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2. Senate Bill 242 Joint LawsuitTO: FROM: City of Kalispell Post Office Box 1997 - Kalispell, Montana 59903-1997 -Telephone (406)758-7700 Fax(406)758-7758 Mayor Bill Boharski and Kalispell City Council Charles Harball, Acting City Attorney Chris Kukulski, City Manager SUBJECT: Joint lawsuit to challenge SE 242 which effectively terminates the city's extraterritorial jurisdiction to enforce building codes in the "donut" area outside the city. MEETING DATE: October 22, 2001 BACKGROUND: SB 242 is a poorly crafted law which requires an election to continue the city's extraterritorial jurisdiction to enforce the building codes in the "donut" area outside the city. Six other cities in the state are impacted by this legislation and are joining to file a lawsuit to challenge this statute and head off the election. A Helena law firm is being hired to prosecute the case. The likelihood of successfully defeating the law is quite good. A proposed draft of the complaint is attached. RECOMMENDATION: The council should consider the merits of retaining the city's extraterritorial jurisdiction for enforcing the building codes. It appears as though Flathead County has no plans to create any mechanism for the enforcement of building codes within the county. FISCAL EFFECTS: The cities are agreeing to share the costs of the lawsuit on a pro rata, population -based basis. It is estimated that the legal fees to be shared will be under $20,000.00. Billings, Missoula and Bozeman would therefore bear about 800 of the costs. Respectfully submitted, Charl s 1, Acting City Atty CAA. Chris Kukulski, City Manager CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 Stanley T. Kaleczyc Kimberly A. Beatty BROWNING, KALECZYC, BERRY & HOVEN, P.C. 139 North. Last Chance Gulch P.O. Box 1697 Helena, MT 59624 (406)443-6820 Attorneys for Plaintiffs. AN ORIGINAL PROCEEDING IN THE SUPREME COURT OF THE STATE OF MONTANA No. CITY OF BILLINGS, CITY OF BOZEMAN, CITY OF COLUMBIA FALLS, CITY OF KALISPELL, CITY OF MILES CITY, CITY OF MISSOULA, CITY OF WHITEFISH, JOHN and JANE DOES 1-7, Plaintiffs, vs. STATE OF MONTANA ex rel. MARK SIMONICH, DIRECTOR, MONTANA DEPARTMENT OF COMMERCE, YELLOWSTONE COUNTY, GALLATIN COUNTY, FLATHEAD COUNTY, CUSTER COUNTY and MISSOULA COUNTY, Defendants. ORIGINAL COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 INTRODUCTION 1. Montana Code Annotated §50-60-101 (11)(b) authorizes Montana cities and towns to exercise building code jurisdiction over areas within four and one half (4 '/2) miles of the city limits, the so-called "donut area" or "donut jurisdiction." In 2001 the 57' Session of the Montana Legislature enacted and the Governor signed into law Senate Bill 242 (SB 242), a bill which limits the municipal jurisdictional area for municipal building codes by requiring a special mail ballot election be conducted in each affected County no later than December 31, 2001 in which the only persons who may vote are "record owners of real property" within the donut area over which the municipality exercises its building code jurisdiction. 2. The Plaintiffs in this action are seven (7) municipal governments which currently exercise municipal building code jurisdiction outside their city limits in the donut area pursuant to Montana Code Annotated §50-60-101 (1 1)(b) and seven (7) duly qualified electors who reside within the donut area of their respective communities but who are not "record owners of real property" and thus are disenfranchised by the operative provisions of SB 242. 3. The Plaintiffs in this action seek a judicial declaration that Section 8 of SB 242 requires each of the counties which are defendants in this lawsuit to hold a 92400 CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 special mail ballot election as required by SB 242 by December 31, 2001. Plaintiffs fii Cher seek a judicial declaration that holding such elections limited to "record owners of real property" violates the Equal Protection Clauses of the United States and Montana Constitution and Article II, § 13 of the Montana Constitution. Plaintiffs also seek a preliminary and permanent injunction against the holding of such elections required by Section 8 of SB 242. 4. The Plaintiffs also seek a judicial declaration that, contrary to the official policy of the Montana Department of Commerce, if one or more of the County Defendants does not hold the required election by December 31, 2001, the individual municipal jurisdictions, and not the Department of Commerce, will continue to exercise building code jurisdiction within their respective donut areas. 