No. 12312 

IN THE SUPREME COURT OF THE STATE OF 1VIONTANA 

1973 

KENNETH Re BURRITT, d/b/a BURRITT ANIMAL 

HOSPITAL, E & L REAL ESTATE COMPANY, INC., 

a Montana corporation, BUTTE PLAZA, INC., 

a corporation, and ROMNEY INTERNATIONAL 

HOTEL, INC. , a Delaware Corpora tion, 

Plaintiffs and Appellants, 

CITY OF BUTTE, A Municipal corporation, 

Defendant and Respondent. -s%-.".------- 

SAFEWAY STORES, INC., et al, 

Plaintiffs and Appellants, 

-vs - 

/ 

CITY OF BUTTE, A Municipal corporation, 

Defendant and Respondent. 

Appeal from: District Court of the Second Judicial District, 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appel-lants : 

Poore, McKenzie and Roth, Butte, Montana 

Urban L. Roth argued, Butte, Montana 

For Respondents: 

John A. Alexander argued, and C. L. Harrington appeared, 

Butte, Montana 

Submitted : February 28, 1973 

: MAR 2 6 1973 

Filed : M&R 2 6 1973 

&@@-+ Clerk 
Mr. Justice Frank I, Haswell delivered the Opinion of the Court. 

This is an appeal by four property owners and two lessees 

of part of their property from a judgment of the district court 

of Silver Bow County, the Hon. Nat Allen, district judge presiding, 

validating the annexation of their property into the city limits 

of Butte, Montana. From a consolidated judgment in two cases 

denying their applications for a writ of prohibition against the 

City of Butte to prevent annexation, the property owners and their 

lessees appeal. 

For simplicity of identification, we shall refer to 

plaintiffs as Burritt, Romney Hotels, E & L Real Estate, Butte 

Plaza, Safeway, and Third Wallingford, respectively, Defendant 

City of Butte will be referred to as the City. Three of the 

four landowners of the annexed property are corporations, being 

Romney Hotels, E & L Real Estate, and Third Wallingford. The 

fourth landowner is a private person, Burritt, operating an 

animal hospital but not residing in the annexed area. Plaintiffs 

Butte Plaza and Safeway are lessees of a portion of the annexed 

property from E & L Real Estate and Third Wallingford, respectively. 

Two separate suits were filed contesting the annexation which 

were subsequently consolidated. 

The district court made the following findings of fact 

which were not disputed. The land owned by E & L Real Estate 

is leased by Butte Plaza, a partnership, and used as a typical 

retail shopping center which includes a grocery store, drug 

store, real estate office, tavern, restaurant, department store, 

barber shop, fabric store, shoe store, variety store, and a 

movie theater. The land owned by Romney Hotels is used as a 

motel with a restaurant, bar, and a gas station located thereon. 

The land owned by Third Wallingford is leased to Safeway and used 

as a retail grocery store containing an in-store bakery and meat 

counter. The land owned by Burritt is used for a veterinary office 

and animal hospital. 
Plaintiffs excepted only to Findings XI11 and XIV, which 

stated in substance that none of the plaintiffs are resident 

freeholders of the property sought to be annexed and that none 

of the land annexed was used for industrial or manufacturing 

purposes, within the meaning of section 11-403, R.C.M, 1947. 

Plaintiffs do not raise upon this appeal any objections 

regarding the procedure followed by the City in the annexation, 

Therefore, we shall consider that the City followed the statutory 

procedure for annexation as set forth in section 11-403, R.C.M. 

1947. 

From the district court's judgment quashing the alternative writs of prohibition previously issued and dismissing the 

consolidated action, plaintiffs now appeal. 

The issues presented for review may be summarized: (1) Is 

any of the annexed land used for industrial or manufacturing 

purposes within the meaning of section 11-403, R..C.M. 1947? (2) 

Are any of the plaintiffs resident freeholders of the annexed 

properties? (3) Does section 11-403, R.C.M. 1947, establish 

discriminatory classifications without compelling justification 

in violation of the Equal Protection Clause of the Fourteenth 

Amendment to the United States Constitution? 

Plaintiffs contend initially that the annexed land was 

used for "industrial purposes" within the meaning of section 

11-403(1), R.C.M. 1947, thereby requiring written consent of the 

landowners for annexation into the city. This limitation was 

added by the legislature in 1961. 

