"Section 4. General Powers. (1) A local government unit without self-government powers has the following general powers:

(a) An incorporated city or town has the powers of a municipal corporation and legislative, administrative, and other powers provided or implied by law.

(b) A county has legislative, administrative, and other powers provided or implied by law.

(c) Other local government units have powers provided by law.

(2) The powers of incorporated cities and towns and counties shall be liberally construed"

History

Sources

Local Government Committee

The 1889 Montana Constitution did not include a provision explicitly addressing local government powers. The result was that constitutional silence, rather than constitutional language, had become the basis for local government authority across the state. Local Government Committee Proposal No. XI, 18:21-24 (Feb. 1972). Consequently, the Local Government Committee of the 1972 Montana Constitutional convention took it upon themselves to draft express constitutional wording to clarify the important question of the power relationship between the state and local governments. In doing so, the committee sought to distinguish between self-government units and other units, as well as to change the traditional power relationship between the state and its local units. Local Government Committee Proposal No. XI, 18:24-30 (Feb. 1972).

Drafting

Local Government Committee Proposal

On February 19, 1972, the Local Government Committee led by Oscar Anderson and Virginia Blind proposed the following language to address the power relationship between state and local governments in the form of Article XI, Section 4:

“Section 4. General Powers. Local government units not exercising self government powers under Sections 5 and 6 shall have the following general powers:

(1) Incorporated cities and towns shall have the powers of a municipal corporation and such legislative, administrative and other powers as provided or implied by law.

(2) Counties shall have such legislative, administrative and other powers as provided or implied by law.

(3) The powers of incorporated cities and towns and counties shall be liberally construed.

(4) Other local government units shall have such powers as provided by law.”

Local Government Committee Proposal No. XI, 17:26-30, 18:1-7.

The Local Government Committee provided detailed notes articulating their intentions behind including this language in the new Montana constitution, and broke the section into four parts – cities and towns, counties, other local units, and general comments.

Cities and Towns

Subsection 1 of Section 4 generally restates the then-existing powers of Montana cities and towns. The then-existing powers of Montana cities and towns was based in large part on the “Dillon Rule,” named after a 19th century Iowa judge. Local Government Committee Proposal No. XI, 19:7-10. The Dillon Rule states in pertinent part:

“It is a general and undisputed proposition of law that a municipal corporation possess and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly gratned; third, those essential to the accomplishment of the decalred objects and purposes of the corporation, -- not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied. Of every municipal corporation the charter or statute by which it is created is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability, not authorized thereby, or by some legislative act applicable thereto. All acts beyond the scope of the powers granted are void.”

John F. Dillon, Commentaries on the Law of Municipal Corporations, 5th ed., vol. 1, pp. 142-143.

With Montana courts repeatedly citing the Dillon Rule in determining the powers of Montana cities and towns, the Local Government Committee sought to expand Montana courts’ interpretation of the powers of incorporated cities and towns so as to allow those cities and towns increased control over local affairs without granting limitless power to incorporated cities and towns. Local Government Committee Proposal No. XI, 20:2-6. The Committee was careful to note that in proposing this language, they were not attempting to upset the current power dynamic between the state and cities and towns, but instead wanted to “give cities and towns more elbow room to act,” and to encourage Montana courts to “give the benefit of the doubt” to cities and towns whose actions have come under judicial scrutiny. Local Government Committee Proposal No. XI, 20:8-11. Additionally, the Committee noted that under the proposed section, the legislature possesses the latitude to grant considerably more freedom to cities and towns to exercise increased control over their local concerns and affairs. Local Government Committee Proposal No. XI, 20:12-15.

Counties

Section 4, subsection 2 allows grants of legislative powers to counties to occur through the legislature. However, subsection 2 does not by itself grant any power to Montana counties. Local Government Committee Proposal No. XI, 22:1-3. In choosing to include this language in Section 4, the Local Government Committee noted the separation of powers concerns that exist in granting counties additional legislative powers. Despite these concerns, the Local Government Committee believed the legislature was capable of creating safeguards in any grant of legislative powers to counties to guard against separation of powers abuses. Local Government Committee Proposal No. XI, 21:22-30. The Local Government Committee noted that by including this language – and through subsequent action in the legislature – Montana’s quickly developing cities and towns would be able to combat the problems of urban sprawl, including but not limited to the problem of overlapping governmental jurisdictions and special districts. Local Government Committee Proposal No. XI, 22:4-11.

Other Local Units

The Local Government Committee notes that Section 4 grants the legislature the power to establish special districts which provide special functions, as well as the power to assign municipal-corporation or county-type powers to city-county consolidated governments. Local Government Committee Proposal No. XI, 22:15-18.

General Comments

The Local Government Committee clarifies the intent of Section 4 in the general comments, indicating the purpose of the section is to “provide that units of local government not adopting self-government powers will not be crippled in meeting local needs.” Local Government Committee Proposal No. XI, 22:21-22. The Committee further clarifies their intent to undo previous decisions of the state Supreme Court, noting “the powers of incorporated cities, towns and counties are to be ‘liberally construed’ and counties may be allowed to exercise legislative powers – something the court has said they may not do under the present Constitution.” Local Government Committee Proposal No. XI, 22:22-26. Lastly, the Local Government Committee notes Section 4 is not a broad grant of self-government powers to counties, towns, and cities, and directs readers to Section 6 of Article XI for such grants. Local Government Committee Proposal No. XI, 22:27-30.

Ratification

1972 Voter Pamphlet Explanation

“[Article XI, Section 4 allows the] legislature to grant legislative, administrative and other powers to local government units.”

Interpretation

Granite County v. Komberec, 245 Mont. 252, 257 (1990)

Under liberal construction of a county’s general powers granted under Mont. Const. Art. XI, § 4 and its power to acquire roads by eminent domain or petition as authorized by statute, the county had standing to maintain an action on behalf of the public for acquisition of a road by prescription.

Associated Students of the Univ. of Mont. v. City of Missoula, 261 Mont. 231, 235 (1993)

Given that the Montana legislature has granted municipalities the statutory authority to create parking restrictions pursuant to statute, and that Mont. Const. art. XI, § 4(2) also grants this authority to municipalities, a city had appropriate authority to enact parking district restrictions that limited certain parking to residents instead of students. Mont. Const. art. XI, § 4(2) supports a liberal construction of powers granted to local municipalities by the legislature.

Tocci v. Three Forks, 216 Mont. 159, 163 (1985)

A municipality’s power to tax and levy assessments warrants special consideration apart from the Mont. Const. art. XI, § 4(2) general mandate that powers of incorporated cities be liberally construed.

Commentary