                                       No. 84-334
                    IN THE SUPREME COURT OF THE STATE OF MONTANA
                                            1985



DAN BUKVICH, KATIE MURRAY, and
LEO JACOBSEN,
                                Plaintiffs and Respondents,


BUTTE-SILVER BOW, a political
subdivision of the State of
Montana, and DONALD R. PEOPLES,
its Chief Executive, et al.
                                Defendants and Appellants.




APPEAL FROM:            District Court of the Second Judicial District,
                        In and for the County of Silver BWJ,
                        The Honorable Nat Allen, Judge presidinq.

COUNSEL OF RECORD:

      For Appellants:
                        Robert M. McCarthy argued, County Attorney, Butte,
                        Montana: Ross P. Richardson argued, Deputy County
                        Atty., Butte, Montana
      For Respondents:
                        John J. Jardine argued, Whitehall, Montana



                                        Submitted:    January 23, 1985
                                          Decided :   March 8, 1985


Filed:
         r\qfi K   1)   '1985



                                                              -
                                        Clerk
I . Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


     This case is before this Court a second time.           In LTuly
1981,     the   respondents,      several   elected    officials    of
Butte-Silver Bow, sought a writ of mandate in the District
Court to compel the appellants, Butte-Silver Bow, to pay them
salaries in accord with the schedu1.e of salaries used to
determine the Butte-Silver Bow 1980-81 fiscal budget.              The
appellants,     claiming   that   the   budget   figures were      only
estimates and not an amount required to he paid, successfully
moved to quash the petition for writ and to dismiss.               The
respondents then appealed from that District Court order.
     This Court was unable to make a determination on that
appeal because the record was incomplete as to the nature of
the budget resolution and the manner in which it passed.           The
resulting disposition was a remand for further hearing on
that matter.     See, Bukvich v. Butte-Silver Row (Mont. 1982),
650 P.2d 783, 39 St.Rep. 1727.
     On remand the District Court held for the respondents
and required the appellants to pay the salary figure used to
determine the budget.      This appeal followed.
    We address two issues that are presented for review:
     1.     Whether a      local government with      self-government
powers has the power to revise a salary schedule as it is set
forth in a final budget if such revisior is done in accord
with the applicable laws.
     2.    O7hether Butte-Silver Bow, as a local government with
self-government powers, revised the salary schedule set forth
in its final budget in accord with the applicable law.
          We find that the first issue must be answered in the
affirmative, but the second issue must be answered in the
negative.       We, therefore, affirm in part and reverse in part.
          Butte-Silver Bow is a charter form of government.             A
charter form of government possesses self-government powers,
S 7-3-702, MCA, and it may exercise any power not prohibited

by the constitution, law, or charter.              Section 7-1-101, MCA.
However, the        budget    matters   of   a   local government with
self-government powers are governed by state law.                  Section
7     -    4g   , MCA.     County budget matters are governed by S S
5-6-2301        through    7-6-2352, MCA,    and    municipality   budget
matters are governed by SS 7-6-4201 through 7-6-4255, MCA.
          Butte-Silver Bow is neither a county nor a municipality.
T t   is a consolidated government.          A consolidated government
must      adopt either      the county or municipality provisions
whenever the existing provisions conflict.              Section 7-5-201,
MCA.       Butte-Silver Bow did adopt provisions regulating their
budget matters.          Ordinance 39, adopted by Butte-Silver Bow in
1977, established the budget procedures for Butte-Silver Bow.
This adopted procedure is essentially the same as S 7-6-4201
through 7-6-4255, MCA, the municipal budget law, and, as far
as is relevant to this case, the adopted provisions are in
accord with the Montana law qoverning budget matters.
          The code section and the ordinance section that govern
budget matters and that apply to the salary issue here state
that upon a resolution adopted by the council at a regular or
special meeting and entered upon its minutes, transfers or
revisions within the general class of salaries and wages in
the budget appropriation may be made, provided that no salary
shall be increased above the amount appropriated therefor.
Section     7-6-4236, MCA;        Butte-Silver       Bow Ordinance       39,    §

