Town of Whitehall v. Preece

96-648

No. 96-648

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 53

THE TOWN OF WHITEHALL, MONTANA,
a body corporate and politic,

Petitioner and Respondent,

v.

RICK PREECE and RALPH "BUTCH" JONES, et al.,

Respondents and Appellants.

APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson,
Honorable Frank M. Davis, Judge Presiding

COUNSEL OF RECORD:

For Appellant:

Patricia L. Day-Moore (argued), Whitehall, Montana

For Respondents:

Jack H. Morris (argued), Whitehall, Montana

Honorable Joseph P. Mazurek, Attorney General;
Stephen C.
Bullock (argued), Assistant Attorney General,
Helena, Montana

For Amici Curiae:

Mae Nan Ellingson (argued) and Keith Strong,
Missoula, Montana
(Montana Board of Investments)

David J. Patterson, Missoula, Montana (Montana
Association of Counties)

Paul J. Luwe, Bozeman, Montana (Montana League of
Cities & Towns)

Heard: January 13, 1998
Submitted: January 15, 1998

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Decided: March 10, 1998

Filed:

__________________________________________
Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court.

¶1 The Fifth Judicial District Court, Jefferson County,
declared invalid a petition for
referendum to repeal a city ordinance requiring metering of water
in the Town of Whitehall's
water system. We affirm.

¶2 We address the following issues raised on appeal:

¶3 1. Is this action barred under the applicable statute of
limitation?

¶4 2. Did the District Court err when it determined that
Town of Whitehall Ordinance
Chapter 4.00 was administrative rather than legislative and was
therefore exempt from the
referendum proceedings allowed under the Montana Constitution and § 7-5-131(1), MCA?

¶5 The Town of Whitehall is a municipality located in
Jefferson County, Montana. The
Respondents and Appellants appear in their capacity as electors and
taxpayers of the Town
of Whitehall.

¶6 Whitehall has historically charged its residents a flat
rate for water services. However, changes in and improvements to the town's water system
were pending andundergoing public discussion for several years prior to this
lawsuit. In August 1992, in recognition that improvements were needed to the town's water
system as a whole, theMontana Public Service Commission (PSC) had approved an increase in
water rates. At that
time, the PSC directed the town to explore options for reducing its
consumption of water,
including the use of water meters. In May 1994, the Whitehall Town
Council had passed a
resolution approving the submission of an application to the State
of Montana Department
of Commerce for a $350,000 Community Development Block Grant to be
used as partial
funding for a water system improvement project, and in June 1995,
the Town of Whitehall,
through its mayor, contracted with the Department of Commerce for
that block grant. In
August 1995, the Whitehall Town Council had passed a loan
resolution authorizing the town
to borrow $450,000 from the United States Department of Agriculture

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Rural Economic
Community Development Program to be used for the water system
improvement project. In
September 1995, Whitehall's mayor had entered into a Treasure State
Endowment Program
Grant Contract with the Department of Commerce for a $500,000 grant
to be used for the
water system improvement project.

¶7 On November 29, 1995, the Whitehall Town Council adopted
Whitehall Town
Ordinance Chapter 4.00, entitled "Regulation of Water Use." This
Ordinance Chapter
required, in part, that a water meter be installed on the service
pipe for each water user
served by the town water system. Another part of the Ordinance
provided that Whitehall's
water rates would no longer be set by flat rate, but would be
determined by the amount of
water used by each household and each business, as measured by the
water meters.

¶8 In January 1996, the Appellants filed with the office of
the Jefferson County Clerk
and Recorder a petition to place a referendum on the ballot for a
special election to repeal
Whitehall Town Ordinance Chapter 4.00. The town's attorney
approved the petition for form
and compliance with § 7-5-131 and -132, MCA, and
submitted it to the Jefferson County
election administrator to be placed on the ballot for special
election.

¶9 On January 31, 1996, the Whitehall Town Council directed
that suit be brought in
District Court pursuant to § 7-5-135, MCA, to determine the
validity and constitutionality
of the referendum petition. On February 13, 1996, the town filed
a complaint seeking a
declaration that the petition for referendum was invalid under § 7-5-131, MCA, and the
Montana Constitution. Following the parties' submission of
stipulated facts, briefing, and
oral argument, the District Court found "generally" for the town
and dismissed the petition
for a referendum. The court determined that this was an
administrative, as opposed to
legislative, matter and was thus not subject to referendum. It
also determined that allowing
the referendum to proceed would potentially interfere with
Whitehall's contractual
obligations on the grant and loan contracts.

