NO. 83-169 

IN THE SUPREME COURT OF THE STATE OF MOtJTANA 

1983 

ADA J. HARLEN, SHAUN R. THOMPSON 

and RICHARD L. PARISH, d/b/a IIARLEN, 

THOMPSON & PARISH, a partnership, 

Plaintiffs and Appellants, 

THE CITY OF HELENA, a political 

subdivision of the State of Montana, 

Defendant and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Mark P. Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Shaun R. Thompson argued; Harlen, Thompson & 

Parish, Helena, Montana 

For Respondent : 

Jeffrey Sherlock argued, City Attorney, Helena, 

Montana 

For Amicus Curiae: 

Charles F. Moses for Yellowstone County Bar Assoc., 

Billings, Montana 

Peterson, Schofield & Leckie for City of Billings, 

Billings, Montana 

Submitted: September 13, 1983 

Decided: January 26, 1984 

Filed: ;, '1, 2 

I q94 

-- - 

Clerk 
Mr. Justice L.C. Gulbrandson delivered the Opinion of the 

Court. 

Plaintiffs filed a complaint in September, 1982, 

challenging the validity of a Helena city ordinance. The 

matter was brought before the District Court of the First 

Judicial District, Lewis and Clark County, the Hon. Mark P. 

Sullivan presiding. Plaintiffs and the defendant City 

sought summary judgment, there being no factual disputes. 

The trial court heard oral argument and accepted written 

briefs, and entered its findings of fact and conclusions of 

law and summary judgment for the defendant City on March 22, 

1983. Plaintiffs appeal from the findings, conclusions and 

judgment of that court. For the reasons stated below, we 

reverse the judgment of the trial court. 

The City of Helena operates under a charter and 

exercises self-government powers. As such, it may exercise 

any power not prohibited by the Montana Constitution, state 

statute, or provisions of its charter. Mont. Const. art. 

XI, Section 6; Section 7-1-101, MCA. Pursuant to this 

authority, and following a public hearing, the Helena City 

Commission adopted Ordinance No. 2188, denominated "An 

Ordinance Establishing A Required Business License Fee For 

Businesses in Helena, Montana. It This ordinance was 

officially adopted September 21, 1981 and is now codified at 

Helena Mont., City Code Sections 4-1-16-1 to 16-22 (1982). 

For the purposes of this opinion, all citations to the 

ordinance will be to the original uncodified version. 

According to the terms of the ordinance, all persons, 

firms, associations or corporations carrying on business in 

Helena must apply for the general business license and pay 
an annual fee based on the number of persons working for 

the individual or entity receiving the license. See, 

Sections 2, 18 and 20, Ordinance 2188. The application is 

reviewed by the police and fire departments and also the 

city building inspector, ostensibly to give these 

authorities an opportunity to inspect for compliance with 

fire, building and sanitation codes. In addition, the 

police department is made aware of the existence of local 

businesses and can then patrol these businesses to prevent 

security problems. Section 11 further defines the scope of 

regulation: 

"Licensee Subject to Regulation. Every 

person licensed under the provisions of 

this Chapter shall be subject to 

-- repulation, ---------------- inspection, --------------- control and 

supervision ---------- under the qeneral ------------- police 

powers of the City and of all of the 

provisions of this Code and ordinances of 

this Citv now in force, or which mav 

.................................. 

hereafter be adopted in aid of suc6 

police power and regulation." 

(emphasis added) 

In addition, Section 7 provides that a business 

license may be revoked and cancelled "for fraud or 

misrepresentation in its procurement, or for a violation of 

any of the provisions of this code or any other ordinance of 

the City, or any State or Federal Statute." No individual, 

firm, association or corporation may conduct its trade, 

profession or vocation without this license, Section 18. 

Persons or entities who live or maintain operations outside 

Lewis and Clark County do not need a license to conduct 

business if they deal with licensed businesses in the city 

exclusively by "salesmen, telephone or mail." Section 18. 

Ordinance 2188 does not provide penalties for 

violations. However, general penalties for all ordinances 
are found in Helena, Mont., Code Sections 1-3-1 to 1-3-4 

(1982). These include a $500 fine and/or six months 

imprisonment for violation of any section of the code 

without a specific penalty provision; incarceration and 

fines for wilful default of fine payments; public service 

work while serving jail time; and revocation of any city 

license. In addition, all property used in one's profession 

is subject to a lien for the amount of any license fee due. 

This penalty is cumulative and in addition to the penalties 

described above. See Helena, Mont., Code Section 4-1-4 

(1982). 

