No. 34-123 

IN THE SUPREME COURT OF THE STATE OF NONTANA 

1984 

BILLINGS FIREFIGHTERS LOCAL 521, 

Petitioner and Appellant, 

-vsCITY OF BILLINGS, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COULJSEL OF RECORD: 

For Appellant: 

Hjort, Lopach & Tippy; Barry L. EIjort argued, 

Helena, Montana 

For Respondent : 

Peterson, Schofield & Leckie; K.D. Peterson argued, 

Billings, Montana 

Filed: . 

Submitted: October 2, 1984 

Decided: January 4, 1985 

- Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Billings Firefighters Local 521 (Firefighters) is the 

duly elected and certified bargaining representative for all 

firefighters employed by the City of Billings, except the 

chief and assistant chief. The City of Billings is a 

charter-form municipality of the State of Montana. As 

permitted by the 1972 Montana Constitution, the electorate of 

the City of Sillings adopted a self-government charter in 

1976 with an effective date of May 2, 1977. 

Acting under its charter, the Billings City Council 

adopted City Ordinance No. 82-4478 on December 13, 1982. 

That ordinance purports to create a fire service that is 

exempt from all but two provisions of state law regarding 

municipal fire departments. 

The Firefighters challenged the validity of the 

ordinance. The District Court ruled that the ordinance was a 

permissible exercise of the City's self-government powers. 

We reverse the judgment of the District Court. 

The issues on appeal are: 

1. Did the District Court err in concl-uding that the 

City of Billings was not prohibited by any provision of 

SS 7-33-4101, et seq., MCA from superseding all but two 

provisions of Part 41 of Title 7, Chapter 33, MCA? 

2. Did the District Court err in concluding that 

§ 7-1-111 (21, MCA did not prohibit the City from superseding 

all but two provisions of Part 41 of Title 7, Chapter 33, 

MCA? 

3. Did the District Court err in failing to conclude 

that the City violated 5 7-1-114 1 (£1 , MCA by superseding 

all but two provisions of Part 41 of Title 7, Chapter 33, 

MCA ? 

Prior to the 1.972 Montana Constituti-on and d-uring the 

period that the 1889 Montana Constitution controlled, cities 

could exercise only such powers as were expressly granted to 
them by the State, together with such implied powers as were 

necessary for the execution of the powers expressly granted. 

Any fair, reasonable or substantial doubt regarding the 

existence of the power was resolved against the municipaltty 

and in favor of the State. Davenport v. Kleinschmidt (1887), 

6 Mont. 502, 527-28, 13 P. 249, 253; John F. ill on, 1 

Commentaries ---- on the Law of Municipal Corporations S 92 at 

142-43 (5th ed.) . 

The 1972 Constitution made substantial chanqes, 

including granting to cities the opportunity to adopt 

charters with self-government powers with unlimited power 

vested in the city subject to certain exceptions contained in 

the constitution, law or charter itself. 

"The 1972 Montana Constitution, in addition to 

providing for the continuance of the . . . town 

governmental forms already existing, opened to 

local governmental units new vistas of shared 

sovereignty with the state through the adoption of 

self-government charters. Whereas the 1972 Montana 

Constitution continues to provide that existing 

local governmental forms have such powers as are 

expressly provided or implied by law (to be 

liberally construed), 1972 Mofit. Const., Art. XI, S 

4, a local government unit nay act under a 

self-government charter with its powers uninhibited 

except by express prohibitions of the constitution, 

law, or charter, 1972 Mont. Const., Art. XI, S 6." 

State ex rel. Swart v. Molitnr (Mont. 1981), 621 

P.2d 11-00, 1102, 38 St.Rep. 71, 72-73. 

Prior to 1972, the general rule was that a local 

goverment lacked power unless that power was specifically 

granted under state law. Under the current shared powers 

concept, the general rule is that a local gov-ernment with 

self-government powers possesses all powers not specifically 

denied by state constitution, law or charter. 

