96-648

No. 96-648

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 53

THE TOWN OF WHITEHALL, MONTANA,

a body corporate and politic,

Petitioner and Respondent,

v.

RICK PREECE and RALPH "BUTCH" JONES, et al.,

Respondents and Appellants.

APPEAL FROM: District Court of the Fifth Judicial District,

In and for the County of Jefferson,

Honorable Frank M. Davis, Judge Presiding

COUNSEL OF RECORD:

For Appellant:

Patricia L. Day-Moore (argued), Whitehall, Montana

For Respondents:

Jack H. Morris (argued), Whitehall, Montana

Honorable Joseph P. Mazurek, Attorney General;

Stephen C.

Bullock (argued), Assistant Attorney General,

Helena, Montana

For Amici Curiae:

Mae Nan Ellingson (argued) and Keith Strong,

Missoula, Montana

(Montana Board of Investments)

David J. Patterson, Missoula, Montana (Montana

Association of Counties)

Paul J. Luwe, Bozeman, Montana (Montana League of

Cities & Towns)

Heard: January 13, 1998

Submitted: January 15, 1998

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-648%20Opinion.htm (1 of 15)4/25/2007 9:28:23 AM
96-648

Decided: March 10, 1998

Filed:

__________________________________________

Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court.

 

¶1 The Fifth Judicial District Court, Jefferson County,

declared invalid a petition for

referendum to repeal a city ordinance requiring metering of water

in the Town of Whitehall's

water system. We affirm. 

¶2 We address the following issues raised on appeal:

¶3 1. Is this action barred under the applicable statute of

limitation?

¶4 2. Did the District Court err when it determined that

Town of Whitehall Ordinance

Chapter 4.00 was administrative rather than legislative and was

therefore exempt from the

referendum proceedings allowed under the Montana Constitution and § 7-5-131(1), MCA?

¶5 The Town of Whitehall is a municipality located in

Jefferson County, Montana. The

Respondents and Appellants appear in their capacity as electors and

taxpayers of the Town

of Whitehall.

¶6 Whitehall has historically charged its residents a flat

rate for water services. However, changes in and improvements to the town's water system

were pending andundergoing public discussion for several years prior to this

lawsuit. In August 1992, in recognition that improvements were needed to the town's water

system as a whole, theMontana Public Service Commission (PSC) had approved an increase in

water rates. At that

time, the PSC directed the town to explore options for reducing its

consumption of water,

including the use of water meters. In May 1994, the Whitehall Town

Council had passed a

resolution approving the submission of an application to the State

of Montana Department

of Commerce for a $350,000 Community Development Block Grant to be

used as partial

funding for a water system improvement project, and in June 1995,

the Town of Whitehall,

through its mayor, contracted with the Department of Commerce for

that block grant. In

August 1995, the Whitehall Town Council had passed a loan

resolution authorizing the town

to borrow $450,000 from the United States Department of Agriculture

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-648%20Opinion.htm (2 of 15)4/25/2007 9:28:23 AM
96-648

Rural Economic

Community Development Program to be used for the water system

improvement project. In

September 1995, Whitehall's mayor had entered into a Treasure State

Endowment Program

Grant Contract with the Department of Commerce for a $500,000 grant

to be used for the

water system improvement project.

¶7 On November 29, 1995, the Whitehall Town Council adopted

Whitehall Town

Ordinance Chapter 4.00, entitled "Regulation of Water Use." This

Ordinance Chapter

required, in part, that a water meter be installed on the service

pipe for each water user

served by the town water system. Another part of the Ordinance

provided that Whitehall's

water rates would no longer be set by flat rate, but would be

determined by the amount of

water used by each household and each business, as measured by the

water meters. 

¶8 In January 1996, the Appellants filed with the office of

the Jefferson County Clerk

and Recorder a petition to place a referendum on the ballot for a

special election to repeal

Whitehall Town Ordinance Chapter 4.00. The town's attorney

approved the petition for form

and compliance with § 7-5-131 and -132, MCA, and

submitted it to the Jefferson County

election administrator to be placed on the ballot for special

election.

