No. 12640
I N THE SUPREME C U T O THE STATE O M N A A
OR F F OTN
1974
STATE ex r e l . DELBERT E. BARNES
and ETHEL BARNES,
Petitioners,
T E T W O BELGRADE, M N A A e t a l . ,
H ON F OTN
Respondents.
Appeal from: D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t ,
Honorable W. W. L e s s l e y , Judge p r e s i d i n g .
Counsel o f Record :
For P e t i t i o n e r s :
Anderson and Dasinger, Bozeman, Montana
McKinley Anderson argued, Bozeman, Montana
For Respondents :
Bennett and Bennett, Bozeman, Montana
Lyman H. Bennet, Jr. appeared and Lyman H. Bennett, I11
argued, Bozeman, Montana
submitted: A p r i l 26, 1974
Decided : JUL 19 1974
Filed : JUL 1 9 1974
M . Chief Justice James T. Harrison delivered the Opinion of the
r
Court.
This is an appeal from the refusal of the district court of
Gallatin County to issue a writ of mandamus and a judgment entered
in favor of respondents.
Relators Delbert E Barnes and Ethel Barnes commenced this
.
action against respondents the Town of Belgrade (hereinafter
referred to as the Town), Mayor Dewey Cooper, Aldermen James H.
Monger, LaVon Carter, Ted Mangun and David Spring, and Town Clerk
Marie Essex, for the purpose of obtaining a license to operate a
mobile home court within the town limits of the Town.
An affidavit for a writ of mandamus was filed by relators on
July 12, 1973. The district court issued an alternative writ of
mandamus requiring respondents to issue relators a mobile home court
license or to show cause why such a license should not be issued.
Hearing on the order to show cause was held on August 27, 1973.
The district court, sitting without a jury, heard this evidence:
On July 31, 1972, relators obtained a license to operate a
mobile home court within the town limits of the Town. The license
was issued by town clerk Marie Essex without the knowledge or
consent of the town council. The next day, upon learning of the
license and the circumstances under which it was issued, Mayor
Cooper revoked it and so notified relators.
Relators then requested the town council to issue them a
license to operate a mobile home court. In answering, respondents
set forth several conditions precedent to the issuance of the
license: Relators were to clean up their property; remove a house
which encroached upon an alley; and, take certain other steps to
ensure that the mobile home court would be an asset rather than a
detriment to the community.
Thereafter a lengthy dispute ensued concerning the condition
that the house be removed from the alley. The Town insisted no
license would be forthcoming until the encroachment was cured.
Relators, who rented out the house for $75 per month, felt this
condition was unreasonable and suggested instead that the Town
replat or vacate the alley. Because of this impasse, none of the
conditions precedent was in fact fully performed and consequently
no license was issued to relators.
At the conclusion of the evidence, the district court denied
the issuance of a writ of mandamus and entered judgment in favor
of respondents.
Relators appeal and seek resolution of two issues:
(1) Are relators entitled to a writ of mandamus compelling
respondents to issue them a license to operate a mobile home court
within the Town?
(2) Are relators entitled to damages for respondents'
failure to issue them a license?
The rule that a writ of mandamus will issue to compel action
but not control discretion by an administrative board is well
settled in Montana. This Court recently reviewed this principle
in Barnard v. McInerney, Mont . , 511 P.2d 330,334, 30
St. Rep. 656, 662:
"The general rule and the qualification of the
general rule with respect to mandamus actions was
clearly set forth by this Court in Paradise Rainbow
v. Fish 6 Game Comm n, 148 Mont. 412, 417, 421 P.2d
717, 720:
11 I As a general rule mandamus is available only
to compel performance of a clear legal duty not in-
volving discretion. McCarten v Sanderson, 111 Mont.
.
407, 190 P.2d 1108, 132 A.L.R. 1229. "But even where
discretion is involved, if there has been such an
abuse as to amount to no exercise of discretion at all,
mandamus will lie to compel the proper exercise of the
powers granted." Skaggs Drug Centers v Mont. Liquor
.
Control Board, 146 Mont. 115, 124, 404 P.2d 511, 516.
This Court has indicated that arbitrary or capricious
action by an administrative board is an abuse of dis-
cretion. State ex rel. Sanders v. Hill (P.E.R.S.),
141 Mont. 558, 381 P.2d 475.'
11 In Erie v . State Hwy, Comm'n, 154 Mont. 150, 153, 461
P.2d 207, 209, this-Cour~.held:
11 1
The rule simple put is that a board may be
enjoined from acting outside the scope of its authority
and such board may be compelled to perform an act it is
legally bound to perform; but neither of these extra-
ordinary remedies will lie to control the discretion of
a board unless it has been clearly shown that the
board has manifestly abused such discretion. t
"It is clear that the remedy sought in the instant
case will lie only when it is shown that there has
been a manifest abuse of discretion. It
A duly elected governing body of a town is sufficiently like
an administrative board to bring it within the purview of this
this rule.
The question now becomes whether the Town manifestly abused
its:discretion in refusing to grant relators a license to operate
a mobile home court. Clearly the Town had discretionary powers
in this case. Section 11-904, R.C.M. 1947, provides:
It
The city or town council has power: To fix the
amount, terms and manner of issuing and revoking
licenses; but the council may refuse to issue
licenses when it may deem it best for the public
interests. I1
Relators contend the Town acted arbitrarily in refusing to
issue them a license and thereby abused its discretionary powers
and denied them due process and equal protection under the law
with respect to the use of their property. In support relators
rely on State ex rel. Bennett v Stow, 144 Mont. 599, 399 P.2d 221.
.
In Bennett relators applied to the city of Billings for a license
to operate a trailer park. The city refused the license even
though relators had completely satis- all conditions imposed by
state law and by a city ordinance concerning licenses to operate
a trailer park. This Court found for relators on the grounds the city':
refusal to issue them the license in the face of full compliance
with all existing regulations was arbitrary and violative of the
constitutional guarantees of the lawful use of private property
and equal protection of the laws.
Bennett is easily distinguishable from the instant case. Here,
relators have not fully complied with the conditions precedent to
obtaining a mobile home court license from the Town. Full com-
pliance was the crux of Bennett., Moreover, the record is barren of
any evidence tending to show that relators were treated differently
from other persons who also may have desired to operate a mobile
home court-inBelgrade. Certainly the fact that the Town dealt with
relators on an individual basis does not, without more, establish
a denial of equal protection.
~elators'assertion that the Town acted capriciously by
insisting upon removal of the encroachment from the alley is not
persuasive. A town has direct authority under sections 11-906
and 11-910, R.C.M. 1947, to compel the removal of encroachments upon
public property within its boundaries. A town may achieve the
same result indirectly under section 11-904, R.C.M. 1947, by tying
the removal of an encroachment to the issuance of a license ''when
it may deem it best for the public interests.'' The Town chose the
latter route, and we find no manifest abuse of discretion. It
did not authorize relators to construct a building which encroached
upon a dedicated alley, nor did it approve of the encroachment
after the same was discovered. Not unreasonably, the Town feared
that following relators' suggestion to replat or vacate the alley
might set bad precedent for other encroachers. In short, how can
relators maintain the Town deprived them of the lawful use of their
property when it requested them to do what they were legally
obligated to do---to remove the encroachment?
It has been determined that relators are not entitled to a
writ of mandamus compelling the Town to issue them a license to
operate a mobile home court, therefore the question of damages is
moot.
The judgment of the distrfct court is affirmed.
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Chief Justice
We Concur: