No. 14949
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
THOMAS B. CASTLES, MARJORIE A.
CASTLES and ROBERT BROWN,
Plaintiff and Respondent,
STATE OF MONTANA, ex rel., MONTANA
DEPARTMENT OF HIGHWAYS ROBERT B. CLYDE
and NICOLA CLYDE,
Respondents and Appellants.
Appeal from: District Court of the Fourth Judicial District,
In and For the County of,Mineral
Hon. Jack L. Green Dlstrlct Judge presiding
Counsel of Record:
For Appellant:
Daniel J. Sullivan argued, Highway Legal Dept.,
Helena, Montana
For Respondent :
Dennis Lind, Missoula, Montana
Chris Swartley argued, Missoula, Montana
Jeane Wilcox argued, Law Student, Missoula, Montana
Submitted: February 29, 1980
Decided: AP2 18 1980
Filed: -p
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Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
Respondents brought this action in the District Court
of the Fourth Judicial District, in and for Mineral County,
before the Honorable Jack L. Green. Respondents sought an
order declaring null and void a quitclaim deed executed by
appellant Department of Highways (herein "Department")
transferring certain land located in Mineral County to
appellants, the Clydes. Respondents also sought a writ of
mandate to compel the Department to sell the land in dispute
at a public sale. Respondents asserted a statutory right to
acquire the property by meeting the highest bid at the
public sale they requested.
The parties submitted the case to the District Court on
the following agreed facts: Respondents Marjorie and Thomas
Castles own certain real property located in Mineral County
known as the Nichols Ranch. They acquired the property from
Kenneth and Melba Nichols in 1959. In 1944 the Nichols
conveyed a part of the Nichols Ranch to the Department for a
highway right-of-way. In 1978 the Department conveyed some
of the right-of-way property it acquired from the Nichols in
1944 to appellants, the Clydes. The Department quitclaimed
the property to the Clydes in exchange for other lands the
Department obtained from the Clydes as right-of-way for
Interstate 90. The property, originally a part of the
Nichols Ranch, conveyed to the Department in 1944 and then
conveyed to the Clydes in 1978, constitutes a portion of the
property in dispute in this case.
Respondent Brown is in the same situation as the Castles.
Brown owns property located in Mineral County known as the
Brown Ranch. His predecessors in interest conveyed a part
of the ranch to the Department in 1944 for use as highway
right-of-way. In 1978 the Department conveyed a portion of
the property to the Clydes in exchange for lands owned by
the Clydes and needed by the Department for Interstate 90
right-of-way. This property, originally a part of the Brown
Ranch, conveyed to the Department in 1944 and and then to
the Clydes in 1978, is the other piece of property in dispute
here.
The Department did not notify either the Castles or
Brown of the exchange of the property in dispute. Respondents,
therefore, had no opportunity to demand a public sale of the
property and then meet the highest bid.
After considering these facts, the District Court
entered orders declaring the quitclaim deeds transferring
the property in dispute to the Clydes null and void. The
District Court also issued writs of mandate commanding the
Department to sell the property at a public sale pursuant to
sections 32-3909 through 32-3918, R.C.M. 1947, now sections
60-4-201 through 60-4-205, MCA. This appeal followed.
The issues raised on appeal are:
1. Do statutory procedures enacted in 1959 governing
the disposition of real property held by the Department apply
to property acquired by the Department in 1944?
2. Did the District Court err in issuing writs of
mandate commanding the Department to sell the property in
dispute at a public sale?
An explanation of the history of the statutory provisions
involved here is necessary to understand the first issue
raised by appellants. When the Department acquired the
property in dispute in 1944 the statutes required the Department
to give public notice of its intention to sell any right-of-
way property. After notice, the Department could sell the
property at either a public auction or after accepting
sealed bids. Section 32-1616, R.C.M. 1947 (as enacted, ch.
92, Laws of 1939). The statutes as they read in 1944 did not
specifically mention the right of the Department to exchange
right-of-way property.
The legislature amended section 32-1616 in 1959. The
amendment included language expressly granting the Department
the power to exchange right-of-way property that is no longer
needed. The amendment also established a procedure for the
Department to follow in disposing of property. The procedure
required the Department to give notice of its intention to
dispose of property to the party who originally sold the
property to the Department. The statutory setup then allowed
the party to demand a public sale of the property and repurchase
the property by meeting the highest bid at the public sale.
