No. 34-123
IN THE SUPREME COURT OF THE STATE OF NONTANA
1984
BILLINGS FIREFIGHTERS LOCAL 521,
Petitioner and Appellant,
-vs-
CITY OF BILLINGS,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COULJSEL OF RECORD:
For Appellant:
Hjort, Lopach & Tippy; Barry L. EIjort argued,
Helena, Montana
For Respondent :
Peterson, Schofield & Leckie; K.D. Peterson argued,
Billings, Montana
Submitted: October 2, 1984
Decided: January 4, 1985
Filed: .
-
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Billings Firefighters Local 521 (Firefighters) is the
duly elected and certified bargaining representative for all
firefighters employed by the City of Billings, except the
chief and assistant chief. The City of Billings is a
charter-form municipality of the State of Montana. As
permitted by the 1972 Montana Constitution, the electorate of
the City of Sillings adopted a self-government charter in
1976 with an effective date of May 2, 1977.
Acting under its charter, the Billings City Council
adopted City Ordinance No. 82-4478 on December 13, 1982.
That ordinance purports to create a fire service that is
exempt from all but two provisions of state law regarding
municipal fire departments.
The Firefighters challenged the validity of the
ordinance. The District Court ruled that the ordinance was a
permissible exercise of the City's self-government powers.
We reverse the judgment of the District Court.
The issues on appeal are:
1. Did the District Court err in concl-uding that the
City of Billings was not prohibited by any provision of
SS 7-33-4101, et seq., MCA from superseding all but two
provisions of Part 41 of Title 7, Chapter 33, MCA?
2. Did the District Court err in concluding that
§ 7-1-111 ( 2 1 , MCA did not prohibit the City from superseding
all but two provisions of Part 41 of Title 7, Chapter 33,
MCA?
3. Did the District Court err in failing to conclude
that the City violated 5 7-1-114 1 (£1 , MCA by superseding
all but two provisions of Part 41 of Title 7, Chapter 33,
MCA ?
Prior to the 1.972 Montana Constituti-on and d-uring the
period that the 1889 Montana Constitution controlled, cities
could exercise only such powers as were expressly granted to
them by the State, together with such implied powers as were
necessary for the execution of the powers expressly granted.
Any fair, reasonable or substantial doubt regarding the
existence of the power was resolved against the municipaltty
and in favor of the State. Davenport v. Kleinschmidt (1887),
6 Mont. 502, 527-28, 13 P. 249, 253; John F. ill on, 1
Commentaries - - - -of Municipal Corporations
on the Law S 92 at
142-43 (5th ed.) .
The 1972 Constitution made substantial chanqes,
including granting to cities the opportunity to adopt
charters with self-government powers with unlimited power
vested in the city subject to certain exceptions contained in
the constitution, law or charter itself.
"The 1972 Montana Constitution, in addition to
providing for the continuance of the town. . .
governmental forms already existing, opened to
local governmental units new vistas of shared
sovereignty with the state through the adoption of
self-government charters. Whereas the 1972 Montana
Constitution continues to provide that existing
local governmental forms have such powers as are
expressly provided or implied by law (to be
liberally construed), 1972 Mofit. Const., Art. XI, S
4, a local government unit nay act under a
self-government charter with its powers uninhibited
except by express prohibitions of the constitution,
law, or charter, 1972 Mont. Const., Art. XI, S 6."
State ex rel. Swart v. Molitnr (Mont. 1981), 621
P.2d 11-00, 1102, 38 St.Rep. 71, 72-73.
Prior to 1972, the general rule was that a local
goverment lacked power unless that power was specifically
granted under state law. Under the current shared powers
concept, the general rule is that a local gov-ernment with
self-government powers possesses all powers not specifically
denied by state constitution, law or charter.
Section 7-1-103, MCA defines the extent of shared
sovereignty given to self-government units, such as the City
of Billings:
"A local government unit with self-government
powers which elects to provide a service or perform
a function that may also be provided or performed
by a general power government unit is not subject
to any limitation in the provision of that service
or performance of that function except such
limitations as are contained in its charter or in
state law specifically applicable to self-
government units."
Section 7-1-1-06, MCA directs that reasonable doubt as to the
existence of a self-government power shall be resolved in
fzvor of the City:
"The powers and a.uthority of a local government
unit with self-government powers sha.11 be liberally
construed. Every reasonable doubt as to the
existence of a local governmental power or
authority shall be resolved in favor of the
existence of that power or authority."
The Billings City Ordinance No. 82-4478 purports to
supersede most of state law pertaining to municipal fire
departments. Section 2.5.010 of the ordinance provides:
"SUPERSEDING STATE -LAW. Pursuant to the City's
self government powers, it hereby supersedes State
Law as contained and set forth in Montana Codes
Annotated (MCA), Title 7, Chapter 33, Part 41
EXCEPT MCA, 7-33-4128 and 7-33-4129."
The excepted 5 7-33-4128, MCA requires firefighters to be
pa.id a minimum wage. Section 7-33-4129 was repealed in 1983
and is therefore not relevant to this appeal.
