No. 14559 

IN THE SUP= COW OF THE STATE OF &DIWANA 

19 79 

THE COUMIY OF CHOIITEAU, STATE OF 

and the STATE OF mANA ex rel. GEORGE W. 

-I 

Plaintiffs and Appellants, 

THE CITY OF FORT EENKN, M3NTANA, a 

municipal corporation, 

Defendant and Respondent. 

Appeal from: District Court of the Eighth Judicial District, 

Homrable Joel G. Roth, Judge presiding. 

Co-me1 of Record: 

For Appellants: 

A. Evon Merson argued, Fort Benton, bntana 

For Respondent: 

Schmidt, Gilbert & Jungers, Fort Benton, &x-kana 

Grover C. 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 District was 

to install water lines along the streets included within 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 the method of assessing costs and the manner of 

payment, and instructed the city clerk to publish notice inviting bids on the project. In pertinent part, the resolution reads: 

" . . . the entire cost and expense of said 

improvements shall be paid by the owners of the 

property within said Special Water 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." (Emphasis supplied.) 

Included in the area within the District's boundaries 

are the Cbkeau County 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 action was submitted on briefs and pursuant to its 

conclusions of law, the District Court concluded: 
"The method of assessment adopted by the City 

Council . . . to pay for the improvements conforms to the requirements of 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 requirement of 

describing the method of assessment adopted by 

the City Council." 

The temporary restraining order and the order to show cause were 

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 is proper. 

Because the city council made a finding in its July 19 

resolution that "all real estate situated in said district will 

be especially benefitted and affected by such improvements" the 

District became an extended Special Improvement District under 

section 11-2205, R.C.M. 1947, now section 7-12-4103 MCA. As such, 

the property within the District is assessable as provided in 

section 11-2214(1)(a), R.C.M. 1947, now section 7-12-4162 MCA: 

"(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 

the whole cost which 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 to 
defray 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 shall bear 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 65 years 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 District No. 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 70 Am Jur 2d 

Special or Local Assessments 552. 

Despite the continuing controversy, this Court held in 

City of Kalispell v. School District No. 5 and in an unbroken 

line of cases thereafter that such places 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 shall be 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 . . . 'exclusive of 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 its meaning. - The 

rule exemplified by the expression 'ejusdem generis' 

requires that the words 'public places' 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 District No. 5, 

supra, at 230; Toole County Irrigation District v. 

State (1937), 104 Mont. 420, 434, 67 P.2d 989; School 

District No. 1 v. City of Helena (1930), 87 Mont. 300, 

306, 287 P. 164; State ex rel. City of Great Falls v. 
Jeffries (1928), 83 Mont. 111, 116, 270 P. 638; 

Swords v. Simineo (1923), 68 Mont. 164, 175, 216 

P. 806. (Emphasis supplied.) 

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), 81 Wash.2d 215, 500 P.2d 1244, 1248, 74 ALR3d 

378. Like the schools in City of Kalispell v. School District 

No. 5, the fairgrounds here are not similar to "streets and alleys" 

and cannot be excluded from the Special Improvement District. 

The plaintiffs also contend the city council must assess 

the property within 25 feet of the waterline twice as much as 

the property further from the line. We disagree. 

The statute in question reads "the council . . . 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. (Emphasis supplied. ) 

The word "may", unless it has acquired a special meaning 

in law, is to be given its ordinary meaning. Lewis v. Petroleum 

County (1932), 92 Mont. 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 statute does not operate to create 

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

on the city council to use an alternate plan 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: The 
action is usually conclusive "unless palpably unjust . . . except in cases of fraud or manifest mistake." Northern Pacific 

Railway Co. v. Lutey (1937), 104 Mont. 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), 

108 Mont. 347, 356, 90 P.2d 514. A determination of the council will not be set aside unless "arbitrary, oppressive or fraudulent." Koich v. Cvar et al. (1941), 111 Mont. 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