No. 84-457
IN THE SUPREME COURT OF TIE STATE OF MONTANA
1985
EARL C. CLOPTON; CHARLES McCUAIG;
KATHY WORLEY; FLOYD EDWARDS; JOAN
SORVIG; et al.,
Plaintiffs and Appellants,
THE MADISON COUNTY COmISSION con-
sisting of MARIE McALEAR, WILLIAPl
DRINGLE and JOHN ALLHANDS, Commis-
sioners, et al.,
Defendants and Respondents.
MONTAJSA DEPARTLJflNT OF HEALTH AND
ENVIRONMEIJTAL SCIENCESI
Intervenor and Xespondent.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Madison,
The Honorable Frank Davis, Judge Presiding.
COUNSEL OF ,%CORD:
For Appellant:
Meloy Law Firm; Peter M. Meloy, Ilelena, Montana
For Respondent:
Loren Tucker, County Attorney, Virginia City,
Montana
Steve Perlmutter, Dept. of Health & Environmental
Sciences, Ilelena, Montana
Submitted on Briefs: March 14, 1985
Decided: June 13, 1985
Filed:
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Clerk
Mr. Justice William E. Hunt, Sr., d-elivered the Opinion of
the Court.
The appellants, citizens of Madison County, brought an
action to enjoin the respondent, the Madison County
Commission, from making expenditures and collecting service
charges for a garbage disposal district. The respondent,
Montana Department of Health and Environmental Sciences, was
granted leave to intervene as a party defendant. The
respondents answered, moved to dismiss, and moved to quash.
At the hearing on an order to show cause why the respondent,
Madison County Commission, should not be restrained from
making expenditures and collecting fees to operate a waste
disposal district the District Court found sufficient
evidence to decide the case on the merits. The District
Court denied the appellants' requested relief and dismissed.
The appellants moved for a new trial or to amend judgment.
The motion was denied. This appeal followed.
We affirm.
In the 19701s, Congress and the Montana Legislature
substantially changed the law concerning the proper disposal
of solid waste. The applicable law provided that all
disposal sites must either be operated in compliance or be
closed by 1982. From reading the record, it does not appear
that Madison County had the same sense of urgency as did
Congress and the legislature. From the first discussion at
its meeting in November, 1977, until its ratification of the
contracts to handle waste disposal in February, 1984, the
governing bodies of Madison County treated the matter with a
certain remote detachment characteristically accorded a
subject with low priority. Things did not really get moving
until the State threatened "administrative action" in July,
1983, to close the dump sites at those towns not meeting
"even minimal requirements of the Montana Solid Waste
Management Act." Only Ennis was found to be in full
compliance with the act. The th.reatened State action is
evidenced by letters from the Montana Department of Health
and Environmental Sciences to the Board of County
Commissioners of Madison County July 7, 1983, and to the
towns of Virginia City, July 5, 1983, Twin Bridges, July 5,
1983, and Sheridan, Montana, July 5, 1983.
In 1979, Madison County, then operating as a charter
form of government, had begun a process of planning and
establishing a unified county-wide refuse disposal district
and system. In Resolution 3-79, dated May 8, 1979, the
county set forth its intent and stated that it was acting
pursuant to 7-13-201 through 7-13-243, MCA, which set
forth a procedure for establishing refuse disposal districts.
A public hearing on this resolution was held June 12, 1979,
at which time protests were made by citizens of Madison
County. No action was taken on the protests.
Madison County then passed Ordinance 1-80, dated
February 11, 1980. This ordinance stated that it created a
solid waste management system. Ordinance 1-80 made no
reference to Resolution 3-79. It referred to state law only
insofar as it stated that charges for the service would be
collected with real property taxes in conformity with §
7-13-233, MCA.
Over two years later, on August 10, 1982, Madison County
proposed Ordinance 5-82 which was to establish a refuse
disposal district and operating provisions for the refuse
disposal system. This ordinance recognized the prior
ordinances and resolutions on the subject. This ordinance
was not adopted, that is, it was not finally acted on.
However, Madison County did pass Ordinance 7-82 on December
28, 1982, and, for the most part, Ordinance 7-82 was
identical to Ordinance 5-82.
In the interim between Madison County addressing
Ordinance 5-82 and passage of Ordinance 7-82 the Madison
County voters elected to change their charter form of
government back to a commission form of government. This
change became effective in early 1983. This new commission
form of government approved and confirmed the refuse disposal
fees set forth in Ordinance 7-82. This was done in
September, 1983.
On November 30, 1983, due and payable notices were sent
by Madison County to residents with respect to the
assessments to fund the refuse disposal district system. By
February 1, 1984, Madison County had contracted with several
businesses to provide services for the refuse disposal
district.
Two issues are presented for review. The first issue is
whether the District Court erred in concluding that Madison
County substantially complied with the law relating to the
establishment of a refuse disposal district. We find that
the District Court did not err. We therefore do not need to
reach the second issue, which is, whether the District Court
erred in ruling that the action was untimely.
