I concur in the result but not in the reasoning by which it is reached.
As demonstrated, the final clause of Chapter 39, Laws of 1927, has been unchanged from the time when the law required all parties to a chattel mortgage to make the affidavit of good faith. Originally, therefore, the Act was unambiguous, but when we read into Chapter 39 the requirement of section 8276, as we must, it is ambiguous and requires construction. We are not, however, aided in its construction by invoking section 93, Revised Codes of 1921, for the following reasons:
Throughout its existence, the Act, now Chapter 39, has merely required that the mortgage shall be "accompanied by the affidavit *Page 422 of good faith required to accompany mortgages of personal property." While the Act, by reference, required that all parties to the mortgage must make the affidavit, it was proper to declare therein who should make the affidavit on behalf of the corporation making the mortgage. But when the legislature in 1913 repealed the provision relating to chattel mortgages and in lieu thereof provided that the affidavit of the mortgagee alone must be attached to the mortgage, the new provision was substituted for the old as a part, by reference, of section 5756, Revised Codes of 1907. By the repeal of section 5758 the requirement that the mortgagor should join in the affidavit of good faith was blotted out and became as though it had never been enacted (Westchester Fire Ins. Co. v. Sullivan, 45 Mont. 18,121 P. 472), and thereafter the provision as to how a nonexistent affidavit by the mortgagor should be made, was meaningless.
Had there been a close check of these sections at the time the Codes were recodified in 1921, this final clause undoubtedly would have been eliminated from section 5756, above, before, by legislative action, that section was carried forward as section 8273, Revised Codes of 1921. However, whatever may have been the effect of the adoption of the Codes with this clause left in the section, at least by its re-enactment as a part of Chapter 39, above, it is now a component part of the Act by legislative declaration, and not because it is "to be considered as having been the law" from the time section 3849 of the Civil Code of 1895 was enacted.
The rules of construction applicable are those governing in the construction of Acts of the legislature, rather than amendments thereto. Construing Chapter 39, we are to give effect to every word and phrase therein, if it is possible to do so. (City of Butte v. Industrial Acc. Board, 52 Mont. 75,156 P. 130.) In order to give effect to the final clause of the Act, we must hold that the legislature has authorized the designated officers of the mortgagor to make the affidavit for the mortgagee, which would be absurd, or that the Act impliedly requires all parties to the mortgage to join in the affidavit, which requirement *Page 423 has been expressly repealed, or adopt the contention advanced that the requirement of the statute is merely that the affidavit shall be in the form of the affidavit which must be attached to a chattel mortgage and is to be made by the mortgagor.
In order to solve the question, we must resort to the paramount rule of construction of statutes, i.e., that the intention of the legislature must be ascertained, if possible, and when ascertained, must be given effect. Courts are not justified in adopting a construction which will defeat the manifest intention of the legislature. (State ex rel. Board ofCounty Commrs. v. District Court, 62 Mont. 275, 204 P. 600;Pohl v. Chicago etc. R. Co., 52 Mont. 572, 160 P. 515;Wilkinson v. La Combe, 59 Mont. 518, 197 P. 836; Sullivan v. City of Butte, 65 Mont. 495, 211 P. 301.) The history of the legislation must be looked to in order to determine whether or not the legislature intended what it said. (Melzner v.Northern Pacific Ry. Co., 46 Mont. 162, 127 P. 146.)
Now, section 8276, Revised Codes of 1921, to which Chapter 39 refers, does not prescribe the form of affidavit to be attached to a chattel mortgage, but declares that the mortgagee must make an affidavit of good faith, and when the history of the Act — now Chapter 39, Laws of 1927 — is considered, it is clear that the troublesome final clause has been inadvertently carried forward without regard to the change wrought in the law. The clear intention of the legislature in enacting Chapter 39 is to make plain the requirement that the mortgage shall be recorded as a mortgage on real property, but shall be accompanied by "the affidavit of good faith required" to be attached to a chattel mortgage, i.e., the affidavit of good faith made by the mortgagee. Had the legislature intended to provide that, as to this class of mortgages, the affidavit must be similar to that attached to a chattel mortgage, but made by the mortgagor, it would undoubtedly have said so. The mere permissive language, inadvertently included in the Act, cannot be given that effect, as to do so would be to do violence to the plain intention of the legislature. *Page 424
Having ascertained and given effect to the intention of the legislature, it is clear that the final clause of the Act is meaningless and it is impossible to give it effect.