Town of Ennis v. Stewart

, I

No. 90-303
IN THE SUPREME COURT OF THE STATE OF MONTANA

THE TOWN OF ENNIS,
plaintiff and Appellant,
-v-
EDGAR STEWART and MARTHA STEWART,
Defendants and Respondents.
and
THE TOWN OF ENNIS,
plaintiff and Appellant,
-v-
PEARL DOYLE,
Defendant and Respondent.

APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Madison,
The Honorable Frank Davis, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Larry Jent, Bozeman, Montana
For Respondent:
Chester L. Jones; Jones & Hoffman; Virginia City,
Montana

Submitted on Briefs: January 3, 1991
Decided: March 4, 1 9 9 1
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.

The plaintiff Town of Ennis appeals the order of the Fifth
Judicial District Court, Madison County reversing convictions in
Ennis Town Court and dismissing charges against the defendants
Edgar and Martha Stewart and Pearl Doyle. The defendants were
convicted in Ennis Town Court for refusing to hook up to the Ennis
Water System in violation of town ordinances. We reverse the order
of the District Court and uphold the convictions of the defendants.
The Town raises the following issues on appeal:
(1) Did the District Court err in determining that the
defendants had a privacy right in their well granted by Article I1
Section 10 of the Montana Constitution?
(2) Did the District Court err in ruling that it is not a
valid exercise of the police power of local governments to mandate
connection to an existing city water supply?
The Stewarts, both in their 801s, have resided at their
present residence since 1936. They have always supplied their
water needs from a private well and electric pump located on their
property. The Stewarts used the water for indoor consumption,
washing and bathing as well as outdoor irrigation. The water is
never used commercially or available to the public.
Pearl Doyle is an 83-year-old widow and the sister of Martha
Stewart. She has resided at her present residence since June of
1949. Since 1949 her residence has been served by the same well
and distribution system, for the same domestic purposes as the
Stewarts. Neither Mrs. Doyle nor the Stewarts have ever
2
 t 1

experienced any health problems traceable to the water system.
Both premises are connected to the municipal sewer system.
The Town was incorporated in 1956. Thereafter, pursuant to
the adoption of a series of ordinances, the Town made it mandatory
for residences within the Town's city limits to hook up to the
Town's water system, and forbade the interconnection of municipal
water lines and private wells and the use of private well water for
commercial and public use and use inside private residences. The
ordinances allow residents to continue to use well water for
watering lawns, gardens, irrigating, etc.
In the early 1960ts,when the municipal water system was being
installed, Mrs. Doyle's late husband requested that a stub be put
on the main water line passing the Doyle residence so that the
water system could be tied into the residence at some later date.
Mr. Doyle also tendered the required fee for such purposes. The
Town mayor refused to provide a stub or accept the fee because the
Doyles were not going to immediately hook up to the water system.
Since the building of the original municipal water system in
the 19601s, the Stewarts were never advised by any city official
of the requirement to tie onto the system until 1987. The Town has
made numerous attempts to persuade the defendants to tie their
residences into the Town system, but the defendants have
consistently refused to comply. The cost of tying into the water
mains would be approximately $500.00 for each residence. In
October of 1987, pursuant to Section 4.10.180 of the Ennis
Municipal Code, a notice of non-compliance was delivered to each
 * I

