No. 14559 INTHE SUP= COW OFTHE STATEOF&DIWANA 19 79

THE COUMIY OF CHOIITEAU, STATE OF and the STATEOFmANAexrel. GEORGEW.

-I PlaintiffsandAppellants,

THE CITYOFFORT EENKN, M3NTANA, a municipal corporation, Defendantand Respondent.

Appeal from: DistrictCourt of theEighthJudicial District, HomrableJoel G. Roth, Judgepresiding. Co-me1of Record: For Appellants: A. EvonMersonargued, Fort Benton, bntana For Respondent: Schmidt, Gilbert& Jungers, Fort Benton, &x-kana GroverC. Schmidt, Jr. argued, Fort Benton, bntana

Suhnitted: March 16, 1979 MAG

### 1 1C.74 Decided:

### Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Plaintiffs appeal from an order of the District Court of Chouteau County quashing a temporary restraining order and denying a permanent injunction. On July 18, 1977, the city council of Fort Benton, Montana,passed a resolution of intent to create an extended Special Water Line District. The purpose of the Districtwas to installwater lines along the streets includedwithin its boundaries and to connect those lines to the existing city water system. Pursuant to that resolution,on September 19, 1977, the city council created the proposed Special Improveinent District, set forth themethod of assessing costs and themanner of payment, and instructed the city clerk to publish notice inviting bids on theproject. In pertinent part, the resolution reads: 

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# . . . the entire cost and expense of said improvements shall be paid by the owners of the property within said SpecialWater Line District



# .. .each lot or parcel of land within said district to be assessed for that part of the cost to be paid by said district which its area bears to the total area of said special improvement water line district exclusive of streets, avenues, alleys and public places." (Emphasissupplied.) Included in the area within the District's boundaries are the CbkeauCounty Fairgrounds and the property of George Harvey. As plaintiffs in this action,Harvey and the County sought, and the District Court issued, an order temporarily restraining the City from taking further action on the Special Improvement District. Defendant City was also ordered to show cause why a permanent injunction should not be issued. Subsequently,defendant filed a motion to quash the temporary restraining order and the order to show cause and later moved to dismiss the complaint. The actionwas submitted on briefs and pursuant to its conclusionsof law, the District Court concluded:"Themethod of assessment adopted by the City Council 

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# . . to pay for the improvements conforms to the requirementsof Section 11-2214(a), R.C.M. 1947 as amended and the terminology therein

'exclusive of streets, avenues, alleys and public places' satisfies the statutory requirementof describing themethod of assessment adopted by the City Council." The temporary restraining order and the order to show causewere quashed and vacated and the complaint seeking an injunction was dismissed. From that judgment plaintiffs appeal and raise two issues for our consideration: (1)Whether the Chouteau County Fairgrounds,as property of the County, is properly includable in the Special Improvement District. (2)Whether assessment of all the area within the Special Improvement District on a proportionate basis isproper. Because the city council made a finding in its July 19 resolution that "all real estate situated in said districtwill be especially benefitted and affected by such improvements" the Districtbecame an extended Special Improvement District under section 11-2205, R.C.M. 1947,now section 7-12-4103MCA. As such, the property within the District is assessable as provided in section 11-2214(1)(a), R.C.M. 1947, now section 7-12-4162MCA: "(1) The city council or commission shall assess the entire cost of such improvements against the entire district, each lot or parcel of land within such district to be assessed for that part of thewhole costwhich its area bears to the area of the entire district, exclusive of streets, avenues, alleys and public places;

"(3) In order to equitably apportion the cost of any of the improvements herein provided for between that land within the district which lies within 25 feet of the line of the street on which the improvement is to be made and all other land within the district, the council or commission may, in the resolution creating any improvement district,provide that the amount of the assessment against the property in such district todefray the cost of such improvements shall be so assessed that each square foot of land within the district lying within 25 feet of the line of the street on which the improvements therein provided for are made shallbear double the amount of cost of such improvement per square foot of such land that each square foot of any other land within the district shall bear." Over 65years ago this Court noted a dramatic split of authority on the question of whether places like schools or fairgrounds were to be included in special improvement districts and assessed for their share of improvement costs. City of Kalispell v. School DistrictNo. 5 (1912), 45 Font. 221, 226, 122 

