The trustees of school districts numbered one and two in Lewis and Clark County let a contract for the transportation of the school children residing in such districts without first advertising or calling for bids. The amount involved exceeds two hundred fifty dollars. This in my opinion violates the prohibition contained in section 1016, Revised Codes of Montana of 1935, which provides: "No board of trustees shall let any contract for building, furnishing, repairing, or other work, forthe benefit of the district, where the amount involved is two hundred and fifty dollars, or more, without first advertising in a newspaper published in the county for at least two weeks, calling for bids to perform such work, and the board shall award the contract *Page 625 to the lowest responsible bidder; * * *." (Emphasis mine.) This statute is constitutional. Its purpose is to safeguard the interests of the school districts and the taxpayers thereof, to prevent favoritism and graft and to curb extravagance and corruption. Such express prohibition of the legislature should not be disregarded by the courts.
Of course the contract here involved is not a "contract for building, furnishing, repairing" but it most certainly is a contract for "other work, for the benefit of the district" for it is a contract for the work of transporting the school children of the two school districts for the benefit of such districts and, hence, comes within the specific prohibition of section 1016, Revised Codes, requiring that the boards of trustees advertise for bids before letting the contract.
The statute contains the phrase, "No board of trustees shall let any contract for building, furnishing, repairing, or other work, for the benefit of the district." The use of the word "or" in such phrase clearly indicates an intention to differentiate between contracts for the work of (1) building, (2) or furnishing, (3) or repairing, (4) "or other work, for the benefit of the district." In State ex rel. Normile v. Cooney,100 Mont. 391, at pages 398, 399, 47 P.2d 637, at page 641, this court held that the use of the disjunctive conjunction "or" in a statute expresses an alternative, and renders that appearing in the clause following inapplicable to the subject-matter of the clause preceding the conjunction.
The so-called "ejusdem generis canon" may not be brought into action and trained on the statute for the purpose of blasting and effacing therefrom the phrase "or other work for the benefit of the district." As was correctly said by this court in Burk v. Montana Power Co., 79 Mont. 52, 64, 255 P. 337, 338: "The rule ejusdem generis is only a rule intended to aid the court in arriving at the intention of the Legislature and cannot be invoked where its application would result in a disregard of plain and unambiguous language used in the statute. In this instance to apply the rule would be to refuse to give to *Page 626 the words `not herein enumerated' any effect. They would be surplusage, and the general clause would have the same meaning if it read, `or in any occupation known to be dangerous.' Our conclusion is that by the general clause a separate class of occupations is designated, independent of and in addition to those specifically named, in which the employment under the age of 16 years is an offense, unless it is void, as insisted by defendant, because uncertain."
The Latin maxim "Expressio unios est exclusio alterius" is quoted in construing the language of section 1016, Revised Codes, but it must be remembered that such maxim is not of universal application as applied to statutory construction and that it should be applied as an aid in arriving at intention rather than to defeat the apparent intention.
The legislature, by statutory enactment, has defined "common carrier." By such definition the court is bound. Section 7846, Revised Codes of Montana of 1935, provides: "Everyone who offers to the public to carry persons, property, or messages, excepting only telegraphic or telephonic messages, is a common carrier of whatever he thus offers to carry." Under such definition the person engaged in carrying all the school children of the two school districts is a common carrier of such persons and under the express provisions of section 1016, Revised Codes, the trustees were required to advertise and call for bids before letting the contract for the work of transporting the children residing in such districts.
Rehearing denied October 9, 1945. *Page 627