No. 13645
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
GEORGE DIERUF ,
Petitioner,
-vs-
THE CITY OF BOZEMAN, et al.,
Respondents.
Appeal from: District Court of the Eighteenth Judicial District,
Honorable Jack D. Shanstrom, Judge presiding.
Counsel of Record:
For Petitioner:
Drysdale, McLean and Screnar, Bozeman, Montana
James J. Screnar argued, Bozeman, Montana
Bennett and Bennett, Bozeman, Montana
Lyman Bennett Jr. argued, Bozeman, Montana
McKinley Anderson argued, Bozeman, Montana
For Respondents:
Berg, Angel, Andriolo and Morgan, Bozeman, Montana
Ben E. Berg argued, Bozeman, Montana
Mike Greely, Attorney General, Helena, Montana
Submitted: May 24, 1977
Decided: .
. . I 4 , \
Filed:
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4
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the Court.
petitioner George Dieruf sought a writ of mandamus to compel
the city of Bozeman to submit a proposed ordinance and resolution to
the electors of the city of Bozeman. Writ of mandamus was denied,
petitioner appeals.
On July 21, 1976, the city commission of the city of Bozeman
(commission) passed Ordinance No. 962 adopting a formula for asses-
sing property for the purpose of creating an offstreet parking facil-
ity. On July 28 the Commission passed and adopted Resolution No.
1808 creating special improvement district No. 565 to establish
that facility.
Thereafter signed referendum petitions were presented to the
Commission demanding both the ordinance and resolution be submitted
to the electors of the city of Bozeman for their approval or rejec-
tion.
On August 25, 1976, at a regular meeting of the Commission,
the petitions were rejected by the Commission for the reason that
under section 11-3237, R.C.M. 1947, referendum petitions must con-
tain the signatures of 25% of the registered voters of a city before
it becomes the duty of the Commission to order an ordinance repealed
or submitted to the voters. Here, the petitions contained only 18%
of the electors of the city of Bozeman.
Petitioner Dieruf alleges that section 11-3237, R.C.M. 1947,
is inapplicable and the question of whether the matter should be
submitted is controlled by section 11-1107, R.C.M. 1947, arguing
that the submission of Resolution No. 1808, creating special improve-
ment district No. 565, needs only 10% of the qualified electors'
signatures.
Petitioner further alleges the failure to submit the issue
to the electors violates Article 111, Section 5 and ~ r t i c l eXI,
Section 8, 1972 Montana constitution.
The district court made an order ,qranting an alternative writ
of mandamus. Thereafter the Commission filed an answer and a motion
to quash. The cause was briefed and heard on October 25, 1976, be-
fore Hon. Jack Shanstrom, who granted the motion to quash and dis-
missed with prejudice.
On appeal to this Court seven issues are set forth by
petitioner, however we find the determining issue to be: Whether
the ordinance and resolution relating to special improvement dis-
trict No. 565 are subject to either referendum or initiative proce-
dures?
This Court has long exercised judicial restraint in reaching
and deciding the constitutionality of legislative acts, particularly
where, as here, the case can be decided on nonconstitutional grounds.
Declining unnecessary decisions on the constitutionality of
legislative enactments and the reasons therefor is summarized in 16
Am Jur 2d, Constitutional Law S111, p. 298. State ex re1 ~ammondv.
Hager, 160 Mont. 391, 503 P.2d 52. The instant case can be decided
on other than constitutional grounds.
Appellant-petitioner contends that initiative lies to repeal
Ordinance No. 962 of the city of Bozeman. We disagree. Courts have
consistently held initiative and referendum procedures are applicable
to those acts that are legislative in character and are not applicable
to procedures that are administrative in character. This Court in
City of Billings v. Nore, 148 Mont. 96, 104, 417 P.2d 458, noted:
"Montana has for many years followed the rule that
initiative does not lie concerning matters adminis-
trative in nature. See Carlson v. City of Helena,
39 Mont. 82, 102 P. 39; Allen v. City of Butte,
55 Mont. 205, 175 P. 595."
The Court in Nore then went on to distinguish legislative from
administrative action noting:
"The problem of differentiating between legislative
actions and administrative or executive actions is
often difficult. Appellants suggest, and we accept,
that one reasonable test to be used in making such
differentiation is whether the act was one creating
new law (legislative) or executing an already exist-
ing law (administrative). See Keigley v. Bench, 97
Utah 69, 89 P.2d 480, 122 A.L.R. 756."