of the defendants.
The Town filed complaints against the Stewarts and Mrs. Doyle
for violating the ordinances on May 31, 1989 and June 28, 1989,
respectively. All three defendants were convicted of the charges
in Ennis Town Court On August 1, 1989.
The defendants appealed to District Court, and the case was
submitted upon stipulated facts. On May 8, 1990, the District
Court reversed the judgment of the Town Court and dismissed the
charges against the defendants. The Town now appeals.
In its order, the District Court essentially concluded that
the defendants have a privacy right to use a private well in their
home for domestic purposes guaranteed by the Constitution, and that
the Town's exercise of the police power was not valid in this case
due to lack of a compelling state interest.
We disagree in both respects. The ordinance in question in
this case provides in pertinent part:
4.10.010 Town Water Lines Separate from Private
Wells and Pumps. There shall not be any cross-
connections between the individual wells and pumps and
the town water system. The line from the town water
supply must be separate from that of the private well and
Pump
4.10.020 Wells and Pumps for Outside Water Only.
Present wells and pumps may be retained for outside water
only, lawns, gardens, etc. All water inside residences,
business places, public institutions, or for any
commercial use must be town water.
A. Anytime real property is sold which is presently
using a well for inside water use, the property must be
connected onto the town's water system prior to sale.
The privacy right referred to by the District Court is found at
Article 11, Section 10 of the Montana Constitution, which provides:
 Right of Privacy. The right of individual privacy is
essential to the well-being of a free society and shall
not be infringed without the showing of a compelling
state interest.
In determining whether a particular alleged privacy interest
warrants constitutional protection, this Court has adopted a two
part test. Montana Human Rights Division v. City of Billings
(1982), 199 Mont. 434, 442, 649 P.2d 1283, 1287; accord Katz v.
United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576.
First, the test focuses on whether the person claiming the right
has a subjective or actual expectation of privacy. Second, the
test asks whether society is willing to recognize that subjective
or actual expectation as reasonable. Flesh v. Board of Trustees
of Joint School District No. 2 (1990), 241 Mont. 158, 165, 786 P.2d
4, 8; Engrav v. Cragun (1989), 236 Mont. 260, 263, 769 P.2d 1224,

1226.
In this case, we conclude that the type of interest being
infringed is not of the kind sufficient for defendants to invoke
the special protections of their privacy right. Under the Federal
Constitution the privacy right has been extended to those rights
which are fundamental or implicit in the concept of ordered
liberty, such as rights involving activities relating to marriage,
procreation, contraception, family relationships, child-rearing,
and education. Roe v. Wade (1973), 410 U.S. 113, 152-3, 93 S.Ct.
705, 726, 35 L.Ed.2d 147, 176-7. We have held that privacy rights
of individuals in Montana are more substantial than the rights
guaranteed in the United States Constitution. See, e.g., Montana
Human Riqhts Division, 649 P.2d at 1286.
5
 Admittedly, the defendants1 right to privacy in this case
protects their decision to drink whatever type of potable water
they choose within their own home. However, a careful review of
the ordinances in question here reveals that they do not proscribe
such a decision. The ordinances simply require that the
defendants, as residents of the Town of Ennis, be connected to the
municipal water system and that water from this source be the only
type available from the faucets inside their residence. The
ordinances do not prevent the defendants from making the personal
choice to drink commercially bottled water, for example, or from
drinking their own well water from an outside spigot in a fashion
similar to bottled water, as another example.
We conclude that the interest asserted by the defendants in
this case--the right to pipe in and have available the type of
water they choose--does not involve the kind of individual autonomy
or freedom "from unwarranted governmental intrusion into matters
so fundamentally affecting a person. . . .
l1 necessary to invoke
constitutional protection. See Eisenstadt v. Baird (1972), 405
U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349, 362.
Furthermore, where it may adversely effect the significant interest
of the Town regarding the public health and welfare, the
expectation of privacy the defendants may have in this regard is
unreasonable. Flesh, 786 P.2d at 8, Enqrav, 769 P.2d at 1226.
Accordingly, because the right being asserted is not of
constitutional magnitude the Town need not show a compelling
interest to satisfy its ends; rather it need only demonstrate that
 e I

