No. 85-263
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
MONTANA CONTRACTORS' ASSOCIATION,
INC., a nonprofit Montana corp.,
Plaintiff and Appellant,
DEPARTMENT OF HIGHWAYS, of the State
of Montana, an executive agency of the
State; DEPARTMENT OF COMMERCE of the
State of Montana, et al.,
Defends-nts and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Gordon Bennett, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gough, Shanahan, Johnson & Waterman; Ward A. Shanahan
argued, Helena, Montana
For Respondent:
James R. Beck, Dept. of Highways, Helena, Montana
Robert J. Wood, Dept. of Commerce, Helena, Montana
Robert M. McCarthy, Butte-Silver Bow County Attorney,
Butte, Kontana
Patrick Paul, County Attorney, Great Falls, Montana
David Gliko, City Attorney, Great Falls, Montana
Jim Nugent argued, City Attorney, Missoula, Montana
Robert L. Deschamps, b$issoula County Attorney,
Missoula, Montana
Submitted: November 27, 1985
Decided: March 14, 1986
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
The appellant, Montana Contra.ctorslAssociation, appeals
from an order of the Lewis and Clark County District Court
granting respondents1 motion for summary judgment.
We affirm.
The issue on appeal is whether the District Court
correct]-y interpreted § 15-70-101 (4), MCA.
There is no substantial dispute about the facts in this
case. Appellant is a nonprofit organization of persons,
firms, partnerships and. corporations engaged in the business
of highway construction and suppl-y of construction materials.
Appellant filed an action in District Court seeking an
interpretation of 1.5-70-101, MCA, dealing with disposition
of gasoline and vehicle fuel tax monies. The relevant
portions of the statute are as follows:
15-70-101. Disposition - Funds.
of All taxes,
interest, and penalties collected under this
chapter shall be turned over promptly to the state
treasurer who shall place the same in the state
special revenue fund to the credit of the
department of highways. Those funds hereinbelow
allocated to cities, towns, and counties shall be
paid by the department of highways from the state
special revenue fund to such cities, towns, and
counties. ...
(4) All funds hereby allocated to counties,
cities, and towns shall be disbursed to the lowest
responsible bidder according to applicable bidding
procedures followed in all cases where the contract
for construction, reconstruction, maintenance, or
repair is in excess of $4,000.
The parties admit that not all monies allocated pursuant
to 5 15-70-101(4), MCA, have been disbursed to the lowest
responsible bidder. Respondents argue that the statute gives
them the option of either contracting with private businesses
for performance of construction work, or performing the work
themselves with their own in-house personnel. Only if the
municipality or county chooses to submit the work to private
contractors, and the cost is in excess of $4,000, must it
disburse the funds to the lowest responsible bidder according
to applicable bidding procedures. Respondents have followed
this practice since § 15-70-101(4), MCA, was enacted in 1974.
Appellant argues that the statute requires
municipalities and counties to submit all highway
construction work to bids in all cases where the cost of
construction is in excess of $4,000.
Following rejection of procedural motions at a hearing
held December 12, 1984, the District Court proceeded to
consider the case on cross-motions for summary judgment and
the matter was deemed submitted on briefs on December 24,
1984. On March 25, 1985, the court entered its opinion and
order which found that this was a proper case for declaratory
judgment under § 27-8-202, MCA, and also concluded that the
motion of the respondents for summary judgment must be
granted. The court interpreted § 15-70-101 (4), MCA, to mean
that funds must be disbursed according to applicable bidding
procedures to the lowest. responsible bidder only in cases
where the cost of construction is in excess of $4,000, and
where the municipality or county elects to submit its street
and alley construction, reconstruction, maintenance or repair
to private contractors. Appellant's motion for summary
judgment was denied. This appea! followed.
One function of the Supreme Court is to construe
legislation. In re Powell's Estate (19631, 1-42 Mont. 133,
381 P.2d 957. In construing a statute, this Court will look
first to the language used. If the statutory language is
clear and unambiguous, the statute speaks for itself and
there is nothing left for the Court to construe. Gallatin
County v. D & R Music & Vending, Inc. (Kont. 1984) , 676 P.2d
779, 41 St.Rep. 224; Sink v. School. District No. 6 11982),
199 Mont. 352, 649 P.2d 1263. Where the language of the
statute is ambiguous, however, the Court resorts to rules of
statutory construction. State v. Moore (1977), 174 Mont.
292, 570 P.2d 580. The primary rule of statutory
construction is that the Court must attempt to discern and
give effect to the intention of the legislature. Section
1-2-102, MCA. State v. Hubbard (1982), 200 Mont. 106, 649
P.2d 1331.
The initial step is to determine whether S 15-70-101(4),
MCA, is clear and unambiguous. We hold that it is not. That
subsection lends itself to at least two possible
interpretatjons. As the District Court found, the statute
can reasonably be interpreted to mean bidding is required for
all projects which cost more than $4,000, as appellant
contends. Alternatively, it can reasonably be interpreted to
mean that contracting is not required, but should a
municipality or county choose to contract, then it must
follow "applicable bidding procedures in all cases where the
contract ... is in excess of $4,000," as respondents
contend. Since fj 15-70-101 (4) is reasonably subject to more
than one interpretation, it is necessary for this Court to
construe the statute.
The next step is to determine the intent of the
1-egislature in enacting S 15-70-1 01 (4), MCA. Legislative
intent can be determined in a number of ways. First, this
Court presumes that the legislature would not pass
meaningless legislation, and the Court must harmonize
statutes relating to the same subject, giving effect to each.
