No. 13575 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

CHOUTEAU COUNTY, MONTANA, Plaintiff and Respondent,

HENRY I. GROSSMAN, BRUCE G. BRAMLETTE, RICHARD M. KURTH, JOSEPH C. TADEVICK, et al., and allpetitioners whose names appear on the Petition for a County Resolution filed on the 25th day of May, inthe year 1976. Defendants and Appellants.

Appeal from: District Court of the Eighth Judicial District, Honorable Truman G. Bradford, Judge

presiding. Counsel of Record: For Appellants: Donald A. LaBar argued, Great Falls, Montana Robert K. Strong argued, Great Falls, Montana Church, Harris, Johnson & Williams, Great

Falls, Montana For Respondent: A. Evon Anderson argued, Fort Benton, Montana

Submitted: March 30, 1977 Decided- 

## MAY 

## 3 1977Mr. Justice Frank 

### I. Haswell delivered the Opinion of the Court.

The Board of Commissioners of Chouteau County (Board) brought this actionpursuant to section 37-301(2), R.C.M. 1947, to determine whether a resolution proposed forvoter referendum is valid and constitutional. The referendum proposes that no funds of any nature be used forpaving 3 1/2miles of county road forwhich the county had called forbids, and that no bids be accepted. The district court,Hon. TrumanBradford, 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 forbids and expend funds to pave or oil

an existing segment of county road is a legislative functionand thus subject to the powers of initiative and referendum reserved to the people, orwhether it is an administrative functionnot subject to referendum. In lateApril 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 frombeing undertaken. OnMay 13, 1976,district judgeHon. R. J. Nelson, signed a temporary restraining order restraining the county frombeginning the paving project by accepting bids, and ordered the county to appear and show cause why the order should not be made permanent.Before the date set forhearing, more than fifteenpercent of the citizens and qualified electors of the county had properly signed petitions that the Board pass this resolution which is in controversy here: "BE ITRESOLVED by the Board of County Commissioners of Chouteau County, Montana that: No funds of any nature available toChouteau County from any source whatsoever be used for paving or oiling that segment of road which is the subject of that certain call forbids datedApril 26, 1976, and signed by James F. White, Jr., Chairman and which callforbids generally describes the road as approximately 3 112miles of road at a startingpoint 5 miles southwest of Fort Benton on the Highwood Road; that no bids from any person shallbe accepted by the Board for any such paving or oiling; and, that allResolutions of the Board of Commissioners of Chouteau County if any to the contrary arehereby repealed." Further proceedings inthe action for injunctionwere declared moot when the petitionswere received. The clerk of Chouteau County certified to the Board that the requisite number of signers had signed the petition. The Board then filed this suit for declaratory judgment alleging the resolution, if adopted 

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# ** would be invalid inthat it isunconstitutionally vague and

The powers of initiative and referendum are reserved to the people inthe 1972Montana Constitution. Art. V, Section 1, provides:"The legislative power isvested ina legislature consisting of a senate and a house of representatives. The people reserve to themselves the powers of initiative and referendum." (Emphasis added.) Art. 111, Section4, provides for the enactment of law by initiativeby the people. As appellants state, what was sought here

was a referendum to either approve or overrule the prior decision of the Board. State ex rel. Hay 

### v. Alderson, 49 Mont. 387,406, 142 P. 210. -3-Art. 111, Section 5, provides inpertinent part: "(1) The people may approve or reject by referendum any act of the legislature except an appropriation of money. A referendum shallbe held either upon order by the legislature or upon petition signed by at least five percent

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# *."

