No. 13201 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

STATE OF MONTANA ex re1 THOMAS L. JUDGE, 

Governor of the State of Montana, 

Plaintiff, 

THE LEGISTATIVE FINANCE COMMITTEE AND ITS 

MEMBERS, Francis Bardanouve, Chairman, 

David Aageson, Glenn Jacobsen, Orin P. Kendall, 

Arthur E. Lund, William L. Mathers, Jack K. Moore, 

William J. Norman, Ann K. Regan, Miles Romney, 

Ed B. Smith, and Stan Stephens, 

Defendants. 

ORIGINAL PROCEEDING: 

Counsel of Record : 

For Plaintiff : 

Larry Elison argued and Patrick Melby argued, 

Helena, Montana 

For Defendants : 

John Northey argued, Helena, Montana 

Submitted : December 6, 1975 

Decided -7-7 : 7 p 1, <2 i314,~ - L II a. ?$ L /L <,5 

Filed: T~,E;: i: ,;: j;;jJY L. -!'.<;, G.3 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an original proceeding brought by plaintiff 

Governor of Montana for declaratory relief pursuant to section 

93-8901 et seq., R.C.M. 1947, involving the constitutionality 

of several legislative enactments establishing and empowering 

defendant Legislative Finance Committee and its office of Legislative Fiscal Analyst. This cause is a companion case to No. 

13069, Board of Regents v. Thomas L. Judge, decided today. 

Plaintiff (hereinafter called Governor) commenced this 

action October 29, 1975, with an application for leave to file 

a complaint stating that substantial questions of the constitutionality of these enactments existed and that the remedy available through trial in the district court was inadequate because 

the operation of these laws would impair and do irreparable harm 

to state government functions during the delay before final resolution of the matter by this Court. After an ex parte hearing 

on October 29, 1975, this Court granted the application and ordered 

that defendant (hereinafter called Finance Committee) answer the 

complaint, briefs be filed, and set the matter for an adversary 

hearing. Hearing was had. 

Specifically this challenge involves three enactments of 

the Forty-fourth Legislature. 

(1) Senate Bill No. 333, Chapter 448, Laws of Montana, 

1975--The Legislative Finance Act--provides for the creation of 

the interim legislative finance committee whose membership is 

made up of four members of the senate finance committee, two 

members from the senate at large, four members of the house appropriation committee, and two members from the house at large. 

The act also creates the office of legislative fiscal analyst 

and specifies the duties of both the analyst and the committee. 

(2) Senate Bill No. 401, Chapter 51, Laws of Montana, 
1975, as set forth in the companion case, grants the legislative 

finance committee review and approval authority over budget 

amendments which are therein defined as expenditures by state 

agencies in excess of their appropriations. 

(3) House Bill No. 1 (Special Session), Laws of Montana, 

1975, specifically appropriates funds from sources other than 

the general fund which were not available for consideration by 

the legislature and modifies each of the appropriation bills of 

the forty-fourth legislature to insure that such funds are approved by the legislative finance committee in the form of a 

budget amendment before they are made available to the state 

agency for expenditure. 

The Governor challenges the budget amendment authority 

in S.B. 401 and H.B. 1 (Special Session) of the Finance Committee 

by asserting in the alternative that either it is an unconstitutional delegation of legislative authority because it gives 

the Finance Committee authority to permit expenditures of money 

from the public treasury without an appropriation made by law, 

or an infringement on the doctrine of separation of powers because it allows the Finance Committee to exercise discretion exclusively reserved to the executive branch. 

Additionally, the Governor argues if the Finance Committee 

is exercising administrative power, the legislature has conferred 

civil appointments upon members of the legislature who are ineligible for such appointment under Article V, Section 9, 1972 

Montana Constitution. Section 7, S.B. 333 is void, argues the 

Governor, because it is an interference with the governor's constitutional duty to prepare and submit a budget to the legislature in Article VI, Section 9, 1972 Montana Constitution. The 

Governor also seeks to enjoin the Finance committee from acting 

under the remainder of S.B. 333 to the extent duplication or 
interference with the Governor's constitutional budget duties 

result. 