the ordinance bears a rational relationship to the achievement of
a legitimate state interest. Art. 11, Sec. 10, Mont.Const.; see,
e.g., People v. Privatera (Cal. 1979), 591 P.2d 919, 921.
The defendants cite the case of City of Midway v. Midway
Nursing & Convalescent Center, Inc. (Ga. 1973), 195 S.E.2d 452, for
the proposition that a municipality has no authority to enact and
enforce ordinances which are designed to compel everyone within the
city to use its water system. Considerations of public policy lead
us to disagree with the holding of Midway. Generally, a
governmental entity may exercise its police powers in matters
affecting public health and welfare. There is more recent
authority in opposition to Midway holding that the enactment and
enforcement of ordinances that compel citizens to connect to a
municipal water system is within the scope of the police power:
"It is the commonest exercise of the police
power of a State or city to provide for a
system of sewers and to compel property owners
to connect therewith. And this duty may be
enforced by criminal penalties. .
[Citations omitted.] It may be that an
arbitrary exercise of the power could be
restrained, but it would have to be palpably
so to justify a court in interfering with so
salutary a power and one so necessary to the
public health.
227 U.S. at 308, 33 S.Ct. at 292.
This court can find no meaningful distinction between
mandatory sewer connections and mandatory water
connections. . ..
Shrader v. Horton (W.D. Va. 1979), 471 F.Supp. 1236, 1243; affirmed
in 626 F.2d 1163, 1165; quoting Hutchinson v. city of Valdosta
U.S.
The Shrader court relied in part on Weber city sanitation
Commission v. Craft (Va. 1955), 87 S.E. 2d 153, where the court held
that a sanitation commission~sresolution requiring that abutting
property owner's connect with the district's waterworks and abandon
private subsurface water for personal use and consumption was a
valid exercise of the police power. The court stated:
So far as we know, the power of the State, under its
police power, to provide for the health of its people,
has never been questioned, but on the contrary, has been
stressed as one of the powers which may be given the
broadest application; and it is common knowledge that
this power has been increasingly exercised, in keeping
with advances made in the sciences of medicine and
sanitation, in recent years. In these circumstances,
courts are reluctant to place limits on what may be done
in the interest of the health of a community, so long as
unreasonable methods are not employed, nor the natural
and constitutional rights of citizens invaded.

"It is, of course, settled that the
protection of the public health is a valid
object for the exercise of the police power.
A pure water supply is so intimately connected
with the health of the community that the
provisions with regard to it are properly a
part of the police power of the State * * * . I 1
56 Am.Jur., Waterworks, S 76, page 981.

Weber, 87 S.E.2d at 157, 159. See also, e.g., McMahon v. City of
Virginia Beach (Va. 1980), 267 S.Ed.2d 130.
In Montana, a local government with self-governing powers may
exercise any power or provide any service except those specifically
prohibited the constitution, laws, its charter. Art.
Sec. 6, Mont.Const.; 8 5 7-1-101 and 7-1-102, MCA. An incorporated
city or town without self-government powers has among its general
powers "the powers of a municipal corporation and legislative,
administrative, and other powers provided or implied by law. l1 Art.
XI, Sec. 4(l)(a), Mont.Const. Such powers shall be liberally
construed. Art. XI, Sec. 4 (2), Mont. Const. The legislature has
given municipalities broad general powers to construct and improve
facilities necessary for operating viable water systems. See
generally Title 7, Chapter 13, Parts 43 and 44, MCA. Cities and
towns may establish sewage and water systems under the authority
of 5 7-13-4301, MCA. Section 7-13-4402 provides that "the city or
town council has power to adopt, enter into, and carry out means
for securing a supply of water for the use of a city or town or its
inhabitants." Thus, regardless of whether it has a self-
government charter, the enactment and enforcement of the ordinances
in this case is clearly within the scope of the Town's general
police power.
Regarding the exercise of this power, we adopt the reasoning
of Shrader and Weber, quoted above. While the Town does not allege
that there are immediate health threats arising from the use of
private well water in Ennis, the potential for such problems always
exists. A municipal water system is better suited to meet these
health concerns and prevent potential health problems that could
arise absent such a system. Furthermore, in small communities a
water system may not be affordable unless a sufficient number of
citizens connect to the system and pay the corresponding fee.
Allowing some citizens to forgo connection to such a system
indefinitely or until a health threat is imminent may make such a
system unaffordable to the community and thereby defeat the purpose
of preventing potential health problems before they arise. Sound
public policy considerations indicate that the ordinance in
question here is rationally related to the legitimate purpose of
providing a healthy and safe water supply.
The order of the District Court is
REVERSED.

