No. 82-225 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

PAT M. GOODOVER, STATE SENATOR 

and CARROLL A. G.RAHAM, STATE SENATOR, 

Plaintiffs, 

VS. 

THE DEPARTMENT OF ADMINISTRATION, et al., 

Defendants. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Plaintiffs: 

John W. Larson argued, Helena, Montana 

For Defendants: 

Michael Young argued, Helena, Montana 

Submitted: September 9, 1982 

Decided: October 7, 1982 

Filed: 06:T 7- 1382 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion 

of the Court. 

In this original proceeding, petitioning State Senators 

seek a declaratory judgment that House Bill 872 (amending 

sections 5-17-101 and 5-17-102, MCA, dealing with the 

Capitol renovation program) violates the Montana Constitution and several Montana statutes. Defendants denied all 

statutory and constitutional violations and moved for a 

summary judgment in their behalf. We grant the prayer of 

petitioners for a declaratory judgment and issue an injunction against further proceedings with respect to the Capitol 

remodeling, until the consent of the legislature as a whole 

has been obtained for relocation of the State Senate 

chambers. 

On May 1, 1981, Governor Schwinden approved House Bill 

872 (now codified as section 5-17-101, MCA), which doubled 

the membership on the Capitol Building and Planning Committee and provided that the committee was to serve as the 

legislature's representative in planning the remodeling of 

the Capitol. The bill gave the committee the right to 

"decide. . .the allocation and use of space in the capitol, 

including without limitation the location of legislative 

chambers . . ." (section 5-17-102(4), MCA; emphasis added). 

The controversy surrounds a proposed move of the Senate 

chambers from its present location to the space now occupied 

by the law library. The committee has authorized a move. 

Petitioners, who seek to block the move, have raised several 

issues on appeal. They are: 

(1) Does the power delegated to the committee violate 

Art. 111, Sec. 1, or Art. V, Sec. 9, of the Montana Constitution or Montana statutes? 
(2) Does the Department of Administration have authority 

under section 2-17-101, MCA, to allocate space for the 

legislative branch of government? 

(3) Did the legislature sufficiently approve the 

renovation program so that any unconstitutional delegation 

of authority to the committee would be moot? 

We will dispose of the third issue first. Defendants 

contend that legislative consent under section 18-2-102, 

MCA, may take two forms: a joint resolution when a money 

appropriation is not required; a legislative appropriation 

when funds are required. Defendants argue that the legislature consented to the proposed move of the Senate chambers 

by appropriating the money and authorizing the sale of longrange bonds. Petitioners argue that the legislature did not 

sufficiently approve the renovation program and that it was 

the Senate's intent to consider the matter further in January, 

Section 18-2-102(1), MCA, provides in pertinent part: 

"Authority to construct buildings. (1). . . a building costing more than $25,000 may not 

be constructed without the consent of the 

legislature. When a building costing more 

than $25,000 is to be financed in such a 

manner as not to require legislative appropriation of moneys, such consent may be in 

the form of a joint resolution." 

"Construction" is defined in section 18-2-101(3), MCA, 

as including the remodeling of a building. We interpret the 

above statute to require legislative consent of a remodeling 

project to cost in excess of $25,000 and that such legislative consent may take the form of an appropriation of 

money or a joint resolution. Here there was an appropriation for the remodeling project. However, we must determine whether, by such appropriation, the legislature intended to approve relocation of the Senate chambers. 
Section 5-17-102(4), MCA, gave the Capitol Building and 

Planning Committee a directive to decide the location of 

legislative chambers. This directive to "decide" Senate 

situs belies defendants' contention that the legislature had 

consented to relocation of the chambers through passage of 

an appropriation for remodeling. Therefore, we find that 

the whole legislature has not, at this time, consented to 

relocation of the Senate chambers. 

Next, we must determine whether the legislature could 

constitutionally delegate to the Capitol Building and Planning Committee, the authority to "decide" location of legislative chambers. Petitioners argue that section 5-17- 

102(4), MCA, violates the separation of powers provision 

(Art. 111, Sec. 1) and section 5-17-102(3), MCA, because the 

power given the entire legislature is being delegated to the 

committee which has power to make substantive decisions. 

Defendants contend that the delegation of power to the 

committee is only to "recommend." 

Section 5-17-102(4), MCA, gave the committee power to 

"decide. . .the allocation and use of space in the capitol, 

including without limitation the location of legislative 

chambers. . ." We must here determine the meaning of "decide 

. . .location of legislative chambers . . ." 