¶9 On January 31, 1996, the Whitehall Town Council directed

that suit be brought in

District Court pursuant to § 7-5-135, MCA, to determine the

validity and constitutionality

of the referendum petition. On February 13, 1996, the town filed

a complaint seeking a

declaration that the petition for referendum was invalid under § 7-5-131, MCA, and the

Montana Constitution. Following the parties' submission of

stipulated facts, briefing, and

oral argument, the District Court found "generally" for the town

and dismissed the petition

for a referendum. The court determined that this was an

administrative, as opposed to

legislative, matter and was thus not subject to referendum. It

also determined that allowing

the referendum to proceed would potentially interfere with

Whitehall's contractual

obligations on the grant and loan contracts.

 

 ISSUE 1

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-648%20Opinion.htm (3 of 15)4/25/2007 9:28:23 AM
96-648

¶10 Is this action barred under the applicable statute of

limitation?

¶11 A suit to determine the validity and constitutionality of

a petition for initiative or

referendum must be initiated within fourteen days of the date the

petition has been approved

as to form by the local government attorney. Section 7-5-135(1),

MCA. In this case, the

petition for referendum was approved as to form on January 30,

1996, and this action was

filed fourteen days later, on February 13, 1996.

¶12 Appellants point out that under § 7-5-134, MCA,

the county must, as a preliminary

matter, approve or reject a petition for initiative or referendum

within twenty-one days after

the sample petition is submitted for approval as to form. In this

case, the sample petition was

filed on January 8, 1996, and the notice of approval as to form was

filed twenty-two days

later, on January 30, 1996. Appellants assert that the maximum

time allowable between

submission of a referendum for approval by the county and

commencement of an action to

challenge it is the sum of the time frames allowed under 7-5-134 and -135, MCA: thirty-five 

days. In this case,

a total of thirty-six days elapsed between those two events. 

¶13 The District Court ruled that this argument did not have

merit. We agree. Section 7-5-135, MCA, sets the limitation period

in which a local government must file suit on the

validity of a petition for referendum or initiative; 

§ 7-5-134, MCA, does not speak to that

issue. Appellants' consolidation of the two time frames is

unsupported by statute; nor have 

they offered any case law in support of their position. We hold

that this action was timely

filed within fourteen days of approval of the referendum as to

form as required under § 7-5-135, MCA.

 ISSUE 2

¶14 Did the District Court err when it determined that Town

of Whitehall Ordinance

Chapter 4.00 was administrative rather than legislative and was

therefore exempt from the

referendum proceedings allowed under the Montana Constitution and 

§ 7-5-131(1), MCA?

¶15 Montana's Constitution reserves to the people of this

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-648%20Opinion.htm (4 of 15)4/25/2007 9:28:23 AM
96-648

State the powers to challenge

and enact laws through the referendum and initiative processes. In

Article V, "The

Legislature," the Constitution provides that "The legislative power

is vested in a legislature

consisting of a senate and a house of representatives. The people

reserve to themselves the

powers of initiative and referendum." Art. V., Sec. 1, Mont.

Const. 

¶16 In its General Government Article, Montana's Constitution

defines the initiative power

at Article III, Section 4. It defines the referendum power in the

following section:

 Referendum. (1) The people may approve or reject by

referendum any act

 of the legislature except an appropriation of money. A

referendum shall be

 held either upon order by the legislature or upon petition

signed by at least five

 percent of the qualified electors in each of at least

one-third of the legislative

 representative districts. The total number of signers must be

at least five

 percent of the qualified electors of the state. A referendum

petition shall be

 filed with the secretary of state no later than six months

after adjournment of

 the legislature which passed the act.

 (2) An act referred to the people is in effect until

suspended by

 petitions signed by at least 15 percent of the qualified

electors in a majority of

 the legislative representative districts. If so suspended the

act shall become

 operative only after it is approved at an election, the result

of which has been

 determined and declared as provided by law. 