ISSUE 1

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¶10 Is this action barred under the applicable statute of
limitation?

¶11 A suit to determine the validity and constitutionality of
a petition for initiative or
referendum must be initiated within fourteen days of the date the
petition has been approved
as to form by the local government attorney. Section 7-5-135(1),
MCA. In this case, the
petition for referendum was approved as to form on January 30,
1996, and this action was
filed fourteen days later, on February 13, 1996.

¶12 Appellants point out that under § 7-5-134, MCA,
the county must, as a preliminary
matter, approve or reject a petition for initiative or referendum
within twenty-one days after
the sample petition is submitted for approval as to form. In this
case, the sample petition was
filed on January 8, 1996, and the notice of approval as to form was
filed twenty-two days
later, on January 30, 1996. Appellants assert that the maximum
time allowable between
submission of a referendum for approval by the county and
commencement of an action to
challenge it is the sum of the time frames allowed under 7-5-134 and -135, MCA: thirty-five
days. In this case,
a total of thirty-six days elapsed between those two events.

¶13 The District Court ruled that this argument did not have
merit. We agree. Section 7-5-135, MCA, sets the limitation period
in which a local government must file suit on the
validity of a petition for referendum or initiative;
§ 7-5-134, MCA, does not speak to that
issue. Appellants' consolidation of the two time frames is
unsupported by statute; nor have
they offered any case law in support of their position. We hold
that this action was timely
filed within fourteen days of approval of the referendum as to
form as required under § 7-5-135, MCA.

ISSUE 2

¶14 Did the District Court err when it determined that Town
of Whitehall Ordinance
Chapter 4.00 was administrative rather than legislative and was
therefore exempt from the
referendum proceedings allowed under the Montana Constitution and
§ 7-5-131(1), MCA?

¶15 Montana's Constitution reserves to the people of this

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State the powers to challenge
and enact laws through the referendum and initiative processes. In
Article V, "The
Legislature," the Constitution provides that "The legislative power
is vested in a legislature
consisting of a senate and a house of representatives. The people
reserve to themselves the
powers of initiative and referendum." Art. V., Sec. 1, Mont.
Const.

¶16 In its General Government Article, Montana's Constitution
defines the initiative power
at Article III, Section 4. It defines the referendum power in the
following section:
Referendum. (1) The people may approve or reject by
referendum any act
of the legislature except an appropriation of money. A
referendum shall be
held either upon order by the legislature or upon petition
signed by at least five
percent of the qualified electors in each of at least
one-third of the legislative
representative districts. The total number of signers must be
at least five
percent of the qualified electors of the state. A referendum
petition shall be
filed with the secretary of state no later than six months
after adjournment of
the legislature which passed the act.
(2) An act referred to the people is in effect until
suspended by
petitions signed by at least 15 percent of the qualified
electors in a majority of
the legislative representative districts. If so suspended the
act shall become
operative only after it is approved at an election, the result
of which has been
determined and declared as provided by law.

Art. III, Sec. 5, Mont. Const.

¶17 A third reference to the powers of initiative and
referendum appears under the Local
Government Article. Article XI, Section 8, Mont. Const., provides:
Initiative and referendum. The legislature shall extend the
initiative and
referendum powers reserved to the people by the constitution
to the qualified
electors of each local government unit.

As directed by Article XI, Section 8, Mont. Const., Montana's
legislature has statutorily
extended initiative and referendum powers to the electors of local
government units:
Right of initiative and referendum. (1) The powers of
initiative and

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referendum are reserved to the electors of each local
government. Resolutions
and ordinances within the legislative jurisdiction and power
of the governing
body of the local government, except those set out in
subsection (2), may be
proposed or amended and prior resolutions and ordinances may
be repealed in
the manner provided in § 7-5-132 through 7-5-137.
(2) The powers of initiative shall not extend to the
following:
(a) the annual budget;
(b) bond proceedings, except for ordinances authorizing
bonds;
(c) the establishment and collection of charges pledged
for the payment
of principal and interest on bonds; or
(d) the levy of special assessments pledged for the
payment of
principal and interest on bonds.

Section 7-5-131, MCA.

