No. 85-445 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

MONTANA POWER COMPANY, 

Petitioner and. Respondent, 

MONTANA DEPARTMENT OF PUBLIC SERVICE 

REGULATION, MONTANA PUBLIC SERVICE 

COMMISSION, and STATE OF MONTANA, 

Respondents and Appellants. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Mark Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely argued, Attorney General, Helena, 

Montana 

Robert Nelson argued, Public Service Commission, 

Helena, Montana 

For Respondent : 

John Alke argued for Montana Power, Helena, Montana 

Pamela Merrell, MPC, Butte, Montana 

Submitted: October 23, 1985 

Decided: November 27, 1985 

Filed: kub' 27 1985 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

We determine in this case that the attempted. appeal by 

the Attorney General from the judgment of the District Court 

in the underlying cause in the Second Judicial District, 

Silver Row County, must be dismissed for the reasons 

hereafter stated. Further we d-etermine that the appeal of 

the Montana Department of Public Service Regulation, Montana 

Public Service Commission must also be dismissed as untimely. 

On September 30, 1983, Montana Power Company (MPC) filed 

an application with the Montana Department of public Service 

Regulation, through the Montana Public Service Commission 

(PSC) to increase the utility's electrical rates to produce 

an annual gross income increase of $96,367,013. It was the 

largest electrical rate increase request ever filed in the 

State of Montana. Opposition to the proposed rate increases 

developed. early, and parties appeared before the PSC in 

opposition either as protestants or as intervenors. 

Protestants included James C. Paine, the Montana Consumer 

Counsel, and his staff attorney, John Allen. Intervenors 

included Northern Plains Resource Council, Montana 

Irrigators, District 11 Fuman Resources Council, Ideal Basic 

Industries, ASARCO, Champion International, Conoco, Missoula 

County, Atlantic Richfield, Stauffer Chemical, Exxon, 

L.I.G.H.T., Butte Community Union, Montana Association of 

Senior Citizens, and the IJnited States Air Force. The 

Attorney Genera1 made no formal application or appearance 

before the PSC either on his own behalf or on behalf of the 

State of Montana as an interested party. 
The application was given docket no. 83.9.67 by the PSC, 

and several interim orders followed therein by the 

Commission. On August 3, 1984, the Commission handed down 

the critical order which became the basis of contention in 

this action. In essence this order of the Commission granted 

MPC authority to increase its electrical rates to generate 

additional revenues in the amount only of $4,106,915 (a 

figure later amended) and, most importantly, denied in toto 

MPC1s application to increase its rates to recover costs 

associated with the construction of its steam power plant 

known as Colstrjp Unit 3. 

The PSC order of August 3, 1984 is long and complicated, 

but generally it may be stated that the PSC determined that 

no portion of Colstrip Unit 3 was used or useful in the 

generation or supply of electricity for the Montana Power 

Company consumers, and therefore the PSC refused to include 

its value in MPC1 s rate base. The PSC determined that based 

on a 1982 test year, the demand for energy by MPC's 

electri-cal users could be satisfied through utilization of 

other less expensive resources and through modification of 

the maintenance schedule of Colstrip Units 1 and 2. The less 

expensive resources were a natural gas-fired facility known 

as the "Bird Plant" owned by MPC, and the available 

electricity from the Hanford Project, a Washington State 

nuclear energy facility, whose electricity the utility had 

purchased in the past. The MPC had been offered a contract 

from Hanford Energy for electricity for a 10 year period 

commencing July 1983, but MPC had rejected it because of 

Colstrip Unit 3's energy for commercial operation becoming 

available in early 1984. 
On October 10, 1984, MPC filed in the District Court, 

Second Judicial District, Silver Bow County, its petition for 

judicial review of the PSC order, under the provisions of the 

Montana Administrative Procedure Act, 5 2-4-701, MCA. 

Service of copies of the petition was made upon all of the 

protestants and intervenors of record before the PSC by mail, 

and in addition service of summons and copies of the petition 

for review were personally served upon counsel for all of the 

parties, the protestants and the intervenors. Such personal 

service was also made on October 12, 1-984, upon the Attorney 

General, and the Chief Assistant Attorney General sent notice 

of such service upon him to the PSC by letter dated October 

17, 1984. 

