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: JON - 9 1~ 9. 
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 1971 through 1976 Carkh Theatres, Inc. (Carisch) operated 

one drive-in theater and three theaters in the Cine 3 complex within 

the city limits of Billings, Montana. The treasurer of Yellowstone 

County, May Jenkins, claimed $100 per 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 in the 

succeeding years. Thereafter, this action was filed against Carisch 

to collect the alleged license taxes due. The case was submitted 

to the district court on a stipulation by the parties stating that 

Carisch's business at the theaters was limited to the exhibition of 

moving picture shows and the sole question was whether Carisch is a 

theater, as contemplated by section 84-3201(2) and therefore required 

to be licensed for four theaters under that section, or whether 

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 to pay a 

license tax for the years 1971 through 1976 for its fourr theaters 

in the total amount 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 statute which could require a 

license tax for motion picture theaters. Furthermore, Carisch argues 

section 84-3205 is no longer in effect and consequently no license 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 

of motion picture theaters in Montana will enable us to analyze 

the issues presented. 

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 cases where no monthly license is 

paid, a license of two dollars ($2.00) for each single performance must be paid; for each single exhibition of opera 

or concert singer (not exhibited in any theater where a yearly 

license is paid), three dollars ($3.00); for minstrels, legerdemain, or shows not herein provided for, five dollars ($5.00) 

for each single performance (when not in a theater where a 

yearly license is paid); for each variety or concert theater, 

whether an admittance fee is charged or not, 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 license must be collected from any amateur exhibition 

or concert for school or charitable or religious purposes, from 

any county, district or state agricultural fairs, rodeo associations, or from any veterans' organizations not conducted for 

private gain. 

"Provided the county treasurer shall not 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 just prior to or during the holding of 

any local, county, district or state fair or rodeo without first 

obtaining the written consent of the board of county commissioners 

of the county where application is made for such licenses to 

operate such shows." (Emphasis supplied.) 

This section was 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 shall be 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 shall be twenty-five dollars per 

year. I I 
In 1937, Chapter 91, Laws of 1937 was passed by the legislature, 

entitled : 

"CHAPTER 91 

"An Act Requiring Licenses for the Operation, 

Maintenance, Opening or Establishment of Moving 

Picture Theatres; Relating to Exemptions Erom 

Such License Requirement; Relating to the Collection 

and Disposition of License Fees, and Repealing All 

Acts and Parts of Acts in Conflict Herewith." 

This entire act, comprised of ten sections, was concerned solely 

with the licensing of motion picture theaters. The act made it 

unlawful to operate a moving picture theater without procuring a 

license from the state board of equalization. The licenses were 

to be issued quarterly, with the fee based upon 1 114% 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 contemplated by section 84-3201(2). 

That section was adopted in 1903, well before the existence of 

motion picture theaters. Further, the amendments to section 84-3201(2), 

as previously set forth, were not directed at motion picture theaters 

and in no way indicate an intent to include motion 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 tax must exist by 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 to the repealing effect of the act, since, without the 

clause, all prior conflicting laws and parts of laws would nevertheless be repealed by implication. State ex rel. Charette v. District 

Court, 107 Mont. 489, 86 P.2d 750; State ex rel. Wetzel v. Ellsworth, 

143 Mont. 54, 387 P.2d 442; LA Sutherland Statutory Construction, 

4th Ed., 523.08. What must be decided is whether the two statutes 

are wholly inconsistent, incompatible, and not capable of being 

reconciled. Teamsters Local 45 v. Montana Liquor Control Bd., 155 

Mont. 300, 471 P.2d 541, If so, the earlier statute is repealed. 

State v. Langan, 151 Mont. 558, 445 P.2d 565. 

The key to solving such a dilemma is the legislative intent 

in passing the subsequent act. We have previously stated the intent 

to repeal all former laws on a subject is made apparent by the enactment 

of subsequent comprehensive legislation establishing elaborate inclusions and exclusions, and all acts and parts of acts, in conflict 

therewith are repealed. State ex rel, Dahl v. District Court, 134 

Mont, 395, 333 P.2d 495; State ex rel. Wetzel v. Ellsworth, supra; 
1A Sutherland Statutory Construction, 4th Ed., $23.13. An examination of the two acts in question shows that such was the case with 

the enactment of Chapter 91, Laws of 1937. It is stated in 18 Official 

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, is in conflict with Section 2439 in that it does 

not exempt a city, town or village where the population 

does not exceed 1500, and further in that it computes 

the license fee on a percentage of the gross proceeds of 

sale, while Section 2439 fixes a flat fee of $25.00 in all 

cities over 1500 population. Furthermore, Chapter 91 

provides for the collection of the license fees by the 

State Board of Equalization and by the latter paid to the 

State Treasurer, who shall deposit all fees into the 

general fund; whereas, under Section 2420 the fees collected 

under section 2439 are to be paid to the county treasurer, 

50% of which are to be retained by the county and the 

balance paid to the State Treasurer, 45% going to the 

general fund and 5% to the bounty fund. 

"In view of these conflicts (1) in the movie theaters 

to be taxed; (2) in the amount of the tax to be paid; 

(3) in the officers charged with collection; and (4) the 

use of the funds collected, it is my opinion that Section 

2439 is repealed by Chapter 91, Laws of 1937, which, in 

Section 10, declares that all acts and parts of acts in 

con£ lict therewith are repealed ." 

When speaking of Sections 2439 and 2434, the attorney general was 

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 in by the 

legislature, are not binding upon this Court, yet such interpretation is persuasive and will be upheld if not erroneous. State v. 

Schye, 130 Mont. 537, 305 P.2d 350. We agree with the conclusion 

that section 84-3205 was repealed by implication for the reasons 

set forth in the attorney general's opinion; for the reasons that 

any ambiguities involving tax laws are to be resolved in favor of 

the taxpayer and against the state; and, that nothing is taxable 
unless clearly authorized by statute. Swartz v. Berg, 147 Mont. 

178, 411 P.2d 736; Cherry Lane Farms v. Treasurer, Gallatin Co., 

153 Mont. 240, 456 P.2d 296; Magnuson v. State Bd. of Equalization, 

162 Mont. 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 to revive the 

original enactment where the repeal of the repealing 

statute is accomplished by express provision without 

additional legislation upon the subject matter. 

However, where the repeal of the repealing statute is 

achieved by specific provision or by implication with 

new additional legislation on the subject matter, the 

original legislation is revived only to the extent to 

which it is consistent with the new legislation. 

"The majority of the jurisdictions in the United 

States have enacted general interpretive provisions 

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 

effectuated by 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. * * *" 

Montana is one of the jurisdictions which has enacted a 

nonrevival provision. Section 43-513, 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 act without express words reviving such 

repealed act or part of an act." *. *. a 

The legislature in repealing 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 statute having once been repealed 
by implication. State v. Zorn, 99 Mont. 63, 41 P.2d 513; State v. 

Holt, 121 Mont. 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 Just ice