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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, 1991 
Justice 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 to hook up to the Ennis 

Water System in violation of town ordinances. We reverse the order 

of the District Court and uphold the convictions of the defendants. 

The Town raises the following issues on appeal: 

(1) Did the District Court err in determining that the 

defendants had a privacy right in their well granted by Article I1 

Section 10 of the Montana Constitution? 

(2) Did the District Court err in ruling that it is not a 

valid exercise of the police power of local governments to mandate 

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 private well 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-old widow 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 

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experienced any health problems traceable to the water system. 

Both premises are connected to the municipal sewer system. 

The Town was incorporated in 1956. Thereafter, pursuant to 

the adoption of a series of ordinances, the Town made it mandatory 

for residences within the Town's city limits to hook up to the 

Town's water system, and forbade the interconnection of municipal 

water lines and private wells and the use of private well water 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. 

In the early 1960ts, when the municipal water system was being 

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 to provide 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 Stewarts were never advised by any city official 

of the requirement to tie onto the system until 1987. The Town has 

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-compliance was delivered to each 
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of the defendants. 

The Town 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 a privacy right to use a private well in their 

home for domestic purposes guaranteed by the Constitution, and that 

the Town's exercise of the police 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 must be separate from that of the private well and 

Pump 

4.10.020 Wells and Pumps for Outside Water Only. 

Present wells and pumps may 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 real property is sold which is presently 

using a well for inside water use, the property must be 

connected onto the town's water system prior to sale. 

The privacy right referred to by the District Court is found at 

Article 11, Section 10 of the Montana Constitution, which provides: 
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 School District No. 2 (1990), 241 Mont. 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 special protections of their privacy 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, such as rights involving activities relating to marriage, 

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. 

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Admittedly, 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 question here reveals that they do not proscribe 

such a decision. The ordinances simply require that the 

defendants, as residents of the Town of Ennis, be connected to the 

municipal water system and that water from this source be the only 

type available from the faucets inside their residence. The 

ordinances do not prevent the defendants from making 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--does not involve the kind of individual autonomy 

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 it may adversely effect the 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 that 
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the ordinance bears a rational relationship to the achievement of 

a legitimate state interest. Art. 11, Sec. 10, Mont.Const.; see, 

e.g., People v. 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 are designed to compel everyone within the 

city to use its water system. Considerations of public 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 sewers and to compel property 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. . . . 

Shrader v. Horton (W.D. Va. 1979), 471 F.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 

Commission v. Craft (Va. 1955) , 87 S.E. 2d 153, where the court held 

that a sanitation commission~s resolution requiring that abutting 

property owner's connect with the district's waterworks and abandon 

private subsurface water for personal use and consumption was a 

valid exercise of the police power. The court stated: 

So far as we know, the power of the State, 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 to place limits on what may be done 

in the interest of the health 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 pure water supply is so intimately connected 

with the health of the community that the 

provisions with regard to it are properly a 

part of the police 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. 

In Montana, a local government with self-governing powers may 

exercise any power or provide 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 powers provided or implied by 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 

given municipalities broad 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 the use of a city or town or its 

inhabitants." Thus, regardless of whether it has a selfgovernment charter, the enactment and enforcement of the ordinances 

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 Shrader and Weber, quoted above. While the Town does not allege 

that there are immediate health threats arising from the use of 

private well water in Ennis, the potential 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 imminent may make such a 

system unaffordable to the community and thereby defeat the purpose 
of 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 safe water supply. 

The order of the District Court is 

REVERSED. 

Justices 
8 * 

Justice John Conway Harrison dissenting. 

I dissent. I would 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 have been 

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 

Defendants1 private water well service is a violation 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 Defendants or their immediate families during all this 

time . 

4. From the stipulated facts, the Court can find 

only one reason for the TOWN requiring Defendants to 

utilize its water system and that is for the money, 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 that these Defendants utilize the TOWN OF 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 I most certainly agree. 

Finally, Judge Davis' Memorandum notes: 

It is clear to the Court that the TOWN OF ENNIS in 

the operation of its municipal 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 Defendants have no 

service to terminate. 

The courts of this country, including the Supreme 

Court of the United States, have held generally that when 

the government enters the marketplace it divests itself 

of many of its sovereign powers. It becomes as the U.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 some compelling public 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'S water ordinances appear to be vague and 

contradictory. One seems to contemplate 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 

including all of its residents under the umbrella 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 to use their private water 

source, as they have for half a century. (Emphasis in 

original.) 

I would add that I am sure the Town of Ennis will not go broke 
by not collecting the water revenues from these two long time 

citizens. I would affirm the decision of the District Court.