                             No.   91-462

          IN THE SUPREME COURT OF THE STATE OF MONTANA



CITY OF BoZEMAN, a municipal
corporation and a political
subdivision of the State of Montana,
               Plaintiff and Appellant,


MARC RACICOT, Attorney General for
the State of Montana, and GALLATIN
COUNTY, a political subdivision of
the State of Montana,
               Defendants and Respondents.



APPEAL FROM:   District Court of the First Judicial District,
               In and for the County of Lewis and Clark,
               The Honorable Jeffrey M. Sherlock, Judge presiding.

COUNSEL OF RECORD:
          For Appellant:
               Bruce E. Becker, Bozeman City Attorney, Bozeman,
               Montana
          For Respondents:
               Hon. Marc Racicot, Attorney General, Helena,
               Montana: Peter Funk, Assistant Attorney General,
               Helena, Montana
               Michael Salvagni, Gallatin County Attorney,
               Bozeman, Montana

  ;
                           Submitted on Briefs:   December 12, 1991
Justice Karla M. Gray delivered the Opinion of the Court.

     The City of Bozeman appeals from a decision and order of the
District Court of the First Judicial ~istrict,Lewis and Clark
County.   The District Court's ruling upheld an opinion by the
Attorney General that the board of county commissioners of Gallatin
County, and not the city commission of Bozeman, has final authority
to approve subdivisions that are within the three-mile area
immediately outside Bozeman's corporate limits.   We affirm.
     The issue on appeal is whether the District Court erred in
concluding that Bozeman's city commission does not have final
authority to approve subdivisions that are within the three-mile
area immediately outside Bozeman's corporate limits.
     Bozeman has a commission-manager form of government. It also
is a first-class city, as defined in 5 7-1-4111, MCA.   Bozeman and
Gallatin County created the joint Bozeman City-County Planning
Board in 1957.   The Planning Board's jurisdictional area includes
the area within Bozeman's corporate limits and the area up to four
and one-half miles outside its corporate limits.        Bozeman and
Gallatin County have adopted the same master or comprehensive
development plan and city/county subdivision regulations for the
Planning Board's jurisdictional area.   Both claim final authority
to approve subdivisions within the three-mile area immediately
outside Bozeman's corporate limits ("three-mile areal1).
     Bozeman and Gallatin County jointly requested an opinion of
the Attorney General on the following question:
      Does the board of county commissioners or the city
      commission, pursuant to section 7-3-4444, MCA, have final
      authority to approve subdivisions that are within the
      three-mile area immediately outside the corporate limits
      of the city when it has a commission-manager form of
      government?
The Attorney General answered the question as follows:
      The board of county commissioners has final authority to
      approve subdivisions that are within the three-mile area
      immediately outside the corporate limits of the city when
      the city has a commission-manager form of government.
43 Op. Att'y Gen. NO. 26 (July 20, 1989).
      Bozeman filed a complaint for declaratory judgment seeking to
have the Attorney General's opinion overruled.       It requested the
District Court to order that it has final authority to regulate
subdivisions in the three-mile area under     §   7-3-4444, MCA.   The
court determined that the Attorney General correctly interpreted
§   7-3-4444, MCA, concluding that the statute does not give Bozeman
the claimed extraterritorial authority.     This appeal followed.
       The parties agree that the resolution of this case is strictly
a matter of statutory interpretation.         The District Court's
decision and order will be upheld if the court's interpretation of
the law is correct.     Steer, Inc. v. Dept. of Revenue (1990), 245
Mont. 470, 803 P.2d 601.
       The District Court began its analysis by examining the Montana
statutes which generally define a municipality's authority to
regulate subdivisions beyond its corporate limits.      Section 76-2-
310, MCA, provides in pertinent part:
            (1)   The local city or town council or other
       legislative body which has adopted a master plan pursuant
      to chapter 1 may extend the application of its zoning or
      subdivision regulations, or both, beyond its limits in
      any direction but not in a county which has adopted such
      regulations within the contemplated area.
           (2)  (a) A city of the first class as defined in 7-
      1-4111 may not extend the application of its zoning or
      subdivision regulations, or both, more than 3 miles
      beyond its limits. ...

