                         No. 82-225
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                              1982


PAT M. 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:
           John W. Larson argued, Helena, Montana
      For Defendants:
           Michael Young argued, Helena, Montana


                               Submitted:   September 9, 1982
                                 Decided:   October 7, 1982

Filed:   06:T 7 - 1382
Mr.  J u s t i c e Frank B. Morrison, J r . , d e l i v e r e d t h e Opinion
of t h e C o u r t .

         I n t h i s o r i g i n a l proceeding, p e t i t i o n i n g S t a t e Senators

s e e k a d e c l a r a t o r y judgment t h a t House B i l l 872 (amending

s e c t i o n s 5-17-101       and 5-17-102,            MCA, d e a l i n g w i t h t h e

C a p i t o l r e n o v a t i o n program) v i o l a t e s t h e Montana C o n s t i t u -

t i o n and s e v e r a l Montana s t a t u t e s .            Defendants d e n i e d a l l

s t a t u t o r y and c o n s t i t u t i o n a l v i o l a t i o n s and moved f o r a

summary judgment i n t h e i r b e h a l f .                 W e g r a n t t h e prayer of

p e t i t i o n e r s f o r a d e c l a r a t o r y judgment and i s s u e a n i n j u n c -

t i o n a g a i n s t f u r t h e r proceedings with r e s p e c t t o t h e C a p i t o l

remodeling, u n t i l t h e c o n s e n t o f t h e l e g i s l a t u r e a s a whole

h a s been o b t a i n e d f o r r e l o c a t i o n of t h e S t a t e S e n a t e

chambers.

        On May 1, 1981, Governor Schwinden approved House B i l l

872 (now c o d i f i e d a s s e c t i o n 5-17-101,                M C A ) , which doubled

t h e membership on t h e C a p i t o l B u i l d i n g and P l a n n i n g Commit-

t e e and p r o v i d e d t h a t t h e committee was t o s e r v e a s t h e

l e g i s l a t u r e ' s r e p r e s e n t a t i v e i n p l a n n i n g t h e remodeling o f

the Capitol.            The b i l l gave t h e committee t h e r i g h t t o

"decide.        .   . t h e a l l o c a t i o n and u s e of s p a c e i n t h e c a p i t o l ,

i n c l u d i n g w i t h o u t l i m i t a t i o n t h e l o c a t i o n of l e g i s l a t i v e

chambers        . . ." ( s e c t i o n 5-17-102(4),               MCA; emphasis a d d e d ) .

        The c o n t r o v e r s y s u r r o u n d s a proposed move of t h e S e n a t e

chambers from i t s p r e s e n t l o c a t i o n t o t h e s p a c e now o c c u p i e d

by t h e law l i b r a r y .        The committee h a s a u t h o r i z e d a move.

P e t i t i o n e r s , who s e e k t o b l o c k t h e move, have r a i s e d s e v e r a l

i s s u e s on a p p e a l .     They a r e :

         (1) Does t h e power d e l e g a t e d t o t h e committee v i o l a t e

Art.    111, Sec.         1, o r A r t .     V,   Sec. 9 , of t h e Montana C o n s t i -

t u t i o n o r Montana s t a t u t e s ?
         (2)     Does t h e Department of A d m i n i s t r a t i o n have a u t h o r i t y

under s e c t i o n 2-17-101,            MCA,    t o a l l o c a t e space f o r t h e

l e g i s l a t i v e b r a n c h of government?

         (3)     Did t h e l e g i s l a t u r e s u f f i c i e n t l y approve t h e

r e n o v a t i o n program s o t h a t any u n c o n s t i t u t i o n a l d e l e g a t i o n

of a u t h o r i t y t o t h e committee would b e moot?

        W w i l l d i s p o s e of t h e t h i r d i s s u e f i r s t .
         e                                                                        Defendants

c o n t e n d t h a t l e g i s l a t i v e c o n s e n t under s e c t i o n 18-2-102,

MCA, may t a k e two forms: a j o i n t r e s o l u t i o n when a money

appropriation i s not required; a l e g i s l a t i v e appropriation

when f u n d s a r e r e q u i r e d .      Defendants a r g u e t h a t t h e l e g i s -

l a t u r e c o n s e n t e d t o t h e proposed move of t h e S e n a t e chambers

by a p p r o p r i a t i n g t h e money and a u t h o r i z i n g t h e s a l e of long-

r a n g e bonds.       P e t i t i o n e r s argue t h a t the l e g i s l a t u r e d i d n o t

s u f f i c i e n t l y approve t h e r e n o v a t i o n program and t h a t i t was

t h e S e n a t e ' s i n t e n t t o consider t h e m a t t e r f u r t h e r i n January,



        S e c t i o n 18-2-102(1),         MCA, p r o v i d e s i n p e r t i n e n t p a r t :

                " A u t h o r i t y t o c o n s t r u c t b u i l d i n g s . (1).   ..
                a b u i l d i n g c o s t i n g more t h a n $25,000 may n o t
                be c o n s t r u c t e d w i t h o u t t h e c o n s e n t of t h e
                l e g i s l a t u r e . When a b u i l d i n g c o s t i n g more
                t h a n $25,000 i s t o be f i n a n c e d i n s u c h a
                manner as n o t t o r e q u i r e l e g i s l a t i v e appro-
                p r i a t i o n of moneys, such c o n s e n t may b e i n
                t h e form of a j o i n t r e s o l u t i o n . "

        " C o n s t r u c t i o n " i s d e f i n e d i n s e c t i o n 1 8 - 2 - 1 0 1 ( 3 ) , MCA,

a s i n c l u d i n g t h e remodeling of a b u i l d i n g .             W e interpret the

above s t a t u t e t o r e q u i r e l e g i s l a t i v e c o n s e n t of a remodeling

p r o j e c t t o c o s t i n e x c e s s of $25,000 and t h a t such l e g i s -

l a t i v e c o n s e n t may t a k e t h e form of a n a p p r o p r i a t i o n of

money o r a j o i n t r e s o l u t i o n .       Here t h e r e was an a p p r o p r i a -

t i o n f o r t h e remodeling p r o j e c t . However, w e must d e t e r -

mine w h e t h e r , by s u c h a p p r o p r i a t i o n , t h e l e g i s l a t u r e i n -

t e n d e d t o approve r e l o c a t i o n of t h e S e n a t e 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 relocation of 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, we must determine whether the legislature could
constitutionally delegate to the Capitol Building and Plan-
ning Committee, the authority to "decide" location of legis-
lative 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
committee which has power to make substantive decisions.
Defendants contend that the delegation of power to the
committee is only to "recommend."
     Section 5-17-102(4), MCA, gave the committee power 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
..   .location of legislative chambers          . . ."
     In looking for legislative intent, we honor the pre-
sumption that the statute is constitutional.             In T   &   W
Chevrolet v. Darvial (1982),                Mont .     , 641 P.2d 1368,
39 St.Rep. 112, we said:         ".   .   .every intendment in its
[constitutionality of a statute] favor will be made unless
its unconstitutionality appears beyond a reasonable doubt."
641 P.2d at 1370.
     The Montana State Senate, a distinguished, honorable,
and independent arm of the legislative body, has the right
to determine where it will sit.   Pursuant to section 5-17-
101, MCA, a long-range building committee was established
consisting of six members 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-voting member.
By enacting section 5-17-102, MCA, the legislature granted
this committee, consisting in part of persons who were not
members of the legislature, the right to make a decision on
location of legislative chambers.   However, section 5-17-
103, MCA, requires that the decision be reported back to the
legislature.   That statute provides in part:   "The committee
shall prepare a written report of its activities and
recommendations and present the report to the legislature
at each regular session."   (Emphasis added.)   Certainly this
statute does not mandate a useless act.    It must anticipate
legislative confirmation.   If that is true, then the legis-
lature must 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 inter-
pretation is consistent with the mandate expressed in sec-
tion 5-17-103, MCA.
     In this case, the committee has, pursuant to section 5-
17-102(4), MCA, decided that the Senate chambers shall be
moved.   The committee now 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.
        Since we 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 Department of Ad-
ministration has authority, pursuant to section 2-17-101,
MCA, to allocate space for the legislative branch of govern-
ment.     Defendants argue that pursuant to a recommendation of
the committee, the Department of Administration has validly
made such an allocation.

        Section 2-17-101, MCA, provides:
             "Allocation of office space. The department
             of administration shall periodically survey
             the needs of state agencies located in Helena
             and shall assign space in state office build-
             ings to such agencies. No state agency shall
             lease, rent, or purchase property for quarters
             in Helena without prior approval of the depart-
             ment. "
        We hold that the legislature is not a "state agency."
The Department of Administration can allocate space for the
legislative branch of government, but the legislature, being
an independent body, 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 is powerless to allocate space for the
Senate chambers.
        In accordance with this opinion we grant declaratory
judgment to petitioners and issue an injunction against
relocation of the Senate chambers until consent has been
obtained from the legislature.




We concur:
Mr. C h i e f J u s t i c e F r a n k I . Haswell, d i s s e n t i n g :

           I dissent.           I would h o l d t h a t t h e p r o c e d u r e s f o l l o w e d

by      t h e committee and l e g i s l a t u r e i n t h i s c a s e were s u f f i -

cient         t o p a s s c o n s t i t u t i o n a l muster    and    that     the consent

s t a t u t e was f u l l y c o m p l i e d w i t h .