Art. III, Sec. 5, Mont. Const. 

¶17 A third reference to the powers of initiative and

referendum appears under the Local

Government Article. Article XI, Section 8, Mont. Const., provides:

 Initiative and referendum. The legislature shall extend the

initiative and

 referendum powers reserved to the people by the constitution

to the qualified

 electors of each local government unit.

 

As directed by Article XI, Section 8, Mont. Const., Montana's

legislature has statutorily

extended initiative and referendum powers to the electors of local

government units:

 Right of initiative and referendum. (1) The powers of

initiative and

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-648%20Opinion.htm (5 of 15)4/25/2007 9:28:23 AM
96-648

 referendum are reserved to the electors of each local

government. Resolutions

 and ordinances within the legislative jurisdiction and power

of the governing

 body of the local government, except those set out in

subsection (2), may be

 proposed or amended and prior resolutions and ordinances may

be repealed in

 the manner provided in § 7-5-132 through 7-5-137.

 (2) The powers of initiative shall not extend to the

following:

 (a) the annual budget;

 (b) bond proceedings, except for ordinances authorizing

bonds;

 (c) the establishment and collection of charges pledged

for the payment

 of principal and interest on bonds; or

 (d) the levy of special assessments pledged for the

payment of

 principal and interest on bonds. 

Section 7-5-131, MCA.

¶18 This Court has long recognized a distinction between

legislative and administrative

or quasi-judicial acts in relation to the powers of initiative and

referendum; legislative acts

have been held subject to referendum, while administrative or

quasi-judicial acts have not. 

In City of Billings v. Nore (1966), 148 Mont. 96, 104, 417 P.2d

458, 463, this Court

described the distinction between legislative and administrative

acts as "whether the act was

one creating a new law (legislative) or executing an already

existing law (administrative)."

¶19 The Appellants point out that initiative and referendum

powers must be broadly

construed to maintain the maximum power in the people. See

Nicholson v. Cooney (1994),

265 Mont. 406, 411, 877 P.2d 486, 488. Their argument continues

based upon the special

concurrence to this Court's opinion in Greens at Fort Missoula v.

City of Missoula (1995),

271 Mont. 398, 897 P.2d 1078. In Greens, the issue was whether a

city referendum could

validly cancel rezoning of an area then newly annexed to the City

of Missoula. The parties

debated whether rezoning was a legislative act, like zoning, or an

administrative act not

subject to referendum. The Court determined that rezoning, like

zoning, is a legislative act,

and is therefore subject to referendum. Greens, 271 Mont. at 403,

897 P.2d at 1080-81. In

a special concurrence, Justice Nelson concluded that under

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-648%20Opinion.htm (6 of 15)4/25/2007 9:28:23 AM
96-648

Montana's Constitution, any act

of a local government body--not just a legislative act--is subject

to referendum. Greens, 271

Mont. at 407, 897 P.2d at 1083-84. Justice Nelson reasoned that

the reference to "any act

of the legislature" in Art. III, Sec. 5, Mont. Const., does not

distinguish between legislative

and administrative or quasi-judicial acts in describing the powers

of initiative and

referendum. Greens, 271 Mont. at 407, 897 P.2d at 1083. 

¶20 Local governing bodies are empowered to exercise

legislative, administrative, and

other powers pursuant to Article XI, Section 4, Mont. Const. 

Based on the concurring

opinion in Greens, Appellants assert that § 7-5-131, MCA, is

unconstitutional insofar as it

limits the referendum power against local government to

"[r]esolutions and ordinances within

the legislative jurisdiction and power of the governing body of the

local government . . . ."

¶21 Courts in other jurisdictions with constitutional

provisions extending the power of

referendum to "acts of the legislature" have recognized "act" as a

term of art, meaning a bill

passed by the legislature and enacted into law. See, e.g.,

Whittemore v. Terral (Ark. 1919),

215 S.W. 686, 687; Weldon v. Bonner County Tax Coalition (Idaho

1993), 855 P.2d 868,

875; Klosterman v. Marsh (Neb. 1966), 143 N.W.2d 744, 749; Herbring

v. Brown (Or.