8 (1) (1977) .
     We find that a local government with self-governmelit
powers may revise a salary schedule that has been set forth
Sn the final budget if such revision is done in accord with

the applicable law.          We find that Butte-Silver Eow, as a
local government with self governrent powers, has adopted
lawful procedures for such revision.
     While we find that Butte-Silver Bow has adopted lawful
procedures and has the power to amend the final budget salary
schedule, we find that the facts of this case are such that
the attempted revision was not in accord with                       law.       An
analysis of the facts demonstrates this:
     Butte-Silver Bow became a consolidated government in
1977.      The Rutte-Sil-ver Bow Charter temporarily                    set the
salaries for elected officials for the initial term.                        All
salaries were to be subsequently set by ordinance.                      In July
1980, several of the respondents, elected officials, formally
requested        that   their     salaries      be     increased.          These
respondents argued         that    they   had    not    received    a    salary
increase    since       1977 while    rmny      appointed   officials       had
received salary increases.
     The Butte-Silver Bow governing committee recognized this
formal request, discussed the matter at a meeting, and passed
a motion granting the salary increase to begin January 1,
1981, and to be effective through June 30, 1981.                        At this
same time Butte-Silver Bow was in the process of adopting its
final budget and in Resolution 325, the final approval of the
1980-81 fiscal budget, the salary increases were specifically
included.
     Then,      on    March    1.8,      1981,   the     commissioners   passed
Ordinance 134.         This ordinance fixed the salaries for the
respondents beginning January 5, 1981.                    These salaries were
less than the appropriations contained in the final budget.
     We find that this salary revision is more than merely a
revision   of    the    salary          schedule contained in      the     final
budLget.   When Butte-Silver Bow adopted the proposed salary
increase by motion, set the specific amount, and set specific
effective dates, and then included the increase in the final
budget, such salary became fixed for that period and caul-d
not subsequently be revised.
     The     dispcsition           in    the     above    issue   renders    it
unnecessary for this Court to address whether the wholesale
adoption of one party's proposed                    findings of fact by the
District     Court     is     an      abuse    of    discretion   or     clearly
erroneous.
     Insofar as the District Court held that Butte-Silver Row
has no power to amend salary figures used in a final budget,
we reverse.          Insofar as the District Court held that the
procedure used in this instance was not lawful, we affirm.
The award of salaries and attorney's fees shall stand.
     Affirmed in part and reversed
We Concur:
 -
 .




u ~ h i e f
          Justice J. A . Turnage concurring in part and dis-
senting in part:
     The majority decision correctly finds that Butte-Silver
Bow, a local aovernment with self-government powers, lawfully
followed budget proced-ures and hzs the power to amend final
budget. salary schedules, which is precisely what Butte-Silver
Bow did in this case.
     That portion of the majority decision that affirms the
District Court award of salaries in an amount different than
the salaries provided      for in Ordinance   134 and awarding
attorney fees to respondents I would reverse.
     The majority opinion, if it shou.ld be viewed as prece-
dent, places an unwarranted burden on a consolidated. govern-
ment by forcing the governing body to precisely determine
salaries, s.nd perhaps other expenditures as well, when the
budget is adopted on the second Monday in August of each
year, notwithstanding the authority of the governing body to
approve and adopt a resolution amending a final budget as
provided by S 7-6-4231(3), K C R .
     If, in the future, the majority opinion should be cited

as precedent as to the portions thereof affirming the Dis-
trict Court, a majority of the Court hopefully then will note
the problem of - sequitur concerning the facts and the law
               non
and view this case as an isolated instance of the common law
Mr. Justice Fred J. Weber dissents as follows:
     I respectfully dissent from the majority opinion.    That
opinion is based upon the action of the Butte-Silver Bow
governing committee in passing a motion granting a salary
increase from January 1, 1981, through June 30, 1981, and the
adoption of Resolution 325 covering the fiscal budget includ-
ing the same salary increases.     The majority concludes that
these actions constitute a fixing of the salaries which could
not be revised.       No specific authority was given for that
conclusion, and I find none in the Charter of Butte-Silver
Bow or in the statutes.
     Section 3.02(h) of the Butte-Silver Bow Charter provides
as follows with regard to salaries of elected officials and
other compensation:
            " (h)   COMPENSATION
            "The council of commissioners shall set
            by ordinance the annual salary of its
            members, the salaries of all other elect-
            ed officials, and the number and salaries
            of the assistants of all other elected
            officials. "
In accordance with the Charter provision, the council of
commissioners adopted Ordinance 134 on March 18, 1981, which
set the salaries of the plaintiff government officials.   That
action was not a revision of the budget but an adoption of
salaries as required under the Charter.    I can find no basis
for disregarding the determination of salaries by Ordinance
134 adopted pursuant to Charter requirements for the fixing
of salaries.
     I would reverse the District Court.




      I join in the foregoing dissent of Mr. J

J. Weber.
