No. 84-457 

IN THE SUPREME COURT OF TIE STATE OF MONTANA 

1985 

EARL C. CLOPTON; CHARLES McCUAIG; 

KATHY WORLEY; FLOYD EDWARDS; JOAN 

SORVIG; et al., 

Plaintiffs and Appellants, 

THE MADISON COUNTY COmISSION consisting of MARIE McALEAR, WILLIAPl 

DRINGLE and JOHN ALLHANDS, Commissioners, et al., 

Defendants and Respondents. 

MONTAJSA DEPARTLJflNT OF HEALTH AND 

ENVIRONMEIJTAL SCIENCES I 

Intervenor and Xespondent. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Madison, 

The Honorable Frank Davis, Judge Presiding. 

COUNSEL OF ,%CORD: 

For Appellant: 

Meloy Law Firm; Peter M. Meloy, Ilelena, Montana 

For Respondent: 

Loren Tucker, County Attorney, Virginia City, 

Montana 

Steve Perlmutter, Dept. of Health & Environmental 

Sciences, Ilelena, Montana 

Submitted on Briefs: March 14, 1985 

Decided: June 13, 1985 

" '' ' iqg5 Filed: 

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Clerk 
Mr. Justice William E. Hunt, Sr., d-elivered the Opinion of 

the Court. 

The appellants, citizens of Madison County, brought an 

action to enjoin the respondent, the Madison County 

Commission, from making expenditures and collecting service 

charges for a garbage disposal district. The respondent, 

Montana Department of Health and Environmental Sciences, was 

granted leave to intervene as a party defendant. The 

respondents answered, moved to dismiss, and moved to quash. 

At the hearing on an order to show cause why the respondent, 

Madison County Commission, should not be restrained from 

making expenditures and collecting fees to operate a waste 

disposal district the District Court found sufficient 

evidence to decide the case on the merits. The District 

Court denied the appellants' requested relief and dismissed. 

The appellants moved for a new trial or to amend judgment. 

The motion was denied. This appeal followed. 

We affirm. 

In the 19701s, Congress and the Montana Legislature 

substantially changed the law concerning the proper disposal 

of solid waste. The applicable law provided that all 

disposal sites must either be operated in compliance or be 

closed by 1982. From reading the record, it does not appear 

that Madison County had the same sense of urgency as did 

Congress and the legislature. From the first discussion at 

its meeting in November, 1977, until its ratification of the 

contracts to handle waste disposal in February, 1984, the 

governing bodies of Madison County treated the matter with a 

certain remote detachment characteristically accorded a 

subject with low priority. Things did not really get moving 
until the State threatened "administrative action" in July, 

1983, to close the dump sites at those towns not meeting 

"even minimal requirements of the Montana Solid Waste 

Management Act." Only Ennis was found to be in full 

compliance with the act. The th.reatened State action is 

evidenced by letters from the Montana Department of Health 

and Environmental Sciences to the Board of County 

Commissioners of Madison County July 7, 1983, and to the 

towns of Virginia City, July 5, 1983, Twin Bridges, July 5, 

1983, and Sheridan, Montana, July 5, 1983. 

In 1979, Madison County, then operating as a charter 

form of government, had begun a process of planning and 

establishing a unified county-wide refuse disposal district 

and system. In Resolution 3-79, dated May 8, 1979, the 

county set forth its intent and stated that it was acting 

pursuant to 7-13-201 through 7-13-243, MCA, which set 

forth a procedure for establishing refuse disposal districts. 

A public hearing on this resolution was held June 12, 1979, 

at which time protests were made by citizens of Madison 

County. No action was taken on the protests. 

Madison County then passed Ordinance 1-80, dated 

February 11, 1980. This ordinance stated that it created a 

solid waste management system. Ordinance 1-80 made no 

reference to Resolution 3-79. It referred to state law only 

insofar as it stated that charges for the service would be 

collected with real property taxes in conformity with § 

7-13-233, MCA. 

Over two years later, on August 10, 1982, Madison County 

proposed Ordinance 5-82 which was to establish a refuse 

disposal district and operating provisions for the refuse 

disposal system. This ordinance recognized the prior 
ordinances and resolutions on the subject. This ordinance 

was not adopted, that is, it was not finally acted on. 

However, Madison County did pass Ordinance 7-82 on December 

28, 1982, and, for the most part, Ordinance 7-82 was 

identical to Ordinance 5-82. 

In the interim between Madison County addressing 

Ordinance 5-82 and passage of Ordinance 7-82 the Madison 

County voters elected to change their charter form of 

government back to a commission form of government. This 

change became effective in early 1983. This new commission 

form of government approved and confirmed the refuse disposal 

fees set forth in Ordinance 7-82. This was done in 

September, 1983. 

On November 30, 1983, due and payable notices were sent 

by Madison County to residents with respect to the 

assessments to fund the refuse disposal district system. By 

February 1, 1984, Madison County had contracted with several 

businesses to provide services for the refuse disposal 

district. 

Two issues are presented for review. The first issue is 

whether the District Court erred in concluding that Madison 

County substantially complied with the law relating to the 

establishment of a refuse disposal district. We find that 

the District Court did not err. We therefore do not need to 

reach the second issue, which is, whether the District Court 

erred in ruling that the action was untimely. 