1919), 180 P. 328, 330. This is consistent with authority

generally addressing the meaning

of an "act of the legislature." See Black's Law Dictionary 25 (6th

ed. 1990), defining

"act" in the sense of "legislative act" as "[a]n alternative name

for statutory law." 

¶22 Moreover, the distinction recognized in Nore and other

Montana cases between

legislative acts and administrative or quasi-judicial acts

vis-a-vis their subjectivity to

referendum applies in virtually all other jurisdictions. The

"sound rationale for limiting the

referendum to legislative actions is that to permit referenda on

executive and administrative

actions would hamper the efficient administration of local

governments." Wennerstrom v.

City of Mesa (Ariz. 1991), 821 P.2d 146, 149. See also City of

Idaho Springs v. Blackwell

(Colo. 1987), 731 P.2d 1250, 1253; In re Supreme Court Adjudication

of Initiative Petitions

in Norman, Oklahoma Numbered 74-1 and 74-2 (Okla. 1975), 534 P.2d

3. The Supreme Court of Nebraska has reasoned:

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-648%20Opinion.htm (7 of 15)4/25/2007 9:28:23 AM
96-648

 [T]o allow [the referendum] to be invoked to annul or delay

executive conduct

 would destroy the efficiency necessary to the successful

administration of the

 business affairs of a city. In many cases it would entirely

prevent the exercise

 of the executive power necessary to carry out the acts

determined upon by the

 legislative department. In the absence of a very clear

declaration to the

 contrary it must be presumed that the power of referendum was

intended to

 apply solely to the legislative powers of the city.

Read v. City of Scottsbluff (Neb. 1941), 297 N.W. 669, 671 (quoting

7 McQuillin,

Municipal Corporations, Supp. 6621, sec. 351c).

¶23 Montana's 1889 Constitution reserved to the people "power

to propose laws, and to

enact or reject the same at the polls." Art. V, Sec. 1, 1889

Montana Constitution. No case

law under the 1889 Constitution suggests that the powers of

initiative and referendum in

Montana ever extended to anything other than legislative acts. Nor

does anything in the

transcript of the proceedings of the 1972 Constitution suggest an

intent to expand the power

of initiative and referendum to anything other than legislative

power. In fact, in recommending the adoption at the 1972 Montana

Constitutional Convention of the referendum provision

which was adopted as Article III, Section 5, Delegate Mark Etchart

stated, "This provision

is parallel to the present referendum provisions as contained in

Article V, Section 1, of the

present Constitution." 1972 Mont. Const. Conv. Tr., March 18,

1972, Vol. VII at 2717. 

In short, Montana's 1972 Constitution does not contain a "very

clear declaration to the

contrary," as the Nebraska court suggested is required, to the

general rule that the power of

referendum is intended to apply solely to legislative powers.

¶24 Instead, as noted above, the provision by which the

people retain the right of initiative

and referendum appears in the Constitutional Article on "The

Legislature." No comparable

provisions appear in the Articles concerning the Executive and the

Judiciary. Article VI,

Section 4, Mont. Const., vests the entire executive power with the

governor. There is no

reservation of executive power to the people by initiative and

referendum. Article VII,

Section 1, Mont. Const., vests the judicial power of the state in

this Court, the district courts,

justice courts, and other courts that the legislature may create. 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-648%20Opinion.htm (8 of 15)4/25/2007 9:28:23 AM
96-648

There is no reservation of

judicial power to the people by initiative and referendum.

¶25 Under Article XI, Section 8, Mont. Const., the Montana

Legislature is to extend to the

qualified electors of local government units "the initiative and

referendum powers reserved

to the people by the constitution." Even under the policy of

broadly construing the powers

of initiative and referendum, the legislature cannot extend to the

people greater powers

against local government than those which the people have reserved

to themselves in the

Constitution. The powers of initiative and referendum have been

reserved under the

Constitution as to legislative acts only. 

