No. 91-462 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

CITY OF BoZEMAN, a municipal 

corporation and a political 

subdivision of the State of Montana, 

Plaintiff and Appellant, 

MARC RACICOT, Attorney General for 

the State of Montana, and GALLATIN 

COUNTY, a political subdivision of 

the State of Montana, 

Defendants and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Jeffrey M. Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Bruce E. Becker, Bozeman City Attorney, Bozeman, 

Montana 

For Respondents: 

Hon. Marc Racicot, Attorney General, Helena, 

Montana: Peter Funk, Assistant Attorney General, 

Helena, Montana 

Michael Salvagni, Gallatin County Attorney, 

Bozeman, Montana 

; 

Submitted on Briefs: December 12, 1991 
Justice Karla M. Gray delivered the Opinion of the Court. 

The City of Bozeman appeals from a decision and order of the 

District Court of the First Judicial ~istrict, Lewis and Clark 

County. The District Court's ruling upheld an opinion by the 

Attorney General that the board of county commissioners of Gallatin 

County, and not the city commission of Bozeman, has final authority 

to approve subdivisions that are within the three-mile area 

immediately outside Bozeman's corporate limits. We affirm. 

The issue on appeal is whether the District Court erred in 

concluding that Bozeman's city commission does not have final 

authority to approve subdivisions that are within the three-mile 

area immediately outside Bozeman's corporate limits. 

Bozeman has a commission-manager form of government. It also 

is a first-class city, as defined in 5 7-1-4111, MCA. Bozeman and 

Gallatin County created the joint Bozeman City-County Planning 

Board in 1957. The Planning Board's jurisdictional area includes 

the area within Bozeman's corporate limits and the area up to four 

and one-half miles outside its corporate limits. Bozeman and 

Gallatin County have adopted the same master or comprehensive 

development plan and city/county subdivision regulations for the 

Planning Board's jurisdictional area. Both claim final authority 

to approve subdivisions within the three-mile area immediately 

outside Bozeman's corporate limits ("three-mile areal1). 

Bozeman and Gallatin County jointly requested an opinion of 

the Attorney General on the following question: 
Does the board of county commissioners or the city 

commission, pursuant to section 7-3-4444, MCA, have final 

authority to approve subdivisions that are within the 

three-mile area immediately outside the corporate limits 

of the city when it has a commission-manager form of 

government? 

The Attorney General answered the question as follows: 

The board of county commissioners has final authority to 

approve subdivisions that are within the three-mile area 

immediately outside the corporate limits of the city when 

the city has a commission-manager form of government. 

43 Op. Att'y Gen. NO. 26 (July 20, 1989). 

Bozeman filed a complaint for declaratory judgment seeking to 

have the Attorney General's opinion overruled. It requested the 

District Court to order that it has final authority to regulate 

subdivisions in the three-mile area under § 7-3-4444, MCA. The 

court determined that the Attorney General correctly interpreted 

§ 7-3-4444, MCA, concluding that the statute does not give Bozeman 

the claimed extraterritorial authority. This appeal followed. 

The parties agree that the resolution of this case is strictly 

a matter of statutory interpretation. The District Court's 

decision and order will be upheld if the court's interpretation of 

the law is correct. Steer, Inc. v. Dept. of Revenue (1990), 245 

Mont. 470, 803 P.2d 601. 

The District Court began its analysis by examining the Montana 

statutes which generally define a municipality's authority to 

regulate subdivisions beyond its corporate limits. Section 76-2- 

310, MCA, provides in pertinent part: 

(1) The local city or town council or other 

legislative body which has adopted a master plan pursuant 
to chapter 1 may extend the application of its zoning or 

subdivision regulations, or both, beyond its limits in 

any direction but not in a county which has adopted such 

regulations within the contemplated area. 

(2) (a) A city of the first class as defined in 7- 

1-4111 may not extend the application of its zoning or 

subdivision regulations, or both, more than 3 miles 

beyond its limits. . . . 