The main issue here is whether or not SS 7-1.3-201
through 7-13-243, MCA, are mandatory requirements for a
charter form of government establishing a refuse disposal
district. Appellants in this case claim that the Commission
failed to follow the statutes or the rules of the charter in
the following respects: (a) failed to adopt the required
resolution of intention as provided in $ 7-13-204, MCA; (b)
failed to obtain the proper City concurrence (it was the
intention of the County to include the cities in the
district) as provided in S 7-13-203 (2), MCA; (c) failed to
rule on protests as provided by S 7-13-211, MCA; (dl failed
to hold a hearing as provided in $ 7-13-231(1), MCA; (e)
failed to publish public notices as required by the various
sections; (f) failed to wait until the service commenced in
the district before collecting the fee as provided in S
7-13-233, MCA; (g) failed to follow its own charter requiring
the vote of people before taxes are imposed (Art. VIII, S 1,
Charter of Madison County, State of Montana, 1976).
The appellants, citizens of Madison County, assume that
the respondent, Madison Count-y,was obligated to abide by 55
7-13-201 through 7-13-243, MCA, when it established a refuse
disposal. district and system. Much of appellants' argument
is based on this assumption, however, the assumption is
incorrect.
Madison County became a charter form of government in
1976. This was several. years prior to the initiation of the
plans for a refuse disposal district involved here. A
charter form of government possesses self-governmental
powers, $ 7-3-702, MCA, and it may exercise any power not
prohibited by the constitution, law, or charter. Section
7-1-101, MCA. Neither the Montana Constitution of 1972,
state law, nor the Madison County Charter prohibited Madison
County from exercising a power to establish a refuse disposal
system. Madison County as a charter form of government with
self-government powers was not subject, by law, to comply
with $$ 7-13-201 through 7-13-243, MCA, on creation of a
refuse disposal district. These sections apply to the
establishment of a refuse disposal district by governments
that are of general power status, not those with
self-government status. See S 5 7-1-111 through 7-1-114, MCA,
for limitations on governments possessing self-govenment
powers--establishing a refuse disposal district does not fall
within any of the proscribed powers.
It could have been argued that S S 7-13-201 through
7-13-243, MCA, require a government to provide a service and
therefore fall under S 7 - - 1 1 4 f , MCA, which subjects a
local government with self-government powers to any law
directing or requiring a local government to provide a
service. That argument was not ma.de or contested by the
parties to this action. We find, though, that to dispel
doubt about it, 7-13-201 through 7-13-243, MCA, do not
direct or require a local government to provide a service
within the meaning of S 7-1-114(f), MCA. Sections 7-13-201
through 7-13-243, MCA, contain provisions that are not
consistent with the directives or requirement anticipated by
5 7 - 1 - 1 1 4 ( ) MCA. For example, S 7-13-211, MCA, allows
sufficient public protest to bar action on a refuse disposal
district. Also we find that a county would not necessarily
be required to establish a county wide refuse disposal
district which provided services to municipalities within the
county if those municipalities had adequate service already
in effect. We therefore hold that Madison County was not
obligated to comply with the provisions in 85 7-13-201
through 7-13-243, MCA.
Madison County was, of course, required to follow proper
legislative procedures in establishing a refuse disposal
district as it would be in any legislative action. A local
government with self-government powers is subject to all laws
establishing legislative procedures as requirements for units
of local govenment. section 7-1-114 c , MCA. The
legislative requirements for units of local government that
apply here are set forth in S 7-5-1.03, MCA, which reads:
"7-5-103. Ordinance requirements. (a A .1
l
ordinances shall be submitted in writing in the
form prescribed by resolution of the governing
body.
" (2) No ordinance passed shall contain more than
one comprehensive subject, which shall be clearly
expressed in its title, except ordinances for
codification and revision of ordinances.
" (3) An ordinance must be read and adopted by a
majority vote of members present at two meetings of
the governing body not less than 12 days apart.
After the first adoption and reading, it must be
posted and copies made available to the public.
"(4) After passage and approval, all ordinances
shall be signed by the chairman of the governing
body and filed with the official or employee
designated by ordinance to keep the register of
ordinances."
We find that Madison County substantially complied with
these requirements. Ordinance 7-82 was submitted in writing,
it contained one comprehensive subject, it was read and
gassed at two readings, and it was signed by the chairperson
of the governing body. The public was notified of the first
reading on December 8, 1982 by posting. The record does not
show whether notice was posted after the first reading,
however, if the procedure was deficient in that aspect, it
would not warrant a finding that the entire project be
invalid in this instance because of the numerous resolutions,
ordinances, notices, and public hearings on this matter.
The appellants also argue that the respond-entsfailed to
follow the Madison County Charter that requires a vote of the
people before any form of tax is imposed. We find that no
injustice will be done by disposing of this argument with.out
reaching the underlying issue of whether this assessment was
actually a tax within the meaning of that term in the Madison
County Charter. The new commission form of government of
Madison County approved and confirmed the refuse disposal
fees set forth in Ordinance 7-82. This was done in
September, 1983. The due and payable notices for the
assessments for the refuse disposal district and system were
sent out November 30, 1 9 8 3 . Compliance with the Madison
County Charter was not required at this time because it was
no longer in effect and the new commission form of government
had essentially ratified the fee assessment proposal.
We affirm.
We Concur:
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Justices