The main issue here is whether or not SS 7-1.3-201 

through 7-13-243, MCA, are mandatory requirements for a 

charter form of government establishing a refuse disposal 

district. Appellants in this case claim that the Commission 

failed to follow the statutes or the rules of the charter in 
the following respects: (a) failed to adopt the required 

resolution of intention as provided in $ 7-13-204, MCA; (b) 

failed to obtain the proper City concurrence (it was the 

intention of the County to include the cities in the 

district) as provided in S 7-13-203 (2) , MCA; (c) failed to 

rule on protests as provided by S 7-13-211, MCA; (dl failed 

to hold a hearing as provided in $ 7-13-231(1), MCA; (e) 

failed to publish public notices as required by the various 

sections; (f) failed to wait until the service commenced in 

the district before collecting the fee as provided in S 

7-13-233, MCA; (g) failed to follow its own charter requiring 

the vote of people before taxes are imposed (Art. VIII, S 1, 

Charter of Madison County, State of Montana, 1976). 

The appellants, citizens of Madison County, assume that 

the respondent, Madison Count-y, was obligated to abide by 55 

7-13-201 through 7-13-243, MCA, when it established a refuse 

disposal. district and system. Much of appellants' argument 

is based on this assumption, however, the assumption is 

incorrect. 

Madison County became a charter form of government in 

1976. This was several. years prior to the initiation of the 

plans for a refuse disposal district involved here. A 

charter form of government possesses self-governmental 

powers, $ 7-3-702, MCA, and it may exercise any power not 

prohibited by the constitution, law, or charter. Section 

7-1-101, MCA. Neither the Montana Constitution of 1972, 

state law, nor the Madison County Charter prohibited Madison 

County from exercising a power to establish a refuse disposal 

system. Madison County as a charter form of government with 

self-government powers was not subject, by law, to comply 

with $$ 7-13-201 through 7-13-243, MCA, on creation of a 
refuse disposal district. These sections apply to the 

establishment of a refuse disposal district by governments 

that are of general power status, not those with 

self-government status. See S5 7-1-111 through 7-1-114, MCA, 

for limitations on governments possessing self-govenment 

powers--establishing a refuse disposal district does not fall 

within any of the proscribed powers. 

It could have been argued that SS 7-13-201 through 

7-13-243, MCA, require a government to provide a service and 

therefore fall under S 7--114f , MCA, which subjects a 

local government with self-government powers to any law 

directing or requiring a local government to provide a 

service. That argument was not ma.de or contested by the 

parties to this action. We find, though, that to dispel 

doubt about it, 7-13-201 through 7-13-243, MCA, do not 

direct or require a local government to provide a service 

within the meaning of S 7-1-114(f), MCA. Sections 7-13-201 

through 7-13-243, MCA, contain provisions that are not 

consistent with the directives or requirement anticipated by 

5 7-1-114() MCA. For example, S 7-13-211, MCA, allows 

sufficient public protest to bar action on a refuse disposal 

district. Also we find that a county would not necessarily 

be required to establish a county wide refuse disposal 

district which provided services to municipalities within the 

county if those municipalities had adequate service already 

in effect. We therefore hold that Madison County was not 

obligated to comply with the provisions in 85 7-13-201 

through 7-13-243, MCA. 

Madison County was, of course, required to follow proper 

legislative procedures in establishing a refuse disposal 

district as it would be in any legislative action. A local 
government with self-government powers is subject to all laws 

establishing legislative procedures as requirements for units 

of local govenment. section 7-1-114 c , MCA. The 

legislative requirements for units of local government that 

apply here are set forth in S 7-5-1.03, MCA, which reads: 

"7-5-103. Ordinance requirements. (a Al. 1 

ordinances shall be submitted in writing in the 

form prescribed by resolution of the governing 

body. 

" (2) No ordinance passed shall contain more than 

one comprehensive subject, which shall be clearly 

expressed in its title, except ordinances for 

codification and revision of ordinances. 

" (3) An ordinance must be read and adopted by a 

majority vote of members present at two meetings of 

the governing body not less than 12 days apart. 

After the first adoption and reading, it must be 

posted and copies made available to the public. 

"(4) After passage and approval, all ordinances 

shall be signed by the chairman of the governing 

body and filed with the official or employee 

designated by ordinance to keep the register of 

ordinances." 

We find that Madison County substantially complied with 

these requirements. Ordinance 7-82 was submitted in writing, 

it contained one comprehensive subject, it was read and 

gassed at two readings, and it was signed by the chairperson 

of the governing body. The public was notified of the first 

reading on December 8, 1982 by posting. The record does not 

show whether notice was posted after the first reading, 

however, if the procedure was deficient in that aspect, it 

would not warrant a finding that the entire project be 

invalid in this instance because of the numerous resolutions, 

ordinances, notices, and public hearings on this matter. 

The appellants also argue that the respond-ents failed to 

follow the Madison County Charter that requires a vote of the 

people before any form of tax is imposed. We find that no 

injustice will be done by disposing of this argument with.out 
reaching the underlying issue of whether this assessment was 

actually a tax within the meaning of that term in the Madison 

County Charter. The new commission form of government of 

Madison County approved and confirmed the refuse disposal 

fees set forth in Ordinance 7-82. This was done in 

September, 1983. The due and payable notices for the 

assessments for the refuse disposal district and system were 

sent out November 30, 1983. Compliance with the Madison 

County Charter was not required at this time because it was 

no longer in effect and the new commission form of government 

had essentially ratified the fee assessment proposal. 

We affirm. 

We Concur: 

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Justices