No. 13575 

IN THE 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 all petitioners whose names appear on 

the Petition for a County Resolution filed on 

the 25th day of May, in the 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 1977 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

The Board of Commissioners of Chouteau County (Board) 

brought this action pursuant to section 37-301(2), R.C.M. 1947, 

to determine whether a resolution proposed for voter referendum 

is valid and constitutional. The referendum proposes that no 

funds of any nature be used for paving 3 1/2 miles of county 

road for which the county had called for bids, and that no bids 

be accepted. The district court, Hon. Truman Bradford, 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 for bids and expend funds to pave or oil 

an existing segment of county road is a legislative function and 

thus subject to the powers of initiative and referendum reserved 

to the people, or whether it is an administrative function not 

subject to referendum. 

In late April 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 from being undertaken. On May 13, 1976, district judge Hon. R. J. Nelson, signed a temporary restraining order 

restraining the county from beginning 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 for hearing, more than fifteen percent 

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 IT RESOLVED by the Board of County Commissioners 

of Chouteau County, Montana that: No funds of any nature 

available to Chouteau County from any source whatsoever 

be used for paving or oiling that segment of road which 

is the subject of that certain call for bids dated April 

26, 1976, and signed by James F. White, Jr., Chairman 

and which call for bids generally describes the road as 

approximately 3 112 miles of road at a starting point 5 

miles southwest of Fort Benton on the Highwood Road; 

that no bids from any person shall be accepted by the Board 

for any such paving or oiling; and, that all Resolutions 

of the Board of Commissioners of Chouteau County if any 

to the contrary are hereby repealed." 

Further proceedings in the action for injunction were declared 

moot when the petitions were 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 "* * * 

would be invalid in that it is unconstitutionally vague and 

The powers of initiative and referendum are reserved to 

the people in the 1972 Montana Constitution. Art. V, Section 1, 

provides : 

"The legislative power is vested in a 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, Section 4, provides for the enactment of law by 

initiative by 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. 

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Art. 111, Section 5, provides in pertinent part: 

"(1) The people may approve or reject by 

referendum any act of the legislature except an 

appropriation of money. A referendum shall be 

held either upon order by the legislature or upon 

petition signed by at least five percent * * *." 

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, in pertinent part provides: 

"(1) Resolutions may be proposed by the legal voters 

of any county in this state, in the manner provided 

in this act. Fifteen per 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 * * to determine whether the petition and 

ordinance are regular in form, and whether the ordinance 

so proposed would be valid and constitutional.* * *I1 

There is no 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 for many 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, 148 Mont. 96, 417 P.2d 458, and cases 

cited therein. The issue then is whether the proposed resolution 
addresses itself to a legislative or administrative function. 

The district court in its Opinion and Order resolved the 

issue in this manner: 

"The Montana Supreme Court, in 1966, reaffirmed 

the rule that 'initiative does not lie concerning 

matters administrative in nature. ' (City of Billings 

v. More, 148 Mont. 96, 104; citing Carlson v. City 

of Helena, 39 Mont. 82 and Allen v. City of Butte, 

55 Mont. 205) The Court, in that same case, acknowledged that differentiating between legislative and 

administrative actions is difficult but accepted as a 

reasonable test a determination of whether 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)). The petition 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, in publishing 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 agree with 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. 

It would provide if enacted: 

"No funds of any nature * * * be used for paving 

or oiling that segment of road * * * that no bids from 

any person shall be accepted * * * and, that all Resolutions 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 the project. The acceptance of bids and use of 

funds for paving are administrative functions. 
The resolution does not concern the more fundamental 

decision of whether 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 function and 

therefore subject to initiative and referendum is not in point. 

We accept the principle that initiative and referendum 

provisions of the Constitution should be broadly construed to 

maintain the maximum power in the people, and that statutes in 

aid of these reserved powers "'should be liberally construed, and 

should not be interfered with by the courts, except upon a clear 

showing that the law is being violated."' State ex rel. Freeze 

v. Taylor, 90 Mont. 439, 447, 4 P.2d 479. 54 Cal.L.Rev. 1717, 

1724. We are not persuaded by the so-called counter-principle 

that "'if essential governmental functions would be seriously 

impaired by the [initiative or] referendum process, the courts, 

in construing the applicable constitutional and statutory provisions, will assume that no such result was intended [by the 

drafters]!'' 54 Cal. L. Rev. 1717, 1724. 

In City of Billings v. Nore, 148 Mont. 96, 417 P.2d 458, 

cited by the district court, the electors approved a bond issue for 

storm sewer system. At issue was the method of assessment to 

fund payment of the bonds. This Court held that since the ordinance 

for assessment substantially complied with the issue voted upon, 

it was administrative in nature and not subject to initiative. 

Two cases cited in City of Billings are not in point. Here, 

a special improvement district is not in question nor a special 

assessment. It is contemplated that(genera1 funds of the county are 

to be used. 
Allen v, City of Butte, 55 Mont. 205, 208, 175 P. 595, 

was an action to prevent the sale of property for delinquent 

assessments on a special improvement district. In Allen 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." 

Carlson v. City of Helena, 39 Mont. 82, 113, 102 P, 39, was a 

challenge to a proposed issuance of bonds for procuring 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: 

"* * * They in terms apply, and were evidently 

intknded to apply only, to matters of general 

legislation in which all electors without distinction may take an active interest. The question 

whether the council should have authority to issue 

bonds could be submitted to the taxpayers only." 

In summary, we hold 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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5 :7JJ-& \ d,i 

Chief Justy,ce 

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