Plaintiffs, attorneys practicing within the city 

limits, received notice of the ordinance application and fee 

requirements early in 1982. They challenged the fee as 

contrary to Section 37-61-211(3), MCA, which provides that 

"[nlo license tax shall be imposed upon attorneys by a 

municipality or any other subdivision of the state." City 

authorities held enforcement of the ordinance in abeyance 

while seeking an attorney general's opinion on its validity. 

Although the attorney general did not make a specific 

determination as to the legality of Ordinance 2188, he 

concluded that any state statute, standing alone, that 

prohibited local governments from licensing certain 

professions or occupations did not apply to a local 

government with self-government powers like Helena unless 

the statute was made specifically applicable to a 

self-governing authority. See, 39 0p. Att'y. Gen. No. 60 

(1982). 

Plaintiffs, dissatisfied with this opinion, pressed 

their complaint in district court, challenging the statute 
on the basis of Section 37-61-211(3), and also on grounds 

that the ordinance violated provisions of the Montana 

Constitution and the Helena City Charter. Specifically, 

plaintiffs contended that, even if the statute in question 

was somehow not applicable to the City, the ordinance and 

fee amounted to an impairment of this Court's constitutional 

authority to regulate attorneys. In any event, plaintiffs 

alleged that the license fee was in essence a tax and, as 

such, had been adopted contrary to the provisions of the 

Helena City Charter, because all new taxes must be subjected 

to voter approval, which the ordinance was not. 

The trial court awarded summary judgment to the City 

on all three issues. Plaintiffs in this appeal renew their 

arguments that the ordinance is void as against the charter, 

statute and/or the constitution. Because the City of 

Billings has considered adopting an ordinance similar to the 

one now in dispute, we granted leave to the Yellowstone 

County Bar Association and to the City of Billings to file 

amicus briefs on the matters raised by plaintiffs. 

Upon review of the briefs and additional arguments by 

the parties, we conclude that the constitutional issue is 

dispositive of this case. Ordinance 2188 is invalid with 

respect to attorneys because it infringes upon this Court's 

constitutional authority to supervise and regulate attorneys 

and the practice of law. 

Mont. Const. art. VII, Section 2, c1.3, states that 

this Court may "make rules governing . . . admission to the 

bar and the conduct of its members." We have construed this 

provision to give this Court "exclusive authority to 

promulgate such rules." Matter of Petitions of McCabe & 
Zeman (1975), 168 Mont. 334, 339, 544 P.2d 825, 827-28. 

Even before the adoption of article VII, Section 2, clause 

3, we had held that the admission and regulation of 

attorneys in Montana is a matter peculiarly within the 

inherent power of this Court. Goetz v. Harrison (1969), 153 

Mont. 403, 404, 457 P.2d 911, 912. Any attempt by another 

branch of government to interfere with this constitutional 

prerogative interferes with the doctrine of separation of 

powers as codified in Mont. Const. art. 111, Section 1. Cf. 

Matter of Senate Bill No. 630 (1974) , 164 Mont. 366, 369, 

523 P.2d 484, 486 (state legislation affecting admission to 

bar contravenes Supreme Court authority over same subject). 

As the Supreme Court of Pennsylvania concluded in Sterling 

v. City of Philadelphia (1954), 378 Pa. 538, 106 A.2d 793: 

"[Llawyers are officers of the courts and 

it is solely from the courts that they 

derive the authority to practice their 

profession; the legislative branch of 

government, whether state or municipal, 

can neither grant nor revoke such 

authority, nor prescribe or in any manner 

interfere with their functions and 

activities, nor regulate the conduct of 

their practice. If, therefore, [an]. . . ordinance involved any encroachment upon 

the judiciary it would represent but a 

vain attempt on the part of municipal 

authorities to 2xercise a power which 

they do not possess." 

378 Pa. 538, 106 A.2d at 796. 

Ordinance 2188 and the accompanying license fee were 

without doubt drafted to deal with public health and safety 

matters. This is obvious from a fair reading of the 

ordinance and the evidence relating to its implementation. 

Nevertheless, the language of the ordinance goes much 

further than the City probably intended. Section 18, for 

example, makes it abundantly clear that a person or persons 
may not carry on a profession or occupatiorl without 

procuring the license and paying the appropriate fee. 

Section 11 broadly defines the scope of the City's police 

powers, such that attorneys could theoretically be subjected 

to future ordinances affecting standards of practice. 