¶26 For these reasons, we decline to abandon the rule set

forth in Nore or to adopt the

position set forth in the concurring opinion in Greens. We

reaffirm that under Montana's

Constitution, the people have retained the powers of initiative and

referendum as to

legislative acts only. Because we so rule, the question here

raised as to the constitutionality

of § 7-5-131, MCA, is resolved in the statute's favor. 

¶27 Our next task is to determine whether Whitehall Town

Ordinance Chapter 4.00 is

legislative or administrative in nature. It is agreed that

denomination of an act of local

government as a resolution or as an ordinance is not dispositive as

to whether the act is

legislative or administrative; that determination is fact-driven. 

We recognize, as suggested

in the briefs and at oral argument, that guidelines in addition to

those set forth in Nore will

assist in making such a determination. 

¶28 Counsel have pointed out, and we agree, that the

expansion of the Nore standard set

forth in Chouteau County v. Grossman (1977), 172 Mont. 373, 563

P.2d 1125, and Dieruf

v. City of Bozeman (1977), 173 Mont. 447, 568 P.2d 127, is not of

assistance. In those

cases, this Court held that local governments were performing

administrative functions based

upon "existing law" consisting of statutory grants of authority to

local governments. In

Grossman, the existing law was a statute authorizing local

governments to lay out, maintain,

control and manage county roads; the Court held that this statute

rendered administrative a

county's decision to expend funds and accept bids to pay for paving

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-648%20Opinion.htm (9 of 15)4/25/2007 9:28:23 AM
96-648

a road. Grossman, 172

Mont. at 378, 563 P.2d at 1128. In Dieruf, the Court held that a

statute authorizing city or

county commissions to assess property owners for improvements to

create off street parking

rendered administrative the City of Bozeman's adoption of an

ordinance establishing a

formula for assessing property for purposes of creating an off

street parking facility and a

resolution creating a special improvement district to establish

that facility. Dieruf, 173 Mont.

at 451, 568 P.2d at 129-30. The rule adopted in Grossman and

Dieruf renders the Nore

standard practically meaningless, because virtually all municipal

actions are, either directly

or indirectly, taken pursuant to statutory authority. Therefore,

to the extent that Grossman

and Dieruf stand for the rule that a local government's act is

administrative based solely upon

a statutory grant of authority, we hereby overrule those cases. 

¶29 The amicus brief submitted by the office of Montana's

Attorney General recommends

guidelines for distinguishing between legislative and

administrative acts of a local

government set forth by the Supreme Court of Kansas in Wichita v.

Kansas Taxpayers

Network (Kan. 1994), 874 P.2d 667. The first guideline in Kansas

Taxpayers is essentially

the distinction set forth by this Court in Nore. The other three

guidelines expand upon and

add to that distinction. We hereby approve and adopt the Kansas

Taxpayers guidelines for

use in Montana. The guidelines are:

 1. An ordinance that makes new law is legislative, while an

ordinance that

 executes an existing law is administrative. Permanency and

generality are key

 features of a legislative ordinance.

 2. Acts that declare public purpose and provide ways and

means to accomplish that purpose generally may be classified as

legislative. Acts that deal

 with a small segment of an overall policy question generally

are administrative.

 3. Decisions which require specialized training and

experience in municipal

 government and intimate knowledge of the fiscal and other

affairs of a city in

 order to make a rational choice may properly be characterized

as administrative, even though they may also be said to involve the

establishment of a

 policy.

 4. No one act of a governing body is likely to be solely

administrative or

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-648%20Opinion.htm (10 of 15)4/25/2007 9:28:23 AM
96-648

 legislative, and the operation of the initiative and

referendum statute is

 restricted to measures which are quite clearly and fully

legislative and not

 principally executive or administrative.

Kansas Taxpayers, 874 P.2d at 671-72.