¶18 This Court has long recognized a distinction between
legislative and administrative
or quasi-judicial acts in relation to the powers of initiative and
referendum; legislative acts
have been held subject to referendum, while administrative or
quasi-judicial acts have not.
In City of Billings v. Nore (1966), 148 Mont. 96, 104, 417 P.2d
458, 463, this Court
described the distinction between legislative and administrative
acts as "whether the act was
one creating a new law (legislative) or executing an already
existing law (administrative)."

¶19 The Appellants point out that initiative and referendum
powers must be broadly
construed to maintain the maximum power in the people. See
Nicholson v. Cooney (1994),
265 Mont. 406, 411, 877 P.2d 486, 488. Their argument continues
based upon the special
concurrence to this Court's opinion in Greens at Fort Missoula v.
City of Missoula (1995),
271 Mont. 398, 897 P.2d 1078. In Greens, the issue was whether a
city referendum could
validly cancel rezoning of an area then newly annexed to the City
of Missoula. The parties
debated whether rezoning was a legislative act, like zoning, or an
administrative act not
subject to referendum. The Court determined that rezoning, like
zoning, is a legislative act,
and is therefore subject to referendum. Greens, 271 Mont. at 403,
897 P.2d at 1080-81. In
a special concurrence, Justice Nelson concluded that under

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Montana's Constitution, any act
of a local government body--not just a legislative act--is subject
to referendum. Greens, 271
Mont. at 407, 897 P.2d at 1083-84. Justice Nelson reasoned that
the reference to "any act
of the legislature" in Art. III, Sec. 5, Mont. Const., does not
distinguish between legislative
and administrative or quasi-judicial acts in describing the powers
of initiative and
referendum. Greens, 271 Mont. at 407, 897 P.2d at 1083.

¶20 Local governing bodies are empowered to exercise
legislative, administrative, and
other powers pursuant to Article XI, Section 4, Mont. Const.
Based on the concurring
opinion in Greens, Appellants assert that § 7-5-131, MCA, is
unconstitutional insofar as it
limits the referendum power against local government to
"[r]esolutions and ordinances within
the legislative jurisdiction and power of the governing body of the
local government . . . ."

¶21 Courts in other jurisdictions with constitutional
provisions extending the power of
referendum to "acts of the legislature" have recognized "act" as a
term of art, meaning a bill
passed by the legislature and enacted into law. See, e.g.,
Whittemore v. Terral (Ark. 1919),
215 S.W. 686, 687; Weldon v. Bonner County Tax Coalition (Idaho
1993), 855 P.2d 868,
875; Klosterman v. Marsh (Neb. 1966), 143 N.W.2d 744, 749; Herbring
v. Brown (Or.
1919), 180 P. 328, 330. This is consistent with authority
generally addressing the meaning
of an "act of the legislature." See Black's Law Dictionary 25 (6th
ed. 1990), defining
"act" in the sense of "legislative act" as "[a]n alternative name
for statutory law."

¶22 Moreover, the distinction recognized in Nore and other
Montana cases between
legislative acts and administrative or quasi-judicial acts
vis-a-vis their subjectivity to
referendum applies in virtually all other jurisdictions. The
"sound rationale for limiting the
referendum to legislative actions is that to permit referenda on
executive and administrative
actions would hamper the efficient administration of local
governments." Wennerstrom v.
City of Mesa (Ariz. 1991), 821 P.2d 146, 149. See also City of
Idaho Springs v. Blackwell
(Colo. 1987), 731 P.2d 1250, 1253; In re Supreme Court Adjudication
of Initiative Petitions
in Norman, Oklahoma Numbered 74-1 and 74-2 (Okla. 1975), 534 P.2d
3. The Supreme Court of Nebraska has reasoned:

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[T]o allow [the referendum] to be invoked to annul or delay
executive conduct
would destroy the efficiency necessary to the successful
administration of the
business affairs of a city. In many cases it would entirely
prevent the exercise
of the executive power necessary to carry out the acts
determined upon by the
legislative department. In the absence of a very clear
declaration to the
contrary it must be presumed that the power of referendum was
intended to
apply solely to the legislative powers of the city.

Read v. City of Scottsbluff (Neb. 1941), 297 N.W. 669, 671 (quoting
7 McQuillin,
Municipal Corporations, Supp. 6621, sec. 351c).