Several of the parties who had contested the MPC in the 

rate case before the PSC did in fact appear in the District 

Court action for review. They included, besides the PSC, 

which was the respondent, intervenors Champion International 

Corporation, Conoco Inc., the Montana Consumer Counsel, and 

Montana Irrigators Inc., but did not include the Attorney 

General, who made no formal appearance in the District Court 

case on his own behalf or on behalf of the State of Montana 

as an interested party. 

After receiving briefs and conducting a hearing, on June 

17, 1985, the District Court entered findings of fact, 

conclusions of law and order, in effect reversing the August 

3, 1984 order of the PSC. The District Court remanded the 

matter to the PSC "for a proper determination of the need for 

the Colstrip 3 generating station which is in full compliance 

with this court's decree," and further the District Court 

enjoined the Commission from determining or attempting to 

determine the need for Colstrip 3 generating station on the 
MPC1s system in the manner that the District Court had found 

to be unlawful. 

After the judgment, on August 16, 1985, Northern Plains 

Resource Council, District 11 Human Resources Council, and 

Missoula County, (none of which had earlier appeared in the 

District Court action, but had appeared before the PSC) filed 

a motion in the District Court for permission to intervene in 

the action. On the same date, August 16, 1985, the District 

Court denied the motion of these parties for intervention. 

On August 16, 1985, the Attorney General filed in the 

District Court a notice of appeal, stating that "notice is 

hereby given that the State of Montana, through its Attorney 

General, appeals to the Supreme Court of the State of 

Montana" from the order and judgment of June 17, 1985 of the 

District Court. 

On August 23, 1985, a notice of appeal was filed by the 

Montana Department of Public Service and Regulation, Montana 

Public Service Commission from the District Court's order 

pursuant to Rule 5 of the Montana Rules of Appellate Civil 

Procedure. 

11. 

On September 5, 1985, MPC filed in this Court its motion 

to dismiss the appeal- filed by the Attorney General for lack 

of standing and further to dismiss the appeal filed by t-he 

Montana Public Service Commission as untimely. 

MPC contends that the Attorney General has no standing 

to appeal from the District Court decision in a judicial 

review proceeding in which the Attorney General did not 

appear on behalf of the State of Montana. MPC also contends 

that the appeal of the Montana PSC is invalid because, since 

it was filed under R.ule 5, M.R.App.Civ.P., and not within 60 
days of the iudgment as required by S 2-4-711, MCA, and 

69-3-405, MCA, the PSC appeal is untimely. 

In opposing the motion to dismiss, the Attorney General 

contends that the State was indeed a party to the proceeding 

below because its Department of Public Service Regulation was 

the named respondent, that the State was in fact a party to 

the District Court proceedings, and that the Attorney General 

was authorized to appeal from the District Court's judgment 

under his common law and statutory powers. 

Both parties rely on State ex rel. Olsen v. Public 

Service Commission (1955), 129 Mont. 106, 283 P.2d 594. The 

Attorney General claims that Olsen affirms his broad 

constitutional, statutory and common law powers as attorney 

general and that it affirmed the authority of the attorney 

general to represent the State in district court proceedings; 

while the Montana Power Company distinguishes Olsen, saying 

in that case the Attorney General was an actual party taking 

part on behalf of the State jn the District Court 

proceedings. 

The motion of MPC with respect to the Attorney General's 

appeal puts in question squarely his right as an official or 

as an attorney representing the State to perfect an appeal 

from the District Court decision in this case. 

There is not before us, and we make no comment on, the 

legal sufficiency or propriety of the District Court order 

reversing the PSC. Also not before us are the actions taken 

by the PSC subsequent to the judgment of the District Court 

which resulted in electrical rate increases granted by the 

PSC relating to Colstrip Unit 3 based on a test year of 1983. 

111. 
Supervision, regulation and control of public utilities 

are vested in the Montana PSC und.er the terms of statutes 

found in Ch. 3, Title 69, MCA. The PSC is given specific 

power "in its discretion" to investigate and ascerta.in in the 

rate-making process the value of the property of every public 

utility "actually used and useful" for the convenience of the 

public. Section 69-3-109, MCA. 

With respect to the Attorney General, the chapter on the 

regulation of utilities under S 69-3-110(3) provides: 

Upon the request of the commission, it is the duty 

of the attorney general or the prosecuting attorney 

of any county to aid in any investigation, 

prosecution, hearing, or trial had under the 

provisions of this chapter and to institute and 

prosecute a11 actions or proceedings necessary for 

the enforcement of this chapter. 

