Volume 247 — Montana Reports

<p> JUSTICE HARRISON, dissenting: I dissent. I would choose to follow the Findings of Fact and Conclusions of Law of the District Judge who sat on this matter, and adopt the reasoning in his Memorandum of this case. Judge Frank M. Davis in his Findings of Fact Nos. 2,3, and 4 noted: “2. The Defendants, STEWARTS and DOYLE, are residents and property owners of the TOWN, and have been since as early as 1936. Both are in their ’80s. Both have always utilized private water wells for domestic water in their homes. Both have refused the offered municipal water service. No formal demand by the TOWN was ever made upon them until 1987. This indicates to the Court that a succession of previous administrations may have conceded the principles set forth in this decision. In any case, the demand was refused and this action resulted. “3. There is an absence of any evidence that Defendants’ private water well service is a violation of any established public health and sanitary standards. Indeed, the Court can find no compelling reason in the public interest for Defendants to abandon their private water source which has been in existence and used for over fifty years. The property serviced has been owned by Defendants or their immediate families during all this time. “4. From the stipulated facts, the Court can find only one reason for the TOWN requiring Defendants to utilize its water system and that is for the money, which as the Court will discuss in its Memorandum, is not a compelling state interest. There is no concern which could justify under any known principle of law the use of the TOWN’S police power.” Judge Davis stated in Conclusions of Law No. II: “The Court concludes that under the findings herein made and as applied only to Defendants STEWARTS and DOYLE, that there is no compelling state interest mandating that these Defendants utilize the TOWN OF ENNIS municipal water system. To do so would be an invasion of Defendants’rights as guaranteed by Article II, Section 10 of the 1972 Montana Constitution” With these conclusions I most certainly agree. Finally, Judge Davis’ Memorandum notes: “It is clear to the Court that the TOWN OF ENNIS in the operation of its municipal water system is acting in a proprietary capacity and not in the exercise of its police power. Indeed, under the ordinances which it seeks to invoke, its power is limited to simply terminating the service, and here the Defendants have no service to terminate. “The courts of this country, including the Supreme Court of the United States, have held generally that when the government enters the marketplace it divests itself of many of its sovereign powers. It becomes as the U.S. Supreme Court said in Ohio v. Helvering, [1934] 292 U.S. 360, 54 S.Ct. 725, 75 L.Ed. 1307, a‘trader’. The trader cannot abridge fundamental constitutional rights except on a showing of some compelling public need. Indeed, the public need must be shown even when the government is acting in its sovereign capacity. No public need, much less a compelling need, has been shown in this case. “The TOWN’S water ordinances appear to be vague and contradictory. One seems to contemplate ‘grandfathering’ a water user’s right to use his well until the property is sold. It does not contemplate a transfer by gift or inheritance. Still another ordinance simply provides for notice of noncompliance. These ordinances may be unconstitutionally vague, but in any case these particular Defendants are protected by not only the grandfather concept, but the general principles of constitutional law. “The Court would add that the TOWN’S goal of including all of its residents under the umbrella of its utility is a worthy administrative goal. In doing so, however, it cannot infringe and abridge fundamental constitutional rights, especially when it can show no compelling state interest. The TOWN’S dispute with STEWARTS and DOYLE will be solved in time, provided the contradictory and vague enforcement ordinances are clarified. In the interim, these Defendants should be allowed in their autumn years to use their private water source, as they have for half a century.” (Emphasis in original.) I would add that I am sure the Town of Ennis will not go broke by not collecting the water revenues from these two long time citizens. I would affirm the decision of the District Court. </p>