           Legislative          consent       may       take    the   form      of      a   money
appropriation             or    joint     resolution.             Section      18-2-102(1),

PICA.      The m a j o r i t y c o n c e d e s t h a t h e r e t h e r e was a n a p p r o p r i -
a t i o n b u t t h e n g o e s beyond t h e c l e a r l a n g u a g e o f t h e s t a t u t e
t o e x a m i n e a n o t h e r s t a t u t e , s e c t i o n 5-17-102,     MCA.        The s o l e

c o n t r o l l i n g s t a t u t e on t h e q u e s t i o n of    legislative consent
is      section       18-2-102(1),         MCA,     which       provides      in pertinent
part:

                    "(1)     . . .       a b u i l d i n g c o s t i n g more t h a n
                    $ 2 5 , 0 0 0 may n o t b e c o n s t r u c t e d w i t h o u t
                    t h e c o n s e n t of t h e l e g i s l a t u r e .    When a
                    b u i l d i n g c o s t i n g more t h a n $ 2 5 , 0 0 0 i s t o
                    b e f i n a n c e d i n s u c h a manner a s n o t t o
                    require legislative appropriation of
                    moneys, s u c h c o n s e n t may b e i n t h e f o r m
                    of a j o i n t r e s o l u t i o n . "
           A s i s a p p a r e n t f r o m r e a d i n g s e c t i o n 18-2-102,        MCA,   the

l e g i s l a t u r e may c o n s e n t b y e i t h e r a money a p p r o p r i a t i o n o r a
joint resolution.                The m a j o r i t y ' s a c t i o n f l i e s i n t h e f a c e

of      the     unambiguous        words      of    that       statute.        It    does      not
require          that    any o t h e r    statute        be    consulted      t o determine

whether l e g i s l a t i v e c o n s e n t h a s been g i v e n and t h e o f f i c e o f
a j u d g e is n o t t o i n s e r t w h a t h e t h i n k s h a s b e e n o m i t t e d i n

a statute,           s e c t i o n 1-2-101,     MCA.      Also, l e g i s l a t i v e consent
i n t h e p a s t h a s t a k e n t h e form o f a n a p p r o p r i a t i o n of f u n d s ,

e.g.,      t h e a p p r o p r i a t i o n o f money f o r t h e N e w J u s t i c e B u i l d -
ing.
           The l e g i s l a t u r e h e r e g a v e i t s i n f o r m e d c o n s e n t t o mov-

i n g t h e s e n a t e chambers t o t h e l o c a t i o n p r e s e n t l y 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 para-
graph 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 unconstitutional
delegation 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 argu-
ment, 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 are
n o t h o l d i n g a c l v i i o f f i c e i n contravention of                        A r t i c l e V,

Section        9     and     similarly          find          that,      by    virtue         of     the

recommendation-making                        action           only,      executive             branch

personnel a r e n o t a c t i n g a s l e g i s l a t o r s v i o l a t i n g A r t i c l e V,

S e c t i o n 9.

          The f o c u s o f t h e t h i r d i s s u e i s w h e t h e r t h e D e p a r t m e n t

of A d m i n i s t r a t i o n h a s a u t h o r i t y u n d e r s e c t i o n 2-17-101,            MCA,

t o a l l o c a t e space for the l e g i s l a t u r e .                The m a j o r i t y f i n d s

that     the       legislature         is n o t     a     s t a t e agency        and        that    the

legislature,          being       an    independent             body,      has    the        right    to

d e t e r m i n e where      it w i l l      sit.         I    do n o t q u i b b l e w i t h        the

premise        that    the    legislature has                  the    right      to    select its

meeting        place,       but     that      question          was     not      raised       by     tne

p l e a d i n g s and is n o t a t i s s u e h e r e .

         What       is a t     issue here           is w h e t h e r      t h e Department            of

Adrrunlstration can a l l o c a t e space f o r t n e l e g i s l a t u r e ' s use.

I t i s a common t e n e t o f s t a t u t o r y c o n s t r u c t i o n t h a t s p e c i f i c

s t a c u t e s govern       over      general       statutes.                Section        1-2-102,

FICA,    and       cases    interpreting            it.        The s t a t u t e s p e c i f i c a l l y

a d d r e s s i n g t h i s i s s u e is s e c t i o n 5-17-102(4),                   MCA.      I n my

v i e w , t h a t s t a t u t e and t h e i n t e r p r e t a t i o n o f i t g i v e n a b o v e ,

snould control.              Also,      t h e f a c t t h a t s e c t i o n 2-17-101,               MCA,

g i v e s t h e D e p a r t m e n t o f A d m i n i s t r a t i o n t h e power t o a l l o c a t e

space      for      the     state       agencies          should         not      preclude           the

Gepartment           from    accepting          additional             responsibilities               as
well,     when t o d o s o f a c i l i t a t e s t h e s m o o t h r u n n i n g o f s t a t e

government.            In    the       New    Justice          Building,         the    Department

allocated           space    for       judicial         branch         personnel,            who     are

c l e a r l y n o t members o f t h e e x e c u t i v e b r a n c h and n o t a s t a t e

agency.
        I would g r a n t d e f e n d a n t s '   m o t i o n f o r summary j u d g m e n t .




                                                     Chief J u s t i c e



Mr. J u s t i c e F r e d 3 . Weber:
        I join     i n t h e f o r e g o i n g d i s s e n t of M r .    Chief J u s t i c e
Haswell.