The PSC contends that it made no request of the Attorney 

General for aid in the investigation, prosecution, hearing, 

or trial of the MPC rate increase proceedings. For that 

reason, PSC contends that the Attorney General did not 

represent it in the proceedings before the Commission itself, 

or in the District Court when MPC filed its petition for 

judicial review. 

(Curiously, Ch. 14 of Title 69, MCA, the part of our 

code referring to the regulation of railroads by the Public 

Service Commission provides in section 69-14-132, MCA, that 

the Attorney General is the attorney of the Commission, but 

tha.t the Commission may employ special counsel with the 

approval of the Attorney General to assist in any case. 

However, section 69-14-132, is confined by its terms to Ch. 

14, pertaining to the regulation of railroads.) 

In fact, the PSC employs counsel independently of the 

Attorney General for the purpose of advising the Commission 

and conducting proceedings and actions relating to rate 
regulation and other matters within the purview of the 

Commission. It is also true that when such counsel of the 

Commission proceed in court, they do so as special assistant 

attorneys general under commissions granted in writing to 

them by the Attorney General. Typical letters from the 

Attorney General which accompany the certificates of such 

appointments for counsel include the following or similar 

language : 

Please find enclosed an official Certificate of 

Appointment. This Commission will remain in effect 

until its expiration on January 1, 1989, or 

termination of your appointment by the Public 

Service Commission, unless you are otherwise 

notified by me in writing. 

Please note that sections 25-1-501 and 25-1-502, 

MCA, require that the Attorney General be notified 

when a state department or board initiates or 

intervenes in an action in any court or appeals a 

judgment or order entered in any court. Special 

assistant attorney generals should provide a copy 

of the complaint, counterclaim, crosscl~aim, or 

notice of appeal to my office when any of the 

previously-stated actions are filed in any court. 

Copies of pleadings and documents handled by you 

under authority of this Commission n4&ed only be 

provided to me upon specific requests. ; 

Thus under this arrangement, the answer of the PSC in 

the District Court to the petition for judicial review by the 

MPC was filed on November 1, 1984. The appearing party was 

described as 

Department of Public Service Regulation 

Montana Public Service Commission 

2701 Prospect Avenue 

Helena, MT 59620 

Eileen E. Shore 

Attorney for Respondents 

/s/ Opal Winebrenner 

Opal Winebrenner 

staff Attorney 

Montana Public Service Commission 
Throughout the course of the District Court proceedings 

then, the representation of the PSC was maintained by its 

counsel and designated as such. 

As we said, the judgment of the District Court was 

entered on June 17, 1985. Under section 69-3-405, MCA, any 

party to the action in the District Court has 60 days in 

which to appeal to the Montana. Supreme Court. Thus the final 

date for the filing of a notice of appeal was August 16, 

1985. 

The PSC decided on August 9, 1985, by a vote of 4 to 1 

of its 5 members not to appeal the decision of the District 

Court. No other party or intervenor who had appea-red in the 

District Court action chose to appeal. 

IV. 

In every appeal, the first question is that of 

jurisdiction. Hand v. Hand (1957), 131 Mont. 571, 312 P.2d 

990. 

The constitutional right of appeal is secured only where 

the laws are followed and compl-iance is made with the 

provisions necessary to give the Supreme Court appeal 

jurisdiction. State Bank of New Salem v. Schultze (1922), 63 

Mont. 410, 209 P. 599; State ex rel. Reid v. District Court 

(1953), 126 Mont. 489, 255 P.2d 693. An appellant is charged 

with a duty of perfecting his appeal in the manner and within 

the time provided by law, and unless mandatory statutory 

provisions are complied with, the Supreme Court acquires no 

jurisdiction to entertain and determine the appeal. In re 

Malick's Estate f1951), 124 Mont. 585, 228 P.2d 963. 

Statutes relating to appeals are held to be mandatory 

and jurisdictional, State ex rel. Clark v. District Court 

(1955), 128 Mont. 526, 278 P.2d 1.000, and in a sense 
prohibitory and jurisdictional in that they limit the right 

of appeal to the method expressly provided by statute. - Id. 

