, I No. 90-303 IN THE SUPREME COURT OF THE STATE OF MONTANA

THE TOWN 

### OF ENNIS, plaintiff and Appellant,

-vEDGAR STEWART and MARTHA STEWART, Defendants and Respondents. and THE TOWN OF ENNIS, plaintiff and Appellant,

-vPEARL DOYLE, Defendant and Respondent.

APPEAL FROM: District Court of the Fifth Judicial District, In and for the County of Madison, The Honorable Frank Davis, Judge presiding.

COUNSEL OF RECORD: For Appellant: Larry Jent, Bozeman, Montana For Respondent: Chester 

### L. Jones; Jones & Hoffman; Virginia City, Montana

Submitted on Briefs: January 3, 1991

Filed: Decided: March 4, 1991Justice R. C. McDonough delivered the Opinion of the Court.

The plaintiff Town of Ennis appeals the order of the Fifth Judicial District Court, Madison County reversing convictions in Ennis Town Court and dismissing charges against the defendants Edgar and Martha Stewart and Pearl Doyle. The defendants were convicted in Ennis Town Court for refusing tohook up to the Ennis Water System in violation of town ordinances. We reverse the order of theDistrict Courtanduphold theconvictionsof thedefendants. The Town raises the following issues on appeal:

(1) Did the District Court err in determining that the defendantshad aprivacy right in theirwell granted by Article I1 Section 10 of theMontana Constitution? (2) Did the District Court err in ruling that it is not a valid exercise of thepolicepower of local governments tomandate connection to an existing city water supply? The Stewarts, both in their 801s,have resided at their present residence since 1936. They have always supplied their water needs from a privatewell and electric pump located on their property. The Stewarts used the water for indoor consumption, washing and bathing as well as outdoor irrigation. The water is never used commercially or available to the public. Pearl Doyle is an 83-year-oldwidow and the sister of Martha Stewart. She has resided at her present residence since June of 1949. Since 1949 her residence has been served by the same well and distribution system, for the same domestic purposes as the Stewarts. Neither Mrs. Doyle nor the Stewarts have ever 2t 1 experienced any health problems traceable to the water system. Both premises are connected to themunicipal sewer system. The Town was incorporated in 1956. Thereafter, pursuant to the adoption of a series of ordinances,the Townmade itmandatory for residences within the Town's city limits to hook up to the Town's water system, and forbade the interconnection of municipal water linesandprivate wells and theuse ofprivatewellwater for commercial and public use and use inside private residences. The ordinances allow residents to continue to use well water for watering lawns, gardens, irrigating,etc. Intheearly 1960ts, when themunicipal water systemwasbeing installed,Mrs. Doyle's late husband requested that a stub be put

on the main water line passing the Doyle residence so that the water system could be tied into the residence at some later date. Mr. Doyle also tendered the required fee for such purposes. The Town mayor refused toprovide a stub or accept the fee because the Doyles were not going to immediately hook up to the water system. Since the building of the original municipal water system in the 19601s,the Stewartswere never advised by any city official of the requirementto tie onto the systemuntil 1987. The Townhas made numerous attempts to persuade the defendants to tie their residences into the Town system, but the defendants have consistently refused to comply. The cost of tying into the water mains would be approximately $500.00 for each residence. In October of 1987, pursuant to Section 4.10.180 of the Ennis Municipal Code, a notice of non-compliancewas delivered to each* I of the defendants. TheTown filed complaints against the Stewarts and Mrs. Doyle for violating the ordinances on May 31, 1989 and June 28, 1989, respectively. All three defendants were convicted of the charges in Ennis Town Court On August 1, 1989. The defendants appealed to District Court, and the case was submitted upon stipulated facts. On May 8, 1990, the District Court reversed the judgment of the Town Court and dismissed the charges against the defendants. The Town now appeals. In its order, the District Court essentially concluded that the defendants have aprivacy right to use aprivate well in their home fordomestic purposesguaranteedby theConstitution,and that the Town's exercise of thepolice power was not valid in this case due to lack of a compelling state interest. We disagree in both respects. The ordinance in question in this case provides in pertinent part: 4.10.010 Town Water Lines Separate from Private Wells and Pumps. There shall not be any crossconnections between the individual wells and pumps and the town water system. The line from the town water supply mustbe separate fromthatof theprivate well and Pump 4.10.020 Wells and Pumps for Outside Water Only. Present wellsandpumpsmay be retained for outside water only, lawns, gardens,etc. All water inside residences, business places, public institutions, or for any commercial use must be town water. A. Anytime realproperty is soldwhich ispresently using a well for inside water use, the property must be connected onto the town'swater system prior to sale. The privacy right referred to by the District Court is found at Article 11,Section10of theMontana Constitution, whichprovides:

