### No. 

### 13125 INTHE SUPREME COURT 

### OF 

### THE STATE 

### OF MONTANA 1976

STATE 

### OF MONTANA ex rel. Department of Health and Environmental Sciences, Plaintiff and Appellant,

CITY OF LIVINGSTON, County of Park, State of Montana, Defendant and Respondent.
Appeal from: District Court of the SixthJudicial 

### District, Honorable Jack D. 

### Shanstrom, Judge presiding. Counsel of Record : 

### For Appellant

### : Richard D. 

### Klinger argued, Helena, Montana A. Michael Salvagni appeared, Helena, Montana For Respondent

### : Robert 

### L. Jovick argued, Livingston, Montana

Submitted

### : February 

### 2, 1976 Decided: 

## 4p)i. 

## 1

- 

## 1976 Filed: 

### ij.'t

## -: *LJ?~Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
The Stateof Montana filed a civil action against the City of Livingston in the districtcourt, Park County, seeking recovery of a monetary penalty and a compliance order from the court for alleged violations of Montana's Water Pollution Act, Title69, Chapter 48, R.C.M. 1947. The Citymoved todismiss the complaint for failure to statea 

### claim. The district court granted summary judgment in favor of the City. The Stateappeals. According tothe complaint, the StateDepartment of Health and Environmental Sciences (Department) issued the City
a permit on November 21, 1973, which authorized a limited discharge of liquid 

### wastes from the City's sewage treatment plant into the Yellowstone River. "Special conditions" of the permit required the City to immediately notify the Department and the federal Environmental ProtectionAgency (EPA) of any accidental
or unplanned discharge or diversion of 

### wastes which would tend toviolate the conditions of the permit. The complaint further alleges that on or about September 6, 1974, representatives of the Department and the EPA observed
a bypass of raw sewage from the City's sewage treatment plant into the Yellowstone River. The City did not notify the Department or the EPA 

### as required by 

### itspermit. The complaint states the Department issued a compliance order which 

### it served on the cityclerk of Livingston. The compliance order was issued pursuant to section 69-4820.1(2), R.C.M. 1947, and ordered the City to submit tothe Department within fifteen days an eight-point report relating tothe cause of the bypass and the corrective and preventive measures taken by the City. The City failed torespond to the compliance order. The complaint asserted two violations of Montana's 

### Water Pollution Actby the City: 

### (1)failure to immediately notifythe Department and the EPA of the sewage bypass inviolation of section 69-4806(3), R.C.M. 1947, and (2) failure toreply to the Department's compliance order inviolation of section 69- 4820.1(2), R.C.M. 1947. The complaint seeks 

### a civilpenalty of $3,000 and a court order directing the City tomaintain full compliance with allterms and conditions of 

### itspermit. The City filed a motion todismiss the complaint for failureto statea claim on which relief can be granted. The motion was submitted for decision on briefs. The districtcourt entered an order stating inpertinent part: 

### " 

## * 

## * * it appearing tothe Court that the Complaint fails to state

### a claim upon which relief can be granted and that there 

### is no genuine issue 

### as toany material fact; "IT IS HEREBY ORDERED that Judgment be entered in favor of Defendant, City of Livingston 

## * * 

## *."

The State appeals. The ultimate issueon appeal 

### iswhether summary judgment
was properly granted. This turns on two underlying questions:

(1)Does the complaint statea claim on which relief can be granted? (2) Can summary judgment be granted on a motion todis

### missthe complaint for failure to statea claim? In 

### its firstclaim for relief, the Statealleges that agents of the Department and the EPA observed the bypass of 

### raw sewage from the City's sewage treatment plant into the Yellowstone River and that the Citydid not "immediately notify" the Department and the EPA of such bypass asrequired by 

### its permit. Assuming that these allegations are true, 

### is the State entitled to relief? We think not, and so hold. The Department had actual notice of thebypass. Telephone or written notice by the City under these circumstances would have been a useless gesture. Section 49-124, R.C.M. 1947, states: "The law neither does nor requires idleacts." No claim for relief on thisbasis 