Rule 1 of the Montana Rules of Appellate Civil Procedure 

provides that "a party aggrieved" may appeal from a final 

judgment of the District Court. The Attorney General 

informed us at oral argument that he did not seek in this 

appeal to represent the PSC as the party appellant. In his 

notice of appeal, the Attorney General stated that "the state 

of Montana, through its Attorney General" appealed to the 

Supreme Court. The first question for us to determine 

therefore is whether the State of Montana or the Attorney 

General in his individual capacity, is a "party aggrieved" 

within the purview of Rule I-, M. R.App.Civ. P. , independently 

of the PSC. 

We recognize in the beginning that the business of a 

public utility is affected with a public interest. We stated 

so emphatically in Olsen, 129 Mont. at 116, 283 P.2d at 599, 

pointing out that rates and charges of a public utility cou1.d 

not be regulated or controlled if its business were not 

affected with a public interest. We also pointed out in 

Olsen that aside from the public interest generally, the 

state has a further interest in public utility rates if the 

state and its institutions might be required to pay unlawful 

and unreasonable rates. Olsen, 129 Mont. at 117, 283 P.2d at 

600. Olsen further confirmed that the Attorney General had 

the right to protect the public interest in litigation 

affecting rate regulation proceedings. 

We must also keep in mind, from the beginning, the 

function of the PSC in the rate-regulating process and the 

relation of courts to that function of the PSC: 
The function of ratemaking is purely legislative in 

character, whether it is exercised directly by the 

legislature itself by the enacting of a law fixing 

rates or by the granting of a charter wherein the 

rates are regulated, or is exercised by some 

subordinate administrative or municipal body to 

whom the power of fixing rates has been delegated; 

in any of such cases, the completed act derives its 

authority from the legislature and must be regarded 

as an exercise of legislative power. Therefore, 

since the ratemaking power of the state is 

legislative rather than judicial., it is not within 

the power of a court to fi-x, directly or 

indirectly, the rates to be charged by public 

utilities, or to control, by writs which can issue 

only for the purpose of controlling judicial 

action, the action of properly authorized 

ratemaking bodies, although it may, in general-, 

restrain the imposition of palpably excessive or 

confiscatory rates . . . 

64 Am.Jur.2d1 Public Utilities S 89. 

The power of district courts in Montana to review a rate 

order of the PSC is controlled by section 69-3-404, MCA. The 

district court must proceed without a jury, and is confined 

to the record unless application is made to the court to 

present additional evidence. After the district court enters 

its order or judgment, appeal to the Supreme Court may be 

taken pursuant to a special statute for that purpose. 

Section 69-3-405, MCA, provides that upon judgment "either 

party to said action may appeal or take the case up on error 

as in other civil actions." 

Thus, Rule 1, M.R.App.Civ.P. provides for an appeal to 

"a party aggrieved" while section 69-3-405, MCA, provides for 

an appeal to "either party to said action." We determine in 

this case that the two provisions must be interpreted in 

harmony with each other. 

We find in this case that the State of Montana, as such, 

though entitled to appear as a party in interest, was not a 

party either in the District Court action or in the 

proceedings before the Montana Public Service Commission. No 
formal appearance was made by the State of Montana through 

its Attorney General in either of those proceedings, for the 

representation of the separate interest of the state in the 

proceedings. The PSC, it is true, is an agency of the state, 

and may be thought to represent the state. However, the 

posture of the PSC in the District Court review proceedings 

was not so much to protect the interest of the state of 

Hontana in defending the PSC order (although arguably they 

may coincide), but rather to protect the propriety and the 

integrity of the order which it had made denying any value in 

the MPC rate base to Colstrip Unit 3. 

The fact that the State of Montana was not itself a 

party in either the administrative proceedings or the 

District Court action is not in itself decisive of the right 

of the state to appeal here. The test to determine one's 

standing to appeal is whether one has a direct, immediate and 

substantial interest in the subject which would be prejudiced 

by the judgment or benefited by its reversal. Estate of 

Tomlinson (111. 1976), 359 N.E.2d 109, 111. A nonparty has 

standing to appeal if he has such an interest. Marcheschi v. 

P.I. Corporation (111.App. 19801, 405 N.E.2d 1230, 1234. 

