Town of Ennis v. Stewart

• Decision Date: 04 March 1991
• Docket Number: No. 90-303,90-303
• Citation: 807 P.2d 179,247 Mont. 355
• Parties: The TOWN OF ENNIS, Plaintiff and Appellant, v. Edgar STEWART and Martha Stewart, Defendants and Respondents. The TOWN OF ENNIS, Plaintiff and Appellant, v. Pearl DOYLE, Defendant and Respondent.
• Court: Montana Supreme Court

Page 179

807 P.2d 179

247 Mont. 355

The TOWN OF ENNIS, Plaintiff and Appellant, v. Edgar STEWART and Martha Stewart, Defendants and Respondents.

The TOWN OF ENNIS, Plaintiff and Appellant, v. Pearl DOYLE, Defendant and Respondent.

No. 90-303.

Supreme Court of Montana.

Submitted on Briefs Jan. 3, 1991.

Decided March 4, 1991.

Larry Jent, Bozeman, for plaintiff and appellant.

Chester L. Jones, Jones & Hoffman, Virginia City, for defendants and respondents.

McDONOUGH, Justice.

The plaintiff Town of Ennis appeals the order of the Fifth Judicial District Court, Madison County reversing convictions in Ennis Town Court and dismissing charges against the defendants Edgar and Martha Stewart and Pearl Doyle. The defendants were convicted in Ennis Town Court for refusing to hook up to the Ennis Water System in violation of town ordinances. We reverse the order of the District Court and uphold the convictions of the defendants.

The Town raises the following issues on appeal:

(1) Did the District Court err in determining that the defendants had a privacy right in their well granted by Article II Section 10 of the Montana Constitution?

(2) Did the District Court err in ruling that it is not a valid exercise of the police power of local governments to mandate connection to an existing city water supply?

The Stewarts, both in their 80's, have resided at their present residence since 1936. They have always supplied their water needs from a private well and electric pump located on their property. The Stewarts used the water for indoor consumption, washing and bathing as well as outdoor irrigation. The water is never used commercially or available to the public.

Pearl Doyle is an 83-year-old widow and the sister of Martha Stewart. She has resided at her present residence since June of 1949. Since 1949 her residence has been served by the same well and distribution system, for the same domestic purposes as the Stewarts. Neither Mrs. Doyle nor the Stewarts have ever experienced any health problems traceable to the water system. Both premises are connected to the municipal sewer system.

The Town was incorporated in 1956. Thereafter, pursuant to the adoption of a series of ordinances, the Town made it mandatory for residences within the Town's city limits to hook up to the Town's water system, and forbade the interconnection of municipal water lines and private wells and the use of private well water for commercial and public use and use inside private residences. The ordinances allow residents to continue to use well water for watering lawns, gardens, irrigating, etc.

In the early 1960's, when the municipal water system was being installed, Mrs. Doyle's late husband requested that a stub be put on the main water line passing the Doyle residence so that the water system could be tied into the residence at some later date. Mr. Doyle also tendered the required fee for such purposes. The Town mayor refused to provide a stub or accept the fee because the Doyles were not going to immediately hook up to the water system.

Since the building of the original municipal water system in the 1960's, the Stewarts were never advised by any city official of the requirement to tie onto the system until 1987. The Town has made numerous attempts to persuade the defendants to tie their residences into the Town system, but the defendants have consistently refused to comply. The cost of tying into the water mains would be approximately $500.00 for each residence. In October of 1987, pursuant to Section 4.10.180 of the Ennis Municipal Code, a notice of non-compliance was delivered to each of the defendants.

The Town filed complaints against the Stewarts and Mrs. Doyle for violating the ordinances on May 31, 1989 and June 28, 1989, respectively. All three defendants were convicted of the charges in Ennis Town Court On August 1, 1989.

The defendants appealed to District Court, and the case was submitted upon stipulated facts. On May 8, 1990, the District Court reversed the judgment of the Town Court and dismissed the charges against the defendants. The Town now appeals.

In its order, the District Court essentially concluded that the defendants have a privacy right to use a private well in their home for domestic purposes guaranteed by the Constitution, and that the Town's exercise of the police power was not valid in this case due to lack of a compelling state interest.