Finally, Section 7 provides for revocation of the license 

for "a violation of any of the provisions of [the Helena 

City Code] . . . or any State or Federal Statute." When 

read in conjunction with Section 18, it is clear that the 

City could prohibit an attorney from practicing his 

profession if his license was revoked for any reason 

mentioned in Section 7. Finally, the last portion of 

Section 18 gives extraterritorial application of the 

provisions of Ordinance 2188 to professionals who reside 

outside the City limits but who have occasion to practice 

within the City. 

We recognize the City's assertions that it does not or 

will not attempt to regulate standards and qualifications 

for attorney admission and practice. Nevertheless, we know 

of no rule of law that allows us to consider only the City's 

intentions as opposed to the unambiguous language of the 

ordinance. Despite its original intent, the City has 

adopted an ordinance which conditions an attorney's access 

to the practice of law. As such, the ordinance intrudes 

upon this Court's constitutional authority. 

We recognize the City's general proposition that, as a 

political subdivision exercising self-government powers, it 

may exercise a broad range of powers not allowed traditional 

general power governments, even to the point where it may be 

"sharing" certain powers with the state 
legislature. See, e.g., State ex rel. Swart v. Molitor 

(Mont. 1981), 621 P.2d 1100, 1102, 38 St.Rep. 71, 72-3. 

Nevertheless, the universe of powers available to a 

self-governing authority may always be restricted by our 

state constitution, state statutes, or local charter 

provisions. Mont. Const. art. XI, Section 6; Section 

7-1-101, MCA. This Court's constitutional authority to 

regulate attorneys and the practice of law is but one 

restriction on the prerogatives of local government units 

exercising self-government powers. 

Ordinance 2188 is invalid with respect to attorneys. 

Accordingly, the judgment of the District CgHrt is reversed. 

/" 

We concur: /' 

Chief Justice 

ict 

~8d~e, sitting in place of 

Mr. Justice Frank B. Morrison Jr. 

Mr. Justice Daniel J. Shea specially concurs and will file a 

separate opinion later. 
SPECIAL CONCURRENCE OF MR. JUSTICE DANIEL J. SHEA 

No. 83-169 

ADA J. HAR.LEN, SHAUN R. THOMPSON 

and RICHARD L. PARISH, 

d/b/a HARLEN, THOMPSON & PARISH, a. pa.rtnership, 

Plaintiffs and Appellants, 

vs. 

THE CITY OF HELENA, a political subdivision 

of the State of Montana. 

Defendant and Respondent. 

Dated: 6, 1985 
Mr. Justice Daniel J. Shea, specially concurring: 

I specially concur with the m.ajority. While 1 agree 

pl.ainti.ffs are entitled to the relief they seek, I would 

grant it based not only on the clear constitutional. premise, 

but also upon the broader public policy consideration that 

the practice of law is not a permissible area of 

consideration within the scope of municipal regulation. 

For example, 5 7-1-111, MCA provides in relevant part: 

"Powers denied. A local government unit with 

self-government powers is prohibited the exercise 

of the following: . . .(11) any power that applies 

to or affects the standards of professional or 

occupational competence esta-biished pursuant to 

Title 37 (professions and occupations) as 

prerequisites to the carrying on of a profession or 

occupation;" 

Therefore there is preclusion even without reaching the 

constitutional prohibition. 

Similarly, in S 7-1-113, MCA: 

"Consistency with state regulation required. (1) 

A local government with self-government powers j.s 

prohibited the exercise of any power in a manner 

inconsistent with state law or administrative 

regulation in any affirmatively subjected by law to 

state regulation or control." 

Even more clearly dispositive is the code section 

speci.fica1.l.y ad-vanced by plaj.ntiffs, section 37-61-211, MCA: 

"Annual license tax-municipal tax prohibited . . . (3) No license tax shall be imposed upon attorneys 

by a munici.palitv or any other subdivisi-on of the 

state. " 

The majority made reference to 39 Op. Atty. Gen. No. 60 

(1982) , which provides that any state statute standing alone 

does not prevent self-governing bodies from licensing 

professions unless the statute was made specifical-ly 

applicah1.e to the sel-f-governing body. An opin.ion of the 

Attorney General i.s just that--an opinion. It does n.ot 
diminish the statute. Further, the statut-ory language is 

clear and unambiguous. Tt is unreasonable to read the 

statute to be applied to non-self-governing bodies. 

Therefore, for the reason relied on by the majority, and 

for the reasons stated here, I would also reverse.