5. Because the subject matter of this controversy affects seven municipalities located in five different counties in this state, as well as thousands of disenfranchised voters who live within the jurisdictional areas affected by the required election, it is appropriate for the Court to assert original jurisdiction in this case since the Plaintiffs are presenting legal questions of an emergency nature and ordinary legal procedures will not afford timely relief. JURISDICTION 92400 CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 6. This Court has jurisdiction pursuant to Article VII, §2 of the Montana Constitution and Montana Code Annotated §§3-2-201 202. PARTIES 7. Plaintiffs, the cities of Billings, Bozeman, Columbia Falls, Kalispell, Miles City, Missoula and Whitefish (the "Municipal Plaintiffs") are each municipal governments which currently exercise municipal building code jurisdiction in an area within 4'/z miles of the corporate limits of each municipality, as authorized by §50-60- 10 1 (1 1)(b), MCA. 8. Plaintiffs John and Jane Does 1-7 ("Resident Elector Plaintiffs") are duly qualified electors, each of whom lives within the donut jurisdiction outside the city limits of one of the seven Municipal Plaintiffs, and none of whom is the owner of record of real property within their respective donut area over which a Municipal Plaintiff exercises municipal building code jurisdiction. 9. Defendants Yellowstone, Gallatin, Flathead, Custer and Missoula Counties ("the County Defendants") are each duly created Counties within which one or more of the seven Municipal Plaintiffs is located and within each of which counties one of the Resident Elector Plaintiffs lives. 10. Defendant State of Montana is sued through Mark Simonich, Director of 924OU CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 the Department of Commerce. Mr. Simonich is sued in his official capacity as Director of the agency which is responsible for limited building code jurisdiction outside municipal areas. The Department of Commerce has taken the position that if a County Defendant does not hold the election required by SB 242 by December 31, 2001, then the Department of Commerce and not the Municipal Plaintiffs have building code jurisdiction within the donut areas. FACTS 11. The City of Billings has exercised building code jurisdiction outside its city limits pursuant to Montana Statute since [YEAR]. Billings has adopted the current State Building Code with [no] exceptions in [YEAR]. Approximately _ individuals reside in the jurisdictional area outside the city limits over which Billings exercises municipal building code jurisdiction. In 1999, Billings issued building permits in this area; in 2000, permits; and in 2001, through September 30, permits. 12. The City of Bozeman has exercised building code jurisdiction outside its city limits pursuant to Montana Statute since [YEAR]. Bozeman has adopted the current State Building Code with [no] exceptions in [YEAR]. Approximately individuals reside in the jurisdictional area outside the city limits over which Bozeman exercises municipal building code jurisdiction. In 1999, Bozeman issued building 92400 CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 permits in this area; in 2000, permits; and in 2001, through September 30, permits. 13. The City of Columbia Falls has exercised building code jurisdiction outside its city limits pursuant to Montana Statute since [YEAR]. Columbia Falls has adopted the current State Building Code with [no] exceptions in [YEAR]. Approximately individuals reside in the jurisdictional area outside the city limits over which Columbia Falls exercises municipal building code jurisdiction. In 1999, Columbia Falls issued building permits in this area; in 2000, permits; and in 2001, through September 30, permits. 14. The City of Kalispell has exercised building code jurisdiction outside its city limits pursuant to Montana Statute since [YEAR]. Kalispell has adopted the current State Building Code with [no] exceptions in [YEAR]. Approximately individuals reside in the jurisdictional area outside the city limits over which Kalispell exercises municipal building code jurisdiction. In 1999, Kalispell issued building permits in this area; in 2000, permits; and in 2001, through September 30, permits. 15. The City of Miles City has exercised building code jurisdiction outside its city limits pursuant to Montana Statute since [YEAR]. Miles City has 92400 CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 adopted the current State Building Code with [no] exceptions in [YEAR]. Approximately individuals reside in the jurisdictional area outside the city limits over which Miles City exercises municipal building code jurisdiction. In 1999, Miles City issued building permits in this area; in 2000, permits; and in 2001, through September 30, permits. 16. The City of Missoula has exercised building code jurisdiction outside its city limits pursuant to Montana Statute since [YEAR]. Missoula has adopted the current State Building Code with [no] exceptions in [YEAR]. Approximately individuals reside in the jurisdictional area outside the city limits over which Missoula exercises municipal building code jurisdiction. In 1999, Missoula issued building permits in this area; in 2000, permits; and in 2001, through September 30, permits. 