IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

WALTER HAMMERMEISTER, et al., 

Plaintiffs and Appellants, 

NORTHERN MONTANA JOINT REFUSE DISPOSAL 

DISTRICT, PONDERA COUNTY, GLACIER COUNTY, 

TETON COUNTY, et a1 . , 

Defendants and Respondents. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Pondera, 

The Honorable Marc G. Buyske, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Edmund F. Sheehy, Jr.; Cannon & Sheehy, Helena, 

Montana 

For Respondents: 

Selden S. Frisbee, Attorney at Law, Cut Bank, 

Montana 

Mark F 

Great 

Kevin 

Great 

. Higgins; Ugrin, Alexander, Zadick & Higgins, 

Falls, Montana 

C, Meek; Davis, Hatley, Haffeman & Tighe, 

Fplls, Montana 4 

" Submitted on Briefs: September 19, 1996 

Clerk 
Justice W. William Leaphart delivered the Opinion of the Court. 

Appellants Hammemeister, Reagan, William Mancoronal and 

Elizabeth Mancoronal, et a1 . , appeal from the judgment of the Ninth 

Judicial District Court, Pondera County, in which it granted 

Northern Montana Joint Refuse Disposal District, Teton County, 

Glacier County and Pondera County, City of Conrad, City of Valier 

and Thomas C. Hammerbacker's (collectively NMJRDD) motion for 

summary judgment and denied appellants' motion for summary 

judgment. We affirm. 

All parties agreed that there were no genuine issues of 

material fact and, thus, the matter was appropriate for summary 

judgment ruling under Rule 56, M.R.Civ.P. The undisputed facts as 

related by the ~istrict Court are as follows: NMJRDD was created 

in 1990 following several years of discussion between interested 

persons in several northern Montana counties and municipalities 

regarding disposal of refuse in light of the advent of more 

stringent federal regulation of land fills. The original 

Resolution of Intention to create NMJRDD described a land area 

larger than the district which was ultimately created. Notice of 

the original Resolution of Intention was properly given according 

to statute. However, no additional affirmative notice of the 

reduction in size was provided by the governmental entities 

creating the district. The reduction in size was the result of the 

fact that, although the resolutions passed by Glacier, Teton and 

Pondera Counties included the territory within Toole County, Toole 

County itself did not pass a resolution to create the district and 

2 
thus was not included in the final refuse district. Appellantsr 

challenge to the formation of NMJRDD is based on the lack of 

subsequent notice of the reduction in size of the district. 

Following its creation, NMJRDD developed a roll-off site and 

landfill site, incurred bond indebtedness, assessed and collected 

fees for its services from the residents of the district, including 

the appellants in this matter, and was utilized by the citizens of 

the district as well as other entities on a contract basis. No 

person is subject to assessment by the district whose property was 

not included in the original Resolution of Intention, though 

persons (who were not parties to this proceeding) whose property 

was included in the original Resolution of Intention, are not part 

of the district as finally created. In other words, the notice was 

overly broad. 

Section 7-13-212, MCA, requires that, before ordering any 

proposed improvements, the commissioners shall pass a resolution 

creating the refuse disposal district "in accordance with the 

resolution of intention theretofore introduced and passed by the 

commissioners." Appellants contend that the county commissioners 

did not create a refuse disposal district in accordance with the 

Resolution of Intention because the boundaries of the district were 

reduced from the boundaries set forth in the notice of intent to 

create. 

The question presented by the cross-motions for summary 

judgment is whether the initial creation of NMJRDD is subject to 

challenge due to the fact that the original Resolution of Intention 
to create NMJRDD described a land area larger than the district 

ultimately created. In other words, does the fact that the land 

area ultimately included in the NMJRDD was smaller than the area 

described in the original Resolution of Intention invalidate the 

NMJRDD? 