Whether a self-qovernment unit, such as the City of
Billings, can choose to exempt itself from provisions of
state law regarding municipal fire protection is a question
of first impression before this Court.
Article XI, 5 6 of the Montana Constitution defines the
scope of self-government powers as "3power not prohibited
by this constitution, law, or charter . . .." Under its
charter, the City of Billings assumed "all powers possible
for a self-government city to have under the Constitution and
laws of this state . . .." Art. 1, § 1.01, City of Billings
Charter (1977). The charter also requires the Billings City
Council to review and where necessary revise and repeal all
city ordinances to provide that they comply with the city
charter. Art. VII, 5 7.04, City of Billings Charter (1977) .
The Billings City Charter provides that the City
Administrator shall appoint, suspend and remove all employees
of the City. Art. IV, S 4 . 0 3 (F), City of Billings Charter
(1977). In contrast, state law specifies that the Chief of
the Fire Department shall have sole command of the department
and shall possess full authority to discipline firefighters.
Section 7 - 3 3 - 4 1 0 4 ( I ) , MCA.
According to the City, Ordinance No. 82-4478 was adopted
to resolve inconsistencies between the authority given to the
City Administrator under its charter and conflicting
provisions of state law. The Firefighters insist, on the
other hand, that the ordinance was passed in retaliation for
an incident in which the Chief of the Fire Department refused
to follow the City Council's recommendation to discharge a
particular firefighter.
The Firefighters applied to the District Court for a
writ of mandamus or prohibition and filed a complai-nt for
declaratory judgment declaring that the City Council acted
illegally in adopting an ordinance that purports to supersede
mandatory state 1-aw. The District Court denied the
Firefighters' application for a writ of mandamus or
prohibition. The court declared that the ordinance was a
permissible exercise of the City's self-government powers and
was therefore valid.
The central issue of this case centers on the authority
of a local self-government unit to supersede statutory provi-
sions pertaining to a service that is mandated by state law.
The dispute between the parties requires construction of
numerous statutory provisions pertinent to the establishment
and maintenance of a municipal fire department, the power and
authority of a local self-government unit, the powers denied
to a local self-government unit, and provisions of state law
that are mandatory upon local self-government units. Because
of the manner in which the numerous statutes interplay, the
central issue is divided into three sub-issues for analysis.
I1
Did. the District Court err in concluding that the City
of Billings was not prohibited by any provision of
$ 7-33-4101, et seq., MCA from superseding a.l1but two provi-
sions of Part 41 of Title 7, Chapter 33, MCA?
The focus of the first issue is whether the
self-government powers of the City of Billings include the
power to supersede state law regarding municipal fire
departments.
Section 7-33-4101, MCA provides:
"Fire department authorized and required. In every
citv and town of this state there shall be a fire
a
department, which shall be organized, managed, and
controlled as provided in this part."
With one exception not relevant here, Part 41 of Title 7,
Chapter 33, MCA governs and controls "fire departments in
every city or town organized under whatever form of municipal
government ... " Section 7-33-4102 (I), MCA. State law
regarding municipal fire departments was originallv enacted
in 1899 and the above-quoted provisions of state law existed
at the time cities were first authorized to exercise
self-government powers. See 8 7-1-101, et seq., MCA.
Section 7-1-113, MCA prohibits a local government with
self-government powers from exercising any power inconsistent
with state law. "The exercise of a power is inconsistent
with state law or regulation if it establishes standards or
requirements which are lower or less stringent than those
imposed by state law or regulation." Section 7-1-113(2) ,
MCA .
We note that certain sections of Part 41, which the
Billings Ordinance purports to supersede, include provisions
regarding state qualifications for firefighters, physical
examination of applicants for the position of firefighter,
and funding of group insurance for firefighters. Sections
7-33-4107, -4108 & -4130, MCA. These statutory provisions
define state standards that have nothing to do with the
structure or organization of fire departments.
Article XI, § 5 (3), of the Montana Constitution states
that charter provisions establishing executive, legislative
and administrative structure and organization are superior to
statutory provisions. We conclude that the three statutory
provisions cited above are not executive, legislative or
administrative in nature. They define minimum state
standards.
The City contends that its self-government charter
powers include the power to supersede the above-cited state
standards. The ordinance specifies that the City
Administrator shall organize the fire service, present an
annual budget to the City Council, formulate rules and
regulations for the fire service, and recommend adoption of
safety codes by the City Council. Section 2.52.020, Billings
City Ordinance No. 82-4478 (1983). The ordinance does not
contain any local standards for the qualification of
firefighters, physical examination of applicants or provision
of group insurance for firefighters.
Because the state statutes regarding the qualifications
of, physical examination of, and group insurance for
firefighters define minimum state standards and the Billings
Ordinance sets forth no stamdards governing these areas of
legislative concern, the local provisions are "lower or less
stringent than those imposed by state law." Section
7-1-113 (2), MCA.
In reaching this conclusion, we are not analyzing or
attempting to rule upon other standards which may be
contained in Part 41 of Title 7, Chapter 33, MCA.
