### No. 82-225 

### IN THE SUPREME COURT OF THE STATE OF 

### MONTANA 1982

PATM. 

### 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: JohnW. 

### Larson argued, Helena,Montana For Defendants: Michael Young argued, Helena,Montana

Submitted: September 9, 1982 Decided: October 

### 7, 1982 Filed: 

## 06:T 7-1382Mr. JusticeFrank B. Morrison, Jr., delivered the Opinion of theCourt. In thisoriginalproceeding, petitioning State Senators seek a declaratoryjudgment thatHouse Bill872 (amending sections 5-17-101 and 5-17-102, MCA, dealingwith the Capitol renovation program) violates theMontana Constitution and severalMontana statutes. Defendants denied all statutory and constitutionalviolations and moved for a summary judgment in theirbehalf. Wegranttheprayer of petitioners for a declaratoryjudgment and issue an injunction against furtherproceedings with respect to the Capitol remodeling, until the consentof the legislature as a whole has been obtained forrelocation of the StateSenate chambers. On May 1, 1981, Governor Schwinden approved House Bill 872 (now codified as section 5-17-101, MCA), which doubled themembership on the Capitol Building and Planning Committee and provided thatthe committee was to serve as the legislature's representative inplanning the remodeling of the Capitol. The billgave the committee the right to "decide. 

# . .the allocation and use of space inthe capitol, including without limitation the locationof legislative chambers

# ..."(section5-17-102(4), MCA; emphasis added). The controversy surrounds a proposed move of the Senate chambers from itspresent location tothe space now occupied by the law library. The committee has authorized a move. Petitioners, who seek toblock themove, have raised several issueson appeal. They are: (1) Does the power delegated to the committee violate Art. 111, Sec. 1, orArt. V, Sec. 9, of theMontana Constitution orMontana statutes?(2) Does the Department of Administration have authority under section 2-17-101, MCA, toallocate space for the legislativebranch of government? (3) Did the legislature sufficiently approve the renovation program so thatany unconstitutional delegation of authority to the committee would be moot? We willdispose of the third issue first. Defendants contend that legislativeconsent under section 18-2-102, MCA, may take two forms: a joint resolutionwhen a money appropriation isnotrequired; a legislative appropriation when funds arerequired. Defendants argue thatthe legislatureconsented totheproposed move of the Senate chambers by appropriating themoney and authorizing the saleof longrange bonds. Petitioners argue that the legislature didnot sufficientlyapprove the renovation program and thatit was the Senate's intenttoconsider thematter further inJanuary,

Section 18-2-102(1), MCA, provides inpertinent part: "Authority toconstructbuildings. (1).

# . . a building costingmore than $25,000 may not be constructed without the consent of the legislature. When a building costingmore than $25,000 is tobe financed insuch a manner 

### as not torequire legislativeappropriation of moneys, such consentmay be in the form of a joint resolution." "Construction" is defined insection 18-2-101(3), MCA,

as including theremodeling of a building. Weinterpretthe above statutetorequire legislative consent of a remodeling project tocost inexcess of $25,000 and that such legislative consentmay take the form of an appropriation of money or a joint resolution. Here therewas an appropriation for theremodeling project. However, wemust determine whether, by such appropriation, the legislature intended toapprove 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 relocationof 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,wemust determinewhether 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 committeewhich has power to make substantivedecisions. Defendants contend that the delegation of power to the committee is only to "recommend." Section 5-17-102(4), MCA, gave the committeepower 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



# . . .locationof legislative chambers

# . .

# ."

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

### W Chevroletv. Darvial (1982), Mont

# . , 641P.2d 1368, 39 

### St.Rep. 112,we said: 

### "

# .. .every intendment in its [constitutionality of a 

### statute] favorwill be made unless its unconstitutionality appears beyond a reasonabledoubt." 641 P.2d at 1370.

### TheMontana State Senate, a distinguished, honorable, and independent arm of the legislativebody, has the right to determinewhere it will sit. Pursuant to section 5-17- 101,MCA, a long-rangebuilding committeewas established consisting of sixmembers 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-votingmember. By 

### enacting section 5-17-102, MCA, the legislature granted this committee,consisting inpart of persons who were not members of the legislature,the right tomake 

### a decision on location of legislative chambers. However, section 5-17- 103, MCA, requires that the decision be reported back to the legislature. That statuteprovides inpart: "The committee shallprepare a written report of its activities and recommendations and present the report to the legislature at each regular session." (Emphasisadded.) Certainly this statute does not mandate a useless act. Itmust anticipate legislative confirmation. If that is true, then the legislaturemust 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 shallbe moved. The committeenow 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. Sincewe 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 Departmentof Administration has authority,pursuant to section 2-17-101, MCA, to allocate space for the legislative branch of government. Defendants argue thatpursuant to a recommendation of the committee, the Departmentof Administration has validly made such an allocation. Section 2-17-101,MCA, provides: "Allocationof 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 withoutprior approvalof the department.

### " We hold that the legislature is not a "stateagency." The Departmentof Administration can allocate space for the legislative branch of government, but the legislature,being an independentbody, 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 ispowerless to allocate space for the Senate chambers. In accordancewith this opinionwe grant declaratory judgment to petitioners and issue an injunction againstrelocation 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 statutewas fullycomplied with. Legislative consent may take the form of a money appropriation or joint resolution. Section 18-2-102(1), PICA. The majorityconcedes thathere there 

### was an appropriationbut then goes beyond theclear language of the statute toexamine 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 legislaturemay consent by either a money appropriationor 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 officeof

a judge 

### is not to insertwhat he thinks has been omitted in

a statute, section 1-2-101, MCA. Also, legislative consent in thepast has taken the form of an appropriation of funds, e.g., the appropriation of money for the New Justice Building. The legislaturehere gave its informed consent tomoving 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 unconstitutionaldelegation 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 arenot 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 arenot acting aslegislatorsviolating 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 atissue 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 statutoryconstruction 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 statuteand the interpretation of it given above, snould control. Also, the fact that section 2-17-101, MCA, gives the Department of Administration thepower toallocate space for the state agencies should not preclude the Gepartment from accepting additional responsibilities as well, when todo 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 grantdefendants' motion for summary judgment.

Chief Justice

Mr. Justice Fred 3. Weber: I join in the foregoing dissent of Mr. Chief Justice Haswell.