Section 7-1-103, MCA defines the extent of shared 

sovereignty given to self-government units, such as the City 

of Billings: 

"A local government unit with self-government 

powers which elects to provide a service or perform 

a function that may also be provided or performed 

by a general power government unit is not subject 

to any limitation in the provision of that service 

or performance of that function except such 
limitations as are contained in its charter or in 

state law specifically applicable to selfgovernment units." 

Section 7-1-1-06, MCA directs that reasonable doubt as to the 

existence of a self-government power shall be resolved in 

fzvor of the City: 

"The powers and a.uthority of a local government 

unit with self-government powers sha.11 be liberally 

construed. Every reasonable doubt as to the 

existence of a local governmental power or 

authority shall be resolved in favor of the 

existence of that power or authority." 

The Billings City Ordinance No. 82-4478 purports to 

supersede most of state law pertaining to municipal fire 

departments. Section 2.5.010 of the ordinance provides: 

"SUPERSEDING STATE - LAW. Pursuant to the City's 

self government powers, it hereby supersedes State 

Law as contained and set forth in Montana Codes 

Annotated (MCA) , Title 7, Chapter 33, Part 41 

EXCEPT MCA, 7-33-4128 and 7-33-4129." 

The excepted 5 7-33-4128, MCA requires firefighters to be 

pa.id a minimum wage. Section 7-33-4129 was repealed in 1983 

and is therefore not relevant to this appeal. 

Whether a self-qovernment unit, such as the City of 

Billings, can choose to exempt itself from provisions of 

state law regarding municipal fire protection is a question 

of first impression before this Court. 

Article XI, 5 6 of the Montana Constitution defines the 

scope of self-government powers as "3 power not prohibited 

by this constitution, law, or charter . . .. " Under its 

charter, the City of Billings assumed "all powers possible 

for a self-government city to have under the Constitution and 

laws of this state . . .." Art. 1, § 1.01, City of Billings 

Charter (1977). The charter also requires the Billings City 

Council to review and where necessary revise and repeal all 

city ordinances to provide that they comply with the city 

charter. Art. VII, 5 7.04, City of Billings Charter (1977) . 
The Billings City Charter provides that the City 

Administrator shall appoint, suspend and remove all employees 

of the City. Art. IV, S 4.03 (F) , City of Billings Charter 

(1977). In contrast, state law specifies that the Chief of 

the Fire Department shall have sole command of the department 

and shall possess full authority to discipline firefighters. 

Section 7-33-4104 (I), MCA. 

According to the City, Ordinance No. 82-4478 was adopted 

to resolve inconsistencies between the authority given to the 

City Administrator under its charter and conflicting 

provisions of state law. The Firefighters insist, on the 

other hand, that the ordinance was passed in retaliation for 

an incident in which the Chief of the Fire Department refused 

to follow the City Council's recommendation to discharge a 

particular firefighter. 

The Firefighters applied to the District Court for a 

writ of mandamus or prohibition and filed a complai-nt for 

declaratory judgment declaring that the City Council acted 

illegally in adopting an ordinance that purports to supersede 

mandatory state 1-aw. The District Court denied the 

Firefighters' application for a writ of mandamus or 

prohibition. The court declared that the ordinance was a 

permissible exercise of the City's self-government powers and 

was therefore valid. 

The central issue of this case centers on the authority 

of a local self-government unit to supersede statutory provisions pertaining to a service that is mandated by state law. 

The dispute between the parties requires construction of 

numerous statutory provisions pertinent to the establishment 

and maintenance of a municipal fire department, the power and 

authority of a local self-government unit, the powers denied 

to a local self-government unit, and provisions of state law 

that are mandatory upon local self-government units. Because 
of the manner in which the numerous statutes interplay, the 

central issue is divided into three sub-issues for analysis. 

I1 

Did. the District Court err in concluding that the City 

of Billings was not prohibited by any provision of 

$ 7-33-4101, et seq., MCA from superseding a.l1 but two provisions of Part 41 of Title 7, Chapter 33, MCA? 