DISCUSSION 

The statutory procedure for creation of a joint refuse 

disposal district is set forth in Title 7, Chapter 13, part 2, MCA 

(1989). Pursuant to the statutory procedure, it is necessary for 

the county commissioners of the counties involved to adopt a 

Resolution of Intention to create a refuse disposal district. Such 

resolution is required to contain, among other things, a general 

description of the territory or lands of said district, giving the 

boundaries thereof. Section 7-13-204 (2) (c) , MCA. The counties of 

Pondera, Glacier and Teton passed resolutions of intention setting 

forth the requisite information. Because the proposed boundaries 

of the joint refuse disposal district included various 

municipalities, it was necessary that the commissioners of each of 

the three counties transmit a copy of their respective "Resolutions 

of Intention" to the executive head of each of the cities or towns 

within the proposed district in that particular county so that the 

resolution could be considered by the city or town council. 

Section 7-13-206, MCA. 

Thereafter, if any of the city or town councils, by 

resolution, concur in the resolution of the county commissioners, 
the city or town council must transmit a "Resolution of 

Concurrence" to the county commissioners. On the other hand, if an 

incorporated city or town council does not concur in the 

resolution, then the county commissioners have no authority to 

include said city or town in the district. The commissioners can, 

nonetheless, "continue to develop the district, excluding said city 

or town." Section 7-13-207, MCA. Thus, the legislature, having 

specifically authorized the commissioners to proceed to develop the 

district after excluding any city or town which chooses to opt out, 

specifically recognized that the final boundaries of the district 

may well be smaller than those outlined in the initial resolution 

of intention. 

Section 7-13-208, MCA, then requires the commissioners to give 

notice of the passage of the resolution of intention and resolution 

of concurrence, if applicable, by publishing a notice describing 

the general characteristics of the collection system; the proposed 

fees to be charged for services; designating the time and place 

where the commissioners will hear and pass upon protests made 

against the operation of the proposed district; and "stating that 

a description of the boundaries for the proposed district is 

included in the resolution on file in the county clerk's office." 

The statute does not require that the notice describe the 

boundaries of the district or lands included in the district but, 

rather, refers the reader of the notice to the description of the 

boundaries included in the resolution on file in the county clerk's 

office. These notices were required to be published and mailed to 
every person firm, or corporation having real property within the 

proposed district. 

At any time thirty days after the date of first publication of 

the notice, any owner of property liable to be assessed for said 

services is entitled to make written protest against the proposed 

service or against the proposed fees. The protest is required to 

be in writing and delivered to the county clerk. Section 7-13-209, 

MCA. Under § 7-13-210, MCA, the commission is required to conduct 

a hearing and proceed to hear and pass upon all protests and "its 

decision shall be final and conclusive." Pursuant to § 7-13-212, 

MCA, the commissioners are deemed to have acquired jurisdiction to 

order improvements immediately upon the occurrence of one of the 

following: when no protests are delivered to the clerk within the 

specified time limit, when less than fifty percent of the family 

residential units in the proposed district protest, or when a 

protest shall have been overruled. 

In the present case, each of the three counties determined 

that protests were filed by less than fifty percent of the family 

residential units in their respective portions of the proposed 

district. Accordingly, Teton, Glacier, and Pondera Counties each 

adopted resolutions creating the joint district. 

Did the District Court err in holding that 

appellants were estopped from challenging the formation 

of the refuse district some five years after its 

formation? 

Appellants base their challenge on the fact that the refuse 

district as finally adopted, contained a smaller geographic area 

than what was originally delineated in the Notice of Intention to 

6 
Create. Appellants did not file their suit challenging the 

creation of the refuse district until 1995. In light of the fact 

that the district, as of the time of the challenge, had been 

operating for more than five years, the District Court was correct 

in relying upon Henderson v. School Dist. No. 44 (1926), 75 Mont. 

154, 242 P. 979, and concluding that, given the public's reliance 

on the district for five years, appellants were estopped from 

challenging the creation of the refuse district. 

Henderson involved an annexation of a small Fergus County 

school district (#42) to an adjacent and larger district (#44). 

The annexation was accomplished in 1919 by order of the county 

superintendent. Validity of the annexation was not challenged 

until five years later in 1925. All residents within the district, 

including the plaintiffs, acquiesced in the annexation, took part 

in the school elections, sent their children to its schools and 

paid the taxes levied upon their property for its support and 

maintenance. Henderson, 242 P. at 980. The plaintiffs in 

Henderson argued that the annexation was void since there had been 

no election on the issue in each of the districts, as required by 

statute. The Supreme Court in Henderson found that since there had 

been a good faith attempt to comply with an existing law, it could 

have found that the school district was a de facto corporation and 

thus not subject to collateral attack. Henderson, 242 P. at 981. 