In addition, 5 76-2-311, MCA, provides:
            (1) Any city or town council or other legislative
      body may thereafter enforce such regulations in the area
      to the same extent, as if such property were situated
      within its corporate limits, until the county board
      adopts a master plan pursuant to chapter 1 and
      accompanying zoning or subdivision resolutions, or both,
      which include the area.
           (2)   As a prerequisite to the exercise of this
      power, a city-county planning board whose jurisdictional
      area includes the area to be regulated must be formed.   .
      ..
      standing alone, 4 4 76-2-310 and 76-2-311, MCA, may appear to
give Bozeman final authority to approve subdivisions within the
three-mile area. Section 76-2-312, MCA, however, states that "[a]
city or town which has as its plan of government the commission-
manager plan shall be excluded from the provisions of 76-2-310 and
76-2-311which define extraterritorial authority to review proposed
 subdivision^.^ The ~istrictCourt concluded that   §   76-2-312, MCA,

takes away the extraterritorial authority over subdivisions that
Bozeman, with a commission-manager form of government, otherwise
would have pursuant to 6 5 76-2-310 and 76-2-311, MCA.    It further
determined that because Bozeman was excluded from the provisions of
§§   76-2-310 and 76-2-311, MCA, the question of which governmental
body has final authority to approve subdivisions in the three-mile
area must be answered by reference to the Montana Subdivision and
Platting Act, 5 5 76-3-101 through 76-3-614, MCA.
       The District Court then reviewed 5     76-3-601, MCA, which
provides in part:




            (b) When the proposed subdivision is situated
       entirely in an unincorporated area, the preliminary plat
       shall be submitted to and approved by the governing body
       of the county. However, if the proposed subdivision lies
       within 1 mile of a third-class city or town or within 2
       miles of a second-class city or within 3 miles of a
       first-class city, the county governing body shall submit
       the preliminary plat to the city or town governing body
       or its designated agent for review and comment.


            (3) This section and 76-3-604, 76-3-605, and 76-3-
       608 through 76-3-610 do not limit the authority of
       certain municipalities to regulate subdivisions beyond
       their corporate limits pursuant to 7-3-4444.
       It next reviewed 5 7-3-4444, MCA, referenced in 5 76-3-601(3),
MCA.    Section 7-3-4444, MCA, applies only to commission-manager
municipalities and states:
            (1) The director of public service shall be the
       supervisor of plats of the municipality. He shall see
       that the regulations governing the platting of all lands
       require all streets and alleys to be of proper width and
       to be coterminous with the adjoining streets and alleys
       and that all other regulations are conformed with.
       Whenever he shall deem it expedient to plat any portion
       of the territory within the corporate limits in which the
       necessary or convenient streets and alleys have not
       already been accepted by the municipality so as to become
       public streets or alleys or when any person plats any
       land within the corporate limits or within 3 miles
       thereof, the supervisor of the plats shall, if such plats
     are in accordance with the regulations prescribed
     therefor, endorse his written approval thereon.
          (2) No plat subdividing lands within the corporate
     limits or within 3 miles thereof shall be entitled to
     record in the recorder's office of the county without
     such written approval so endorsed thereon.
     The District Court concluded that          76-3-601(2) (b), MCA,