The focus of the first issue is whether the 

self-government powers of the City of Billings include the 

power to supersede state law regarding municipal fire 

departments. 

Section 7-33-4101, MCA provides: 

"Fire department authorized and required. In every 

citv a and town of this state there shall be a fire 

department, which shall be organized, managed, and 

controlled as provided in this part." 

With one exception not relevant here, Part 41 of Title 7, 

Chapter 33, MCA governs and controls "fire departments in 

every city or town organized under whatever form of municipal 

government . . . " Section 7-33-4102 (I), MCA. State law 

regarding municipal fire departments was originallv enacted 

in 1899 and the above-quoted provisions of state law existed 

at the time cities were first authorized to exercise 

self-government powers. See 8 7-1-101, et seq., MCA. 

Section 7-1-113, MCA prohibits a local government with 

self-government powers from exercising any power inconsistent 

with state law. "The exercise of a power is inconsistent 

with state law or regulation if it establishes standards or 

requirements which are lower or less stringent than those 

imposed by state law or regulation." Section 7-1-113(2) , 

MCA . 

We note that certain sections of Part 41, which the 

Billings Ordinance purports to supersede, include provisions 

regarding state qualifications for firefighters, physical 

examination of applicants for the position of firefighter, 
and funding of group insurance for firefighters. Sections 

7-33-4107, -4108 & -4130, MCA. These statutory provisions 

define state standards that have nothing to do with the 

structure or organization of fire departments. 

Article XI, § 5 (3), of the Montana Constitution states 

that charter provisions establishing executive, legislative 

and administrative structure and organization are superior to 

statutory provisions. We conclude that the three statutory 

provisions cited above are not executive, legislative or 

administrative in nature. They define minimum state 

standards. 

The City contends that its self-government charter 

powers include the power to supersede the above-cited state 

standards. The ordinance specifies that the City 

Administrator shall organize the fire service, present an 

annual budget to the City Council, formulate rules and 

regulations for the fire service, and recommend adoption of 

safety codes by the City Council. Section 2.52.020, Billings 

City Ordinance No. 82-4478 (1983). The ordinance does not 

contain any local standards for the qualification of 

firefighters, physical examination of applicants or provision 

of group insurance for firefighters. 

Because the state statutes regarding the qualifications 

of, physical examination of, and group insurance for 

firefighters define minimum state standards and the Billings 

Ordinance sets forth no stamdards governing these areas of 

legislative concern, the local provisions are "lower or less 

stringent than those imposed by state law." Section 

7-1-113 (2) , MCA. 

In reaching this conclusion, we are not analyzing or 

attempting to rule upon other standards which may be 

contained in Part 41 of Title 7, Chapter 33, MCA. 

We hold that the District Court erred in concluding that 

City of Billings has the self-government power to supersede 
all state law pertaining to municipal fire departments, 

except the statutory minimum wage. 

Did the District Court err in concluding that S 

7-1-(2) MCA did not prohibit the City from superseding 

all but two provisions of Part 41 of Title 7, Chapter 33, 

MCA ? 

Section 7-1-111(2), MCA provides: 

"A local government unit with self-government 

powers is prohibited the exercise of the following: 

" (2) any power that applies to or affects the 

provisions of Title 39 (labor, collective 

bargaining for public employees, unemployment 

compensation, or workers ' compensation) or 

7-33-4128, except that subject to those provisions, 

it may exercise any power of a public employer with 

regard to its employees." 

In superseding all but two provisions of Part 41 of Title 7, 

Chapter 33, MCA, the Billings Ordinance followed S 

7--l2 , MCA in part by exempting S 7-33-4128, MCP, from 

the statutes it purported to supersede. The only question 

remaining is whether or not the ordinance "applies to or 

affects the provisions of Title 39." 

