### 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 2033MRICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES et al., Petitioner and Counter-Respondentand Respondent, VS

# . BUTTE-SILVER BOW et al., Respondents, Counter-Petitionersand 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-Respondentand Respondent: M.F. Hennessey argued, Butte, Montana For Respondents, Counter-Petitionersand Respondents: John 

### G. Winston, County Attorney, Butte, Montana Robert M. McCarthy, Deputy County Attorney, argued,

Butte, Montana

Filed: 

## FEBF:

# - 1SRP Submitted: January 14, 1980 Decided: 

### FEB

## 6

# -Mr. Justice Gene B. Daly delivered the Opinion of the Court.

his 

### isan 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 SilverBow. 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 inthe DistrictCourt of the Second Judicial Dis

### trict, inand for the County of Siver BOW, Stateof Montana. This action 

### was brought against respondents Butte-Silver Bow, Stateof Montana, and sought a declaratory judgment interpreting certainprovisions of the newly formed consolidated City and County government of Butte-Silver BOW, Montana, dealing with promotions inthe 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, theunion and Butte-Silver Bow stipulated and agreed todeclare null and void promotion to higher ranks within the SilverBow County SheriffsDepartment 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 DistrictCourt entered a proposed order based upon this stipulationdeclaring the promotions received by the Sheriff's Officers null and void and further ordering the Sheriff's Officers among others toappear before the courtto 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. tointervene in the action; thismotion



### was granted and a complaint inintervention was filed. On April 19, 1979, allthe parties moved for summary judgment. The DistrictCourt 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 officersbring this appeal. On April 12, 1977, Sheriff George Patrick Hagel, the duly elected, qualified and acting Sheriff of Silver Bow County promoted the sixofficersnamed herein to higher ranks within thatDepartment. The promotions they received

were either from deputy to sergeant or sergeant to lieutenant of the Silver Bow County SheriffsDepartment. On May 2, 1977, the City of Butte and County of Silver Bow consolidated their local governments intoone unified government under one charter. The new government was to have the statusof 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 tobecome effectiveuntil May 2, 1977. Section 5.05 of the Butte-Silver Bow Charter setforth the provisions governing the organization of the law enforcement department for the new government. The new law enforcement department was tobe formed by combining the former City of Butte Police Department and the SheriffsDepartment of SilverBow County under the Sheriff of ~utte-Silver Bow. Section 5.05(f)provides asfollows:

### "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." 

### - (Emphasisadded.) 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 departmentwas 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 Ordinanceprovided itwould become effective upon passage and approval. Itwas approved by Chief Executive Mario Micone onMay 10, 1977. The District Court declared the promotion received by the six appellant Sheriff's Officers null and void. The following issueshave 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 onApril 11, 1977? The first step in resolving this case is to determine the date the charter became operative. Then it becomesnecessary todetermine 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 "[tlhischarter shall become effective on May 2, 1977." This language 

### is straightforward and leaves littleroom for doubt as to 

### itsmeaning. 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 SilverBow shall be combined intoone 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 salaryreceived atthe 

### timeof the adoption of this charter. "(b) The present members of the City of Butte police department and the deputy sheriffsof Silver Bow County shallbe 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 

### timeas the council of commissioners adopts a salary schedule formembers of the new department. 

### "(d) Allappointments to the new department shall be made pursuant to theMetropolitan 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 ina 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 cityclerk, and;

### "(2) members of the department may be candidates for any elected office and may participate inpolitical 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 shallhave the powers and perform the dutiesrequired of police commissions by the Metropolitan Police Law and such other duties as the ordinance may provide. 

### "(f) The sheriff shall soorganize the new department as torecognize the existing ranks attained by members of the existing police and sheriff departments. 

