No. 14883 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

DONALD E. BUTLER: DONALD W. DAVIS et al., 

Intervening Plaintiffs and Appellants, 

LOCAL 2033 MRICAN FEDERATION OF STATE, 

COUNTY AND MUNICIPAL EMPLOYEES et al., 

Petitioner and Counter-Respondent and 

Respondent, 

VS . 

BUTTE-SILVER BOW et al., 

Respondents, Counter-Petitioners and 

Respondents. 

Appeal from: District Court of the Second Judicial District, 

Honorable Peter G. Meloy, Judge presiding 

Counsel of Record: 

For Appellants: 

Knight, Dahood, Mackay and McLean, Anaconda, Montana 

Bernard J. Everett argued, Anaconda, Montana 

For Petitioner and Counter-Respondent and Respondent: 

M.F. Hennessey argued, Butte, Montana 

For Respondents, Counter-Petitioners and Respondents: 

John G. Winston, County Attorney, Butte, Montana 

Robert M. McCarthy, Deputy County Attorney, argued, 

Butte, Montana 

Filed: FEB F: - 1SRP 

Submitted: January 14, 1980 

Decided : FEB 6 - 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

 his is an appeal from a summary judgment in favor of 

respondents Butte-Silver Bow and the "Union" issued by the 

District Court of the Second Judicial District, sitting in 

the County of Silver Bow. 

On February 22, 1978, respondent Local 2033 American 

Federation of State, County and Municipal Employees, AFL-CIO 

(Union), filed a petition and complaint for declaratory 

judgment in the District Court of the Second Judicial District, in and for the County of Siver BOW, State of Montana. 

This action was brought against respondents Butte-Silver 

Bow, State of Montana, and sought a declaratory judgment 

interpreting certain provisions of the newly formed consolidated City and County government of Butte-Silver BOW, Montana, 

dealing with promotions in the Sheriffs Department prior to 

or during consolidation. 

On May 17, 1978, Butte-Silver Bow filed its answer to 

the petition brought by the Union along with a countercomplaint. 

On January 17, 1979, the union and Butte-Silver Bow 

stipulated and agreed to declare null and void promotion to 

higher ranks within the Silver Bow County Sheriffs Department 

received by intervening plaintiffs/appellants, Donald E. 

Butler, Donald W. Davis, Fred E. Guay, Herbert R. Miller, 

Raymond W. Russell and Gale E. Wood ("Sheriff's Officers"). 

The District Court entered a proposed order based upon 

this stipulation declaring the promotions received by the 

Sheriff's Officers null and void and further ordering the 

Sheriff's Officers among others to appear before the court 
to show cause why the order should not become final. 

The sheriff's Officers moved the court pursuant to Rule 

24 (a) (2) M.R.Civ.P. to intervene in the action; this motion 

was granted and a complaint in intervention was filed. 

On April 19, 1979, all the parties moved for summary 

judgment. The District Court issued its findings of fact 

and conclusions of law and order on June 11, 1979, declaring 

the Sheriff's Officers' promotions null and void. Appellant 

officers bring this appeal. 

On April 12, 1977, Sheriff George Patrick Hagel, the 

duly elected, qualified and acting Sheriff of Silver Bow 

County promoted the six officers named herein to higher 

ranks within that Department. The promotions they received 

were either from deputy to sergeant or sergeant to lieutenant 

of the Silver Bow County Sheriffs Department. 

On May 2, 1977, the City of Butte and County of Silver 

Bow consolidated their local governments into one unified 

government under one charter. The new government was to 

have the status of a county and incorporated municipality 

and was named Butte-Silver BOW, Montana. The charter had 

been adopted by the voters on November 2, 1976 and by its 

terms was not to become effective until May 2, 1977. 

Section 5.05 of the Butte-Silver Bow Charter set forth 

the provisions governing the organization of the law enforcement department for the new government. The new law enforcement department was to be formed by combining the former 

City of Butte Police Department and the Sheriffs Department 

of Silver Bow County under the Sheriff of ~utte-Silver Bow. 

Section 5.05 (f) provides as follows: 
"The sheriff shall so organize the new 

department as to recognize the existing 

ranks attained by members of the exist- 

- ing police and sheriff departments." 

(Emphasis added.) 

Following their promotions the six appellant Sheriff's 

Officers assumed the duties of their new ranks under the 

Silver Bow County Sheriffs Department. On May 2, 1977, the 

effective date of the Butte-Silver Bow Charter, the new law 

enforcement department was organized and the six appellant 

Sheriff's Officers retained their ranks pursuant to section 

5.05(f) of the new charter. 

On May 4, 1977, the Commissioners of the newly formed 

government of Butte-Silver Bow met and passed Emergency 

Ordinance No. 2 to govern the method of selection, examination and confirmation of all appointments and promotions 

within the new law enforcement agency. Section 15 of the 

Emergency Ordinance provided it would become effective upon 

passage and approval. It was approved by Chief Executive 

Mario Micone on May 10, 1977. 