### P. 742. The states which have ruled on the question are still not in accord and the conflict continues. See 70Am Jur 2d Special or Local Assessments 552. Despite the continuing controversy, this Court held in City of Kalispell

### v. School DistrictNo. 5 and in an unbroken line of cases thereafter that suchplaces are subject to assessments. This Court interpreted the statute in issue here as follows:"Our statute authorizing these special assessments provides in general terms that they shallbe paid by the entire improvement district; each lot or parcel of land within the district to be assessed for that part of the whole cost which its area bears to the area of the entire improvement district, exclusive of streets, alleys,and public places. This language is general. It includes all the property within the improvement district; and we are not at liberty to ingraft upon the statute exceptions which are not there. But it is suggested that the concluding clause 

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# . 'exclusiveof streets, alleys and public places,' is broad enough to include property devoted exclusively to public use, such as school property. But that construction violates the elementary rules of statutory construction;and certainly, if the legislature intended to exempt property devoted to public purposes, it could have found apt terms by which to express itsmeaning. The 

### - rule exemplified by the expression 'ejusdemgeneris' requires that the words 'publicplaces' be read to mean public places, such as streets or alleys. After all, the question before us is largely one of public policy." City of Kalispell v. School DistrictNo. 5, supra, at 230; Toole County Irrigation Districtv. State (1937),104Mont. 420, 434, 67 P.2d 989; School DistrictNo. 1 v. City of Helena (1930), 87Mont. 300, 306, 287 P. 164; State ex rel. City of Great Falls v.Jeffries (1928),83 Mont. 111, 116, 270 P. 638; Swordsv. Simineo (1923),68Mont. 164, 175, 216 P. 806. (Emphasissupplied.) Ejusdem generis is a commonly accepted rule of statutory construction which "requires that general terms appearing in a statute in connection with specific terns are to be given meaning and effect only to the extent that the general terms suggest items similar to those designated by specific terms." Dean v. McFarland (1972), 81Wash.2d 215, 500 P.2d 1244, 1248, 74ALR3d 378. Like the schools in City of Kalispell v. School District No. 5, the fairgroundshere are not similar to "streetsand alleys" and cannot be excluded from the Special ImprovementDistrict. The plaintiffs also contend the city council must assess the property within 25 feet of the waterline twice asmuch as the property further from the line. We disagree. The statute in question reads "thecouncil

# . . .may, in the resolution creating any improvement district,provide" that property within 25 feet of the line is to be assessed twice as much as other property in the district. Section 11-2214(1)(a), R.C.M. 1947, now section 7-12-4162 (3)MCA. (Emphasissupplied.) The word "may",unless it has acquired a special meaning in law, is to be given its ordinary meaning. Lewis v. Petroleum County (1932),92Mont. 563, 567, 17 P.2d 60, 86 A.L.R. 575. The plaintiffs argue such a special meaning has attached. They have cited numerous cases to the effect that when a right is created in an individual by a statute, a governmental entity must exercise its discretion to the end that the right be given effect. That is not the situation here. The statutedoes not operate to create

a right in an individual; rather, it clearly bestows discretion

on the city council to use an alternateplan of assessment to achieve an equitable result. In other cases where the exercise of a discretionary power by a city council has been questioned, this Court has said: Theaction is usually conclusive "unlesspalpably unjust 

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# . except in cases of fraud ormanifestmistake." Northern Pacific Railway Co. v. Lutey (1937),104Mont. 321, 324, 66 P.2d 785. The discretion will not be controlled "in the absence of a clearly arbitrary abuse." State v. City Council et a1 (1939), 108Mont. 347, 356, 90 P.2d 514. A determination of the councilwill not be set aside unless "arbitrary,oppressive or fraudulent." Koich v. Cvar et al. (1941),111Mont. 463, 466, 110 P.2d 964. From the quoted specific applications of the principle, we derive a general rule as follows: When a city council exercises discretionary power, its action will not be disturbed unless there is a showing of manifest abuse of discretion. In the instant case no abuse has been shown and the council's action cannot be enjoined. Finding no error, the judgment of the District Court is affirmed.

Chief Justice



# 0' Justices