17. The City of Whitefish has exercised building code jurisdiction outside its city limits pursuant to Montana Statute since [YEAR]. Whitefish has adopted the current State Building Code with [no] exceptions in [YEAR]. Approximately individuals reside in the jurisdictional area outside the city limits over which Whitefish exercises municipal building code jurisdiction. In 1999, Whitefish issued building permits in this area; in 2000, permits; and in 2001, 92400 CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 through September 30, permits. 18. Plaintiff [Doe 1] resides outside the city of Billings but within a 4'/2 mile radius of Billings over which the city exercise municipal building code jurisdiction. [Doe 11 is not a record owner of real property within the 4'/2 mile radius, but is otherwise a qualified elector eligible to vote in elections of general interest. 19. Plaintiff [Doe 21 resides outside the city of Bozeman but within a 4'h mile radius of Bozeman over which the city exercise municipal building code jurisdiction. [Doe 21 is not a record owner of real property within the 4'/z mile radius, but is otherwise a qualified elector eligible to vote in elections of general interest. 20. Plaintiff [Doe 3] resides outside the city of Columbia Falls but within a 4'/z mile radius of Columbia Falls over which the city exercise municipal building code jurisdiction. [Doe 3] is not a record owner of real property within the 4'/z mile radius, but is otherwise a qualified elector eligible to vote in elections of general interest. 21. Plaintiff [Doe 5] resides outside the city of Kalispell but within a 4'/2 mile radius of Kalispell over which the city exercise municipal building code jurisdiction. [Doe 5] is not a record owner of real property within the 4'/z mile radius, but is otherwise a qualified elector eligible to vote in elections of general interest. 22. Plaintiff [Doe 6] resides outside the city of Miles City but within a 4'/z CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 mile radius of Miles City over which the city exercise municipal building code jurisdiction. [Doe 61 is not a record owner of real property within the 4'/2 mile radius, but is otherwise a qualified elector eligible to vote in elections of general interest. 23. Plaintiff [Doe 7] resides outside the city of Missoula but within a 4'/2 mile radius of Missoula over which the city exercise municipal building code jurisdiction. [Doe 71 is not a record owner of real property within the 4'/z mile radius, but is otherwise a qualified elector eligible to vote in elections of general interest. 24. Plaintiff [Doe 8] resides outside the city of Whitefish but within a 4'/2 mile radius of Whitefish over which the city exercise municipal building code jurisdiction. [Doe 81 is not a record owner of real property within the 4`h mile radius, but is otherwise a qualified elector eligible to vote in elections of general interest. 25. Pursuant to Montana Code Annotated §50-60-301 the Municipal Plaintiffs here may only adopt building codes adopted by the Montana Department of Commerce. Each of the Municipal Plaintiffs has adopted building codes as provided by Montana Code Annotated §50-60-301. 26. Each of the Municipal Plaintiffs exercises municipal building code jurisdiction over all types of construction within its jurisdiction, including single and multi -family residential dwellings or their attached -to structures, any farm or ranch 92400 CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 building of any size, and any private garage or private storage structure located within its jurisdiction, as well as commercial and industrial buildings as provided by the Uniform Building Codes. 27. In contrast, the jurisdiction of the State of Montana to enforce the Uniform Building Code is circumscribed by Montana Code Annotated §50-60-102. Pursuant to that section the Uniform Building Code is not applicable to, among other construction, residential buildings containing fewer than five dwelling units, any farm or ranch building, any private garage, and certain other commercial and industrial construction as specified in §50-60-102. 28. The purposes for state adoption of the Uniform Building Code are set forth in Montana Code Annotated §50-60-201.These purposes include, but are not limited to, providing reasonably uniform standards and requirements for construction and construction materials consistent with accepted standards of design, engineering, and fire prevention practices; permitting the use of modem technical methods, devices, and improvements that tend to reduce construction costs consistent with reasonable requirements for health and safety of the occupants or users of the building, and ensuring that public buildings are accessible to and visible by persons with disabilities. 29. In addition to the Uniform Building Code, the Municipal Plaintiffs have 9WO CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 also adopted the Uniform Mechanical Code, the International Plumbing Code, and the National Electrical Code, which are also utilized in the inspection of construction projects within the jurisdiction of the Municipal Plaintiffs. 