The following sections of S.B. 333 indicate a possible 

duplication of function or interference with the executive: 

"Section 6. There is a new R.C.M. section numbered 

43-1114 that reads as follows: 

"43-1114. Legislative fiscal analyst's duties. 

The legislative fiscal analyst shall: (1) provide 

for fiscal analysis of state government and accumulate, compile, analyze, and furnish such information 

bearing upon the financial matters of the state that 

is relevant to issues of policy and questions of 

statewide importance, includinq, - - but not limited to, 

investigation and study of the possibilities of 

effectinq economy and efficiency in state qovernment; 

"(2) Estimate revenue from existing and proposed 

taxes ; 

"(3) Analyze the executive budget and budget 

requests of selected state agencies and institutions, 

including proposals for the construction of capital 

improvements; 

"(4) Make the reports and recommendations he 

deems desirable to the leqislature and make reports 

and recommendations as requested by the legislative 

finance committee and the legislature; and 

"(5) Assist committees of the legislature, and 

individual legislators, in compiling and analyzing 

financial information. 

"Section 7. There is a new R.C.M. section numbered 

43-1115 that reads as follows: 

"43-1115. Fiscal analysis information from state 

agencies. The legislative fiscal analyst has the 

authority to investigate and examine into the costs 

of state government activities and may examine the 

records, books, and files of any state agency, including confidential records of executive branch 

agencies. Every state agency shall furnish the legislative fiscal analyst with copies of all budget 

requests, at the time of submission to the budget 

director as provided by law, and if requested, all 

underlying and supporting documentation. In the 

year preceding each legislative session, the budget 

director shall furnish the legislative fiscal analyst 

on a confidential basis: 

"(1) by December 1, a copy of the documents which 

reflect the anticipated receipts and other means of 

financing the budget for each fiscal year of the 

ensuing biennium; 

"(2) by December 1, a preliminary budget which 
shall meet the statutory requirements for submission 

of the budget to the legislature; and 

"(3) by December 15, all amendments to the preliminary budget." (Emphasis supplied.) 

The Finance Committee's answer raises four defenses 

which are the subject of a motion to dismiss. First, that the 

complaint fails to state a claim upon which relief can be granted. 

Second, the Finance Committee asserts that this Court should 

not invoke its original jurisdiction under Rule 17, Montana Rules 

of Appellate Civil Procedure, because no emergency situation exists. 

Third, there are factual matters in dispute requiring an evidentiary hearing in district court. Fourth, defendant Finance Committee asserts that plaintiff Governor should be estopped from 

challenging the acts in question because he signed them and subsequently did not legally challenge them when he had an opportunity 

to do so. 

On the merits of the Governor's challenge the Finance 

Committee states that the establishment of the interim committee 

was a valid exercise of legislative power and the members of the 

committee serve in their capacity as legislators, not civil officers. It argues the interim committee performs an incidental 

legislative function by altering expenditure limitations established by the legislature during its biennial sessions. The 

legislature in H.B. 1 (Special Session) established a contingency 

according to the Finance Committee, which becomes effective when 

the Finance Committee determines the contingency has been met. 

The Finance Committee argues such contingent appropriations approved by the legislative finance committee under S.B. 401 constitute a valid delegation of authority. 

With regard to the Governor's challenge to the fiscal 

analysis powers in S.B. 333, these duties do not violate the separation of powers clause of Article 111, Section 1, 1972 Montana 
Constitution, according to the Finance Committee. Specifically 

it argues Article VI, Section 9, 1972 Montana Constitution, confers a duty on the governor to submit - a budget to the legislature, 

but this does not preclude the legislature from rejecting all or 

part of that budget and substituting one of its own. The Finance 

Committee submits that the information obtained by the powers 

given in S.B. 333 is merely ancillary to the legislature's duty 

to make an independent and responsible decision concerning appropriations. 

Initially we consider the Finance Committee's motion to 

dismiss. The Governor opposes the motion on the basis that only 

legal issues are involved and during oral argument the Governor's 

counsel stated he was willing to concede any factual matters in 

question. We note at this point that because of the lack of facts 

presented, our opinion here is necessarily limited. The Governor 

maintains that each enactment is unconstitutional on its face. 

