the original statute. Under these provisions where the repeal of the repealing statute is effectuatedby express provision without additional legislation upon the subject matter, the common law 

### is revived. But where the repeal of a repealing statute is claimed by implication, and new additional legislation on the subject matter 

### is enacted, the common law 

### is revived only to the extent that it 

### is not inconsistent with the later legislation.

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Montana isone of thejurisdictions which has enacted a nonrevival provision. Section43-513, 

### R.C.M. 1947, states: "No act or $art of an act, repealed by another act of the legislative assembly, 

### is revived by the repeal of the repealing actwithout express words reviving such repealed act or part of an act." *. *.a The legislature inrepealing Chapter 91, Laws of 1937, made no express revival of section 84-3205. Therefore, section 84-3205

was not revived and has no force and effect. Neither does the fact that section 84-3205 was carried forward into the RBvised Code of Montana, 1947, revive the statutehaving once been repealed

### by implication. State v. Zorn, 99Mont. 63,41P.2d 513; State

### v. Holt, 121Mont. 459, 194 P.2d 651. For these reasons, Carisch is not liable for any license tax on its motion picure theaters. This cause is reversed and remanded to the district court to enter an order accordingly.

Chief Justice