### Right of 

### Privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest. In determining whether a particular alleged privacy interest warrants constitutional protection, this Court has adopted a two part test. Montana Human Rights Division v. City of Billings

(1982), 199 Mont. 434, 442, 649 P.2d 1283, 1287; accord Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. First, the test focuses on whether the person claiming the right has a subjective or actual expectation of privacy. Second, the test asks whether society is willing to recognize that subjective

or actual expectation as reasonable. Flesh v. Board of Trustees of Joint SchoolDistrictNo. 2 (1990),241Mont. 158, 165, 786 P.2d 4, 8;Engrav v. Cragun (1989), 236 Mont. 260, 263, 769 P.2d 1224, 1226.In this case, we conclude that the type of interest being infringed is not of the kind sufficient for defendants to invoke the specialprotections of theirprivacy right. Under the Federal Constitution the privacy right has been extended to those rights which are fundamental or implicit in the concept of ordered liberty, suchas rights involvingactivities relating tomarriage, procreation, contraception, family relationships, child-rearing, and education. Roe v. Wade (1973), 410 U.S. 113, 152-3, 93 S.Ct. 705, 726, 35 L.Ed.2d 147, 176-7. We have held that privacy rights of individuals in Montana are more substantial than the rights guaranteed in the United States Constitution. See, e.g., Montana Human Riqhts Division, 649 P.2d at 1286. 5Admittedly, the defendants1 right to privacy in this case protects their decision to drink whatever type of potable water they choose within their own home. However, a careful review of the ordinances in questionhere reveals that theydo not proscribe such a decision. The ordinances simply require that the defendants,as residents of theTown of Ennis,be connected to the municipal water system and thatwater from this source be the only type available from the faucets inside their residence. The ordinancesdo not prevent the defendants frommaking the personal choice to drink commercially bottled water, for example, or from drinking their own well water from an outside spigot in a fashion similar to bottled water, as another example. We conclude that the interest asserted by the defendants in this case--the right to pipe in and have available the type of water they choose--doesnot involvethekind of individualautonomy

or freedom "from unwarranted governmental intrusion into matters

so fundamentally affecting a person. 

# . . .l1 necessary to invoke constitutional protection. See Eisenstadt v. Baird (1972), 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349, 362. Furthermore,where itmay adverselyeffectthe significant interest of the Town regarding the public health and welfare, the expectation of privacy the defendants may have in this regard is unreasonable. Flesh, 786 P.2d at 8, Enqrav, 769 P.2d at 1226. Accordingly, because the right being asserted is not of constitutional magnitude the Town need not show a compelling interest to satisfy its ends; rather it need only demonstrate thate I the ordinance bears a rational relationship to the achievement of a legitimate state interest. Art. 11,Sec. 10,Mont.Const.; see, e.g., Peoplev. Privatera (Cal. 1979), 591 P.2d 919, 921. The defendants cite the case of City of Midway v. Midway Nursing & Convalescent Center, Inc. (Ga. 1973),195 S.E.2d 452, for the proposition that a municipality has no authority to enact and enforce ordinances which aredesigned to compel everyone within the city touse its water system. Considerationsofpublic policy lead

us to disagree with the holding of Midway. Generally, a governmental entity may exercise its police powers in matters affecting public health and welfare. There is more recent authority in opposition to Midway holding that the enactment and enforcement of ordinances that compel citizens to connect to a municipal water system is within the scope of the police power: "It is the commonest exercise of the police power of a State or city to provide for a system of sewersand to compelproperty owners to connect therewith. And this duty may be enforced by criminal penalties. 

