No. 13575
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1977
CHOUTEAU COUNTY, MONTANA,
P l a i n t i f f and Respondent,
HENRY I. GROSSMAN, BRUCE G . BRAMLETTE,
RICHARD M. KURTH, JOSEPH C . TADEVICK, e t a l . ,
and a l l p e t i t i o n e r s whose names a p p e a r on
t h e P e t i t i o n f o r a County R e s o l u t i o n f i l e d on
t h e 2 5 t h day o f May, i n t h e y e a r 1976.
D e f e n d a n t s and A p p e l l a n t s .
Appeal from: D i s t r i c t Court of t h e E i g h t h J u d i c i a l
District,
Honorable Truman G. B r a d f o r d , Judge
presiding.
Counsel of Record:
For A p p e l l a n t s :
Donald A. LaBar a r g u e d , G r e a t F a l l s , Montana
R o b e r t K . S t r o n g a r g u e d , G r e a t F a l l s , Montana
Church, H a r r i s , Johnson & W i l l i a m s , G r e a t
F a l l s , Montana
F o r Respondent :
A. Evon Anderson a r g u e d , F o r t Benton, Montana
Submitted: March 30, 1977
Decided-
MAY 3 1977
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
The Board of Commissioners of Chouteau County (Board)
brought this action pursuant to section 37-301(2), R.C.M. 1947,
to determine whether a resolution proposed for voter referendum
is valid and constitutional. The referendum proposes that no
funds of any nature be used for paving 3 1/2 miles of county
road for which the county had called for bids, and that no bids
be accepted. The district court, Hon. Truman Bradford, district
judge presiding, ruled the proposed resolution invalid. Defendant
petitioners appeal.
The issue is whether a decision of the Board of County
Commissioners to call for bids and expend funds to pave or oil
an existing segment of county road is a legislative function and
thus subject to the powers of initiative and referendum reserved
to the people, or whether it is an administrative function not
subject to referendum.
In late April 1976, the Chouteau County Board of Commissioners
published in the Fort Benton, Montana, "River Press" a call for
bids for a new paving project. The Board planned to use county
funds to pave 3.5 miles of road south of Fort Benton in Chouteau
County.
A number of citizens of Chouteau County filed suit to prevent
this paving project from being undertaken. On May 13, 1976, dis-
trict judge Hon. R. J. Nelson, signed a temporary restraining order
restraining the county from beginning the paving project by
accepting bids, and ordered the county to appear and show cause
why the order should not be made permanent.
Before t h e d a t e s e t f o r hearing, more than f i f t e e n percent
of t h e c i t i z e n s and q u a l i f i e d e l e c t o r s of t h e county had properly
signed p e t i t i o n s t h a t t h e Board pass t h i s r e s o l u t i o n which i s
i n controversy here:
"BE I T RESOLVED by t h e Board of County Commissioners
of Chouteau County, Montana t h a t : N funds of any n a t u r e
o
a v a i l a b l e t o Chouteau County from any source whatsoever
be used f o r paving o r o i l i n g t h a t segment of road which
i s t h e s u b j e c t of t h a t c e r t a i n c a l l f o r b i d s dated A p r i l
26, 1976, and signed by James F. White, J r . , Chairman
and which c a l l f o r b i d s g e n e r a l l y d e s c r i b e s t h e road a s
approximately 3 112 miles of road a t a s t a r t i n g p o i n t 5
miles southwest of Fort Benton on t h e Highwood Road;
t h a t no b i d s from any person s h a l l be accepted by t h e Board
f o r any such paving o r o i l i n g ; and, t h a t a l l Resolutions
of t h e Board of Commissioners of Chouteau County i f any
t o t h e c o n t r a r y a r e hereby repealed."
F u r t h e r proceedings i n t h e a c t i o n f o r i n j u n c t i o n were declared
moot when t h e p e t i t i o n s were received. The c l e r k of Chouteau
County c e r t i f i e d t o t h e Board t h a t t h e r e q u i s i t e number of s i g n e r s
had signed t h e p e t i t i o n . The Board then f i l e d t h i s s u i t f o r
d e c l a r a t o r y judgment a l l e g i n g t h e r e s o l u t i o n , i f adopted "* **
would be i n v a l i d i n t h a t it i s u n c o n s t i t u t i o n a l l y vague and
The powers of i n i t i a t i v e and referendum a r e reserved t o
t h e people i n t h e 1972 Montana Constitution. A r t . V , Section 1,
provides :
"The l e g i s l a t i v e power i s vested i n a l e g i s l a t u r e
c o n s i s t i n g of a senate and a house of r e p r e s e n t a t i v e s .