30. The Uniform Building Code consists of three volumes. Volume 1 contains administrative, fire -and life -safety and field inspection provisions. Volume 2 contains structural and engineering design provisions. Volume 3 contains material, testing, and installation standards. These provisions and standards address basic life safety issues in the construction of buildings and provide minimum standards to safeguard lives, health, property, and public welfare by regulating and controlling the design, construction, quality of materials, use and occupancy, location and maintenance of all buildings and structures within each Municipal Plaintiff's jurisdiction. 31. The Uniform Building Code thus addresses different concerns than are addressed in the mechanical, plumbing and electrical codes mentioned above. Specifically, the Uniform Mechanical Code only addresses requirements for the design, construction, installation and maintenance of heating, ventilating, cooling and refrigeration systems, incinerators, and other heat -producing appliances. The International Plumbing Code only addresses comprehensive regulation of modern plumbing systems. The National Electrical Code only addresses standards for electrical 92400 CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 installations. 32. Because the jurisdiction of the Department of Commerce to enforce the Uniform Building Code is limited by Montana Code Annotated §50-60-102, the State has no jurisdiction to enforce the life, health and safety provisions of the Uniform Building Code which benefit the public at large with respect to residential buildings containing fewer than five dwelling units, any farm or ranch building, any private garage, and certain other commercial and industrial construction specified in §50-60- 102 which is found with the donut areas over which the Municipal Plaintiffs currently have jurisdiction. 33. On May 8, 2001 Dennis Paxinos, Yellowstone County Attorney, submitted to the Attorney General a request for an opinion on the definition of "record owner of real property" contained in SB 242 and what code provisions applied after the effective date of SB 242 and before any election were to occur 34. On September 12, 2001, the Attorney General issued his opinion. The Attorney General reformulated the two questions presented by Mr. Paxinos as follows: 1. Who should vote in the elections authorized by Senate Bill 242? 2. Does a municipality that acquired authority to enforce its 924W CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 building code within a municipal jurisdictional area beyond the city limits prior to the effective date of SB 242 retain that jurisdiction until the election required by Section 8 of the bill? 35. With respect to the question of who should vote in the election, the Attorney General opined as follows: The owners of real property who may vote in the elections contemplated by SB 242 are those owners specifically listed within the definition of Mon. Code Ann. §50-60-101(14), whose interests appear in the real property records in the office of the County Clerk and Recorder. Attorney General's Opinion at 7. 36. The Attorney General specifically declined to opine on the constitutionality of the limitation on eligible voters contained in SB 242, stating only that, "[T]he question of the constitutionality of the franchise limits in SB 242 is a serious one." Attorney General's Opinion at 4. 37. With respect to the second question raised in the request for an opinion, the Attorney General opined as follows: Municipalities that acquired jurisdiction over municipal jurisdictional areas under Mont. Code Ann. §50-60-101(11) prior to the effective date of SB 242 retain jurisdiction to enforce municipal building code provisions unless that jurisdiction is eliminated by vote under Section 8 of SB 242. Attorney General's Opinion at 7. 38. On or about October 9, 2001 in letters sent to one or more building 92400 CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 officials employed by the Municipal Plaintiffs, Mr. Eric Fehlig, Agency Counsel and Supervisor, Certified Local Government Program, Montana Department of Commerce, stated the policy of the Department of Commerce that, "If there is not an election, as of January 1, 2002, the Building Codes Bureau [within the Department of Commerce] will assume the authority, jurisdiction and responsibility for all building code functions in the area beyond the city limits." Fehlig letter at 2. 39. The assertion of jurisdiction by the Department of Commerce in the event that no election is held is contrary to the opinion of the Attorney General that, "SB 242 retains municipal authority to enforce the building code in any municipal jurisdictional area in existence on the effective date of SB 242, until such time as that authority is terminated pursuant to the voting procedure established in Section 8 of the bill." Attorney General's Opinion at 6. COUNT 40. Plaintiffs reallege and incorporate by reference each and every allegation set forth in ¶'s 1-39 of this Complaint as though fully set forth herein. 