No. 13125 

IN THE 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 Sixth Judicial District, 

Honorable Jack D. Shans trom, 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 State of Montana filed a civil action against the 

City of Livingston in the district court, Park County, seeking 

recovery of a monetary penalty and a compliance order from the 

court for alleged violations of Montana's Water Pollution Act, 

Title 69, Chapter 48, R.C.M. 1947. The City moved to dismiss 

the complaint for failure to state a claim. The district court 

granted summary judgment in favor of the City. The State appeals. 

According to the complaint, the State Department 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 Protection Agency (EPA) of any accidental 

or unplanned discharge or diversion of wastes which would tend 

to violate 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 its permit. 

The complaint states the Department issued a compliance 

order which it served on the city clerk of Livingston. The compliance order was issued pursuant to section 69-4820.1(2), R.C.M. 

1947, and ordered the City to submit to the Department within 

fifteen days an eight-point report relating to the cause of the 

bypass and the corrective and preventive measures taken by the 

City. The City failed to respond to the compliance order. 

The complaint asserted two violations of Montana's Water 

Pollution Act by the City: (1) failure to immediately notify 
the Department and the EPA of the sewage bypass in violation 

of section 69-4806(3), R.C.M. 1947, and (2) failure to reply to 

the Department's compliance order in violation of section 69- 

4820.1(2), R.C.M. 1947. The complaint seeks a civil penalty of 

$3,000 and a court order directing the City to maintain full 

compliance with all terms and conditions of its permit. 

The City filed a motion to dismiss the complaint for 

failure to state a claim on which relief can be granted. The 

motion was submitted for decision on briefs. The district court 

entered an order stating in pertinent part: 

" * * * it appearing to the Court that the 

Complaint fails to state a claim upon which relief 

can be granted and that there is no genuine issue 

as to any material fact; 

"IT IS HEREBY ORDERED that Judgment be entered in 

favor of Defendant, City of Livingston * * *." 

The State appeals. 

The ultimate issue on appeal is whether summary judgment 

was properly granted. This turns on two underlying questions: 

(1) Does the complaint state a claim on which relief can be 

granted? (2) Can summary judgment be granted on a motion to dismiss the complaint for failure to state a claim? 

In its first claim for relief, the State alleges 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 City did not "immediately notify" the Department and the EPA of such bypass as required 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 the bypass. 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 idle acts." 

No claim for relief on this basis is stated. 
In its second claim for relief, the State alleges issuance of an appropriate compliance order in accordance with 

section 69-4820.1(2), R.C.M. 1947; personal service thereof on 

the city clerk of Livingston pursuant to section 69-4820(1), 

R.C.M. 1947; and failure of the City to reply thereto within 

fifteen days as required 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 the Mayor under principles 

of common law and Rule 4, M.R.Civ.P. 

In our view, the controlling statute does not require 

service on the mayor. Service may 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 to believe that 

a violation of this chapter or a rule made under 

it has occurred, it may have written notice served 

personally or by mail on the alleged violator or 

his aqent. The notice shall state the provision 

alleged to be violated, the facts alleged to constitute the violation, the nature of corrective 

action which the department requires, and the time 

within which the action is to be taken. For the 

purposes of this chapter, service by mail is complete on the date of mailing." (Emphasis supplied.) 

The express provisions of this special statute relating to service 

under the Montana Water Pollution Act control over general statutes 

relating to service of process in a civil action upon a municipality under Rule 4, M.R.Civ.P., to the extent of any inconsistency. 

Teamsters et al. v. Montana Liquor Control Board, 155 Mont. 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. 

We therefore 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 in the 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 district court treated the City's motion to dismiss 

under Rule 12(b)(6), M.R.Civ.P., as a 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 to dismiss as a motion for 

summary judgment is governed by Rule 12(b), M.R.Civ.P., which 

provides in pertinent part: 

" * * * If, on a motion asserting the defense 

numbered (6) to dismiss for failure of the 

pleading to state a claim upon which relief can 

be granted, matters outside the pleadings are 

presented to and not excluded by the court, the 

motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, 

and all parties shall be qiven reasonable opportunity to present all material 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 to oppose it. The State was not "given reasonable opportunity to present all material pertinent to such motion 

by Rule 56" as required by Rule 12 (b) , M.R.Civ.P. The rationale 

supporting this requirement has been stated in this language: 

"As soon as a motion to dismiss under Rule 12 (b) (6) 

is converted 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 status of the motion and a 'reasonable 

opportunity to present all material made pertinent 

to such motion by Rule 56.' In this way 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 is obliged to 

demonstrate that there exists no genuine issue as 

to any material fact and that he is entitled to a 

judgment as a matter of law." 5 Wright & Miller, 

Federal Practice & Procedure: Civil § 1366, p. 683. 

This identical rationale is expressed in the advisory committee 
notes to the 1948 amendment to Federal Rule of Civil Procedure 

12 (b) , from which Montana ' s rule is modeled. 

Thus it was error for the district court to grant summary 

judgment to the City without affording the State notice and a 

reasonable opportunity to be heard. 

We vacate the summary judgment herein and remand this 

case to the district court for further proceedings. 

Justice 

' Justices