The people reserve t o themselves t h e powers of i n i t i a t i v e
and referendum." (Emphasis added.)
A r t . 1 1 Section 4 , provides f o r t h e enactment of law by
1 ,
i n i t i a t i v e by t h e people. As a p p e l l a n t s s t a t e , what was sought h e r e
was a referendum t o e i t h e r approve o r o v e r r u l e t h e p r i o r decision
of t h e Board. S t a t e ex r e l . Hay v. Alderson, 49 Mont. 387,406,
142 P. 210.
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Art. 111, S e c t i o n 5 , p r o v i d e s i n p e r t i n e n t p a r t :
" ( 1 ) The people may approve o r r e j e c t by
referendum any a c t of t h e l e g i s l a t u r e e x c e p t a n
a p p r o p r i a t i o n of money. A referendum s h a l l be
h e l d e i t h e r upon o r d e r by t h e l e g i s l a t u r e o r upon
p e t i t i o n s i g n e d by a t l e a s t f i v e p e r c e n t * * *."
Art. X I , Section 8, s t a t e s :
"The l e g i s l a t u r e s h a l l extend t h e i n i t i a t i v e
and referendum powers r e s e r v e d t o t h e people by
t h e c o n s t i t u t i o n t o t h e q u a l i f i e d e l e c t o r s of each
l o c a l government u n i t . "
The l e g i s l a t u r e e n a c t e d Chapter 3 , T i t l e 37, R.C.M. 1947,
t o c a r r y o u t t h a t c o n s t i t u t i o n a l mandate. Section 37-301(1)(2),,
K.C.M. 1947, i n p e r t i n e n t p a r t p r o v i d e s :
" ( 1 ) R e s o l u t i o n s may be proposed by t h e l e g a l v o t e r s
of any county i n t h i s s t a t e , i n t h e manner provided
i n t h i s a c t . F i f t e e n p e r c e n t (15%) of t h e l e g a l v o t e r s
of any county may propose t o t h e board of county commis-
s i o n e r s a r e s o l u t i o n on a s u b j e c t w i t h i n t h e l e g i s l a t i v e
j u r i s d i c t i o n and powers of such county commissioners, o r
a r e s o l u t i o n amending o r r e p e a l i n g any p r i o r r e s o l u t i o n
or resolutions .* * 7kf' (Emphasis added. )
The board t h e n may e n a c t t h e r e s o l u t i o n o r submit i t t o t h e
people. Before s u b m i t t i n g i t , t h e board may c h a l l e n g e i t i n
c o u r t , a s was done h e r e :
" ( 2 ) fc ** t o determine whether t h e p e t i t i o n and
o r d i n a n c e a r e r e g u l a r i n form, and whether t h e o r d i n a n c e
so proposed would be v a l i d and c o n s t i t u t i o n a l . * *I1 *
There i s no o b j e c t i o n a s t o t h e form of t h e p e t i t i o n f o r a
referendum o r t h e number of s i g n e r s . The c h a l l e n g e h e r e i s t o
its validity.
C i t i e s and towns of Montana have f o r many y e a r s been s u b j e c t
t o i n i t i a t i v e and referendum. S e c t i o n 11-1104, e t . s e q . , R.C.M.
Both p a r t i e s a g r e e t h a t i n i t i a t i v e and referendum extend
only t o l e g i s l a t i v e a c t i o n and n o t t o a d m i n i s t r a t i v e a c t s , c i t i n g
C i t y of B i l l i n g s v. Nore, 148 Mont. 96, 417 P.2d 458, and c a s e s
cited therein. The i s s u e t h e n i s whether t h e proposed r e s o l u t i o n
addresses itself to a legislative or administrative function.