In looking for legislative intent, we honor the presumption that the statute is constitutional. In T & W 

Chevrolet v. Darvial (1982), Mont . , 641 P.2d 1368, 

39 St.Rep. 112, we said: " . . .every intendment in its 

[constitutionality of a statute] favor will be made unless 

its unconstitutionality appears beyond a reasonable doubt." 

641 P.2d at 1370. 
The Montana State Senate, a distinguished, honorable, 

and independent arm of the legislative body, has the right 

to determine where it will sit. Pursuant to section 5-17- 

101, MCA, a long-range building committee was established 

consisting of six members of the House of Representatives, 

six members of the Senate, the Director of the Department of 

Administration, the Administrator of the Architectural 

Engineering Division of the Department of Administration, a 

representative of the Governor's office designated by the 

Governor, and the Director of the Lewis and Clark Area-Wide 

Planning Organization, who serves as a non-voting member. 

By enacting section 5-17-102, MCA, the legislature granted 

this committee, consisting in part of persons who were not 

members of the legislature, the right to make a decision on 

location of legislative chambers. However, section 5-17- 

103, MCA, requires that the decision be reported back to the 

legislature. That statute provides in part: "The committee 

shall prepare a written report of its activities and 

recommendations and present the report to the legislature 

at each regular session." (Emphasis added.) Certainly this 

statute does not mandate a useless act. It must anticipate 

legislative confirmation. If that is true, then the legislature must have intended, in granting the right to "decide," 

to set forth committee responsibility and not to bind the 

legislature to the committee's decision. Only this interpretation is consistent with the mandate expressed in section 5-17-103, MCA. 

In this case, the committee has, pursuant to section 5- 

17-102(4), MCA, decided that the Senate chambers shall be 

moved. The committee now must, pursuant to 5-17-103, MCA, 

report its decision to the full legislature for approval. 
At this point, the requisite approval, as heretofore shown, 

is lacking. 

Since we have determined that the legislature intended 

for the committee's decision to be ratified by the whole 

legislature, there has been no unconstitutional delegation 

of authority. Sections 5-17-102(4) and 5-17-103, MCA, are, 

by this result, harmonized. 

Defendants finally argue that the Department of Administration has authority, pursuant to section 2-17-101, 

MCA, to allocate space for the legislative branch of government. Defendants argue that pursuant to a recommendation of 

the committee, the Department of Administration has validly 

made such an allocation. 

Section 2-17-101, MCA, provides: 

"Allocation of office space. The department 

of administration shall periodically survey 

the needs of state agencies located in Helena 

and shall assign space in state office buildings to such agencies. No state agency shall 

lease, rent, or purchase property for quarters 

in Helena without prior approval of the department. " 

We hold that the legislature is not a "state agency." 

The Department of Administration can allocate space for the 

legislative branch of government, but the legislature, being 

an independent body, has the right to determine where it 

will sit. As previously noted, the full legislature has not 

approved the decision of the Capitol Building and Planning 

Committee for removal of the Senate chambers. Until such 

approval has been granted by the legislature, the Department 

of Administration is powerless to allocate space for the 

Senate chambers. 

In accordance with this opinion we grant declaratory 

judgment to petitioners and issue an injunction against 
relocation of the Senate chambers until consent has been 

obtained from the legislature. 

We concur: 
Mr. Chief Justice Frank I. Haswell, dissenting: 

I dissent. I would hold that the procedures followed 

by the committee and legislature in this case were sufficient to pass constitutional muster and that the consent 

statute was fully complied with. 

Legislative consent may take the form of a money 

appropriation or joint resolution. Section 18-2-102(1), 

PICA. The majority concedes that here there was an appropriation but then goes beyond the clear language of the statute 

to examine another statute, section 5-17-102, MCA. The sole 

controlling statute on the question of legislative consent 

is section 18-2-102(1), MCA, which provides in pertinent 

part: 

"(1) . . . a building costing more than 

$25,000 may not be constructed without 

the consent of the legislature. When a 

building costing more than $25,000 is to 

be financed in such a manner as not to 

require legislative appropriation of 

moneys, such consent may be in the form 

of a joint resolution." 

As is apparent from reading section 18-2-102, MCA, the 

legislature may consent by either a money appropriation or a 

joint resolution. The majority's action flies in the face 

of the unambiguous words of that statute. It does not 

require that any other statute be consulted to determine 

whether legislative consent has been given and the office of 

a judge is not to insert what he thinks has been omitted in 

a statute, section 1-2-101, MCA. Also, legislative consent 

in the past has taken the form of an appropriation of funds, 

e.g., the appropriation of money for the New Justice Building. 