# . [Citations omitted.] It may be that an arbitrary exercise of the power could be restrained,but it would have to be palpably so to justify a court in interfering with so salutary a power and one so necessary to the public health. 227 U.S. at 308, 33 S.Ct. at 292. This court can find no meaningful distinction between mandatory sewer connections and mandatory water connections. 

# .

# . . Shraderv. Horton (W.D.Va. 1979),471F.Supp. 1236, 1243;affirmed in 626 F.2d 1163, 1165; quoting Hutchinson 

### v. city of Valdosta U.S.The Shrader court relied in part on Weber city sanitation Commissionv. Craft (Va. 1955)

### , 87 S.E. 2d 153,where the courtheld that a sanitation commission~s resolution requiring that abutting property owner's connectwith thedistrict'swaterworksand abandon private subsurface water for personal use and consumption was a valid exercise of thepolice power. The court stated: So faraswe know,thepower of theState,under its police power, to provide for the health of its people, has never been questioned,but on the contrary, has been stressed as one of the powers which may be given the broadest application; and it is common knowledge that this power has been increasingly exercised, in keeping with advances made in the sciences of medicine and sanitation, in recent years. In these circumstances, courts are reluctant toplace limits onwhat may be done in the interest of thehealth of a community, so long as unreasonable methods are not employed, nor the natural and constitutional rights of citizens invaded.

"It is, of course, settled that the protection of the public health is a valid object for the exercise of the police power. A purewater supply is so intimately connected with the health of the community that the provisions with regard to it are properly a part of thepolice power of the State 

## * 

## * *.I1 56 Am.Jur., Waterworks, S 76,page 981. Weber, 87 S.E.2d at 157, 159. See also, e.g., McMahon v. City of Virginia Beach (Va. 1980), 267 S.Ed.2d 130. InMontana, a local government with self-governing powersmay exercise anypower orprovide any service except those specifically prohibited the constitution, laws, its charter. Art. Sec. 6,Mont.Const.; 85 7-1-101 and 7-1-102,MCA. An incorporated city or town without self-government powers has among its general powers "the powers of a municipal corporation and legislative,administrative,and other powersprovided or impliedby law.l1 Art. XI, Sec. 4(l)(a), Mont.Const. Such powers shall be liberally construed. Art. XI, Sec. 4(2)

## , Mont.Const. The legislature has givenmunicipalitiesbroad general powers to construct and improve facilities necessary for operating viable water systems. See generally Title 7, Chapter 13, Parts 43 and 44,MCA. Cities and towns may establish sewage and water systems under the authority of 5 7-13-4301,MCA. Section 7-13-4402 provides that "the city or town council has power to adopt, enter into, and carry out means for securing a supply of water for theuse of a city or town or its inhabitants." Thus, regardless of whether it has a selfgovernment charter,theenactmentand enforcement of theordinances in this case is clearly within the scope of the Town's general police power. Regarding the exercise of this power, we adopt the reasoning of ShraderandWeber, quoted above. While theTown doesnot allege that there are immediate health threats arising from the use of privatewellwater inEnnis, thepotential for such problems always exists. A municipal water system is better suited to meet these health concerns and prevent potential health problems that could arise absent such a system. Furthermore, in small communities a water system may not be affordable unless a sufficient number of citizens connect to the system and pay the corresponding fee. Allowing some citizens to forgo connection to such a system indefinitely or until a health threat is imminentmay make such a system unaffordable tothecommunity and thereby defeat thepurposeof preventing potential health problems before they arise. Sound public policy considerations indicate that the ordinance in question here is rationally related to the legitimate purpose of providing a healthy and safewater supply. The order of the District Court is REVERSED.