The district court in its Opinion and Order resolved the
issue in this manner:
"The Montana Supreme Court, in 1966, reaffirmed
the rule that 'initiative does not lie concerning
matters administrative in nature. ' (City of Billings
v. More, 148 Mont. 96, 104; citing Carlson v. City
of Helena, 39 Mont. 82 and Allen v. City of Butte,
55 Mont. 205) The Court, in that same case, acknow-
ledged that differentiating between legislative and
administrative actions is difficult but accepted as a
reasonable test a determination of whether the act
was one creating a new law (legislative) or executing
an already existing law (administrative).
"The Montana legislative assembly has placed the
responsibility to 1 Lay out, maintain, control, and
manage county roads, ferries, and bridges within the
county' with the board of county commissioners. (R.C.M.,
1947, Section 16-1004(1)). The petition for county
resolution that is the subject of this suit seeks to
make use of the initiative procedure to govern the
activities of the commissioners concerning the paving
of an existing segment of road.
"The Board of County Commissioners of Chouteau
County, in publishing its call for bids for paving
a section of county road, was attempting to fulfill
its' duty and responsibility to maintain and manage
county roads; it was performing an administrative act
by the execution of an already existing law."
We agree with the conclusion of the district court that
the resolution seeks to govern administrative acts of the Board
which are therefore not subject to referendum.
The resolution in question here is in express terms of
whether funds should be expended and bids accepted for the project.
It would provide if enacted:
"No funds of any nature * * * be used for paving
or oiling that segment of road * * * that no bids from
any person shall be accepted * * * and, that all Resolu-
tions of the Board of Commissioners of Chouteau County
if any to the contrary are hereby repealed."
It expressly addresses itself to the expenditure of funds for the
carrying out of the project. The acceptance of bids and use of
funds for paving are administrative functions.
The resolution does not concern the more fundamental
decision of whether the county should pave the road. For this
reason appellants' argument that the decision to pave or not
to pave the segment of county road is a legislative function and
therefore subject to initiative and referendum is not in point.
We accept the principle that initiative and referendum
provisions of the Constitution should be broadly construed to
maintain the maximum power in the people, and that statutes in
aid of these reserved powers "'should be liberally construed, and
should not be interfered with by the courts, except upon a clear
showing that the law is being violated."' State ex rel. Freeze
v. Taylor, 90 Mont. 439, 447, 4 P.2d 479. 54 Cal.L.Rev. 1717,
1724. We are not persuaded by the so-called counter-principle
that "'if essential governmental functions would be seriously
impaired by the [initiative or] referendum process, the courts,
in construing the applicable constitutional and statutory pro-
visions, will assume that no such result was intended [by the
drafters]!'' 54 Cal. L. Rev. 1717, 1724.
In City of Billings v. Nore, 148 Mont. 96, 417 P.2d 458,
cited by the district court, the electors approved a bond issue for
storm sewer system. At issue was the method of assessment to
fund payment of the bonds. This Court held that since the ordinance
for assessment substantially complied with the issue voted upon,
it was administrative in nature and not subject to initiative.
Two cases cited in City of Billings are not in point. Here,
a special improvement district is not in question nor a special
assessment. It is contemplated that(genera1 funds of the county are
to be used.
Allen v, City of Butte, 55 Mont. 205, 208, 175 P. 595,
was an action to prevent the sale of property for delinquent
assessments on a special improvement district. In Allen the
Court stated:
"The initiative and referendum apply only to
matters of general legislation, in which all the quali-
fied electors of the city are interested, and not to
matters of purely local concern, such as the creation of
a special improvement district, in which only the inhabitants
or property owners are interested."
Carlson v. City of Helena, 39 Mont. 82, 113, 102 P, 39, was a
challenge to a proposed issuance of bonds for procuring a
city water system and extending the sewer. An election on the
bond issue had been held. On a relatively minor issue in the
case, this Court found the initiative and referendum provisions
of the code were not applicable and stated:
"* * *They in terms apply, and were evidently
intknded to apply only, to matters of general
legislation in which all electors without distinc-
tion may take an active interest. The question
whether the council should have authority to issue
bonds could be submitted to the taxpayers only."
In summary, we hold that this proposed resolution to prevent
the use of funds and acceptance of bids concerns an administrative
function. Administrative acts are not subject to referendum.
Therefore, the proposed referendum is invalid.
Judgment of the district court is affirmed.
W concur:
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Chief Justy,ce
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