On the basis of the Governor's concession of factual issues and 

the fact that the answers required by this case will have such a 

significant impact on the operation of state government, (for example, this Court's decision in Board of Regents v. Thomas L. 

Judge, Cause No. 13069, also decided today) we deem this Court's 

original jurisdiction proper under Rule 17, Montana Rules of Appellate Civil Procedure. 

We also find that a declaratory judgment concerning the 

legislative acts in question provides a proper resolution of this 

controversy. Board of Regents v. Thomas L. Judge, supra. Finally, 

we think the doctrine of estoppel is inapplicable here in view 

of the Governor's duty to uphold the Montana Constitution. The 

Finance Committee's motion to dismiss is denied. 

Moving to the merits of the controversy, we first consider 

the budget amendment authority given the Finance Committee under 
(Special Session) 

S.B. 401 and H.B. 1/! Initially we find that the legislature in 

H.B. 1 (Special Session), Laws of Montana, 1975, did intend and 

did accomplish the appropriation of monies received from sources 

other than the general fund which were not available for consideration by the legislature. What remains is a categorization 

and constitutional evaluation of the function of that committee. 

There can be no doubt that the legislature, sitting in 

session, could determine whether or not to release money already 

a 

appropriated from/source other than the general fund and not 

available for consideration by an earlier session of that same 

legislature. Such a determination is an integral part of the 

final appropriation decision. The power to appropriate is a 

long established, well-recognized power of the legislature. State 

ex rel. Haynes v. District Court, 106 Mont. 470, 476, 78 P.2d 

937 and cases cited therein. Further, these nongeneral fund 

monies are public operating funds of state government subject to 

the appropriation process. See companion opinion Board of Regents 

v. Thomas L. Judge, supra. 

Alternatively the legislature might, as it has often done 

in other areas, make a policy determination and delegate to an 

executive agency or officer the duty to later implement the legislature's policy determination. 

The legislature has the power to establish interim committees to gather information upon which the legislature can evaluate past actions or use as a basis for future decisions. Article V, Section 10, 1972 Montana Constitution; State ex rel. James 

v. Aronson, 132 Mont. 120, 314 P.2d 849; Transcript of Proceedings, 

Montana Constitutional Convention, (1972), pp. 1950, 1951. 

But, the 1975 Montana ILegislature in its enactment of 

S.B. 401 and H.B. 1 (Special session) empowering the Finance Committee to approve budget amendments delegated a power properly 
exercisable only by either the entire legislature or an executive officer or agency, to one of its interm committees. Such 

a hybrid delegation does not pass constitutional muster. The 

power in question here resides in either the entire legislative 

body while in session or, if properly delegated, in an executive agency. Clearly the action of the Finance Committee does 

not constitute the action of the entire legislature. Article 

V, Section 11, 1972 Montana Constitution. Just as clear is the 

fact that Article V, Section 9, 1972 Montana Constitution, would 

disqualify these legislators from membership on the Finance 

Committee if it were an executive agency. Therefore those sections of S.B. 401 and H.B. 1 (Special Session) empowering the 

Finance Committee to approve budget amendments are declared invalid as unconstitutional delegations of legislative power. 

This determination that S.B. 401, Chapter 510, Laws of 

Montana, 1975, is unconstitutional necessarily denies the Finance 

Committee any power over those requests enumerated in section 

1 (3), H.B. 271, before us in the companion case Board of Regents 

v. Thomas L. Judge, supra. Since we have found the appropriation 

to have been made by the legislature, which both parties concede, 

the discretion regarding the disposition of these nongeneral 

fund unanticipated revenues resides within the executive branch. 

Next we consider S.B. 333, which the Governor alleges 

to be an infringement on the executive branch and therefore violative of the separation of powers clause of Article 111, Section 

1, 1972 Montana Constitution. 

This description from State v. Johnson, 75 Mont. 240, 249, 

243 P. 1073, is the accepted discussion of separation of powers 

by this Court: 

"In theory, this section [Section 1, Article IV, 

1889 Montana Constitution almost identical to 

Section 1, Article 111, 1972 Montana Constitution] 
* * * effects an absolute separation of the three 

departments of our government, 'but, while such 

is the theory of American constitutional government, it is no longer an accepted canon among 

political scientists; it has never been entirely 

true in practice.' (12 C.J. 803; Cooley on Constitutional Law, 44; Story on Constitution of the 

United States 525.) 