Thus, nonparties, under the rule of virtual representation, 

such as members of a class involved in a class action, or 

nonparties to a wil.1 contest may have such an interest as 

would entitle them to appeal. Marcheschi, supra. If the 

State were mandated by law to have been made a party to the 

review proceedings in the District Court or before the Public 

Service Commission, it would then certainly have a right to 

appeal. Estate - of Tomlinson, supra. 

We determine that the State of Montana is not an 

aggrieved party, or a party to the action in the District 
Court entitled to appeal from the District Court judgment. 

It was pointed out on oral argument that the Attorney General 

has failed to identify the direct, immediate and substantial 

interest of the state on which he attempts to appeal here. 

If the interest of the state is that of a consumer of 

electricity provided by the MPC, its interest as a consumer 

is no different from that of the corporate consumers that 

appeared in the proceedings below, or of John 9. Citizen. 

Certain corporate or other organizations of consumers did 

appear and identify their interests before the PSC and the 

District Court but the State of Montana did not. As a 

consumer, therefore, the State of Montana is precluded, as 

would any John Q. Citizen who did not appear below be 

precluded, from appea.rinq for the first time in the appellate 

court to relitigate the issues. 

The reasons are obvious: neither the PSC nor the 

District Court was given an opportunity by the State of 

Montana to identify its separate interest, and to resolve any 

issues of interest relating to the state. Moreover, the 

State is not privy to the record developed before the PSC and 

the District Court. What issues could he framed in the 

appeal here by the State? The pa.rty to the action in the 

District Court, the PSC has acceded to the terms of the 

judgment of the District Court. The Attorney General, 

without a party client, is in effect asking for an advisory 

opinion to reverse the District Court, a past.ime in which 

this Court does not ordinarily indulge. Indeed, what relief 

could be granted by us at this juncture? The PSC, within the 

discretion granted to it by law, has acted to approve the 

District Court decision. There is nothing now for an 
appellate court to determine. The horse is out of the barn, 

and it is too late to lock the stable door. 

The cases are legion that we will not, for the first 

time on appeal, resolve issues or determine questions not 

presented in the first instance to the District Court. We 

hold, therefore, that the State of Montana, as a nonparty to 

the proceedings before the PSC and the District Court has no 

standing to appeal, and the appeal on its behalf must be 

dismissed. 

v. 

Implicit in this case is the question whether the 

Attorney General, in his official capacity, is entitled to 

appeal the decision in the District Court. 

The Attorney General is a constitutional officer. Art. 

VI, 5 1, 1972 Montana Constitution. He is constitutionally 

empowered to be the legal officer of the state and to have 

the duties and powers provided by law. Art. VI, S 4. His 

lawful powers and duties with regard to the state are 

expressed in two lines of a statute: he must "attend the 

supreme court and prosecute or defend all cases to which the 

state or any officer thereof in his official capacity is a 

party." Section 2-15-501(1), MCA. He is therefore the legal 

officer for the PSC, and it is for that reason that the 

lawyers employed by the PSC act under the Attorney General in 

court proceedings as special assistant attorneys general. 

In a carefully worded opinion, this Court determined in 

Woodahl v. State Highway Commission (19701, 155 Mont. 32, 465 

P.2d 818, that the Montana Highway Commission had authority 

to employ and engage outside fee counsel without approval of 

the Attorney General. In Woodahl v. Montana Board of Natural 

Resources and Conservation (1973), 163 Mont. 193, 516 P.2d 
383, because factual questions were involved and the Attorney 

General had a right to litigate the same issue in the 

District Court, this Court refused to determine the right and 

authority of the Attorney General to require all legal 

counsel appearing in any judicial proceeding on behalf of 

elected officials to first secure a commission of authority 

from the Attorney General to so appear. 

In State ex rel. Olsen v. Public Service Commission 

(19551, 129 Mont. 106, 283 P.2d 594, this Court supported the 

broad powers of the Attorney General as the first legal 

officer of the state. We determined in Olsen that the 

Attorney General not only had the constitutional and 

statutory powers specifically enumerated for him, but broad 

common law duties, when not restricted or limited by statute. 

In this case, the PSC, as a state agency involved in the 

District Court action, has acted to accept the decision of 

the District Court and to forego an appeal. We look then to 

determine whether the Attorney General, in the light of his 

broad constitutional, statutory and common law powers, may 

nevertheless maintain this appeal because of his official 

capacity. 

