County of Chouteau v. City of Fort Benton ( 1979 )

No. 14559
I N THE S P
U= C W O THE STATE O & I A A
O F F D N
W
1979
THE COUMIY O CHOIITEAU, STATE OF
F
and the STATE O m A N A ex rel. GEORGE W.
F
-I
P l a i n t i f f s and Appellants,
THE CITY O FORT EENKN, M3NTANA, a
F
municipal corporation,
Defendant and Respondent.
Appeal from: D i s t r i c t Court of the Eighth Judicial District,
Homrable Joel G. Roth, Judge presiding.
Co-me1 of Record:
For Appellants:
A. Evon M e r s o n argued, Fort Benton, b n t a n a
For Respondent:
Schmidt, G i l b e r t & Jungers, Fort Benton, &x-kana
Grover C. Schmidt, Jr. argued, Fort Benton, b n t a n a
Suhnitted: March 16, 1979
MAG 1 1C.74
Decided:
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Plaintiffs appeal from an order of the District Court
of Chouteau County quashing a temporary restraining order and
denying a permanent injunction.
On July 18, 1977, the city council of Fort Benton,
Montana, passed a resolution of intent to create an extended
Special Water Line District. The purpose of the District was
to install water lines along the streets included within its
boundaries and to connect those lines to the existing city water
system. Pursuant to that resolution, on September 19, 1977,
the city council created the proposed Special Improveinent Dis-
trict, set forth the method of assessing costs and the manner of
payment, and instructed the city clerk to publish notice invit-
ing bids on the project. In pertinent part, the resolution reads:
" .. . the entire cost and expense of said
improvements shall be paid by the owners of the
property within said Special Water Line District
.. .each lot or parcel of land within said
district to be assessed for that part of the cost
to be paid by said district which its area bears
to the total area of said special improvement
water line district exclusive of streets, avenues,
alleys and public places." (Emphasis supplied.)
Included in the area within the District's boundaries
are the Cbkeau County Fairgrounds and the property of George
Harvey. As plaintiffs in this action, Harvey and the County
sought, and the District Court issued, an order temporarily res-
training the City from taking further action on the Special Im-
provement District. Defendant City was also ordered to show
cause why a permanent injunction should not be issued. Subse-
quently, defendant filed a motion to quash the temporary restrain-
ing order and the order to show cause and later moved to dismiss
the complaint.
The action was submitted on briefs and pursuant to its
conclusions of law, the District Court concluded:
"The method of assessment adopted by the City
Council . . . to pay for the improvements con-
forms to the requirements of Section 11-2214(a),
R.C.M. 1947 as amended and the terminology therein
'exclusive of streets, avenues, alleys and public
places' satisfies the statutory requirement of
describing the method of assessment adopted by
the City Council."
The temporary restraining order and the order to show cause were
quashed and vacated and the complaint seeking an injunction was
dismissed.
From that judgment plaintiffs appeal and raise two issues
for our consideration:
(1) Whether the Chouteau County Fairgrounds, as property
of the County, is properly includable in the Special Improvement
District.
(2) Whether assessment of all the area within the Special
Improvement District on a proportionate basis is proper.
Because the city council made a finding in its July 19
resolution that "all real estate situated in said district will
be especially benefitted and affected by such improvements" the
District became an extended Special Improvement District under
section 11-2205, R.C.M. 1947, now section 7-12-4103 MCA. As such,
the property within the District is assessable as provided in
section 11-2214(1)(a), R.C.M. 1947, now section 7-12-4162 MCA:
"(1) The city council or commission shall assess
the entire cost of such improvements against the
entire district, each lot or parcel of land within
such district to be assessed for that part of
the whole cost which its area bears to the area
of the entire district, exclusive of streets,
avenues, alleys and public places;
"(3) In order to equitably apportion the cost of
any of the improvements herein provided for be-
tween that land within the district which lies
within 25 feet of the line of the street on which
the improvement is to be made and all other land
within the district, the council or commission
may, in the resolution creating any improvement
district, provide that the amount of the assess-
ment against the property in such district to
defray the cost of such improvements shall be
so assessed that each square foot of land with-
in the district lying within 25 feet of the line
of the street on which the improvements therein
provided for are made shall bear double the
amount of cost of such improvement per square
foot of such land that each square foot of any
other land within the district shall bear."