Justices
 8 *
Justice John Conway Harrison dissenting.

I dissent. I would choose to follow the Findings of Fact and
Conclusions of Law of the District Judge who sat on this matter,
and adopt the reasoning in his Memorandum of this case.
Judge Frank M. Davis in his Findings of Fact Nos. 2, 3, and
4 noted:

2. The Defendants, STEWARTS and DOYLE, are
residents and property owners of the TOWN, and have been
since as early as 1936. Both are in their '80s. Both
have always utilized private water wells for domestic
water in their homes. Both have refused the offered
municipal water service. No formal demand by the TOWN
was ever made upon them until 1987. This indicates to
the Court that a succession of previous administrations
may have conceded the principles set forth in this
decision. In any case, the demand was refused and this
action resulted.
3. There is an absence of any evidence that
Defendants1 private water well service is a violation of
any established public health and sanitary standards.
Indeed, the Court can find no compelling reason in the
public interest for Defendants to abandon their private
water source which has been in existence and used for
over fifty years. The property serviced has been owned
by Defendants or their immediate families during all this
time .
4. From the stipulated facts, the Court can find
only one reason for the TOWN requiring Defendants to
utilize its water system and that is for the money, which
as the Court will discuss in its Memorandum, is not a
compelling state interest. There is no concern which
could justify under any known principle of law the use
of the TOWN'S police power.
Judge Davis stated in Conclusions of Law No. 11:
The Court concludes that under the findings herein
made and as applied only to Defendants STEWARTS and
DOYLE, that there is no compelling state interest
mandating that these Defendants utilize the TOWN OF ENNIS
municipal water system. To do so would be an invasion
of Defendants1 rights as guaranteed by Article 11,
 Section 10 of the 1972 Montana Constitution.
With these conclusions I most certainly agree.
Finally, Judge Davis' Memorandum notes:
It is clear to the Court that the TOWN OF ENNIS in
the operation of its municipal water system is acting in
a proprietary capacity and not in the exercise of its
police power. Indeed, under the ordinances which it
seeks to invoke, its power is limited to simply
terminating the service, and here the Defendants have no
service to terminate.
The courts of this country, including the Supreme
Court of the United States, have held generally that when
the government enters the marketplace it divests itself
of many of its sovereign powers. It becomes as the U.S.
Supreme Court said in Ohio v. Helverinq, 292 U.S. 360,
54 S.Ct. 725, 75 L.Ed. 1307, a l1traderl1. The trader
cannot abridge fundamental constitutional rights except
on a showing of some compelling public need. Indeed, the
public need must be shown even when the government is
acting in its sovereign capacity. No public need, much
less a compellinq need, has been shown in this case.
The TOWN'S water ordinances appear to be vague and
contradictory. One seems to contemplate I'grandfathering"
a water user's right to use his well until the property
is sold. It does not contemplate a transfer by gift or
inheritance. Still another ordinance simply provides for
notice of noncompliance. These ordinances may be
unconstitutionally vague, but in any case these
particular Defendants are protected by not only the
grandfather concept, but the general principles of
constitutional law.
The Court would add that the TOWN'S goal of
including all of its residents under the umbrella of its
utility is a worthy administrative goal. In doing so,
however, it cannot infringe and abridge fundamental
constitutional rights, especially when it can show no
compelling state interest. The TOWN'S dispute with
STEWARTS and DOYLE will be solved in time, provided the
contradictory and vague enforcement ordinances are
clarified. In the interim, these Defendants should be
allowed in their autumn years to use their private water
source, as they have for half a century. (Emphasis in
original.)
I would add that I am sure the Town of Ennis will not go broke
by not collecting the water revenues from these two long time
citizens. I would affirm the decision of the District Court.