Having in mind that the Attorney General did not appear 

on his own behalf or on behalf of the State as a party before 

the PSC or the District Court, we determine that his 

participation in the proceedings below and in the District 

Court must he limited to his representation of the PSC, 

through the special assistant attorneys general. 

In that sense, therefore, the contention of the PSC that 

the Attorney General becomes the attorney for the PSC only 

upon request of the Commission, pursuant to section 

59-3-110(3), MCA, is incorrect. Under the constitution and 
by virtue of his office, it is the duty of the Attorney 

General to institute and prosecute all actions or proceedings 

necessary for the enforcement of the regulation of utilities, 

whether requested by the Commission or not. The Attorney 

General may, however, as he did in this case, authorize 

counsel employed by the Commission to act as special 

assistant attorneys general in the prosecution of court 

actions. 

Moreover, the appearance of the Consumer Counsel in rate 

proceedings would not foreclose an appearance by the Attorney 

General on behalf of the State. The duties of the Consumer 

Counsel and of the Attorney General are not co-extensive. 

While the Attorney General is the legal officer for the 

PSC in all cases to which the PSC is a party, the PSC remains 

the party in the action. The Attorney General remains the 

attorney, and as legal officer he is not empowered to make 

the decisions that are vested by law in the discretion of the 

PSC. The power of the State to make regulatory decisions on 

utility rates is lodged in the PSC and not the Attorney 

General. Rightly or wrongly, it is the PSC, within the 

bounds of law that must regulate rates. The PSC is not 

answerable for the lawful exercise of its discretion to a 

fellow official, the Attorney General. The substantive 

discretion as to what rates to deny or promulgate is only the 

PSC's under the provisions of law. The Attorney General, 

like the rest of us, must accept the PSC decision. He is not 

free, because the result differs from what he would prefer, 

to upset the lawful decisions of a public officer in the 

guise of his attorney relationship to that officer. To 

permit otherwise would make the Attorney General a 

super-officer, whose discretion on any state subject could 
override that of other public officers, by testing his 

discretion against theirs in court. No more disruptive 

arrangement for the operation of the government can be 

imagined. The forum for testing the correctness of the PSC 

decision not to appeal the adverse decision of the District 

Court is not to test for the first time such decision in the 

appellate court in the guise of an appeal-, but rather in the 

forums provided by law, the proceedings before the PSC and 

before the District Court on review. 

The position of the Attorney General in this case is 

untenable. As a nonparticipant in the proceedings before the 

PSC and the District Court, he is not entitled to appeal 

either on behalf of the State or his own behalf. This appeal 

is not the place to contest the ultimate decision of the PSC 

not to appeal. For these further reasons, therefore, the 

attempted appeal by the Attorney General, whether on his 

official behalf or on behalf of the State of Montana must be 

dismissed. 

~71. 

We also determine in this case that the appeal of the 

PSC in this case must be dismissed as untimely. 

More than sixty days from the entry of judgment by the 

District Court had elapsed when the PSC filed its notice of 

appeal under Rule 5, M.R.App.Civ.P. Since the Attorney 

General had filed a notice of appeal on behalf of the State 

of Montana, the PSC, to protect its interest in this cause, 

filed its notice of appeal within the seven days provided 

under Rule 5. 

The right of a party to file a notice of appeal within 

seven days after the first notice of appeal is filed by 

another party is conditioned upon the language of Rule 5, 
which is "If a timely notice of appeal is filed by a party 

. . . " Because we have determined that the appeal filed by 

the Attorney General on the 60th day from the notice of entry 

of judgment was invalid as an attempted appeal, the right of 

any other party whose right to appeal depends on that 

attempted appeal is without basis. The appeal of the PSC 

must therefore be dismissed as untimely. 

VII. 

Accordingly, it is ordered that the appeals of the State 

of Montana, through the Attorney General and of the PSC be 

and are hereby dismissed. It follows that all pending 

motions in this appeal are likewise denied. 

We Concur: 

Justices 
Mr. Justice Frank B. Morrison, Jr. dissents as follows: 

I disagree with the result reached by the majority 

opinion although I believe it to be a well reasoned and well 

documented discussion of law. I particularly commend the 

majority for recognizing that the Attorney General is 1ega.l 

counsel for the PSC. In light of 5 69-14-132, MCA, that can 

hardly be denied. The section sta.tes: 

Legal. assistance for commission. The attorney 

general is the attorney of the commission, and the 

county attorney of every county in the state shall, 

on the request and at the direction of the attorney 

general assist in all cases, proceedings, and 

investigations undertaken by the commission under 

this chapter in his own county. 