The legislature here gave its informed consent to moving the senate chambers to the location presently occupied 
by the law library, as is born out by the following facts. 

Between the 1979 and 1981 legislatures, the Department of 

Administration gave presentations regarding the Capitol 

renovation plan to a number of committees including the 

legislative finance committee, revenue oversight committee, 

legislative energy forecast committee, legislative audit 

committee, and the environmental quality council. Moreover, 

during the 1981 legislature, a packet of materials was 

placed on each legislator's desk dealing with this plan. 

Included in each presentation and in the legislators' 

packets was a proposed floor plan of the third floor of the 

Capitol, showing the senate occupying the space presently 

occupied by the law library. On the front page of the 

materials distributed to the legislators, the fifth paragraph begins with this sentence: "The Senate chambers would 

be moved from its existing location to the area presently 

occupied by the law library." The 1981 legislature ratified 

the decision to move the senate chambers to the law library 

by appropriating six and three-quarter million dollars for 

the Capitol renovation project and by authorizing the 

issuance and sale of five million dollars of long-range 

building program bonds to finance the improvement costs. 

Petitioners next argue that section 5-17-102(4), MCA, 

violates the separation of powers provision (Art. 111, Sec. 

1) and section 5-17-102(3), MCA, because the power given the 

entire legislature is being delegated to the committee which 

has the power to make substantive decisions. The majority 

reasons that since section 5-17-103, MCA, requires the 

committee to report to the legislature and because this has 

not happened yet, there has been no unconstitutional 
delegation of authority. 

However, in my view, we need not decide the abstract 

question of whether this statute violates the separation of 

powers doctrine in view of the procedure followed by the 

committee in treating its decision as a recommendation only 

and in not attempting to exercise full authority to 

independently render a binding decision. As such, such 

action was also in conformance with section 5-17-102(3), 

NCA. 

The majority does not address petitioners' next argument, i.e., that Art. V, Sec. 9, of the Montana Constitution 

is being violated because the legislators are holding civil 

offices on the committee and members of the executive branch 

are holding legislative offices on the committee. 

Art. V, Sec. 9, provides: 

"Disqualification. No member of the 

legislature shall, during the term for 

which he shall have been elected, be 

appointed to any civil office under the 

state; and no member of congress, or 

other person holding an office (except 

notary public, or the militia) under the 

United States or this state, shall be a 

member of the legislature during his 

continuance in office." 

,To constitute a "civil office," the office must, among 

other things, possess a delegation of a portion of the 

sovereign power of government to be exercised for the 

benefit of the public, State ex rel. Barney v. Hawkins 

(1927), 79 Mont. 506, 257 P. 411, 53 ALR 583. Fact-finding 

and recommendation-making, as happened here, do not 

constitute the exercise of sovereign powers. State ex rel. 

James v. Aronson (1957), 132 Mont. 120, 314 P.2d 849. I 

would, therefore, hold that since there has been no exercise 

of sovereign power of government here, the legislators are 
not holding a clvii office in contravention of Article V, 

Section 9 and similarly find that, by virtue of the 

recommendation-making action only, executive branch 

personnel are not acting as legislators violating Article V, 

Section 9. 

The focus of the third issue is whether the Department 

of Administration has authority under section 2-17-101, MCA, 

to allocate space for the legislature. The majority finds 

that the legislature is not a state agency and that the 

legislature, being an independent body, has the right to 

determine where it will sit. I do not quibble with the 

premise that the legislature has the right to select its 

meeting place, but that question was not raised by tne 

pleadings and is not at issue here. 

What is at issue here is whether the Department of 

Adrrunlstration can allocate space for tne legislature's use. 

It is a common tenet of statutory construction that specific 

stacutes govern over general statutes. Section 1-2-102, 

FICA, and cases interpreting it. The statute specifically 

addressing this issue is section 5-17-102(4), MCA. In my 

view, that statute and the interpretation of it given above, 

snould control. Also, the fact that section 2-17-101, MCA, 

gives the Department of Administration the power to allocate 

space for the state agencies should not preclude the 

Gepartment from accepting additional responsibilities as 

well, when to do so facilitates the smooth running of state 

government. In the New Justice Building, the Department 

allocated space for judicial branch personnel, who are 

clearly not members of the executive branch and not a state 

agency. 
I would grant defendants' motion for summary judgment. 

Chief Justice 

Mr. Justice Fred 3. Weber: 

I join in the foregoing dissent of Mr. Chief Justice 

Haswell.