No. 86-572 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

DAVID MOGAN, 

Plaintiff and Appellant, 

-vsTHE CITY OF HARLEM, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Seventeenth Judicial District, 

In and for the County of Blaine, 

The Honorable B. W. Thomas, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Patrick F. Flaherty, Great Falls, Montana 

For Respondent : 

Jardine, Stephenson, Blewett & Weaver; Sue Ann Love, 

Great Falls, Montana 

Submitted on Briefs: May 14, 1987 

Decided: July 21, 1987 

Filed: 21 1987 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Plaintifflappellant David Mogan is appealing an order 

issued by the District Court of the Seventeenth Judicial 

District, Blaine County, granting defendant/respondent City 

of Harlem's motion to dismiss. 

We affirm in part and reverse in part. 

According to the facts stated in the complaint, David 

Mogan had, in August 1984, applied for and received financing 

and building permits required for the construction of a 

two-story, eight unit apartment building. At that time, the 

City had in effect an ordinance requiring a $75 connection 

fee to the City water supply and a $50 connection fee to the 

City sewer. The ordinance had an effective enactment date of 

July 4, 1979. 

David Mogan applied for the water and sewer permits on 

August 24, 1984, tendering the appropriate amounts. His 

application was denied. On August 25, the ordinance, number 

57, was amended., having the effect of requiring that Mogan 

apply for separate permits for each apartment, raising the 

cost for the permits eight-fold. The amendment also required 

that separate water meters be installed in each of the eight 

units. 

Mogan sued alleging constitutional violations, breach of 

contract, and violation of statute, requesting declaratory 

judgment and a writ of mandamus. The City moved for 

dismissal. Briefs were submitted, and the District Court, 

after oral arguments by telephone conference, granted the 

City's motion. 

The District Court's order of dismissal addressed the 

issue of municipal immunity for acts of the municipality's 
legislative body, under § 2-9-111 (2) , MCA, but did not cite 

that statute as the basis for its decision. Instead the 

District Court accepted the City's argument that there was no 

legal basis for Mogan's claim under contract, that 

insufficient facts were alleged to state a claim for 

declaratory judgment, and that no constitutionally protected 

rights were violated. The District Court did suggest that 

mandamus offered Mogan his best hope for a remedy, but did 

not issue a writ because Mogan did not follow the required 

statutory procedure for mandamus. 

Mogan raises three issues on appeal, two of which allege 

violation of Montana's constitutional due process and equal 

protection provisions. We need not address these 

constitutional issues as resolution of the third issue 

negates that necessity. The sole issue on appeal then is 

whether the District Court erred in granting the City's 

motion to dismiss Mogan's complaint for failure to state a 

claim. 

Montana's well established rule is that a complaint 

should not be dismissed for insufficiency unless it appears 

certain that the plaintiff is entitled to no relief under 

any set of facts which could be proved in support of the 

claim. This test was established in Conley v. Gibson (1957), 

355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 and has been 

repeatedly endorsed by this Court. Busch v. Kammerer (1982), 

200 Mont. 130, 649 P.2d 1339; Tobacco River Lumber Co., Inc. 

v. Yoppe (1978), 176 Mont. 267, 577 P.2d 855. A second 

guiding principle is that a motion to dismiss under Rule 

12 (b) (6) M.R.Civ.P. has the effect of admitting all the 

well-plead allegations of the complaint. Busch - v. Kemmerer, 

supra; Willson v. Taylor (Mont. 1981), 634 P.2d 1180, 38 

St.Rep. 1606; Duffy v. Butte Teachers' Union No. 332, AFL-CIO 

(1975), 168 Mont. 246, 541 P.2d 1199. 
Further, when the District Court considers a motion to 

dismiss, the complaint is construed in the light most 

favorable to the plaintiff, and all allegations of fact 

therein are taken as true. Willson - v. Taylor, supra, 

Commonwealth Edison, Co. v. State (1980), 189 Mont. 191, 615 

P.2d 847, Aff'd. 453 U.S. 609, 101 S.Ct. 2946, 69 L.Ed.2d 884 

(1981). 

Mogan's complaint states: 

The ordinance under which the city of Harlem has 

extracted additional fees and costs from David 

Mogan, (Ordinance No. 57 as amended on August 25, 

1984), is an illegal, unlawful, ultra vires and 

void ordinance and of no proper effect. The 

plaintiff is asking that this Court declare that 

this ordinance is void and of no legal consequence 

because it was enacted on improper notice, is 

ambiguous and violative of the due process and 

equal protection clauses of the Constitution of the 

State of Montana. 

Clearly by this claim the City was put on notice that 

Mogan was challenging the legitimacy of the process the City 

used in amending ordinance No. 57. Of course there was room 

in the claim for relief for more precision, however, this 

Court is required to construe the complaint in the light most 

favorable to the plaintiff, and in such light the allegations 

were sufficient to state a claim. 

In his brief on appeal Mogan alleges violation of SS 

7-5-103(3) and 7-5-105, MCA. These statutes were also 

alluded to in the complaint. Section 7-5-103(3) states: 

(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 puhlic. 

Section 7-5-105 states: 
No ordinance other than an emergency ordinance 

shall be effective until 30 days after second and 

final adoption. 

On the basis of these statutes alone, Mogan's allegations 

sufficiently give rise to an actionable claim for relief. 

In response to recitation of those statutes, the City 

claims municipal immunity for the actions of its legislative 

body under S 2-9-lll(2, which states: "A governmental 

entity is immune from suit for an act or omission of its 

legislative body or a member, officer or agent thereof ." 

The District Court order addressed the issue of 

municipal immunity, but chose to avoid the issue as a reason 

for dismissing the case. However, the above-cited statutes 

55 7-5-103 (3), 7-5-105, 2-9-111 (2), MCA, are the crux of the 

legal action brought before the District Court. As an 

applicant for permits, Mogan had a right to the provisions of 

the ordinance in effect at the time of his application. 

This Court does not favor dismissals on pleading unless 

a complaint does not state a cause of action under any set of 

facts. Willson - v. Taylor, supra. We believe the facts set 

forth in Mogan's complaint were sufficient to state a claim. 

Therefore, we reverse the District Court's order of 

dismissal, and remand to the District Court for further 

proceedings consistent with this opinion. 

e 

Justice v 

We Concur: A