In addition, 5 76-2-311, MCA, provides: 

(1) Any city or town council or other legislative 

body may thereafter enforce such regulations in the area 

to the same extent, as if such property were situated 

within its corporate limits, until the county board 

adopts a master plan pursuant to chapter 1 and 

accompanying zoning or subdivision resolutions, or both, 

which include the area. 

(2) As a prerequisite to the exercise of this 

power, a city-county planning board whose jurisdictional 

area includes the area to be regulated must be formed. . . . 

standing alone, 44 76-2-310 and 76-2-311, MCA, may appear to 

give Bozeman final authority to approve subdivisions within the 

three-mile area. Section 76-2-312, MCA, however, states that "[a] 

city or town which has as its plan of government the commissionmanager plan shall be excluded from the provisions of 76-2-310 and 

76-2-311which define extraterritorial authority to review proposed 

 subdivision^.^ The ~istrict Court concluded that § 76-2-312, MCA, 

takes away the extraterritorial authority over subdivisions that 

Bozeman, with a commission-manager form of government, otherwise 

would have pursuant to 65 76-2-310 and 76-2-311, MCA. It further 

determined that because Bozeman was excluded from the provisions of 

§§ 76-2-310 and 76-2-311, MCA, the question of which governmental 
body has final authority to approve subdivisions in the three-mile 

area must be answered by reference to the Montana Subdivision and 

Platting Act, 55 76-3-101 through 76-3-614, MCA. 

The District Court then reviewed 5 76-3-601, MCA, which 

provides in part: 

(b) When the proposed subdivision is situated 

entirely in an unincorporated area, the preliminary plat 

shall be submitted to and approved by the governing body 

of the county. However, if the proposed subdivision lies 

within 1 mile of a third-class city or town or within 2 

miles of a second-class city or within 3 miles of a 

first-class city, the county governing body shall submit 

the preliminary plat to the city or town governing body 

or its designated agent for review and comment. 

(3) This section and 76-3-604, 76-3-605, and 76-3- 

608 through 76-3-610 do not limit the authority of 

certain municipalities to regulate subdivisions beyond 

their corporate limits pursuant to 7-3-4444. 

It next reviewed 5 7-3-4444, MCA, referenced in 5 76-3-601(3), 

MCA. Section 7-3-4444, MCA, applies only to commission-manager 

municipalities and states: 

(1) The director of public service shall be the 

supervisor of plats of the municipality. He shall see 

that the regulations governing the platting of all lands 

require all streets and alleys to be of proper width and 

to be coterminous with the adjoining streets and alleys 

and that all other regulations are conformed with. 

Whenever he shall deem it expedient to plat any portion 

of the territory within the corporate limits in which the 

necessary or convenient streets and alleys have not 

already been accepted by the municipality so as to become 

public streets or alleys or when any person plats any 

land within the corporate limits or within 3 miles 

thereof, the supervisor of the plats shall, if such plats 
are in accordance with the regulations prescribed 

therefor, endorse his written approval thereon. 

(2) No plat subdividing lands within the corporate 

limits or within 3 miles thereof shall be entitled to 

record in the recorder's office of the county without 

such written approval so endorsed thereon. 

The District Court concluded that 76-3-601(2) (b), MCA, 

limits the extraterritorial authority of municipalities over 

subdivisions to ''review and commentgr concerning the preliminary 

plat except as permitted by 5 7-3-4444, MCA. It further concluded 

that the plain language of 7-3-4444, MCA, grants the city's 

director of public service only the limited ministerial power to 

review plats for subdivisions in the three-mile area with respect 

to their technical adequacy. 

