"A local government unit adopting a self-government charter may exercise any power not prohibited by this constitution, law, or charter. This grant of self-government powers may be extended to other local government units through optional forms of government provided for in section 3."

History

Sources

1889 Constitution

Article XVI — Municipal Corporations and Officers

Section 1. The several counties of the territory of Montana, as they shall exist at the time of the admission of the State into the Union are hereby declared to be the counties of the State until otherwise established or changed by law.

Section 2. The Legislative Assembly shall have no power to remove the county seat of any county, but the same shall be provided for by general law; and no county seat shall be removed unless a majority of the qualified electors of the county, at a general election on a proposition to remove the county seat, shall vote therefor; but no such proposition shall be submitted oftener than once in four years.

Section 3. In all cases of the establishment of a new county it shall be held to pay its ratable proportion of all then existing liabilities of the county or counties from which it is formed, less the ratable proportion of the value of the county buildings and property of the county or counties from which it is formed; Provided, That nothing in this section shall prevent the re-adjustment of county lines between existing counties.

Section 4. In each county there shall be elected three county commissioners whose term of office shall be four years. A vacancy in the board of county commissioners shall be filled by appointment by the district judge of the district in which the vacancy occurs.

Section 5. There shall be elected in each county the following officers: One county clerk, who shall be clerk of the county commissioners and ex officio recorder; one sheriff; one treasurer, who shall be collector of taxes; Provided, that no person shall hold the office of county treasurer for more than two consecutive terms; one county superintendent of schools; one county surveyor; one assessor, one coroner; one public administrator. Persons elected to the different offices named in this section shall hold their respective offices for the term of two years, and until their successors are elected and qualified. Vacancies in all county, township and precinct offices, except that of county commissioners, shall be filled by appointment by the board of county commissioners, and the appointee shall hold his office until the next general election.

Section 6. The Legislative Assembly may provide for the election or appointment of such other county, township, precinct and municipal officers as public convenience may require and their terms of office shall be as prescribed by law, not in any case to exceed two years, except as in this constitution otherwise provided.

Article XIX - Miscellaneous Subjects and Future Amendments

Section 6. All county officers shall keep their offices at the county seats of their respective counties.

Drafting

Original Version

On February 2, 1972, Delegate Thomas M. Ask introduced Delegate Proposal No. 97 - "Local Government" with the following language:

"Section 5. Self-Government Powers. Local government units adopting charters under the provisions of section 4 may exercise all legislative powers not prohibited by this Constitution, by law or by charter." Montana Constitutional Convention Proceedings, 1971-1972 Vol. I, 216.

Amended Version

On February 19, 1972, the Local Government Committee proposed an amended version:

"Section 6. Self-Government Powers. Local government units adopting self-government charters may exercise all powers not prohibited by this Constitution, by law or by charter. This grant of self-government powers may be extended to other local government units through optional forms of government provided for in section 3." Montana Constitutional Convention Proceedings, 1971-1972 Vol. II, 783.

This language was accompanied by a letter written by the Chairman of the Local Government Committee, Oscar L. Anderson, and Vice-Chairman, Virginia H. Blend, to the Montana Constitutional Convention. The committee unanimously agreed to propose a replacement of Article XVI - "Counties - Municipal Corporations and Offices", in its entirety, to allow for greater flexibility. Initially, the committee was in general disagreement as to how to best achieve this goal. However, the committee concluded:

"This proposal tends to work with the existing local government structure of the cities, towns and counties and seeks to achieve improvement by encouraging experimentation in local government powers and form." Montana Constitutional Convention Proceedings, 1971-1972, Vol. II, 780.

Further, the proposal was adopted after consideration from nearly three-thousand (3,000) citizen suggestions, and nineteen (19) delegate proposals. Montana Constitutional Convention Proceedings, 1971-1972, Vol. II, 780-781.

In discussing Section 6 to the Convention on March 16, 1972, Delegate Lucile Speer explained:

"Section 6 is intended to authorize certain limits; local units to have considerably more freedom to determine their local affairs, but they are limited on the one hand to the fact that they could exercise these broad powers only if they had framed and adopted charters, and then they are also limited by the fact that they would have to be approved by the votes. This is a new concept in local government powers."

She continued:

"The functions performed by local government have been extended far beyond local boundary levels, and therefore local governments cannot properly exercise the functions that they are called upon to do when limited to only local powers. Therefore, we want to give them, in this Section 6, power to share with the state government the power to provide certain services that are needed." Verbatim Transcript 2529 (March 16, 1972).

Delegate Speer further highlighted the problem of air pollution, which is not limited to a local area. Despite this, the local area has a responsibility to perform a function in cooperation with the state and region to combat this issue. The question of Section 6 is not a delegation of power that limits local government, but a question of the local government sharing power with the state. Ultimately, the Committee on Local Government proposed two (2) limitations be implemented through Section 6: (1) only local governments that have framed their own charter may act; (2) the Legislature can enact a law, at any time, to restrict local government power or preempt an area if the local government exceeded power in an improper area. Verbatim Transcript 2529 (March 16, 1972).