I also specifically agree with the following from the 

majority opinion: 

While the Attorney General is the legal officer for 

the PSC in all cases to which the PSC is a party, 

the PSC remains the party in the action. The 

Attorney General remains the attorney, and as a 

legal officer he is not empowered to make the 

decisions that are vested by law in the discretion 

of the PSC. 

The PSC is the party and the Attorney General is the lawyer. 

I disagree with the majority in the result. The 

Attorney General, who was a lawful attorney for the PSC, 

filed a notice of appeal on behalf of the State. For 

purposes of litigation "State" means the State of Montana or 

any office, department, agency, authority, commission, board, 

institution, hospital, college, university or other 

instrumentality thereof. Section 2-9-101 (7) . The State when 

referring to the State of Montana includes the PSC and when 

the Attorney General appealed in behalf of the State he did 

in fact appeal for the PSC which he does, by law, represent 

as counsel. 
I do take issue with the statement in the majority 

opinion that: 

In this case, the PSC, as a state agency involved 

in the District Court action, has acted. to accept 

the decision of the District Court and to forego an 

appeal. 

Perhaps such a decision was made and perhaps such a 

result may have been reported in the news media. I do not 

believe that such a decision is part of the record in this 

case. 

I have carefully examined the record and the pleadings 

filed by the parties. I find that there is a valid notice of 

appeal filed by the Attorney General for the State of Montana 

which includes the PSC. There is no indication in the record 

that the Attorney General was acting outside of his 

authority. In fact the Attorney General- is a lawful agent 

for the PSC and his action in filing the notice of appeal is 

ratified by the PSC's failure to repudiate that act. See 

Restatement (Second) of Agency S 94 (1957) . 

The statutes referred to in both the majority opinion 

and this dissent show that the Attorney General is an 

a.ttorney for the PSC, and he appealed on behalf of the PSC 

which he lawfully represented. If the PSC wished to 

repudiate the action of the Attorney General it had only to 

move to dismiss the notice of appeal as being filed without 

its authority. Having failed to do so the PSC acquiesced in 

the action of its attorney and, in my view, the appeal must 

go foreword. 

I would not reach the broader question of whether the 

Attorney General can appeal on behalf of the people of this 

State where the PSC and the Department of Public Service 

Regulation were the only parties named as litigants in the 

jud.icia1 review proceeding from which this appeal emanated. 
The only issue before us is whether to dismiss the notice of 

appeal which has been filed. Tha.t notice of appeal is not 

void and the motion to dismiss should be overruled without 

reaching the broader question. 

The majority opinion engages technical construction to 

prevent an appeal. Abundant legal authority supports the 

proposition that a liberal construction should be engaged in 

order to assure that litigation is heard on its merits and 

not disposed of on a technical basis. See 4 Arn.Jur.2d 538, 

Appeal and Error, S7. 

2 Moore's Federal Practice S 1.13 provides: 

The objective of the Rules has been variously 

phrased: (1) "Decisions are to be on the merits 

and not on procedural niceties"; (2) "to secure a 

d-isposition of litigation on the merits rather than 

by collateral methods"; (3) " . . . to a.void 

surprises and to promote justice"; . . . (5) "to 

avoid a strict technical interpretation which might 

work a hardship on the litigants"; . . . However 

worded, liberality is the canon of construction. 

The spirit of this Rule was affirmed by this Court in 

Tefft v. Tefft (Mont. 19811, 628 P.2d 1094, 1097, 38 St.Rep 

837, wherein we said: 

This holding is in keeping with the philosophy of 

modern appellate practice that technical defects of 

procedure should not bar a party from access to the 

courts. 

The majority opinion seeks to buttress its technical 

approach with the assertion that there is no aggrieved party 

in this case. The reason for an aggrieved party is to assure 

that each side will be spiritedly represented and through the 

clash of advocacy the court can distill justice. 