The Court's function is to construe the language of the 

statute in accordance with its usual and ordinary acceptance, 

with a view to giving vitality to and making operative all provisions of the law and accomplishing the intention of the legislature when ascertainable. Section 93-401-16, R.C.M. 1947; County 

of Hill v. County of Liberty, 62 Mont. 15, 203 P. 500. Interpreting section 11-403, R.C.M. 1947, in its entirety it is logical 
to presume that the legislature intended to make the annexation 

process easier in larger cities and at the same time permit 

designated residents, freeholders, or businesses a voice in this 

process, 

Plaintiffs would have us construe "industrial purpose" 

in its broad sense to include what are generally termed commercial, mercantile, trade, or professional pursuits. Thus the 

businesses involved here --- a commercial shopping center with 

a number of retail stores, a motel, a gas station, a barber shop, 

a real estate office, a movie theater and a veterinary office 

and animal hospital---would be within the definition of "industrial purpose". 

Plaintiffs' expert witness, an economist, gave a technical definition of "industrial", one that would be used among economists. 

It is not the usual, ordinary, or commonly understood definition 

of the word. Likewise, plaintiffs' dictionary definition of 

I' "industrial" is too broad. Defining "industry" as any department or branch of art, occupation, or business conducted as a 

rneans of livelihood or for a profit; especially, one which 

employs much labor and capital and is a distinct branch of trade", 

is such a broad classification that it would effectively block 

any annexation attempt where a business is involved and thus 

destroy the purpose of the statute. l lack's Law Dictionary 

4th Ed.) 

Plaintiffs cite an 1888 case, Carver Mercantile Co. v. 

Hulme, 7 Mont. 566, 19 P. 213, as autho~~ity for using a broad 

definition of "industrial". Carver involved the authority to 

organize corporations and adopted a broad definition to accommodate 

the purpose of the incorporation statute. The same or similar 

purpose does not exist in the annexation statute here so Carver 

is readily distinguishable. 

The goal of statutory interpretations is to give effect 

to the purpose of the statute. County of Hill v. County of 

Liberty, supra. To give effect to the purpose of the statute 
as intended by the legislature, the context in which the words 

are used is more important than precise grammatical rules or a 

dictionary definition. Home Bldg, & Loan v. Bd. of Equalization, 

141 Mont. 113, 375 P.2d 312. 

For the purposes of section 11-403, R.C.M. 1947, we adopt 

a more limited definition of industrial purpose. "Industrial 

purpose" is limited to any factory, business or concern which 

is engaged primarily in the manufacture or assembly of goods 

or processing of raw materials unserviceable in their natural 

state which are extracted, processed, or made fit for use or 

are substantially altered or treated so as to create commercial 

products or materials. This definition is similar to that given 

by the legislature in establishing a classification and defining 

"new industrial" business for purpose of taxation. Section 

84-301, R.C.M. 1947. This section specifically excludes property 

used by retail or wholesale merchants, commercial services of 

any type, agriculture, trades, or professions. That statutory 

classification was enacted by the Montana legislature in 1961, 

the same year the "industrial and manufacturing" clause was 

added to section 11-403, R.C.M, 1947. 

11 In addition, the distinction made between commercial" 

and "industrial" in Calvert v. City of Great Falls, 154 Mont. 

213, 462 P.2d 182, leads us to believe the legislature intended 

such limited definition. 

Nonetheless, plaintiffs argue that the bakery and meat 

market in the Safeway store renders that property, at least, 

industrial, We observe that this in-store bakery and meat market 

are merely incidental to the operation of Safeway's principal 

business on the premises, a retail grocery. Under the foregoing 

definition of industrial which we have adopted in this case, 

these incidental operations do not convert safeway's principal 

business into an "industrial" operation in any event, 

None of plaintiffs involved here qualify under this 

limited definition of "industrial purpcse". 
The next issue raised is whether the definition of 

If resident freeholder" under section 11-403, R.C.M. 1947, includes a corporation, This section provides in pertinent part: 

11 J; -1- - that such resolution [of annexation] shall 

not be adopted by such council if disapproved, in 

writing, by a majority of the resident freeholders, 

if any of the territory proposed to be embraced 

-/c ik * 

In Kunesh v. City of Great Falls, 132 Mont. 285, 317 P.2d 

297, this Court defined "resident freeholder" for the purposes 

of this section as one who is a resident within the area to be 

annexed, holding a present legal title to a freehold estate in 

real property located within the area to be annexed, Such definition was reaffirmed in Brodie v, City of I\lissoula, 155 Mont. 

1-85, 468 P.2d 778. Neither case however, deals with the specific 

problem of the residence of a corporation. 