Crist v. Segna (Mont. 1981), 622 P.2d 1.028, 1029, 38 St.Rep.
150, 152. Second, the Court can look to the legislative
history of the statute. Department of Revenue v. Puget Sound
Power and Light Co. (19781, 179 Mont. 255, 587 P.2d 1282.
Third, great deference and respect must be shown to the
interpretations given the statute by the officers and
agencies charged with its administration. State by and
through its Dept. of Highways v. Midland Materials (Mont.
1983), 662 P.2d 1322, 40 St.Rep. 666; Northern Cheyenne Tribe
v. Hollowbreast (1976), 425 U.S. 649, 96 S.Ct. 1793, 48
There are numerous statutes other than § 15-70-101, MCA,
that deal with the reconstruction, maintenance and repair of
highways, alleys, streets and the like. A review of those
statutes indicates no limitation such as that advocated by
the appellant. Rather, the statutes are replete with
authorizations for such work to be done by municipality and
county in-house personnel. For example, 5 60-2-112, MCA,
states:
... (3) The [Highway! commission nay enter into
contracts with units of local government for the
construction of projects without competitive
bidding if it finds that the work can be
accomplished at lower total costs. ...
Section 60-2-201, MCA, states:
(1) The department [of Highways] may plan, lay
out, alter, construct, reconstruct, improve,
repair, and maintain highways on the federal-aid
systems and state highways. . . .
Section 7-1.4-41.09,MCA, authorizes a city to construct
or cause a sidewalk, curb, gutter, or alley approach to be
constructed. If a contractor fails to complete a
construction contract, § 7-12-4152, MCA, allows the city to
either relet the contract or complete the contract itself.
Section 7-12-4405, MCA, authorizes cities and towns to
prepare and improve streets, avenues, and alleys within the
maintenance districts. Many other such statutory
authorizations exist. Sections 7-14-4108, MCA; 7-12-P401,
MCA; 7-3-4442, MCA; 7-3-1332, MCA.
When determining legislative intent, our interpretation
must be reasonable. Section 1-3-233, MCA. Grossman v. State
Department of Natural Resources (Mont. 1984), 682 P.2d 1319,
41 St.Rep. 804. The above-named construction statutes do not
Lnvolve gasoline tax dollars, and contain no requirement that
the municipalities or counties contract. It would be
unreasonable to assume that the legislature allows
municipalities and counties to expend all other monies for
construction without contracting, but anytime a gasoline ta.x
dollar is involved a contracting requirement arises.
The legislative history of 5 15-70-101 ( 4 ) , MCA, also
supports respondents' contentions. In 1979, the legislature
considered an amendment which would have replaced the word
"contract" in 5 15-70-101 (4), MCA, with the word "cost."
Such a change would have clearly supported appellant's
present argument. The legislature chose not to adopt this
amendment. In 1985, the legislature again considered
amending 15-70-101 ( 4 ) , MCA. The proposal would have
required all gasoline tax money to be disbursed only by
contract to the lowest responsible bidder. That amendment
was tabled in the House Local Government Committee. The
refusal of the legislature to adopt either of these
amendments is significant. It at least suggests that the
legislature did not want to force municipalities and counties
to contract all construction work to the lowest. responsible
bidder.
Finally, the interpretation given to § 15-70-101 ( 4 ) ,
MCA, by the Montana Highway Department, the Department of
Commerce, and the municipalities and counties of the State
also support respondents' position. As we indicated in
Midland, 662 P.2d at 1325, great deference and respect must
be shown to the interpretation given a statute by the
officers or agencies charged with its administration. For
the past twelve years those entities charged with
administration of S 15-70-101 ( 4 ) , MCA, have uniformly
interpreted that subsection to mean that it applies only when
a municipality or county chooses to contract and not when it
chooses to perform the work itself. This interpretation has
become an integral part of the planning and implementation of
highway co~struction,reconstruction, maintenance, and repair
programs.
For the above-stated reasons, we conclude that S
15-70-101(4), MCA, applies only when a municipality or county
chooses to submit its road construction to private
contractors, and hold that the District Court properly
granted respondents' motion for summary judgment.
Af firmed.
We Concur:
i"
Mr. Justice Frank B. Morrison, Jr., dissenting:
I respectfully dissent to the majority opinion.
Justice Hunt's opinion in this case is well written. If
I could find the statutory language ambiguous, I would sign
the opinion.
Section 15-70-101, MCA, provides in relevant part as
follows:
(4) All funds hereby allocated to coun-
ties, cities, and towns shall be dis-
bursed to the lowest responsible bidder
according to appl-icable bidding proce-
dures followed in all cases where the
contract for construction, reconstruc-
tion, maintenance, or repair is in excess
of $4,000. [Emphasis supplied.]
In my opinion, this statute is clear on its face.
Perhaps, as the majority opinion indicates, the legislature
intended for the statute to have application to those situa-
tions where counties, cities and towns chose to put a job out
for bids and not to apply to those situations where the
governmental entities involved decided to perform the work
themselves. Certainly, the legislature is aware of the fact
that these governmental entities have equipment and customar-
ily per'form this kind of work. However, the rules of statu-
tory construction provide that the intent of the legislature
is not looked to where the statute is clear on its face.
This statute seems very clear and subject to no interpreta-
tion exdept the one advanced by appellant.
I would reverse and remand with directions to enter
summary judgment in favor of the Montana Contractors' Associ-
ation determining that the statute is clear in its face and
that all funds allocated under the statute must be disbursed
to the lowest responsibl-e bidder.