The Court chose, however, to rely on an estoppel doctrine based 

upon public policy. 

After a community has for years, as in the case at 

bar, exercised the functions of a public corporation, its 
legal existence cannot be questioned without causing 

disturbance more or less serious, and if the question of 

the regularity of its organization can be kept open to 

collateral inquiry indefinitely, no one can ever be 

secure in dealing with such entities, or be sure that 

taxes levied, bonds floated, or contracts necessarily 

entered into for the transaction of its business will be 

valid and enforceable. The transaction of public business might be blocked at any time at the will or whim of 

a private individual and the credit of the corporation 

impaired or destroyed. For these and other cogent 

reasons it is held that: 

"An individual may be estopped by his conduct to 

attack the validity of the incorporation of a 

municipality, even though, but for such estoppel, he 

might do so." 28 Cyc. 175. 

Thus acquiescence in the exercise of corporate 

functions, and dealing with the corporation as such over 

a period of years will estop all persons dealing with the 

corporation from assailing its legality. [Citations 

omitted. 1 

Henderson, 242 P. at 981-82 

The plaintiffs in Henderson argued that they should not have 

been subjected to estoppel by acceptance unless they had knowledge 

of the relevant facts and that they were unaware of the creation of 

the district until five years later, in April of 1925. Despite the 

lack of an election, the Court upheld the annexation noting that 

plaintiffs did more than accept the benefits; "they dealt with the 

district and accepted liability as well; they paid the taxes levied 

against their property for a number of years, thus recognizing the 

district and acquiescing in its assumption of corporate capacity . 

. . ." Henderson, 242 P. at 982. The Court then went on to point 

out that the estoppel being applied was not based upon plaintiffs' 

acceptance of or acquiescence in benefits, but was an estoppel 

based on public policy 

[Tlhe estoppel here invoked is not, therefore, strictly 

an estoppel by acceptance of benefits, but rather it is 

8 
an estoppel based upon public policy, because of the 

confusion into which a judgment, at this late date, that 

the organization was void, would throw public and private 

rights and interests acquired through years of operation 

with the acquiescence of the inhabitants, and is 

therefore not dependent upon knowledge of the facts. 

Henderson, 242 P. at 982 (emphasis added) 

In Scilley v. Red Lodge-Rosebud Irr. Dist. et al. (1928), 83 

Mont. 282, 272 P. 543, this Court refused to invalidate the 

creation of an irrigation district despite a showing that an 

absentee landowner was not given notice of the inclusion of his 

real property in the new irrigation district, Although that single 

landowner was allowed to be excluded from the district, the Court, 

relying on Henderson, stated: 

[Ilf after years of such operations, the creation of a 

district may be declared invalid, wholesale ruin and 

disaster may follow within and without the territory 

included within the supposed district; bondholders be 

stripped of their security for money loaned in good 

faith, and future worthy projects be subject to suspicion 

and distrust. For these reasons, courts should declare 

against the validity of the organization of such going 

concerns only for the most cogent reasons, and when 

irresistibly compelled to such a course. 

Those same public policy concerns mandate a similar result in 

the present case. In the five plus years since its creation, the 

refuse district has developed a roll-off site and a landfill site; 

it has incurred bonded indebtedness and it has assessed and 

collected fees for its services from the residents of the district, 

including the appellants in this matter; and it has been utilized 

by the citizens of the district, as well as other entities on a 

contract basis. As in Henderson, the undisputed facts indicate 
that there was a good faith attempt to comply with an existing 

statutory scheme for annexation. Thus, although there would be a 

basis for finding a de fact0 corporation not subject to collateral 

attack, we choose instead to hold that the demands of public policy 

require an estoppel. It is now over five years since the district 

was created. To declare that the refuse district is void at this 

late stage would throw public and private rights into considerable 

confusion. If districts such as this were indefinitely subject to 

collateral attack, no one would ever be secure in dealing with 

them, or confident that taxes, bonds or contracts entered into for 

the sake of public business were valid and enforceable. "The 

transaction of public business might be blocked at any time at the 

will or whim of a private individual and the credit of the 

corporation impaired or destroyed." Henderson, 242 P. at 981-82. 