The PSC is certainly an aggrieved party which sought 

judicial review. If in fact the PSC did make a determination 

not to appeal they must have done so to avoid risk of this 

Court affirming the District Court action. In other words a 

decision not to appeal, if indeed one was made, would surely 
have involved a compromise settlement. I have no doubt that 

the PSC, if they are in court through the notice of appealfiled by 'the Attorney General, can vigorously defend. the 

commission's original decision. 

The PSC, in seeking judicial review and in appealing to 

this Court, represents the rate payers of Montana. Those 

rate payers have an interest in seeing that this case be 

decided on its merits in the Supreme Court. I feel that the 

majority opinion employs an unduly restrictive and narrow 

interpretation of the Rules which results in the rate payers 

being denied Court access. 

There is a valid notice of appeal on file and the PSC 

should he directed to go forward or, in the alternative, to 

dismiss the appeal filed by its lawyer, the Attorney General 

of Montana. 
Mr. Justice William E. Hunt, Sr., dissenting: 

Montana Power's motion to dismiss the appeal filed by 

the Attorney General on behalf of the State of Yontana has 

been granted by the majority because the State was never a 

party of record in the administrative proceedings before the 

Commission nor the proceedings before the District Court. 

"Utter stranger" is the phrase used by the Power Company to 

describe their view of the status of Montana and. its Attorney 

General trying to bring the case before this Court. The long 

and turbulent history of rate setting in this state, makes 

that phrase utter nonsense. One need only read the 

proceedings of the 1972 Constitutional convention to find the 

interest of the members and the citizens in rate matters. 

Montana Constitutional Convention verbatim transcript pp. 

2373-2423, Vol. VI (1981). 

That interest carries over to the present case. An 

agency of the State of Montana, the Public Service 

Commission, held extensive hearings on this matter. As 

experts in rate setting they reached a decision adverse to 

the Power Company. The utility appealed the District Court 

that reversed their decision. Parties named in the 

proceedings before the Commission and the District Court 

elected not to appeal for reasons of their own. The Attorney 

General in his capacity as the top-elected attorney for the 

state correctly filed an appeal that should be granted. 

Under State ex rel.. Olsen v. Public Service Commission 

(1955), 129 Mont. 106, 283 P.2d 594, the Attorney General not 

only has the power but in my opinion has the duty to maintain 

an action such as this on appeal. In Olsen, the Court quoted 

with approval from 5 Am.Jur. Attorney General S 6 (1936): 
Moreover, i.t is generally held that the attorney 

general, in addition to the powers and duties 

conferred and imposed upon him by statute, is 

clothed and charged with all the common-l.aw powers 

and duties pertaining to his office as well, except 

in so far as they have been expressly restricted. 

The duties of the office are so numerous and varied 

that it has not been the policy of state 

legislatures to attempt specifically to enumerate 

them; and it cannot be presumed, therefore, in the 

absence of an express inhibition, that the attorney 

general has not such authority as pertained to his 

office at common law. Accordingly, as the chief 

law officer of the state, he may, in the absence of 

some express legislative restriction to the 

contrary, exercise all such power and authority as 

public interests may from time to time, require, 

and may institute, conduct, and maintain all such 

suits and proceedings as he deems necessary for the 

enforcement of the laws of the state, the 

preservation of order, and the protection of public 

rights. 

129 Mont. at 114-15, 283 P.2d at 598-99; - see 7 Am.Jur.2d 

Attorney General S 9 (1980). It later stated, citing 5 

FJn.Jur. Attorney General 5 8, that "'[olbviously there can be 

no dispute as to the right of an attorney general to 

represent the state in al.1 litigation of a public character. 

The attorney general represents the public and may bring all. 

proper suits to protect its rights. ' . . . " 129 Mont. at 115, 

283 P.2d at 599; see 7 - Am.Jur.2d Attorney General 5 14. 

Addressing the issue of whether the district court proceeding 

affected "the public interests or . . . had for its purpose 

the protection of public rights," The Court concluded that 

an action "questioning the reasonableness and lawfulness of 

the [telephone] rate" did involve the public interest. 129 

Mont. at 116, 283 P.2d at 599. "Hence public interest being 

affected the state is a party in interest and the attorney 

general under the broad powers given him by the common law 

may represent the state in litigation." 129 Mont. at 117, 
The Attorney General should be allowed to maintain the 

appeal and this Court should deny the motion to dismiss and 

the case should be heard in interest of the State of Montana 

represented by the Attorney General.