The District Court declared the promotion received by 

the six appellant Sheriff's Officers null and void. 

The following issues have been presented to this Court 

for review: 

1. Did the District Court err in ruling that under 

Section 5.05 (f) of the Butte-Silver Bow Charter, the promotions of appellants on April 11, 1977 were null and void? 

2. Did the District Court err in ruling that Sheriff 

Hagel did not have authority to promote the appellant Sheriff's Officers on April 11, 1977? 

The first step in resolving this case is to determine 

the date the charter became operative. Then it becomes 
necessary to determine what effect this operative date has 

on the language in section 5.05 of the charter. 

Section 10.02 of the Butte-Silver Bow Charter provides 

that "[tlhis charter shall become effective on May 2, 1977." 

This language is straightforward and leaves little room for 

doubt as to its meaning. 

Section 5.05 deals with the Chief Law Enforcement 

Officer and provides: 

"The Sheriff shall be the chief law enforcement officer of the government and shall have 

the duties and powers provided by this charter, 

law, ordinance or resolution subject to the 

following provisions: 

" (a) The existinq police department of the 

City of Butte and the sheriff's department 

of Silver Bow shall be combined into one 

department under the control and supervision of the sheriff. The present chief 

of police of the City of Butte shall be 

the undersheriff and shall be paid at 

least the same salary received at the 

time of the adoption of this charter. 

"(b) The present members of the City of 

Butte police department and the deputy sheriffs of Silver Bow County shall be members 

of the new department and have the same 

tenure rights provided by state law. 

"(c) The present members of both existing 

departments shall receive the same compensation, including base pay and longevity 

allowances, as they now receive until such 

time as the council of commissioners adopts 

a salary schedule for members of the new 

department. 

" (d) All appointments to the new department 

shall be made pursuant to the Metropolitan 

Police Law of the state, (Chapter 18, 

Title 11, Revised Codes of Montana, 1947) 

except: 

"(1) That the sheriff shall have the powers 

therein given to the mayor in a mayor-council 

form of municipal government, the council 

of commissioners shall have the powers of the 

city council, and the clerk and recorder shall 

have the powers of a city clerk, and; 
" (2) members of the department may be candidates for any elected office and may participate in political activities notwithstanding the provisions of the Metropolitan 

Police Law of the state. 

"(e) The council of commissioners shall 

establish by ordinance a Law Enforcement 

Commission consisting of five (5) members 

which shall have the powers and perform the 

duties required of police commissions by 

the Metropolitan Police Law and such other 

duties as the ordinance may provide. 

" (f) The sheriff shall so organize the new 

department as to recognize the existing 

ranks attained by members of the existing 

police and sheriff departments. 

" (g) All pension rights presently provided 

by state law to members of the existing 

City of Butte police department and the 

members of the sheriff's department of the 

County of Silver Bow shall continue in full 

force and effect, provided that the council 

of commissioners may by ordinance increase 

the pension benefits, and may in the future provide for a uniform pension system 

if the same is permitted by state law. 

"(h) When a vacancy occurs in the position 

of the undersheriff after the adoption of 

this charter, the sheriff may fill such 

vacancy by appointing a person, qualified 

by training and experience, to fill such 

position without the approval of the police 

commission or council of commissioners, but 

such appointee shall acquire no tenure 

rights except those established tenure 

rights he has at the time of his appointment. If such appointed undersheriff shall 

have been a member of the department prior 

to his appointment and not continued in such 

position by the sheriff he shall revert to 

the former rank he held within the department. All other positions within - the 

department shall be established & such 

ordinances -- as thecouncilofcommissioners 

shall adopt. " (Emphasis added. ) 

The emphasized phrases form the basis for the controversy presented here. 

Appellants contend that section 10.02 of the charter 

controls and that the charter did not become effective for 

any reason until that date. They argue that the rules 

governing effective dates of charters are similar to those 
governing effective dates of statutes and cite the general 

rule that statutes become effective on the date prescribed 

in the statute. 

Respondents, however, disagree and seek to have certain 

specific provisions of section 5.05 be effective from the 

time the charter was passed on November 2, 1976. They argue 

that to reach any other conclusion would effectively disenfranchise the electorate's power to determine the make-up 

of the Butte-Silver Bow Law Enforcement Department and would 

contravene Article 11, Section 1 of the 1972 Montana Constitution dealing with popular sovereignty. In support of this 

premise that the word "existing" means as of the date of 

approval and not the date the charter becomes effective, 

respondents cite an obscure Arizona case, Flowing Wells Co. 

v. Culin (1908), 11 Ariz. 425, 95 P. 111, which interprets a 

statute concerning corporate dissolution. A reading of the 

case indicates it is of no help to the resolution of this 

problem. 