41. Section 8 of Senate Bill 242, codified as Montana Code Annotated §50- 60-314 provides in pertinent part as follows: (1) 92400 CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 (2) (3) 42. Each of the five County Defendants is subject to the requirements of Section 8 of Senate Bill 242; however, the Plaintiffs are informed and believe that none of the five County Defendants has to date conducted an election, adopted the necessary resolution, or provided the required notice to conduct such an election at which the "record owners of real property within the jurisdictional area beyond [the city] limits" are entitled to vote. 43. In the absence of a lawful election conducted on or before December 31, 2001 as required by statute, the municipal building code of the Municipal Plaintiffs remains in full force and effect in the jurisdictional area outside the city limits as provided by §50-60-101 (1 1)(b) and the Department of Commerce does not have any jurisdiction within the area unless and until an election is held as a result of which the municipality is divested of such jurisdiction. COUNT II 44. Plaintiffs reallege and incorporate by reference each and every allegation set forth in ¶'s 1-39 of this Complaint as though fully set forth herein. 45. An election to determine whether the existing jurisdiction of the CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 Municipal Plaintiffs to enforce the respective municipal building codes in an area within 4'/2 miles of the city limits as provided by Montana Code Annotated §50-60-10 1(1 1)(b) involves subject matter of general interest to the electorate. 46. Section 8 of Senate Bill 242, codified as Montana Code Annotated §50- 60-314, denies the Resident Elector Plaintiffs the ability to participate in an election of general interest, the subject of which directly affects them, while it permits a subgroup of the electorate, owners of record of property in the jurisdiction, the sole right to vote in the required election. 47. Section 8 of Senate Bill 242 violates the Equal Protection Clause of the United States Constitution, Amendment XIV. Count III. 48. Plaintiffs reallege and incorporate by reference each and every allegation set forth in ¶'s 1-41 of this Complaint as though fully set forth herein. 49. Section 8 of Senate Bill 242, codified as Montana Code Annotated §50- 60-314, denies the Resident Elector Plaintiffs the ability to participate in an election of general interest, the subject of which directly affects them, while it permits a subgroup of the electorate, owners of record of property in the jurisdiction, the sole right to vote in the required election. 92400 CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 50, Section 8 of Senate Bill 242 violates the Equal Protection Clause of the Montana Constitution, Article H, §4. Count IV 51. Plaintiffs reallege and incorporate by reference each and every allegation set forth in ¶'s 1-41 of this Complaint as though fully set forth herein. 52. Section 8 of Senate Bill 242 codified as §50-60-314, MCA, denies the Resident Elector Plaintiffs the ability to participate in an election of general interest, the subject of which directly affects them, while it permits a subgroup of the electorate, owners of record of property in the jurisdiction, the sole right to vote in the required election. 53. Section 8 of Senate Bill 242 violates Article II, section 13 of the Montana Constitution which provides that, "All elections shall be free and open, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right to suffrage." WHEREFORE, Plaintiffs respectfully request that this Court: (1) Assume Original Jurisdiction over the Subject Matter of this Controversy; (2) Issue a Declaratory Judgment that in the absence of a lawful election in 92400 CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 which the majority of qualified electors returning ballots vote to terminate municipal building code jurisdiction in the area outside the city limits, such municipal jurisdiction remains in full force and effect. (3) Issue a Declaratory Judgment that Section 8 of Senate Bill 242, codified as Montana Code Annotated §50-6-314, violates the Equal Protection Clause of the United States Constitution; (4) Issue a Declaratory Judgment that Section 8 of Senate Bill 242, codified as Montana Code Annotated §50-6-314 violates, the Equal Protection Clause of the Montana Constitution; (5) Issue a Declaratory Judgment that Section 8 of Senate Bill 242, codified as Montana Code Annotated §50-6-314, violates the guarantee of free suffrage found in Article II, § 13 of the Montana Constitution. (6) Preliminary and permanently enjoin the County Defendants and each of them from passing any resolution, making any notice or conducting any election as otherwise required by Section 8 