What are General Government Powers?
General Powers Municipalities in Montana: Authority Defined by State Delegation
Article XI, section 4 of the 1972 constitution provides that municipalities with general powers, (i.e. all of those municipalities that lack self‐government powers) have the powers of a municipal corporation and other powers provided or implied by law, which is to say only those powers delegated to municipalities by the state legislature.
Montana law 7-1‐4123 and 4124, MCA specifies the governing powers that may be exercised by a municipal government with general powers, and which enable any municipal government to protect the public health, safety and welfare within their community. The statutes also provide that a general powers municipality may perform any function or provide any service authorized or required by state law and may exercise any power authorized by state law. The effect of this language is to limit the governing powers of a general powers municipal government to those powers explicitly delegated to it by the state legislature or necessarily implied incident to such delegation.
This limitation on the exercise of local governing powers is often cited as “Dillon’s Rule,” which is derived from the 1872 writings of Iowa Judge John F. Dillon, whose narrow construction of local governing powers has been widely adopted by state and federal courts. In short, a general powers municipal government in Montana may exercise only those governing powers made available to the municipal government by the state legislature or reasonably implied or necessary to implement a legislatively delegated power. If the state legislature has not delegated the power to provide a service or perform a governmental function, a municipal government with general powers is. There is a well understood distinction between a license fee imposed under the police powers for the purpose of regulation and a tax imposed under the taxing power for revenue. A license fee or tax under the police power is such a fee only as will legitimately assist in regulation and will not exceed the necessary and probable expense of issuing a license and inspecting and regulating the business. 1. Municipal Government Defined
19 not authorized to do so.