Section 11-403, R.C.M. 1947, provides that the protesters 

must live in the area to be annexed and have a freehold interest 

in land in the area. In the instant case, four of the plaintiffs 

are corporations, one is a partnership, and one is a natural 

person, 

In Ihnesh at pages 289,290 of 132 Mont,, this Court 

discussed the requirements of "residence" at length: 

"Residence has been defined as the place where 

a man makes his home 9; ;? and that residence '* 9; J: is the place where one remains when not 

called elsewhere for labor or other special or 

temporary purposes; and to which he [the resident] 

returns in seasons of repose'. 

" 'While the word "residence" has been involved in 

many controversies 9; * =k it will be found that it 

ismt the word itself that has been difficult of 

understanding. It has been in the construction 

of language expressive of the effect of residence, 

and of the rights arising therefrom and based on 

the fact of residence. In each such case the 

word becomes a part of a concept larger than itself, such as residence necessary to the right to 

vote, residence in establishing a domicile, residence necessary to citizenship, etc. t II 

Plaintiffs and defendant separately cite cases and 

Montana statutes which in some instances would include a corportion as a natural person having a place of residence (Section 
19-103, R.C.M. 1947; Quaker City Cab. Co, v, Pennsylvania, 277 

U.S. 389, 48 S.Ct. 553, 72 L ed 927) and at other times would 

not (Section 83-303, R,C.M. 1947; Pittsburg, C., C. & St.L,Ry. 

Co. v. City of Indianapolis, 147 Ind. 292, 46 N.E. 641). 

Whether or not a corporation is to be considered the same 

as a natural person for residence purposes depends entirely upon 

the context of the particular statute in question. From the above 

discussion, it is clear that section 11-403, R.C.M. 1947, requires 

actual residence on the property sought to be annexed in order to 

qualify for protest and thus excludes a corporation which possesses 

no actual residence as distinquished from a legal residence for some 

purposes. Thus a corporation is not a "resident freeholder" 

within the meaning of this statute. 

The same reasoning applies to a partnership, likewise a 

legal entity with no actual residence. 

The final issue is whether the annexation statute, section 

11-403, R.C.M, 1947, violates the Equal Protection Clause of 

the Fourteenth Amendment of the United States Constitution by 

establishing discriminatroy classifications without compelling 

justification. The statute allows the right of protest to resident 

freeholders, but not to resident nonfreeholders nor nonresident 

freeholders. 

Plaintiffs contend that several recent United States Supreme 

Court decisions dealing with voting rights in school districts, 

Kramer v. Union Free School District, 395 U,S. 621, 89 S.Ct. 1886, 

23 L ed 2d 583 (1969); voting rights in bond elections, Cipriano v. 

City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L ed 2d 647 (1969); 

in welfare cases, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 

22 L ed 2d 600 (1969); and other similar cases should be considered 

in ruling this statute discriminatory class legislation and unconstitutional. 

We note that these cases deal with the protection of the 

rights of "natural persons" based on their residence. The United 

States Supreme Court has not as yet seen fit to extend the right 
to vote or collect welfare benefits to corporate or partnership 

entities in the absence of statute, In the instant case the 

protesting corporations and partnership, although their land is 

subject to taxation for school levies, special improvement 

districts, and general taxes, have no right to vote on such levies, 

Annexation is generally regarded as a political matter 

exclusively for the legislature to regulate, unless specifically 

restrained by the Constitution. The legislature can authorize 

annexation without the consent and even against the wishes of 

the people living in the area to be annexed. Harrison v. City 

of Missoula, 146 Mont. 420, 407 P.2d 703, The extension of the 

corporate limits of a city is ancillary to governmental maintenance of the health, safety, general welfare, and good order of 

those communities which are formed by dense collections of citizens 

in particular localities. Such is constitutional even though the 

annexed territory may receive no direct benefit from incorporation 

in return for the municipal burdens thereby imposed upon it. 

2 McQuillin Mun Corp (3rd Ed) 5 7.10, p. 309, 

Section 11-403, R.C.M, 1947, was first declared valid 

and constitutional in Harrison v. City of Missoula, supra. In 

that case, the protesters claimed section 11-403, R.C.M. 1947, 

was "class legislation" in that a distinction is made between 

"freeholder" and "resident freeholder" and that there had been 

a "taking of property1' without due process. We held otherwise. 