### "(g) Allpension rights presently provided by state

### lawtomembers 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 futureprovide for a uniform pension system if the 

### same ispermitted by state

### law. "(h) When a vacancy occurs in the position of the undersheriff after the adoption of this charter, the sheriff may fillsuch vacancy by appointing a person, qualified by training and experience, to fillsuch 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 atthe 

### timeof his appointment. If such appointed undersheriff shall have been 

### a member of the department prior tohis appointment and not continued in such position by the sheriff he shall revert to the former rank he held within the department. Allother positions within 

### - the department shallbe 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 didnot become effective for any reason until that date. They argue that the rules governing effective dates of charters are similar to thosegoverning effective datesof statutes and 

### cite the general rule that statutesbecome effective on the dateprescribed in the statute. Respondents, however, disagree and seek tohave certain specific provisions of section 5.05 be effective from the 

### timethe charter was passed on November 

### 2, 1976. They argue that toreach any other conclusion would effectively disenfranchise the electorate's power todetermine the make-up of the Butte-Silver Bow Law Enforcement Department and would contravene Article 11, Section 1of the 1972Montana Constitution dealingwith popular sovereignty. In support of this premise that theword "existing"means asof the date of approval and not the date the charterbecomes effective, respondents cite an obscure Arizona case, Flowing Wells Co.

v. Culin (1908), 11 Ariz. 425, 95 P. 111, which interprets a statuteconcerning corporate dissolution. A reading of the

case indicates 

### it 

### isof no help to the resolution of this problem. It is the general rule inMontana that a statute speaks

asof the 

### timewhen it takes effect and not asof the 

### time itwas passed. Peterson v. Livestock Commission (1947), 120 Mt. 140, 181P.2d 152, 156. InPeterson the plaintiff had made an application to theLivestock Comrnmission tooperate a livestock market at Polson. The Livestock Commission denied Mr. Peterson's application on the ground that the policy expressed by the legislature inChapter 193of the Laws of Montana, 1945was that the Livestock Commission should not grant licenses to markets inlocal 

### areas contiguous topreviously established and successful markets. 

### c his Court noted that the law ruled upon by the Commission was not ineffectwhen the 

### c om missiondenied Peterson's application. We stated: "'We do not see how an actwhich does not by 

### its own 

### termsbecome a rule of conduct until a future time can be said todisplace another existing rule on the same subjectduring the interval between the time of itsenactment and the time it becomes operative, even though the existing rule be inconsistentwith it, inthe absence of some express or implied declaration of a purpose that such shall be the result. Legislation 

### isnot effective for any purpose until 

### it becomes operative.'" 181P.2d at156, citing Statev. Northern Pac. Ry. Co. (1908), 36 Mont. 582, 93 P. 945. The rationale applied toeffective dates of statutes has also been applied by some courts tocharters of municipal corporations. "The 

### timewhen 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 tobe construed tooperate prospectively rather than retroactively." 62 C.J.S. Municipal Corporations, S 95, p. 224. See also Statev. Devin (1946), 26 Wash.2d 333, 173P.2d 994; Statev. Kirby (1942), 349 Mo.

Respondent 

### treats section 10.02 asa general provision and urges thisCourt tohold that the specific provisions of section 5.05 control. This interpretation essentiallyputs the cartbefore the horse and asks thisCourt 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 effectivedate; this effectivedate according to section 10.02 applies to the whole charter. There 

### isnothing inthe charter to indicate an effectivedate other than that 

### set forthin section10.02. The language in section 5.05 has no effectuntil the charterbecomes operative, therefore, the promotions of the officers ifvalidwould have tobe recognized. The validityof these promotions 

### rests on the power of the sheriff tomake them and 

### is the second issue facing this Court. The DistrictCourt held thatSheriff Hagel did not have the authority topromote orcreatenew ranks within the Silver Bow County SheriffsDepartment after November 2, 1976.Appellants contend thisholding 

### is inconsistent with 

### wellestablishedprinciples of common and statutory law. They 

### cite hornbook law for the proposition that a modern sheriff has authority toorganize and administer his department unless prohibited orlimitedby statute. They submit thatMontana's statutory scheme does not 

### limitthe power and authority of the sheriff toorganize his department. Section 7-32-2101, 

### MCA, 

### et seq. Respondents contend thatunder Montana law, a sheriff's officeis limited inthe 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 tohave the consent and approval of the County Commissioners before such promotions 

### are valid. Montana law inthis area is scarce. It appears that the rank ina sheriff's office 

### is limited toeither an undersheriff or a deputy sheriff and that incounties the sizeof SilverBow the number of deputies is limited to six (section 7-32-2103, MCA). The Board of County Commissioners 

### isgiven a general power toappoint a greater number of county deputy officers

### than the rna*mum number allowed by lawwhen 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), 121Mont. 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 Commissionerswould 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.