Bozeman challenges the District Court's ruling, asserting that 

5 76-2-312, MCA, is not a limitation on the authority of 

commission-manager governments; rather, it is an acknowledgment by 

the legislature that such municipal governments already had the 

extraterritorial subdivision authority under Section 91 of Chapter 

152 of the Laws of 1917, now 5 7-3-4444, MCA. It argues that 5 76- 

2-312, MCA, exempts commission-manager cities from procedural 

requirements that other forms of municipal government have to 

follow in order to exercise their extraterritorial subdivision 

authority. 

Bozeman relies on a 1970 report to the legislature that was 

prepared by the Montana Legislative Council. In that report, the 

Legislative Council referred to what is now § 7-3-4444, MCA, and 
stated that the statute gives commission-manager cities "authority 

to approve or disapprove proposed subdivisions within three miles 

of the city.'I Montana Legislative council, A Re~ort to the FortvSecond Leqislative Assembly, December 1970, Report No. 34, at page 

10. Bozeman further argues that 5 76-3-601(3), MCA, with its 

reference to 5 7-3-4444, MCA, also supports its position that it 

has final authority to approve subdivisions in the three-mile area. 

Therefore, the success of Bozeman's argument is conditioned upon a 

determination that 5 7-3-4444, MCA, grants Bozeman the claimed 

extraterritorial subdivision authority. 

Our function in construing and applying statutes is to 

effectuate the intention of the legislature. State ex rel. Roberts 

v. Public Service Comm'n (1990), 242 Mont. 242, 246, 790 P.2d 489, 

492. If the legislature's intent can be determined from the plain 

meaning of the words used in a statute, we will go no further. 

Phelps v. Hillhaven Corp. (1988), 231 Mont. 245, 251, 752 P.2d 737, 

741. In addition, it is the function of the courts to ascertain 

and declare what in tens or substance is contained in a statute; 

it is not our function to insert what has been omitted or to omit 

what has been inserted. Gaub v. Milbank Ins. Co. (1986), 220 Mont. 

424, 427, 715 P.2d 443, 445. When more than one statute applies to 

a given situation, such construction, if possible, is to be adopted 

as will give effect to all. Schuman v. Bestrom (1985), 214 Mont. 

410, 415, 693 P.2d 536, 538. 

Upon examining 5 7-3-4444, MCA, the District Court concluded: 
With these rules of statutory construction in mind, 

this Court finds no reference in Section 7-3-4444, MCA, 

granting the Bozeman City Commission final subdivision 

authority over lands within three miles of its corporate 

limits. This Court certainly recognizes that there was 

such a reference to that statute by the Montana 

Legislative Council and there is a similar reference in 

Section 76-3-601(3), MCA. However, references such as 

those made by the aforementioned statute and by the 

Legislative Council cannot put words into Section 7-3- 

4444, MCA, that are not there. If the legislature wanted 

Section 7-3-4444, MCA, to say that a city commission has 

power to approve subdivisions within three miles of its 

border, it should say so. That is not, however, what the 

statute says. 

The District Court's interpretation of 5 7-3-4444, MCA, is 

correct. The language of the statute is clear. The statute does 

not refer to the city commission. Nor does it grant the city 

commission final authority to approve subdivisions that are within 

the three-mile area. The authority that is provided by the statute 

is granted to the city director of public service. It is limited 

to ensuring that the involved plat complies with all of the 

regulations governing platting: if the plat does comply, the 

director of public service must approve it. 

A city with a commission-manager form of government has two 

statutorily authorized functions with respect to subdivisions 

located within the three-mile area, in addition to participating in 

the master plan process. First, the city's governing body or its 

designated agent reviews and comments on a preliminary plat 

submitted to it by the county governing body under 5 76-3- 

601(2) (b) , MCA. Second, in accordance with § 7-3-4444, MCA, the 

city's director of public service reviews the preliminary plat to 
ensure its technical adequacy. We hold that the ~istrict Court did 

not err in concluding that Bozeman, through its city commission, 

does not have final authority to approve subdivisions that are 

within the three-mile area immediately outside its corporate 

limits. 

Affirmed .