On Petition for Rehearing.
PAULSON, Judge.McLean County has petitioned this court for a rehearing in this case, based solely on the point of the instructions given by the trial court with regard to the burden of proof required of the County. The only thing newly raised in the petition is the point that since the 1965 Legislature amended the 1963 statute, which was designated as § 39-07-05, N.D.C.C., the Legislature by such amendment must have intended to give the 1963 statute the same meaning. In • support of this contention the County asserts that the phrase “other procedures” as included in the 1963 amendment should be considered as separate and' distinct from the phrase “work upon the surface” as set forth in the original legislative enactment prior to 1963, and that, accordingly, the phrase “safe and prudent” must of necessity apply to those other procedures, rather than to the work upon the surface of the road. The County therefore concludes from such reasoning that it was not the intent of the 1963 Legislature to place the burden of proof of safe and prudent operations upon governmental units such as the County, where there was actual work upon the surface of the highway, as in the Linington case.
As further support for such a contention the County states that the 1965 Legislature *501eliminated the phrase “and other procedures that are necessary and are carried on in a safe and prudent manner”, which phrase was contained in the 1963 legislative enactment. The County therefore strenuously urges that it was not the intent of the Legislature to impose such a burden of proof on governmental units.
The County’s contentions cannot be sustained. In Eddy County v. Wells County, 73 N.D. 33, 40, 11 N.W.2d 60, 63-64, (1943), a like argument was made by the respondent therein. The respondent argued that the subsequent amendments in the 1939 Session Laws should receive consideration in determining the construction to be placed upon the 1933 Session Laws with reference to residence requirements for poor relief purposes. In response thereto this court said, in an opinion written by Judge Nues-sle:
“Nor can we agree with respondent’s contention that the subsequent amendments to subsections 4 and 6 as found in chapter 119, Session Laws 1935, and chapter 126, Session Laws 1939, should receive consideration in determining the construction to be put upon chapter 97, Session Laws 1933. These amendments express only the intent and purpose of the legislatures that enacted them and can have no bearing in the instant case.”
Likewise, an amendment to a statute usually indicates an intention to change its meaning, based upon the theory that the Legislature is not presumed to do a useless act. 2 Sutherland, Statutory Construction (3rd ed.) § 5110; 82 C.J.S. Statutes § 384(2). Further, the legislative intent that is controlling in the construction of a statute has reference to the Legislature which enacted it, not a subsequent one. Subsequent amendments cannot be considered as indicating the intention of the Legislature in adopting earlier statutes. 82 C.J.S. Statutes § 384, p. 900.
The petition for rehearing is denied.
ERICKSTAD and KNUDSON, JJ., concur.