of Senate Bill 242, codified as §50-60-314, MCA. §50-60-314 (1) No later than December 31, 2001, the county commissioners of a county in which a municipal jurisdictional area, as defined 50-60- 101, has been established beyond the corporate limits of municipality before May 1, 2001, shall submit the question of the CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 continuation of the jurisdictional area beyond the corporate limits of the municipality to a vote by the record ow ners of real property within the jurisdictional area beyond those limits. The election required by this section must be a special election conducted by mail ballot election as defined in 13-19-102. (2) The election required by subsection (1) must be initiated by the board of county commissioners by a resolution of the board pursuant to 13-19-202 directed to the county election administrator. The election must be conducted in accordance with Title 13, chapter 19, except to the extent that those provisions conflict with the provisions of this section, in which case the provisions of this section apply. (3) Notice of the election must be given by the county election administrator by publishing a notice at least once in a newspaper of general circulation in the county in which the election is held. The notice must be published at least 15 days before and no more than 45 days before the election is to be held. The notice must contain a clear synopsis of the building code then in effect within the municipal jurisdictional area beyond the corporate limits of the municipality, a description or map of the area outside the corporate limits of the municipality to which that code applies, the fees charged for permits issued for that area, and the effect of a majority vote for and a majority vote against continuation of the municipal jurisdictional area beyond the corporate limits fo the municipality. (7) Preliminary and permanently enjoin the Montana Department of Commerce from asserting building code jurisdiction over the jurisdictional areas outside the city limits of the respective Municipal Plaintiffs over which they currently exercise municipal building code jurisdiction if no election is held prior to December 31, 2001 as required by Section 8 of Senate Bill 242. CONFIDENTIAL SUBJECT TO ATTORNEY CLIENT PRIVILEGE DRAFT 10/16/01 (8) Award to Plaintiffs their attorneys' fees and costs. (9) Grant such other relief that is just and proper. DATED this day of October, 2001. Stanley T. Kaleczyc 139 N. Last Chance Gulch P.O. Box 1697 Helena, MT 59624-1697 924W 578 O IN ORDINANCE NO. 56o A large majority of the resident freeholders of the City of Kalispell, at theiegular city election held in Kalispell, Montana, on the 4th day of April, 1949, after due and legal notice, having vote "For granting franchise" to Central Heating Company, a corpora- tion, of Kalispell,- Montana for the construction, operation and main- tenance of a steam heating system in the City of Kalispell: . Section 1. BE IT ORDAINED by the Mayor and City Council of the City of Kalispell, Montana pursuant to Section 5077 R. C. M. 1935 that said Central Heating 6>mpany, a corporatini;, be, and it is hereby authorized to use the streets, alleys, and other public' grounds of said City of Kalispell, to construct, operatecand maintain a steam heating plant and distritbution system in the City of Kalispell and to lay, install and maintain upon, along and cross the streets alleys end public grounds of the City of Kalispell, pipe lines, conduits and other equipment necessary and convenient for the con- struction, operation and maintenance of such heating system, forthe furnishing orheat to any and all areas of the City of Kalispell, and for both private and public users therof. Section 2. Before any excavations are made by said `'entral Heating Company, its agents or successors, upon any street or alley of said City, notice thereof must be given to the City Qerk, stating the nature and purpose of such excavation, and upon making any such excavation, the holder of. -aid franchise must place such street or alley in as good condition as it was before the excavation wad made, and in default thereof, the City Council may order -the same to be done at the expense of the holder of said franchise. Section 3. The holder of said franchise shall, at its own expense repair damages to any street or alley caused by the laying or maintaining of its pipe lines and conduits. Secion 4. This ordinance shall take effectand be in full ' force from the after its passage and executuion by the affixing of the signature of the Mayor and City Clerk of the City of Kalispell this llth day of April, 1949. D. S. Cameron -Mayor C. H. Brewer City Clerk I, C. H. Brewer City Clerk of the City of Kalispell, Mon anal do hereby certify that on the llth day of April, 1949., I posted a oopy of the foregoing ordiaance in my office and the same remained posted for a period of five days and the foregoing is a copy of the ordinance as passed by the City Council.