Appellants argue that the lack of a new notice setting forth 

the redefined boundaries was jurisdictional. They rely on our 

decision in Johnston v. City of Hardin (1919), 55 Mont. 574, 580, 

179 P. 824, in support of their contention that the primary purpose 

of the notice was defeated because of the difference between the 

area described in the notice of intent as compared to the area 

encompassed in the final district. The decision in Johnston, 

however, was based upon the fact that: 

It is established by this record that the resolution to 

which plaintiff and other property owners were referred 

for a description of the boundaries of district No. 9 

describes territory none of which is in that district, 

and the same thing is true with respect to district No. 

10. 

Johnston, 179 P. at 825. In other words, the resolution totally 
failed to describe any of the territory within the district. ~hus, 

Johnston is clearly distinguishable from the case at bar in which 

the notice of intention was overly broad; that is, it encompassed 

some territory which was not ultimately part of the district. 

However, all territory which was not included in the final district 

was included within the notice. As set forth above, this is not a 

case where an affected party did not receive notice. 

The Court cited Johnston in Wood v. City of Kalispell (1957), 

131 Mont. 390, 310 P.2d 1058, which involved a claim that defective 

notice of intent to create a special improvement district rendered 

the district void ab initio. In Wood the question was whether the 

city had jurisdiction to create a special improvement district 

where the notice of intention to create it was not mailed to all 

property owners in the proposed district. Although notices were 

mailed to some 424 property owners in the district, one owner 

(Pettibone) was not mailed a notice. Wood, 310 P.2d at 1059. 

Citing Scillev, 272 P. at 552, we held that service of notice 

as prescribed by statute is jurisdictional and, thus, the failure 

to send notice to Pettibone deprived the city of jurisdiction to 

proceed as to him. Wood, 310 P.2d at 1060. As to the remaining 

property owners, the city argued that under the precedent in 

Scillev, the district should be void only as to the one property 

owner who did not receive notice, not as to all those who did. 

I Wood 310 P.2d at 1060. This Court, however, rejected that 

argument for the reason that, unlike Scillev where the challenge 

arose many years after the district had been created, the challenge 
in wood was brought before the city commenced work or began selling 

bonds. Thus, in contrast to Scillev, there was no public reliance 

as a basis for an estoppel, laches or waiver theory. Wood, 310 

P.2d at 1060-61. 

Wood is clearly distinguishable from the present case in a 

number of particulars: In WVJ, the Court held that failure to 

serve notice as prescribed by statute was jurisdictional. Here, 

there was no failure to serve notice as prescribed by statute. 

Rather, the statute in question provided that notice must contain 

a "general description of the territory or lands of said district, 

giving the boundaries thereof." Section 7-13-204(2) (c), MCA. 

There is no statutory requirement that the notice be reissued if 

the boundaries are reduced in size. Secondly, Wood and Scillev 

involved situations where a landowner was denied due process 

because he/she did not receive the requisite notice. In the 

present case there is no contention that there was a denial of due 

process through lack of notice. On the contrary, the contention is 

that notice went out to people who were ultimately not included 

within the district. That is, that too many rather too few 

received notice. Finally, unlike Wood where the challenge was 

brought before any work commenced, appellants did not raise their 

challenge to the NMJRDD until years after the district was created 

and in full operation thus giving rise to questions of estoppel. 

Even assuming, aryuendo, that there was a legal requirement that 

the Resolution of Intention be re-noticed due to a reduction in 

territory, failure to re-notice did not adversely affect any of the 
landowners within the district as finally created and, thus, was 

not jurisdictional. 

In summary, we hold that all affected parties received due 

process of law through receipt of notice of the intent to create 

the district; there was no statutory requirement that the notice of 

intent to create be re-noticed when the size of the district was 

reduced; and even if there were such a requirement, since the 

district has now been in operation for five plus years, the 

appellants are, for public policy reasons, estopped from 

challenging its creation or existence. 

Af f inned. 

We concur: 

n