The Firefighters contend that the sole motivation for 

the City Council's adoption of the ordinance was the 

attempted discipline of a firefighter and the dispute that 

resulted between the City Administrator and the Firefighters 

concerning disposition of the individual firefighter's 

grievance under the arbitration procedure set forth in the 

collective bargaining agreement between the City and the 

Firefighters. The Firefighters further contend that the City 

Administrator's recommendation that the City Council 

supersede certain state statutes in the exercise of its 

self-government powers arose during the course of collective 

bargaining negotiations between the City and the Firefighters 

in April of 1983. Thus, the Firefighters contend that 
adoption of the ordinance constitutes a violation of S 

7-1-2 , MCA in that certain of the superseded statutes 

plainly applied to or were affected by provisions of Title 39 

(collective bargaining for public employees). After a review 

of the Billings City Charter and Ordinance No. 82-4478, we 

conclude that neither applies to or affects the provisions of 

Title 39. 

We hold that the District Court correctly concluded that 

5 7-1-111 (2) , MCA did not prohibit the City from superseding 

all but two code sections of Part 41 of Title 7, Chapter 33, 

MCA . 

Did the District Court err in failing to conclude that 

the City violated 5 7-1-114(l)(f), MCA by superseding all but 

two provisions of Part 41 of Title 7, Chapter 33, MCA? 

Notwithstanding its broad self-government powers, a city 

must provide any service required by state law. Section 

7-1-114 (1) (f) , MCA provides: 

"A local government with self-government powers is 

subject to the following provisions: 

" (£1 Any law directing or requiring a local 

government or any officer or employee of a local 

government to carry out any function or provide any 

service. " 

With regard to the requirement of a municipal fire 

department, 5 7-33-4101, MCA provides: 

"In every city and town of this state there shall 

be a fire department, which shall be organized, 

managed and controlled as provided in this part." 

It is clear from this section and subsequent sections that 

every city must have a municipal fire department. As 

previously mentioned, under Art. XI, 5 5 (3) , Mont . Const. , 

charter provisions establishing executive, legislative and 

administrative structure and organization control over 

statutory provisions. As a result, the organization and 

management structure of the fire department may properly be 
subject to the self-government powers of a city. However, 

that does not address the basic requirement of a municipal 

fire department. 

In pertinent part the Billings Ordinance provides: 

"2.52.020 FIRE SERVICE. The City shall provide 

fire prevention and suppression service to the 

residents of the City. The purpose of the service 

will be to aid in the prevention and suppression of 

human suffering and property loss caused by fires. 

The City Administrator or his designees shall: 

"(a) Organize the Fire Service as provided in the 

City Charter . . ." 

The Billings City Ordinance purports to supersede all of S 

7-33-4101, MCA, which includes the requirement that the City 

shall have a municipal fire department. The Ordinance does 

not contain a similar requirement for a municipal fire 

department for the City. It provides that the City shall 

provide fire prevention and suppression service but that 

a.pparently could include service by parties other than a fire 

department of the City itself. 

While it is true that the City contends that it does 

plan to continue to provide fire prevention and suppression 

service under Billings City Ordinance No. 82-4478, the 

language of the ordinance is unambiguous in that it purports 

to supersede a mandatory provision of state law without a 

similar mandatory provision in the ordinance. As this Court 

noted in Harlen v. City of Helena (Mont. 1984), 676 P.2d 191, 

194, 41 St.Rep. 162, 165-66, "we know of no rule of law that 

allows us to consider the City's intentions as opposed to the 

unambiguous la-nguage of the ordinance." 

We hold that in attempting to supersede all of 

S 7-33-4101, MCA, including the mandatory provision for a 

municipal fire department, the Billings City Ordinance 

violates S 7-1-1..14(1) (£1, MCA. 

In reaching this conclusion, we are not considering or 

ruling upon possible conflicts between other sections of Part 

41 of Title 7, Cha.pter 33, MCA and S 7-1-114 (1) (f) . 
The cause is remanded to the District Court for the 

entry of a declaratory judgment that Billings City Ordinance 

No. 82-4478 is contrary to law and was adopted in excess of 

the self-government powers granted to the City of Billings. 

We concur: 

34&$%t;bd ti.o&Q 

Chief Justice 

Justices