It is the general rule in Montana that a statute speaks 

as of the time when it takes effect and not as of the time 

it was passed. Peterson v. Livestock Commission (1947), 120 

Mt. 140, 181 P.2d 152, 156. 

In Peterson the plaintiff had made an application to 

the Livestock Comrnmission to operate a livestock market at 

Polson. The Livestock Commission denied Mr. Peterson's 

application on the ground that the policy expressed by the 

legislature in Chapter 193 of the Laws of Montana, 1945 was 

that the Livestock Commission should not grant licenses to 

markets in local areas contiguous to previously established 

and successful markets. c his Court noted that the law ruled 

upon by the Commission was not in effect when the c om mission 
denied Peterson's application. We stated: 

"'We do not see how an act which does not by 

its own terms become a rule of conduct until 

a future time can be said to displace another 

existing rule on the same subject during the 

interval between the time of its enactment 

and the time it becomes operative, even though 

the existing rule be inconsistent with it, 

in the absence of some express or implied 

declaration of a purpose that such shall be 

the result. Legislation is not effective for 

any purpose until it becomes operative.'" 

181 P.2d at 156, citing State v. Northern 

Pac. Ry. Co. (1908), 36 Mont. 582, 93 P. 945. 

The rationale applied to effective dates of statutes 

has also been applied by some courts to charters of municipal corporations. "The time when a new charter, or an 

amendment of an existing charter, adopted by the municipality 

takes effect is sometimes fixed . . . by the charter or 

amendment itself . . . A new charter or an amendment to a 

charter ordinarily is to be construed to operate prospectively rather than retroactively." 62 C.J.S. Municipal 

Corporations, S 95, p. 224. See also State v. Devin (1946), 

26 Wash.2d 333, 173 P.2d 994; State v. Kirby (1942), 349 Mo. 

Respondent treats section 10.02 as a general provision 

and urges this Court to hold that the specific provisions of 

section 5.05 control. 

This interpretation essentially puts the cart before 

the horse and asks this Court to state that the charter 

became effective on one date, but that certain of its provisions became operable before the charter itself became 

operable. This conclusion cannot logically be supported. 

The charter specifically provides for an effective date; 

this effective date according to section 10.02 applies to 

the whole charter. There is nothing in the charter to indicate an effective date other than that set forth in section 
10.02. The language in section 5.05 has no effect until the 

charter becomes operative, therefore, the promotions of the 

officers if valid would have to be recognized. 

The validity of these promotions rests on the power of 

the sheriff to make them and is the second issue facing this 

Court. 

The District Court held that Sheriff Hagel did not have 

the authority to promote or create new ranks within the 

Silver Bow County Sheriffs Department after November 2, 

1976. 

Appellants contend this holding is inconsistent with 

well established principles of common and statutory law. 

They cite hornbook law for the proposition that a modern 

sheriff has authority to organize and administer his department unless prohibited or limited by statute. They 

submit that Montana's statutory scheme does not limit the 

power and authority of the sheriff to organize his department. Section 7-32-2101, MCA, et seq. 

Respondents contend that under Montana law, a sheriff's 

office is limited in the amount of deputies it may have, 

however, the Board of County Commissioners may if it desires 

expand the number of deputies. Respondents submit that the 

Sheriff had to have the consent and approval of the County 

Commissioners before such promotions are valid. 

Montana law in this area is scarce. It appears that 

the rank in a sheriff's office is limited to either an 

undersheriff or a deputy sheriff and that in counties the 

size of Silver Bow the number of deputies is limited to six 

(section 7-32-2103, MCA). 

The Board of County Commissioners is given a general 

power to appoint a greater number of county deputy officers 
than the rna*mum number allowed by law when in the judgment 

of the Board, such greater number of deputies is needed for 

the faithful and prompt discharge of the duties of any 

county office (section 7-4-2402, MCA). This statute has 

been applied by this Court to appointment of additional 

deputies in the sheriff's office. Rusch v. Board of County 

Commissioners (1948), 121 Mont. 162, 191 P.2d 670; Hogan v. 

Cascade County (1907), 36 Mont. 183, 92 P. 529; Jobb v. 

County of Meagher (1897), 20 Mont. 424, 51 P. 1034. It 

follows that the Board of County Commissioners would have to 

approve the appointments especially where, as here, new 

positions were created. No approval was sought or received 

from the Commission for the contested appointments. The appointments were therefore void and the District Court acted 

properly in disallowing them. 

The judgment of the District Court is hereby affirmed. 

We concur. 

Chief Justice 

CLkC, Q* 

Justices 

V 

Mr. Justice Daniel J. Shea, deeming himself disqualified, 

did not participate in this case.