"That section 1, Article IV, does not wholly prevent 

the exercise of functions of a nature belonqinq to 

one department by those administerinq the affairs 

of another is recoqnized in State ex rel. Hillis v. 

Sullivan, 45 Mont. 320, 137 Pac. 392, wherein Mr. 

Justice Sanner, speaking for this court said: 'The 

separation of the government into three great departments does not mean that there shall be "no common 

link of connection, or dependence, the one upon the 

other in the slightest degree" (1 Story's Commentaries 

on the Constitution, sec. 525); it means that the 

powers properly belonging to one department shall not 

be exercised by either of the others. (Const. Art. 

IV, sec. 1.) There is no such thing as absolute 

independence. ' He then cites numerous instances of 

the exercise of powers by one department which, from 

their nature, would seem to belong to another, but 

which are incidents to the proper discharqe of the 

powers vestinq in the department exercisinq them, or 

are reposed in the particular department as a matter 

of convenience in qovernmental affairs. " (Emphasis 

supplied. ) 

Mr. Justice Brandeis in Myers v. United States, 272 U.S. 

52, 47 S.Ct. 21, 71 L ed 160, 242, stated: 

"The doctrine of the separation of powers was adopted by the Convention of 1787 not to promote 

efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, 

but, by means of the inevitable friction incident 

to the distribution of the governmental powers 

among three departments, to save the people from 

autocracy." (Emphasis supplied.) 

We also take noteof the language of Mr. Justice Holmes in Springer 

v. Philippine Islands, 277 U.S. 189, 209, 48 S.Ct. 480, 72 L ed 

"The great ordinances of the Constitution do not 

establish and divide fields of black and white. 

Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other. * * *" (Emphasis supplied. ) 

To what extent then does S.B. 333 violate the separation 

of powers in view of the command of Article VI, Section 9, 1972 
Montana Constitution, for the governor to "submit to the legislature at a time fixed by law, a budget for the ensuing fiscal 

period setting forth in detail for all operating funds the proposed expenditures and estimated revenue of the state." Again, 

our determination here is limited to a consideration of S.B. 

333 on its face, due to the concession of factual issues by the 

Governor. 

Basic to the resolution of this issue is the fact that 

the budget in Montana is a legislative budget not an executive 

budget notwithstanding Article VI, Section 9. Article V and 

Article VIII, 1972 Montana Constitution, vest the power to approve appropriation bills and a budget in the legislative branch. 

Article V, Sections 1, 11; Article VIII, Sections 9, 12, 14, 1972 

Montana Constitution. In other words the legislature has the 

power to adjust and finalize the budget. Given-that power and 

responsibility the legislature through an interim committee may 

require such information from the other branches of government 

as is reasonably necessary to form a rational basis for its budget 

determinations. 

The Governor's assertion that Section 7 of S.B. 333 infringes on the executive branch because it requires a disclosure 

of information held by state agencies, including a copy of the 

preliminary budget, is of little substance. Indeed, should the 

executive branch withhold from the legislature or one of its 

interim committees any information reasonably necessary for budget 

decisions, it in fact would be interferring with the legislature 

to the extent of violating the separation of powers doctrine. 

Once prepared the preliminary budget is arguably a public document and should be available not only to the Finance Committee 

but to the general public as well under Article 11, Section 9, 

1972 Montana Constitution. 
While an apparent unnecessary duplication of effort 

in the preparation of two budgets and an apparent lack of cooperation may exist between the executive and the legislature in this 

matter, which results in a waste of taxpayers' money, these are 

insufficient grounds upon which to find a legislative enactment 

constitutionally invalid. 

The rule that the constitutionality of an act of the 

legislature must be presumed unless rebutted by proof beyond a 

reasonable doubt is well established in Montana. State ex rel. 

Mills v. Dixon, 66 Mont. 76, 84, 213 P. 227. This presumption 

has not been overcome here; and thus we hold as to S.B. 333, 

specifically as to Section 7, the legislature has acted properly. 

This opinion, together with the opinion in the companion 

case No. 13069, shall constitute a declaratory judgment.