¶30 Applying these guidelines to the facts of the present

case, we begin with the question

of whether Whitehall Town Ordinance Chapter 4.00 makes new law or

executes existing

law. The Town of Whitehall argues that the ordinance executes

existing laws, those being

the town council's prior resolutions to seek grants and a loan to

make improvements to the

Whitehall water system. In the town's view, those resolutions were

its legislative acts. We

note that even a cursory examination of the applications for grants

establishes that water

meters were part of Whitehall's water system improvement plan. 

¶31 However, Appellants claim that a view that the

first-in-time act by the town council

is the only "legislative" act allows for artificial manipulation by

the local government and

yields no meaningful distinction between legislative and

administrative acts at all. 

Appellants argue that Whitehall's voters never had the opportunity

to exercise their

legislative review authority with regard to the proposed

improvements, because the details

of the improvements were not previously acted upon by the town

council in any manner by

which effective review was possible. They point out that Ordinance

Chapter 4.00 is the first

act of the Whitehall Town Council which specifically adds the new

requirement that water

meters be installed for the users of Whitehall's water system. 

¶32 In this case, we conclude that application of this first

guideline does not conclusively

establish whether Ordinance Chapter 4.00 is legislative or

administrative. We therefore

proceed to consider the other three guidelines.

¶33 The second Kansas Taxpayers guideline asks whether the

ordinance deals with a small

segment of an overall policy question. In this case, the overall

question was how to improve

the town's water system to provide water to consumers. The record

includes copies of

Whitehall's 1994 applications for a Community Development Block

Grant and for a grant

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-648%20Opinion.htm (11 of 15)4/25/2007 9:28:23 AM
96-648

from the Treasure State Endowment Program, which explain the nature

of the problem which

the town was facing. Portions of the existing water system dated

back to 1915. The town

had had problems for a decade with low water pressure and

inadequate fire flows. In 1991,

the town had retained a consulting firm to perform an analysis of

the water system to

determine deficiencies and make recommendations for improvements. 

Replacing worn out

and obsolete pipes and installing a new 500,000 gallon water

reservoir were two aspects of

the proposed improvements to Whitehall's water system to increase

water capacity and

pressure. Installation of water meters to encourage water

conservation was another. 

¶34 As mentioned above, in 1992 the PSC had directed

Whitehall to explore options for

reducing its consumption of water, including the use of water

meters. Whitehall's water

system used more than three times as much water as did the system

of a comparable Montana

town where water was metered. The use of water meters had been

proposed and specifically

identified as a goal in the project summaries in both the Treasure

State Endowment Program

Grant application and the Community Development Block Grant

application. We conclude

that the decision to install water meters was a small segment of an

overall policy question. 

¶35 As to the third guideline, the most effective means of

operating and managing a city-wide water system reasonably fits

within the context of decisions that require specialized

knowledge and experience with respect to city management. In

Kansas Taxpayers, which

involved an ordinance concerning billing for a municipality's storm

water utility system, the

court stated:

 The physical structure of the system, maintenance, and fee

assessment and

 collection all fit within the purview of the City's expertise. 

The City already

 owns and maintains the existing system; [the challenged

ordinance] also fits

 within a city's expertise in terms of fiscal management.

Kansas Taxpayers, 874 P.2d at 672. The same may be said here. The

best method of billing

for the use of water services is clearly a part of a larger

decision-making function requiring

specialized knowledge and experience with respect to city

management. 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-648%20Opinion.htm (12 of 15)4/25/2007 9:28:23 AM
96-648

¶36 While the record does not indicate that prior to the

enactment of Whitehall Town

Ordinance Chapter 4.00, the Whitehall Town Council had voted upon

the singular issue of

installing water meters, the record does establish that the

proposal to install water meters had

been endorsed as part of several acts of the town council,

specifically the resolutions to

submit the two grant applications. The town has submitted into the

record copies of

numerous notices of town meetings in which water meters were listed

as a topic of

discussion. 