¶23 Montana's 1889 Constitution reserved to the people "power
to propose laws, and to
enact or reject the same at the polls." Art. V, Sec. 1, 1889
Montana Constitution. No case
law under the 1889 Constitution suggests that the powers of
initiative and referendum in
Montana ever extended to anything other than legislative acts. Nor
does anything in the
transcript of the proceedings of the 1972 Constitution suggest an
intent to expand the power
of initiative and referendum to anything other than legislative
power. In fact, in recommending the adoption at the 1972 Montana
Constitutional Convention of the referendum provision
which was adopted as Article III, Section 5, Delegate Mark Etchart
stated, "This provision
is parallel to the present referendum provisions as contained in
Article V, Section 1, of the
present Constitution." 1972 Mont. Const. Conv. Tr., March 18,
1972, Vol. VII at 2717.
In short, Montana's 1972 Constitution does not contain a "very
clear declaration to the
contrary," as the Nebraska court suggested is required, to the
general rule that the power of
referendum is intended to apply solely to legislative powers.

¶24 Instead, as noted above, the provision by which the
people retain the right of initiative
and referendum appears in the Constitutional Article on "The
Legislature." No comparable
provisions appear in the Articles concerning the Executive and the
Judiciary. Article VI,
Section 4, Mont. Const., vests the entire executive power with the
governor. There is no
reservation of executive power to the people by initiative and
referendum. Article VII,
Section 1, Mont. Const., vests the judicial power of the state in
this Court, the district courts,
justice courts, and other courts that the legislature may create.

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There is no reservation of
judicial power to the people by initiative and referendum.

¶25 Under Article XI, Section 8, Mont. Const., the Montana
Legislature is to extend to the
qualified electors of local government units "the initiative and
referendum powers reserved
to the people by the constitution." Even under the policy of
broadly construing the powers
of initiative and referendum, the legislature cannot extend to the
people greater powers
against local government than those which the people have reserved
to themselves in the
Constitution. The powers of initiative and referendum have been
reserved under the
Constitution as to legislative acts only.

¶26 For these reasons, we decline to abandon the rule set
forth in Nore or to adopt the
position set forth in the concurring opinion in Greens. We
reaffirm that under Montana's
Constitution, the people have retained the powers of initiative and
referendum as to
legislative acts only. Because we so rule, the question here
raised as to the constitutionality
of § 7-5-131, MCA, is resolved in the statute's favor.

¶27 Our next task is to determine whether Whitehall Town
Ordinance Chapter 4.00 is
legislative or administrative in nature. It is agreed that
denomination of an act of local
government as a resolution or as an ordinance is not dispositive as
to whether the act is
legislative or administrative; that determination is fact-driven.
We recognize, as suggested
in the briefs and at oral argument, that guidelines in addition to
those set forth in Nore will
assist in making such a determination.

¶28 Counsel have pointed out, and we agree, that the
expansion of the Nore standard set
forth in Chouteau County v. Grossman (1977), 172 Mont. 373, 563
P.2d 1125, and Dieruf
v. City of Bozeman (1977), 173 Mont. 447, 568 P.2d 127, is not of
assistance. In those
cases, this Court held that local governments were performing
administrative functions based
upon "existing law" consisting of statutory grants of authority to
local governments. In
Grossman, the existing law was a statute authorizing local
governments to lay out, maintain,
control and manage county roads; the Court held that this statute
rendered administrative a
county's decision to expend funds and accept bids to pay for paving

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a road. Grossman, 172
Mont. at 378, 563 P.2d at 1128. In Dieruf, the Court held that a
statute authorizing city or
county commissions to assess property owners for improvements to
create off street parking
rendered administrative the City of Bozeman's adoption of an
ordinance establishing a
formula for assessing property for purposes of creating an off
street parking facility and a
resolution creating a special improvement district to establish
that facility. Dieruf, 173 Mont.
at 451, 568 P.2d at 129-30. The rule adopted in Grossman and
Dieruf renders the Nore
standard practically meaningless, because virtually all municipal
actions are, either directly
or indirectly, taken pursuant to statutory authority. Therefore,
to the extent that Grossman
and Dieruf stand for the rule that a local government's act is
administrative based solely upon
a statutory grant of authority, we hereby overrule those cases.