limits the extraterritorial authority of municipalities over
subdivisions to ''review and commentgrconcerning the preliminary
plat except as permitted by 5 7-3-4444, MCA.    It further concluded
that the plain language of       7-3-4444,   MCA, grants the city's
director of public service only the limited ministerial power to
review plats for subdivisions in the three-mile area with respect
to their technical adequacy.
      Bozeman challenges the District Court's ruling, asserting that
5   76-2-312,   MCA,   is not a limitation on the authority of
commission-manager governments; rather, it is an acknowledgment by
the legislature that such municipal governments already had the
extraterritorial subdivision authority under Section 91 of Chapter
152 of the Laws of 1917, now 5 7-3-4444, MCA.    It argues that 5 76-
2-312,   MCA, exempts commission-manager cities from procedural
requirements that other forms of municipal government have to
follow in order to exercise their extraterritorial subdivision
authority.
      Bozeman relies on a 1970 report to the legislature that was
prepared by the Montana Legislative Council.        In that report, the
Legislative Council referred to what is now     §   7-3-4444, MCA, and
stated that the statute gives commission-manager cities "authority
to approve or disapprove proposed subdivisions within three miles
of the c t . I
        iy'      Montana Legislative council, A Re~ort the Fortv-
                                                      to
Second Leqislative Assembly, December 1970, Report No. 34, at page
10.    Bozeman further argues that 5 76-3-601(3), MCA, with its
reference to 5 7-3-4444, MCA, also supports its position that it
has final authority to approve subdivisions in the three-mile area.
Therefore, the success of Bozeman's argument is conditioned upon a
determination that 5 7-3-4444, MCA, grants Bozeman the claimed
extraterritorial subdivision authority.
       Our function in construing and applying statutes is to
effectuate the intention of the legislature. State ex rel. Roberts
v. Public Service Comm'n (1990), 242 Mont. 242, 246, 790 P.2d 489,
492. If the legislature's intent can be determined from the plain
meaning of the words used in a statute, we will go no further.
Phelps v. Hillhaven Corp. (1988), 231 Mont. 245, 251, 752 P.2d 737,
741.    In addition, it is the function of the courts to ascertain
and declare what in t e n s or substance is contained in a statute;
it is not our function to insert what has been omitted or to omit
what has been inserted. Gaub v. Milbank Ins. Co. (1986), 220 Mont.
424, 427, 715 P.2d 443, 445. When more than one statute applies to
a given situation, such construction, if possible, is to be adopted
as will give effect to all.    Schuman v. Bestrom (1985), 214 Mont.
410, 415, 693 P.2d 536, 538.
       Upon examining 5 7-3-4444, MCA, the District Court concluded:
          With these rules of statutory construction in mind,
     this Court finds no reference in Section 7-3-4444, MCA,
     granting the Bozeman City Commission final subdivision
     authority over lands within three miles of its corporate
     limits. This Court certainly recognizes that there was
     such a reference to that statute by the Montana
     Legislative Council and there is a similar reference in
     Section 76-3-601(3), MCA. However, references such as
     those made by the aforementioned statute and by the
     Legislative Council cannot put words into Section 7-3-
     4444, MCA, that are not there. If the legislature wanted
     Section 7-3-4444, MCA, to say that a city commission has
     power to approve subdivisions within three miles of its
     border, it should say so. That is not, however, what the
     statute says.
     The District Court's interpretation of 5 7-3-4444, MCA, is
correct.   The language of the statute is clear.      The statute does
not refer to the city commission.      Nor does it grant the city
commission final authority to approve subdivisions that are within
the three-mile area. The authority that is provided by the statute
is granted to the city director of public service.       It is limited
to ensuring that the involved plat complies with all of the
regulations governing platting: if the plat does comply, the
director of public service must approve it.
      A city with a commission-manager form of government has two
statutorily authorized functions with respect to subdivisions
located within the three-mile area, in addition to participating in
the master plan process.    First, the city's governing body or its
designated agent reviews and comments on a preliminary plat
submitted to it by the county governing body under 5             76-3-
601(2) (b) , MCA.   Second, in accordance with   §   7-3-4444, MCA, the
city's director of public service reviews the preliminary plat to
ensure its technical adequacy.    We hold that the ~istrictCourt did
not err in concluding that Bozeman, through its city commission,
does not have final authority to approve subdivisions that are

within    the three-mile area    immediately   outside   its corporate
limits.
     Affirmed   .