Art. XI, Section 8, states: "The legislature shall extend the initiative and referendum powers reserved to the people by the constitution to the qualified electors of each local government unit." The legislature enacted Chapter 3, Title 37, R.C.M. 1947, to carry out that constitutional mandate. Section 37-301(1)(2),, K.C.M. 1947, inpertinent part provides: "(1) Resolutions may be proposed by the legalvoters of any county in this state, in the manner provided inthis act. Fifteenper cent (15%) of the legal voters of any county may propose to the board of county commissioners a resolution on a subject within the legislative jurisdiction and powers of such county commissioners, or a resolution amending or repealing any prior resolution or resolutions

# .** 7kf' (Emphasis added.) The board then may enact the resolution or submit it to the people. Before submitting it, the board may challenge it in court, as was done here: "(2) fc

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# * to determine whether the petition and ordinance are regular in form, and whether the ordinance so proposed would be valid and constitutional.* 

# * *I1 There isno objection as to the form of the petition for a referendum or the number of signers. The challenge here is to its validity. Cities and towns of Montana have formany years been subject to initiative and referendum. Section 11-1104, et.seq., R.C.M.

Both parties agree that initiative and referendum extend only to legislative action and not to administrative acts, citing City of Billings v. Nore, 148Mont. 96, 417 P.2d 458, and cases cited therein. The issue then iswhether the proposed resolutionaddresses itself to a legislative or administrative function. The district court in its Opinion and Order resolved the issue in thismanner: "The Montana Supreme Court, in 1966,reaffirmed the rule that 'initiativedoes not lie concerning matters administrative innature.

## ' (City of Billings v. More, 

### 148Mont. 96, 

### 104;citing Carlson

### v. City ofHelena, 39 Mont. 82andAllen v. City of Butte, 55 Mont. 205) The Court, in that same case,acknowledged that differentiatingbetween legislative and administrative actions is difficult but accepted as a reasonable test a determination ofwhether the act was one creating a new law (legislative) or executing an already existing law (administrative). "The Montana legislative assembly has placed the 1 responsibility to 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)). Thepetition 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, inpublishing 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 agreewith 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. Itwould provide if enacted: "No funds of any nature

# * ** be used forpaving or oiling that segment of road

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# * * that no bids from any person shallbe accepted

# * ** and, that allResolutions 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 theproject. The acceptance of bids and use of funds for paving are administrative functions.The resolutiondoes not concern the more fundamental decision ofwhether 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 functionand therefore subject to initiative and referendum is not inpoint. We accept the principle that initiative and referendum provisions of the Constitution should be broadly construed to maintain themaximum power in the people, and that statutes in aid of these reserved powers "'should be liberally construed,and should not be interferedwithby the courts,except upon a clear showing that the law is being violated."' State ex rel. Freeze

v. Taylor, 90Mont. 439, 447,

### 4P.2d 479. 54Cal.L.Rev. 1717, 1724. We are not persuaded by the so-called counter-principle that "'if essentialgovernmental functions would be seriously impaired by the [initiative or] referendumprocess, the courts, in construing the applicable constitutional and statutoryprovisions,will assume that no such resultwas intended [by the drafters]!'' 

### 54 Cal. 

### L. Rev. 1717, 1724. InCity of Billingsv. Nore, 148Mont. 96,

### 417 P.2d 458, cited by the district court, the electors approved a bond issue for storm sewer system. At issuewas themethod of assessment to fund payment of the bonds. This Court held that since the ordinance for assessment substantially compliedwith the issue voted upon, it was administrative innature and not subject to initiative. Two cases cited in City of Billings are not inpoint. Here, a special improvement district isnot in question nor a special assessment. It is contemplated that(genera1funds of the county are to be used.Allen v, City of Butte, 55Mont. 205, 208, 175 P. 595,

was an action to prevent the sale ofproperty for delinquent assessments on a special improvement district. InAllen the Court stated: "The initiative and referendum apply only to matters of general legislation, in which all the qualified 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." Carlsonv. City of Helena, 39Mont. 82, 113, 102 P, 39, was a challenge to a proposed issuance of bonds forprocuring 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: 

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# * They in terms apply, and were evidently intknded to apply only, to matters of general legislation in which all electorswithout distinctionmay take an active interest. The question whether the council should have authority to issue bonds could be submitted to the taxpayers only." In summary,wehold 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.We concur:

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