Justices8 * Justice John Conway Harrison dissenting.

I dissent. Iwould choose to follow the Findings of Fact and Conclusions of Law of the District Judge who sat on this matter, and adopt the reasoning in his Memorandum of this case. Judge Frank M. Davis in his Findings of Fact Nos. 2, 3, and 4 noted: 2. The Defendants, STEWARTS and DOYLE, are residents and property owners of the TOWN,and havebeen since as early as 1936. Both are in their '80s. Both have always utilized private water wells for domestic water in their homes. Both have refused the offered municipal water service. No formal demand by the TOWN was ever made upon them until 1987. This indicates to the Court that a succession of previous administrations may have conceded the principles set forth in this decision. In any case, the demand was refused and this action resulted. 3. There is an absence of any evidence that Defendants1private waterwell service is aviolation of any established public health and sanitary standards. Indeed, the Court can find no compelling reason in the public interest for Defendants to abandon their private water source which has been in existence and used for over fifty years. The property serviced has been owned by Defendantsortheir immediate familiesduring all this time

# .4. From the stipulated facts, the Court can find only one reason for the TOWN requiring Defendants to utilize itswater systemand that is forthemoney,which as the Court will discuss in its Memorandum, is not a compelling state interest. There is no concern which could justify under any known principle of law the use of the TOWN'S police power. Judge Davis stated in Conclusions of Law No. 11: The Court concludes that under the findings herein made and as applied only to Defendants STEWARTS and DOYLE, that there is no compelling state interest mandating thattheseDefendantsutilizetheTOWNOF ENNIS municipal water system. To do so would be an invasion of Defendants1 rights as guaranteed by Article 11,Section 10 of the 1972 Montana Constitution. With these conclusions Imost certainly agree. Finally, Judge Davis' Memorandum notes: It is clear to the Court that the TOWN OF ENNIS in the operation of itsmunicipal water system is acting in a proprietary capacity and not in the exercise of its police power. Indeed, under the ordinances which it seeks to invoke, its power is limited to simply terminating the service,and here the Defendantshave no service to terminate. The courts of this country, including the Supreme Courtof theUnited States,haveheld generallythatwhen the government enters the marketplace it divests itself ofmany of its sovereignpowers. Itbecomes as theU.S. Supreme Court said in Ohio v. Helverinq, 292 U.S. 360, 54 S.Ct. 725, 75 L.Ed. 1307, a l1traderl1. The trader cannot abridge fundamental constitutional rights except on a showing of somecompellingpublic need. Indeed,the public need must be shown even when the government is acting in its sovereign capacity. No public need,much less a compellinq need,has been shown in this case. The TOWN'Swater ordinances appear to be vague and contradictory. One seemstocontemplate I'grandfathering" a water user's right to use his well until the property is sold. It does not contemplate a transfer by gift or inheritance. Still another ordinance simply provides for notice of noncompliance. These ordinances 

### may be unconstitutionally vague, but in any case these particular Defendants are protected by not only the grandfather concept, but the general principles of constitutional law. The Court would add that the TOWN'S goal of includingall of its residents under theumbrella of its utility is a worthy administrative goal. In doing so, however, it cannot infringe and abridge fundamental constitutional rights, especially when it can show no compelling state interest. The TOWN'S dispute with STEWARTS and DOYLE will be solved in time,provided the contradictory and vague enforcement ordinances are clarified. In the interim, these Defendants should be allowed in their autumn years touse theirprivate water source, as they have for half a century. (Emphasis in original.) Iwould add that I am sure the Town of Ennis will not gobrokeby not collecting the water revenues from these two long time citizens. I would affirm the decision of the District Court.