¶37 Among those, an April 11, 1994 public hearing included a

"Review of [the]

Community Development Block Grant Program," a "Review [of] General

Needs," and

solicitation of comments from the public. That public hearing

preceded the town council's

April 14, 1994 meeting which included agenda items on finalizing

the financial plans for the

water project and grant applications plans, and its May 23,1994

resolution approving the

submission of the application for a Community Development Block

Grant. The Community

Development Block Grant application included a statement in the

initial project description

that "water meters will be installed on individual residential and

commercial services to

encourage conservation of water," and, in the body of the

application, several paragraphs on

the water meter plan. 

¶38 Similarly, a public meeting announced in two area

newspapers, the Whitehall Ledger

and the Montana Standard, was held on March 23, 1995, "to provide

the community with

updated information on the proposed water improvements and the

results of the grant

applications." Thereafter, the notice of the July 10, 1995 town

council meeting included as

an agenda item the "TSEP contract," which grant contract was then

approved by resolution

of the town council and subsequently entered into by the mayor on

the town's behalf on

September 4, 1995. The project summary included in the TSEP

(Treasure State Endowment

Program) grant application stated that "water meters will be

installed on individual

residential and commercial services to encourage conservation of

water." 

¶39 The parties have stipulated that various citizens of

Whitehall had previously voiced

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-648%20Opinion.htm (13 of 15)4/25/2007 9:28:23 AM
96-648

objections, either informally, or not properly formalized,

concerning the installation of water

meters. The existence of the previous public hearings and town

council resolutions and the

previous objections to the installation of water meters confirms

that this issue was not

addressed for the first time with the adoption of Whitehall Town

Ordinance Chapter 4.00. 

We are thus led to the conclusion that Whitehall Town Ordinance

Chapter 4.00 was not

"quite clearly and fully legislative" under the fourth Kansas

Taxpayers guideline but was, to

at least some extent, an administrative act to carry out previous

plans to which the council

had agreed. 

¶40 Using the guidelines set forth in Kansas Taxpayers and

now adopted by this Court,

we conclude that the enactment of Whitehall Town Ordinance Chapter

4.00 was an

administrative act and was accordingly not subject to referendum. 

Having so determined,

we hold that the District Court did not err in declaring the

referendum invalid. We therefore

need not address the issue raised on appeal concerning whether the

referendum was

unconstitutional because it would substantially interfere with

contracts. 

¶41 We do not address the statutory debt limitation issue

raised at the end of Appellants'

opening brief because the issue was not raised before the District

Court. See Kapner,

Wolfberg & Assoc. v. Blue Cross (1995), 270 Mont. 283, 286, 891

P.2d 530, 532. 

 

¶42 We affirm the decision of the District Court.

 /S/ J. A. TURNAGE

We concur: 

/S/ JIM REGNIER 

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

/S/ KARLA M. GRAY

Justice James C. Nelson specially concurs.

¶44 Having now had the benefit of extensive briefing and oral

argument on the issue, I

agree that my concurrence in Greens at Fort Missoula v. City of

Missoula (1995), 271 Mont.

398, 897 P.2d 1078, did not correctly interpret the phrase "any act

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-648%20Opinion.htm (14 of 15)4/25/2007 9:28:23 AM
96-648

of the legislature." I am

satisfied that the word "act" as used in that phrase was clearly

contemplated by the framers

of Montana's Constitution to be synonymous with "law" or with a

bill which has been

enacted into law. Moreover, in the case at bar, it is also clear

that the electors' constitutional

right of referendum on the matter of the water meters was preserved

in that the electors,

having been given due notice and opportunity to be heard (as set

out in the Court's opinion),

had the ability to challenge by referendum the various

water-improvement-project resolutions

passed by the Whitehall Town Council. In my view, Ordinance 4.00

simply implemented

administratively the legislative act that had been accomplished in

the resolutions. 

Accordingly, I concur.

 /S/ JAMES C. NELSON

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-648%20Opinion.htm (15 of 15)4/25/2007 9:28:23 AM