¶29 The amicus brief submitted by the office of Montana's
Attorney General recommends
guidelines for distinguishing between legislative and
administrative acts of a local
government set forth by the Supreme Court of Kansas in Wichita v.
Kansas Taxpayers
Network (Kan. 1994), 874 P.2d 667. The first guideline in Kansas
Taxpayers is essentially
the distinction set forth by this Court in Nore. The other three
guidelines expand upon and
add to that distinction. We hereby approve and adopt the Kansas
Taxpayers guidelines for
use in Montana. The guidelines are:
1. An ordinance that makes new law is legislative, while an
ordinance that
executes an existing law is administrative. Permanency and
generality are key
features of a legislative ordinance.

2. Acts that declare public purpose and provide ways and
means to accomplish that purpose generally may be classified as
legislative. Acts that deal
with a small segment of an overall policy question generally
are administrative.

3. Decisions which require specialized training and
experience in municipal
government and intimate knowledge of the fiscal and other
affairs of a city in
order to make a rational choice may properly be characterized
as administrative, even though they may also be said to involve the
establishment of a
policy.

4. No one act of a governing body is likely to be solely
administrative or

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legislative, and the operation of the initiative and
referendum statute is
restricted to measures which are quite clearly and fully
legislative and not
principally executive or administrative.

Kansas Taxpayers, 874 P.2d at 671-72.

¶30 Applying these guidelines to the facts of the present
case, we begin with the question
of whether Whitehall Town Ordinance Chapter 4.00 makes new law or
executes existing
law. The Town of Whitehall argues that the ordinance executes
existing laws, those being
the town council's prior resolutions to seek grants and a loan to
make improvements to the
Whitehall water system. In the town's view, those resolutions were
its legislative acts. We
note that even a cursory examination of the applications for grants
establishes that water
meters were part of Whitehall's water system improvement plan.

¶31 However, Appellants claim that a view that the
first-in-time act by the town council
is the only "legislative" act allows for artificial manipulation by
the local government and
yields no meaningful distinction between legislative and
administrative acts at all.
Appellants argue that Whitehall's voters never had the opportunity
to exercise their
legislative review authority with regard to the proposed
improvements, because the details
of the improvements were not previously acted upon by the town
council in any manner by
which effective review was possible. They point out that Ordinance
Chapter 4.00 is the first
act of the Whitehall Town Council which specifically adds the new
requirement that water
meters be installed for the users of Whitehall's water system.

¶32 In this case, we conclude that application of this first
guideline does not conclusively
establish whether Ordinance Chapter 4.00 is legislative or
administrative. We therefore
proceed to consider the other three guidelines.

¶33 The second Kansas Taxpayers guideline asks whether the
ordinance deals with a small
segment of an overall policy question. In this case, the overall
question was how to improve
the town's water system to provide water to consumers. The record
includes copies of
Whitehall's 1994 applications for a Community Development Block
Grant and for a grant

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from the Treasure State Endowment Program, which explain the nature
of the problem which
the town was facing. Portions of the existing water system dated
back to 1915. The town
had had problems for a decade with low water pressure and
inadequate fire flows. In 1991,
the town had retained a consulting firm to perform an analysis of
the water system to
determine deficiencies and make recommendations for improvements.
Replacing worn out
and obsolete pipes and installing a new 500,000 gallon water
reservoir were two aspects of
the proposed improvements to Whitehall's water system to increase
water capacity and
pressure. Installation of water meters to encourage water
conservation was another.

¶34 As mentioned above, in 1992 the PSC had directed
Whitehall to explore options for
reducing its consumption of water, including the use of water
meters. Whitehall's water
system used more than three times as much water as did the system
of a comparable Montana
town where water was metered. The use of water meters had been
proposed and specifically
identified as a goal in the project summaries in both the Treasure
State Endowment Program
Grant application and the Community Development Block Grant
application. We conclude
that the decision to install water meters was a small segment of an
overall policy question.

¶35 As to the third guideline, the most effective means of
operating and managing a city-wide water system reasonably fits
within the context of decisions that require specialized
knowledge and experience with respect to city management. In
Kansas Taxpayers, which
involved an ordinance concerning billing for a municipality's storm
water utility system, the
court stated:
The physical structure of the system, maintenance, and fee
assessment and
collection all fit within the purview of the City's expertise.
The City already
owns and maintains the existing system; [the challenged
ordinance] also fits
within a city's expertise in terms of fiscal management.