### is stated.In its second claim for relief, the State alleges issuance of an appropriate compliance order inaccordance with section 69-4820.1(2), R.C.M. 1947; personal service thereof on the cityclerk of Livingston pursuant to section 69-4820(1), R.C.M. 1947; and failureof the City toreply thereto within fifteendays asrequired by the compliance order. The City contends the service of the compliance order
was defective in that personal service on the City could only be accomplished by personal service on theMayor under principles of common 

### lawand Rule 4, M.R.Civ.P. In our view, the controlling statutedoes not require service on the mayor. Servicemay be made on any agent of the City, either personally or by mail as stated in section 69-4820(1), R.C.M. 1947: "When the department has reason tobelieve that a violation of this chapter or a rulemade under it has occurred, 

### it may have written notice served personally or by mail on the alleged violator or his aqent. The notice shall statethe provision alleged tobe violated, the facts alleged toconstitutethe violation, the nature of corrective action which the department requires, and the 

### time within which the action 

### is tobe taken. For the purposes of this chapter, service by mail iscomplete on the date of mailing." (Emphasis supplied.) The express provisions of this special statuterelating to service under the Montana Water Pollution Actcontrol over general statutes relating to service of process in a civil action upon a municipalityunder Rule 4, M.R.Civ.P., tothe extent of any inconsistency. Teamsters 

### et al. v. Montana Liquor Control Board, 155Mont. 300, 421 P.2d 541; In re Stevenson's Estate, 87 Mont. 486, 289 P. 566. The same can be said of statutory enactments vis-a-vis inconsistent
common law principles. Wetherefore hold that service of the compliance order
on the City was legally made, and a claim for relief against the City for violation thereof was stated inthe complaint.The second issue concerns whether entry of summary judgment in favor of the City was correct. Here summary judgment was based on the complaint alone. Nothing outside the bare allegations of the complaint was before the district court. The districtcourt treated the City'smotion todismiss under Rule 12(b)(6), M.R.Civ.P., asa motion for summary judgment under Rule 56(c),M.R.Civ.P., without notice thereof to the State. This was error. The treatment of a motion todismiss 

### as a motion for summary judgment 

### is governed by Rule 12(b),M.R.Civ.P., which provides inpertinent part: 

### " 

## * 

## * * If, on a motion asserting the defense numbered (6) todismiss for failureof the pleading to statea claim upon which relief can be granted, matters outside the pleadings are presented toand not excluded by the court, the motion shall be treated asone for summary judgment and disposed of asprovided in Rule 56, and allparties shall be qiven reasonable opportunity to present allmaterial made pertinent to such motion by Rule 56.

### " (Emphasis supplied.) Here, the district court treated the City's motion 

### to dismiss for failure to state a claim as a motion for summary judgment without notice and without affording the State a reasonable opportunity tooppose it. The Statewas not "given reasonable opportunity topresent all

### material pertinent to suchmotion by Rule 56" asrequired by Rule 

### 12(b)

## ,M.R.Civ.P. The rationale supporting thisrequirement has been stated in this language: "As soon as a motion todismiss under Rule 12(b)(6) 

### isconverted into a motion for summary judgment, the requirements of Rule 56 become operable. It 

### is important that the court give the parties notice of the changed statusof the motion and a 'reasonable opportunity topresent allmaterial made pertinent to suchmotion by Rule 56.' In thisway no one 

### will be taken by surprise by the conversion. Once the proceeding becomes one for summary judgment, the moving party's burden changes and he 

### isobliged to demonstrate that there exists no genuine issue as to any material fact and that he 

### is entitled to a judgment asa matter of law." 5 Wright & Miller, Federal Practice & Procedure: Civil § 1366, p. 683. This identical rationale 

### is expressed inthe advisory committeenotes tothe 1948 amendment toFederal Rule of Civil Procedure 12(b)

## , from which Montana

## 's rule ismodeled. Thus it was error for the district court togrant summary judgment to the City without affording the Statenotice and a reasonable opportunity tobe heard. Wevacate the summary judgment herein and remand this
case to the district court for further proceedings.

Justice

' Justices