Final Version

Section 6. Self-Government Powers. A local government unit adopting a self-government charter may exercise any power not prohibited by this Consitution, law, or charter. This grant of self-government powers may be extended to other local government units through optional forms of government provided for in section 3. Montana Constitutional Convention Proceedings, 1971-1972, Vol. II, 1074.

On March 30, 1972, the Delegates specifically adopted Section 6 by roll call vote of eighty-five (85) delegates voting Aye and zero (0) delegates voting No. Verbatim Transcript 2839 (Mar. 20, 1972).

Article XI, Local Government (including all nine subsections) was unanimously adopted with no discussion on March 22, 1972. Verbatim Transcript 2928 (Mar. 22, 1972).

Ratification

1972 Voter Pamphlet Explanation

"[The New Provision of Article XI, Section 6] allowing [the] local government units to share powers with the state and to have all powers not specifically denied. At present local governments have only those powers specifically granted." Available at http://www.umt.edu/law/library/files/1972voterspamphlet.

Interpretation

American Cancer Society v. State

In American Cancer Society v. State, 325 Mont. 70 (2004), the Montana Supreme Court interpreted Article XI, Sections 4 and 6 of the Montana Constitution. In the case, four charter government cities with self-governing powers (Bozeman, Great Falls, Helena, and Missoula) adopted local ordinances limiting or prohibiting the smoking of tobacco products in buildings open to the public. American Cancer Society, ¶ 7.

Following, the city of Helena adopted an ordinance that applied to premises with state licenses for the operation of video gambling machines. As a result, the Montana Legislature enacted House Bill 758, which imposed a surcharge on video gambling machines and exempted establishments that had video gambling machines on the premises from local government smoking ordinances that were more stringent than the Montana Clean Indoor Air Act. American Cancer Society, ¶ 7.

The issue of this case was whether House Bill 758 was unconstitutional under Article XI, Section 6, among other constitutional provisions. Specifically, as the Court stated, "The question we must address is whether this exemption constitutes an express prohibition that forbids local governments with self-government powers from acting in a certain area." American Cancer Society, ¶ 12.

In resolving the issue, the Court first determined whether an exemption is the same as a prohibition. Ultimately, it found that "to exempt is not to prohibit," as a prohibition denies the initial power to act. American Cancer Society, ¶ 15. Therefore, the Legislature did not enact an express prohibition of self-governing powers and was not violative of Article XI, Section 6. American Cancer Society, ¶ 16.

City of Missoula v. Armitage

In City of Missoula v. Armitage, 376 Mont. 448 (2014), the Montana Supreme Court once again addressed Section 6. The issue before the Court was whether the City of Missoula had the authority to enact ordinances creating a misdemeanor penalty for the refusal to submit to a requested breath test. City of Missoula, ¶ 3.

In 1997, the city of Missoula adopted a self-government charter. City of Missoula, ¶ 14. As discussed in American Cancer Society and adopted by Section 7-1-101 of the Montana Code Annotated, "the authority of a local government with self-government powers can be limited by express prohibitory language." City of Missoula, ¶ 17. The Court noted that there is state law prohibiting local governments with self-government powers from acting in several specific areas, such as public education, professional and occupational licensing, and unemployment and worker's compensation in compliance with Section 7–1–111 of the Montana Code Annotated. However, driving under the influence was not included in that list. City of Missoula, ¶ 17.

The Court held the city of Missoula's ordinances, imposing misdemeanor felonies and fines for driving under the influence, were not less stringent than state law allowing license suspension and therefore consistent with Section 6. City of Missoula, ¶ 22.

Commentary

In the drafting process, the Committee on Local Government commented:

"In effect, section 6 grants to local units the authority to share powers with the state government--a form of what generally has become known as "home rule." The local government committee, however, has studiously avoided this term, preferring to call the grant of authority, "self-government powers." Montana Constitutional Convention Proceedings, 1971-1972, Vol. II, 796-797.

Continued:

"Section 6 is intended to authorize certain local units to have considerably more freedom in determining their local affairs. Under the present Montana Consitution--and under general authority authorized in section 4 of this proposal--local units would have only those powers granted or directly implied by the legislature. The provisions of section 6, on the other hand, would reverse this situation: self-government units would able to exercise all powers that their charters, the legislature or the Consitution did not prohibit." Montana Constitutional Convention Proceedings, 1971-1972, Vol. II, 797.

The Committee further commented on the concern for local powers in the area of taxation. The committee explained a self-government unit could exercise all taxation power not denied by the Constitution, by law or charter. While this was an apparent concern by the Committee and the Convention, it nevertheless serves a practical purpose because the Legislature could still prohibit self-government units from imposing taxes over a certain amount. Montana Constitutional Convention Proceedings, 1971-1972, Vol. II, 798.