Kansas Taxpayers, 874 P.2d at 672. The same may be said here. The
best method of billing
for the use of water services is clearly a part of a larger
decision-making function requiring
specialized knowledge and experience with respect to city
management.

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¶36 While the record does not indicate that prior to the
enactment of Whitehall Town
Ordinance Chapter 4.00, the Whitehall Town Council had voted upon
the singular issue of
installing water meters, the record does establish that the
proposal to install water meters had
been endorsed as part of several acts of the town council,
specifically the resolutions to
submit the two grant applications. The town has submitted into the
record copies of
numerous notices of town meetings in which water meters were listed
as a topic of
discussion.

¶37 Among those, an April 11, 1994 public hearing included a
"Review of [the]
Community Development Block Grant Program," a "Review [of] General
Needs," and
solicitation of comments from the public. That public hearing
preceded the town council's
April 14, 1994 meeting which included agenda items on finalizing
the financial plans for the
water project and grant applications plans, and its May 23,1994
resolution approving the
submission of the application for a Community Development Block
Grant. The Community
Development Block Grant application included a statement in the
initial project description
that "water meters will be installed on individual residential and
commercial services to
encourage conservation of water," and, in the body of the
application, several paragraphs on
the water meter plan.

¶38 Similarly, a public meeting announced in two area
newspapers, the Whitehall Ledger
and the Montana Standard, was held on March 23, 1995, "to provide
the community with
updated information on the proposed water improvements and the
results of the grant
applications." Thereafter, the notice of the July 10, 1995 town
council meeting included as
an agenda item the "TSEP contract," which grant contract was then
approved by resolution
of the town council and subsequently entered into by the mayor on
the town's behalf on
September 4, 1995. The project summary included in the TSEP
(Treasure State Endowment
Program) grant application stated that "water meters will be
installed on individual
residential and commercial services to encourage conservation of
water."

¶39 The parties have stipulated that various citizens of
Whitehall had previously voiced

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objections, either informally, or not properly formalized,
concerning the installation of water
meters. The existence of the previous public hearings and town
council resolutions and the
previous objections to the installation of water meters confirms
that this issue was not
addressed for the first time with the adoption of Whitehall Town
Ordinance Chapter 4.00.
We are thus led to the conclusion that Whitehall Town Ordinance
Chapter 4.00 was not
"quite clearly and fully legislative" under the fourth Kansas
Taxpayers guideline but was, to
at least some extent, an administrative act to carry out previous
plans to which the council
had agreed.

¶40 Using the guidelines set forth in Kansas Taxpayers and
now adopted by this Court,
we conclude that the enactment of Whitehall Town Ordinance Chapter
4.00 was an
administrative act and was accordingly not subject to referendum.
Having so determined,
we hold that the District Court did not err in declaring the
referendum invalid. We therefore
need not address the issue raised on appeal concerning whether the
referendum was
unconstitutional because it would substantially interfere with
contracts.

¶41 We do not address the statutory debt limitation issue
raised at the end of Appellants'
opening brief because the issue was not raised before the District
Court. See Kapner,
Wolfberg & Assoc. v. Blue Cross (1995), 270 Mont. 283, 286, 891
P.2d 530, 532.

¶42 We affirm the decision of the District Court.

/S/ J. A. TURNAGE

We concur:

/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ WILLIAM E. HUNT, SR.
/S/ TERRY N. TRIEWEILER
/S/ KARLA M. GRAY

Justice James C. Nelson specially concurs.

¶44 Having now had the benefit of extensive briefing and oral
argument on the issue, I
agree that my concurrence in Greens at Fort Missoula v. City of
Missoula (1995), 271 Mont.
398, 897 P.2d 1078, did not correctly interpret the phrase "any act

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of the legislature." I am
satisfied that the word "act" as used in that phrase was clearly
contemplated by the framers
of Montana's Constitution to be synonymous with "law" or with a
bill which has been
enacted into law. Moreover, in the case at bar, it is also clear
that the electors' constitutional
right of referendum on the matter of the water meters was preserved
in that the electors,
having been given due notice and opportunity to be heard (as set
out in the Court's opinion),
had the ability to challenge by referendum the various
water-improvement-project resolutions
passed by the Whitehall Town Council. In my view, Ordinance 4.00
simply implemented
administratively the legislative act that had been accomplished in
the resolutions.
Accordingly, I concur.
/S/ JAMES C. NELSON

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