Over 65 years ago this Court noted a dramatic split of
authority on the question of whether places like schools or
fairgrounds were to be included in special improvement districts
and assessed for their share of improvement costs. City of
Kalispell v. School District No. 5 (1912), 45 Font. 221, 226,
122 P. 742. The states which have ruled on the question are still
not in accord and the conflict continues. See 70 Am Jur 2d
Special or Local Assessments 552.
Despite the continuing controversy, this Court held in
City of Kalispell v. School District No. 5 and in an unbroken
line of cases thereafter that such places are subject to assess-
ments. This Court interpreted the statute in issue here as
follows :
"Our statute authorizing these special assessments
provides in general terms that they shall be paid
by the entire improvement district; each lot or
parcel of land within the district to be assessed
for that part of the whole cost which its area bears
to the area of the entire improvement district, ex-
clusive of streets, alleys, and public places. This
language is general. It includes all the property
within the improvement district; and we are not at
liberty to ingraft upon the statute exceptions
which are not there. But it is suggested that the
concluding clause . . . 'exclusive of streets, alleys
and public places,' is broad enough to include prop-
erty devoted exclusively to public use, such as
school property. But that construction violates the
elementary rules of statutory construction; and
certainly, if the legislature intended to exempt
property devoted to public purposes, it could have
found apt terms by which to express its meaning. - The
rule exemplified by the expression 'ejusdem generis'
requires that the words 'public places' be read to
mean public places, such as streets or alleys. After
all, the question before us is largely one of public
policy." City of Kalispell v. School District No. 5,
supra, at 230; Toole County Irrigation District v.
State (1937), 104 Mont. 420, 434, 67 P.2d 989; School
District No. 1 v. City of Helena (1930), 87 Mont. 300,
306, 287 P. 164; State ex rel. City of Great Falls v.
Jeffries (1928), 83 Mont. 111, 116, 270 P. 638;
Swords v. Simineo (1923), 68 Mont. 164, 175, 216
P. 806. (Emphasis supplied.)
Ejusdem generis is a commonly accepted rule of statutory
construction which "requires that general terms appearing in a
statute in connection with specific terns are to be given mean-
ing and effect only to the extent that the general terms suggest
items similar to those designated by specific terms." Dean v.
McFarland (1972), 81 Wash.2d 215, 500 P.2d 1244, 1248, 74 ALR3d
378. Like the schools in City of Kalispell v. School District
No. 5, the fairgrounds here are not similar to "streets and alleys"
and cannot be excluded from the Special Improvement District.
The plaintiffs also contend the city council must assess
the property within 25 feet of the waterline twice as much as
the property further from the line. We disagree.
The statute in question reads "the council . . . may, in
the resolution creating any improvement district, provide" that
property within 25 feet of the line is to be assessed twice as
much as other property in the district. Section 11-2214(1)(a),
R.C.M. 1947, now section 7-12-4162 (3) MCA. (Emphasis supplied. )
The word "may", unless it has acquired a special meaning
in law, is to be given its ordinary meaning. Lewis v. Petroleum
County (1932), 92 Mont. 563, 567, 17 P.2d 60, 86 A.L.R. 575. The
plaintiffs argue such a special meaning has attached. They have
cited numerous cases to the effect that when a right is created
in an individual by a statute, a governmental entity must exercise
its discretion to the end that the right be given effect. That
is not the situation here. The statute does not operate to create
a right in an individual; rather, it clearly bestows discretion
on the city council to use an alternate plan of assessment to
achieve an equitable result.
In other cases where the exercise of a discretionary power
by a city council has been questioned, this Court has said: The
action is usually conclusive "unless palpably unjust . . . ex-
cept in cases of fraud or manifest mistake." Northern Pacific
Railway Co. v. Lutey (1937), 104 Mont. 321, 324, 66 P.2d 785.
The discretion will not be controlled "in the absence of a
clearly arbitrary abuse." State v. City Council et a1 (1939),
108 Mont. 347, 356, 90 P.2d 514. A determination of the coun-
cil will not be set aside unless "arbitrary, oppressive or fraud-
ulent." Koich v. Cvar et al. (1941), 111 Mont. 463, 466, 110
P.2d 964.
From the quoted specific applications of the principle,
we derive a general rule as follows: When a city council exer-
cises discretionary power, its action will not be disturbed un-
less there is a showing of manifest abuse of discretion. In the
instant case no abuse has been shown and the council's action
cannot be enjoined.
Finding no error, the judgment of the District Court is
affirmed.
Chief Justice
0' Justices