Subsequently this Court upheld the constitutionality of this 

statute in Calvert v. City of Great Falls, supra, where the 

protesters challenged the legislative exemptions relating to 

compulsory annexation of land devoted to industrial and manufacturing enterprises and similar purposes. The same result was 

reached by this Court in Brodie v. City of Missoula, supra. In 

Brodie we held that the compulsory annexation of territory "wholly 

surrounded" by the city did not violate federal or state constitutional provisions proscribing the taking of private property without 

due process of law, See also: Sailors v. Kent Board of Ed,, 387 
Pittsburg, 207 U.S. 161, 28 S.Ct. 40, 52 L.ed. 151 (1907). 

Nore prticularly, however, plaintiffs attack the constitutionality of that provision in section 11-403, R.C.M. 1947, 

which limits protests to "resident freeholders1' in cities over 

10,000 population, while in smaller cities a protester need only 

meet the qualification of a "freeholder" without regard to residence on the property to be annexed, 

In Calvert this Court summarized the general rule that 

a statute is presumed to be constitutional in language appearing 

on pages 218, 219 of 154 Montana: 

I I In this state the presumption of constitutionI al-ity becomes specific when the claim of class 

legislation' is raised for much of our legislation in the field of property law imposes distinctions and classifications, These distinctions 

and classifications have been upheld whenever found 

to be reasonable and to operate equally upon every 

person or thing in a given class. State ex rel. 

Redman v. Meyers, 65 Mont. 124, 128. 210 P. 1064; 

State ex rel. Morgan v. White (Ret.Sys.), 136 Mont. 

470, 348 P.2d 991." 

This Court, however, went on to say: 

11 I The constitutional safeguard against unjust 

discrimination in legislation of this type is 

well defined by the decisions everywhere, and 

that is, that the classifications must be reasonable, not arbitrary, and must rest upon some 

ground of difference having a fair and substantial 

relation to the object of the legislation, so that 

all persons similarly circumstanced shall be treated 

alike. (Mills v. State Board of Equalization, 97 

Xont. 13, 31, 33 P,2d 563.)"' 

The legislature may provide at its discretion the manner 

of proresting and the parties privileged to protest. In fact, 

statutes often require the consent of only a designated proportion 

of the voters, or property owners in the territory to be annexed. 

The consent of others not so designated is immaterial, 2 1.IcQuillin 

ZvIun Corp (3rd Ed) 5 7.16, p, 335. A n0nresiden.t freeholder of 

the annexed area may constitutionally be excluded from those permitted to protest. Adams v. City of Colorado Springs, 308 F.Supp. 

1397, ~ff'd 399 U,S. 901, 90 S.Ct. 2197, 26 L ed 2d 555; Rogers 

v. City and County of Denver, 161 Colo. 72, 419 P.2d 648. 
There are governmental as well as economic reasons for the 

legislature to make annexations easier for larger cities. In 

hdams at p. 1404, the court said: 

11 The metropolitan area is a single social and 

economic unit, yet it has no consolidated 

government 7k *[Annexation] permits a united 

approach to solving the problems and supplying 

the needs of the urban area, in terms of planning 

and rendition of service as well as fiscal balance. I I 

Considerable differences exist between cities having a 

population in excess of 10,000 and those less than 10,000 population. In the instant case, ~utte's Mayor testified to some of 

these peculiar problems, i.e., larger cities addressing themselves 

to problems in the area of assistance to senior citizens, expanded 

youth programs, and the necessity of more sophisticated and specilized sewage treatment and water plants, for exam.ple. 

In addition, Montana statutes are full of examples where 

the legislature has set forth different requirements for the 

different classes of cities according to population. See: Title 

11, R.C.M. 1947. 

We hold that the classifications established by the legislature in limiting protests to annexation to resident freeholders 

in first class cities, while permitting protests by freeholders 

without regard to residence in smaller cities is not only a rational 

distinction but also promotes a compelling governmental interest 

and is therefore constitutional. To summarize,the legislature 

in enacting section 11-403, R.C.M. 1947, intended to make the 

process of annexation easier in larger cities. Services in the 

larger cities are ever increasing due to various and diverse 

growth trends. The larger city tends to become the hub of commerce 

for a metropolitan area not only in terms of services for its own 

citizens but also for persons in its metropolitan area outside the 

city limits. Eventually, the two groups become virtually dependent 

upon one another. They become a single entity having common needs, 

Easier annexation permits such larger city to broaden its tax base 
and thus spread the costs among those who use its services. 

Easier annexation permits the larger city to provide these 

services which are essential for the health,safety, and general 

welfare of the entire area. 

For these reasons, the consolidated judgment of the 

district court is affirmed. 

Associate Justice