We disagree in both respects. The ordinance in question in this case provides in pertinent part:

4.10.010 Town Water Lines Separate from Private Wells and Pumps. There shall not be any cross-connections between the individual wells and pumps and the town water system. The line from the town water supply must be separate from that of the private well and pump.

4.10.020 Wells and Pumps for Outside Water Only. Present wells and pumps may be retained for outside water only, lawns, gardens, etc. All water inside residences, business places, public institutions, or for any commercial use must be town water.

A. Anytime real property is sold which is presently using a well for inside water use, the property must be connected onto the town's water system prior to sale.

The privacy right referred to by the District Court is found at Article II, Section 10 of the Montana Constitution, which provides:

Right of Privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.

In determining whether a particular alleged privacy interest warrants constitutional protection, this Court has adopted a two part test. Montana Human Rights Division v. City of Billings (1982), 199 Mont. 434, 442, 649 P.2d 1283, 1287; accord Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. First, the test focuses on whether the person claiming the right has a subjective or actual expectation of privacy. Second, the test asks whether society is willing to recognize that subjective or actual expectation as reasonable. Flesh v. Board of Trustees of Joint School District No. 2 (1990), 241 Mont. 158, 165, 786 P.2d 4, 8; Engrav v. Cragun (1989), 236 Mont. 260, 263, 769 P.2d 1224, 1226.

In this case, we conclude that the type of interest being infringed is not of the kind sufficient for defendants to invoke the special protections of their privacy right. Under the Federal Constitution the privacy right has been extended to those rights which are fundamental or implicit in the concept of ordered liberty, such as rights involving activities relating to marriage, procreation, contraception, family relationships, child-rearing, and education. Roe v. Wade (1973), 410 U.S. 113, 152-3, 93 S.Ct. 705, 726, 35 L.Ed.2d 147, 176-7. We have held that privacy rights of individuals in Montana are more substantial than the rights guaranteed in the United States Constitution. See, e.g., Montana Human Rights Division, 649 P.2d at 1286.

Admittedly, the defendants' right to privacy in this case protects their decision to drink whatever type of potable water they choose within their own home. However, a careful review of the ordinances in question here reveals that they do not proscribe such a decision. The ordinances simply require that the defendants, as residents of the Town of Ennis, be connected to the municipal water system and that water from this source be the only type available from the faucets inside their residence. The ordinances do not prevent the defendants from making the personal choice to drink commercially bottled water, for example, or from drinking their own well water from an outside spigot in a fashion similar to bottled water, as another example.

We conclude that the interest asserted by the defendants in this case--the right to pipe in and have available the type of water they choose--does not involve the kind of individual autonomy or freedom "from unwarranted governmental intrusion into matters so fundamentally affecting a person...." necessary to invoke constitutional protection. See Eisenstadt v. Baird (1972), 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349, 362. Furthermore, where it may adversely affect the significant interest of the Town regarding the public health and welfare, the expectation of privacy the defendants may have in this regard is unreasonable. Flesh, 786 P.2d at 8, Engrav, 769 P.2d at 1226. Accordingly, because the right being asserted is not of constitutional magnitude the Town need not show a compelling interest to satisfy its ends; rather it need only demonstrate that the ordinance bears a rational relationship to the achievement of a legitimate state interest. Art. II, Sec. 10, Mont. Const.; see, e.g., People v. Privitera (1979), 23 Cal.3d 697, 153 Cal.Rptr. 431, 433-34, 591 P.2d 919, 921.

The defendants cite the case of City of Midway v. Midway Nursing & Convalescent Center, Inc. (1973), 230 Ga. 77, 195 S.E.2d 452, for the proposition that a municipality has no authority to enact and enforce ordinances which are designed to compel everyone within the city to use its water system. Considerations of public policy lead us to disagree with the holding of Midway. Generally, a governmental entity may exercise its police powers in matters affecting public health and welfare. There is more recent authority in opposition to Midway holding that the enactment and enforcement of ordinances that compel citizens to connect to a municipal water system is within the scope of the police power:

"It is the commonest exercise of the police power of a State or city to provide for a system of sewers and to compel property owners to connect therewith. And this duty may be enforced by criminal penalties.... [Citations omitted.] It may be that an arbitrary exercise of the power could be restrained, but it would have to be palpably so to justify a court in interfering with so salutary a power and one so necessary to the public health."

227 U.S. at 308, 33...