In Nore the question before the Court was whether an ordinance
establishing sewer rates for the city of Billings, pursuant to section
11-2219, R.C.M. 1947, was an administrative act of the city council
and not subject to either initiative or referendum? The district
court found it was and the same reasoning can be applied in the
instant case. To hold otherwise would make the everyday administra-
tion of municipal affairs unworkable. Every dissatisfied bidder
or disappointed job applicant could invoke the machinery of refer-
endum and thereby suspend the taking effect of valid administrative
acts. To do so would seriously affect the efficiency and economy
in the business administration of a city.
Section 11-2214, R.C.M. 1947, entitled "Methods of payments
of improvements." provides:
"(1) To defray the cost of the making of any of the
improvements provided for in this act, the city
council or commission shall adopt one of the follow-
ing methods of assessment; unless otherwise provided
in subsection 1 (c):
"(d) When the purpose of the assessment is for the
establishment and/or improvement of offstreet parking
as provided in this act, the city council or commis-
sion shall assess against the real property speci-
fically benefited by the offstreet parking facilities,
the cost of the developments involved, in proportion
to the benefits received by each tract of land within
said district. In determining the benefit to be re-
ceived by each parcel of land, the city council or
commission shall consider:
"(i) the relative distance of the parking facility
from each parcel of land within the area of the
special improvement district;
"(ii) the relative needs of parking spaces for each
parcel of land located within the boundaries of said
district, either as established by the city zoning
ordinance, if any, or otherwise, with relation to the
use of said parcel;
"(iii) the assessed value of each parcel within said
district;
"(iv) the square footage of each parcel within said
district as it relates to the whole;
"(v) the square footage of floor space in any im-
provements on the parcel and the various uses of such
floor space;
"(vi) the availability of existing on-site parking
space on any parcel of land within the district.
Provided, however, that before any improvement dis-
trict can be created or financed under the provisions
of this section, the city council or commission must,
prior to the creation of said district, pass a city
ordinance setting forth therein the formula to be
used in determining the assessment of each lot or
parcel within said district, which said formula must
includebut shall not be limited to the items to be
considered as set forth hereinabove. And provided
further that prior to the adoption of any such ordinance
by the city council or commission, the city council
or commission shall make a determination of the formula
for the method of assessment as set forth above, con-
sidering all of the factors above set forth, and shall
hold a public hearing after due notice and at such
hearing all persons concerned may present their objec-
tions to the formula or any part of it and point out
errors and inequities and submit reasons for amendments
and corrections. The council may continue the hearing
from time to time. After the council has heard all
objections and suggestions, it shall correct any errors
which it finds in the formula for assessment as orig-
inally made and shall finally establish and settle the
formula for assessment in the same manner as any other
city ordinance.
With the provisions of the above statute in mind, a careful
reading of Ordinance No. 962, shows the Commission was performing
an administrative function and therefore was not subject to initiative.
In support of the Court's holding that courts do not, in
dealing with local improvement ordinances, hold them subject to muni-
pal-wide referendum or initiative process, see: Chase v. Kalber,
28 Cal.App. 561, 153 P. 397; City of Globe v. Willis, 16 Ariz. 378,
146 P. 544; St. John v. King, 130 Cal.App. 356, 20 P.2d 123; Village
of Crotty v. Domm, 338 111. 228, 170 N.E. 308: Alexander v. Mitchell,
119 C.A.2d 816, 260 P.2d 261; Dewey v. Doxey-Layton Realty Co.,
3 Utah2d 1, 277 P.2d 805; Anno. 122 A.L.R. 769, 786.
The decision of the district court is affirmed.
We Concur:
,A J%?
Ch' f J u s t i c e