We hold that the District Court erred in concluding that
City of Billings has the self-government power to supersede
all state law pertaining to municipal fire departments,
except the statutory minimum wage.
Did the District Court err in concluding that S
7 - 1 - ( 2 ) MCA did not prohibit the City from superseding
all but two provisions of Part 41 of Title 7, Chapter 33,
MCA ?
Section 7-1-111(2), MCA provides:
"A local government unit with self-government
powers is prohibited the exercise of the following:
" (2) any power that applies to or affects the
provisions of Title 39 (labor, collective
bargaining for public employees, unemployment
compensation, or workers ' compensation) or
7-33-4128, except that subject to those provisions,
it may exercise any power of a public employer with
regard to its employees."
In superseding all but two provisions of Part 41 of Title 7,
Chapter 33, MCA, the Billings Ordinance followed S
7 - - l 2 , MCA in part by exempting S 7-33-4128, MCP, from
the statutes it purported to supersede. The only question
remaining is whether or not the ordinance "applies to or
affects the provisions of Title 39."
The Firefighters contend that the sole motivation for
the City Council's adoption of the ordinance was the
attempted discipline of a firefighter and the dispute that
resulted between the City Administrator and the Firefighters
concerning disposition of the individual firefighter's
grievance under the arbitration procedure set forth in the
collective bargaining agreement between the City and the
Firefighters. The Firefighters further contend that the City
Administrator's recommendation that the City Council
supersede certain state statutes in the exercise of its
self-government powers arose during the course of collective
bargaining negotiations between the City and the Firefighters
in April of 1983. Thus, the Firefighters contend that
adoption of the ordinance constitutes a violation of S
7 - 1 - 2 , MCA in that certain of the superseded statutes
plainly applied to or were affected by provisions of Title 39
(collective bargaining for public employees). After a review
of the Billings City Charter and Ordinance No. 82-4478, we
conclude that neither applies to or affects the provisions of
Title 39.
We hold that the District Court correctly concluded that
5 7-1-111 (2), MCA did not prohibit the City from superseding
all but two code sections of Part 41 of Title 7, Chapter 33,
MCA .
Did the District Court err in failing to conclude that
the City violated 5 7-1-114(l)(f), MCA by superseding all but
two provisions of Part 41 of Title 7, Chapter 33, MCA?
Notwithstanding its broad self-government powers, a city
must provide any service required by state law. Section
7-1-114 (1)(f), MCA provides:
"A local government with self-government powers is
subject to the following provisions:
" (£1 Any law directing or requiring a local
government or any officer or employee of a local
government to carry out any function or provide any
service."
With regard to the requirement of a municipal fire
department, 5 7-33-4101, MCA provides:
"In every city and town of this state there shall
be a fire department, which shall be organized,
managed and controlled as provided in this part."
It is clear from this section and subsequent sections that
every city must have a municipal fire department. As
previously mentioned, under Art. XI, 5 5 (3), Mont . Const. ,
charter provisions establishing executive, legislative and
administrative structure and organization control over
statutory provisions. As a result, the organization and
management structure of the fire department may properly be
subject to the self-government powers of a city. However,
that does not address the basic requirement of a municipal
fire department.
In pertinent part the Billings Ordinance provides:
"2.52.020 FIRE SERVICE. The City shall provide
fire prevention and suppression service to the
residents of the City. The purpose of the service
will be to aid in the prevention and suppression of
human suffering and property loss caused by fires.
The City Administrator or his designees shall:
"(a) Organize the Fire Service as provided in the
City Charter . . ."
The Billings City Ordinance purports to supersede all of S
7-33-4101, MCA, which includes the requirement that the City
shall have a municipal fire department. The Ordinance does
not contain a similar requirement for a municipal fire
department for the City. It provides that the City shall
provide fire prevention and suppression service but that
a.pparently could include service by parties other than a fire
department of the City itself.
While it is true that the City contends that it does
plan to continue to provide fire prevention and suppression
service under Billings City Ordinance No. 82-4478, the
language of the ordinance is unambiguous in that it purports
to supersede a mandatory provision of state law without a
similar mandatory provision in the ordinance. As this Court
noted in Harlen v. City of Helena (Mont. 1984), 676 P.2d 191,
194, 41 St.Rep. 162, 165-66, "we know of no rule of law that
allows us to consider the City's intentions as opposed to the
unambiguous la-nguageof the ordinance."
We hold that in attempting to supersede all of
S 7-33-4101, MCA, including the mandatory provision for a
municipal fire department, the Billings City Ordinance
violates S 7-1-1..14(1)£ 1 , MCA.
(
In reaching this conclusion, we are not considering or
ruling upon possible conflicts between other sections of Part
41 of Title 7, Cha.pter 33, MCA and S 7-1-114 (1) (f) .
The cause is remanded to the District Court for the
entry of a declaratory judgment that Billings City Ordinance
No. 82-4478 is contrary to law and was adopted in excess of
the self-government powers granted to the City of Billings.
We c o n c u r :
34&$%t;bd
Chief Justice
ti.o&Q
Justices