Ch. 210, Laws of 1959.
Appellants contend requiring them to comply with the
procedures for exchanging property contained in the 1959
amendment when exchanging property acquired in 1944 makes
the amendment retroactive legislation. Appellants correctly
point out that no Montana law is retroactive unless expressly
so declared. Section 1-2-109, MCA. The 1959 amendment
under consideration here is not expressly declared retroactive.
It cannot, therefore, be applied in a manner that renders it
retroactive. Under this analysis, if the action of the
District Court is a retroactive application of the amend-
ment, the District Court erred. Thus, the crucial determination
in this case is whether or not the District Court's decision
makes the 1959 amendment a retroactive statute.
A retroactive law is one that takes away or impairs
vested rights acquired under existing laws or create new
obligations or imposes new duties in respect to transactions
already past. City of Harlem v. State Highway Commission
(1967), 149 Mont. 281, 284, 425 P.2d 718, 720. Appellants
argue the 1959 amendment as applied by the District Court is a
retroactive statute under this definition. They contend
requiring the Department to follow the procedure established
to exchange property impairs the Department's right to
exchange property and creates a new duty to offer the exchange
land at public sale and give the parties who sold the property
to the Department the opportunity to repurchase it.
Statutes that modify the procedure for exercising a
vested right or carrying out a duty do not constitute retroactive
legislation. Butte & Superior Mining Company v. McIntyre
(1924), 71 Mont. 254, 263-64, 229 P. 730, 733; Minister &
Missionaries Benefit Board of American Baptist Churches v.
Goldsworthy (1978), 253 Pa. Super. Ct. 321, 385 A.2d 358,
362-63. Goldsworthy presents a situation similar to the
case at bar. The parties in Goldsworthy entered into a
mortgage agreement. The terms of the agreement allowed the
mortgagee to accelerate mortgage payments on default without
giving the mortgagor a redemption right. After the parties
executed the agreement, the Pennsylvania legislature enacted
a law requiring notice to a mortgagor and a redemption
period before a mortgagee could accelerate mortgage pay-
ments. The mortgagor defaulted on the agreement subsequent
to the adoption of the new law concerning payment acceleration.
The mortgagee contended the notice and redemption provisions
of the new law could not be applied in this situation. The
mortgagee argued that doing so would impair a vested right
it had acquired through a contract with a mortgagor thus
rendering the legislation retroactive and impermissible.
The Pennsylvania Superior Court rejected the mortgagee's
contention. The court held the new law merely added procedural
steps to the foreclosure process. The court concluded that
as long as these procedures did not deny the mortgagee the
ultimate right to foreclose, the new law only postponed the
exercise of the right. The legislation was not considered
an impairment of a vested right thus making the statute
retroactive. Goldsworthy, 385 A.2d at 363.
The rule stated in the above cases applies to this
case. The change in the law made by the 1959 amendment to
the right-of-way disposition statute only changes the procedure
the Department must follow in disposing of property. The
Department still has the power to dispose of property after
the enactment of the amendment. The amendment merely requires
the Department to follow a certain procedure in disposing of
property. The end result under both pre and post-1959 law
is the disposition of right-of-way property by the Department.
The underlying right claimed by the Department has not been
impaired nor have additional duties been imposed on the
Department. In other words, applying the 1959 amendment in
the manner the District Court has done does not make the
legislation retroactive. Therefore, the District Court
properly held the Department should be required to follow
the procedure set up in the amendment when disposing of
property acquired before 1959.
The second issue raised on appeal concerns the propriety
of the issuance of the writs of mandate compelling the
Department to offer the property in dispute at a public
sale. A writ of mandate is not a proper tool to compel a
party to correct or revise erroneous action already taken.
State ex rel. Popham v. Hamilton City Council (19791, -
Mont . -, 604 P.2d 312, 314, 36 St.Rep. 2307, 2309; Melton
v. Oleson (1974), 165 Mont. 424, 432, 530 P.2d 466, 470; and
State ex rel. Thompson v. Babcock (1966), 147 Mont. 46, 50,
409 P.2d 808, 810. That is essentially what the District
Court has done here. In issuing the writs of mandate, the
District Court is requiring the Department to correct an
improper procedure in the sale of the land in dispute by
following the proper procedure. Requiring this type of
action is beyond the scope of a writ of mandate. Therefore,
the District Court improperly issued the writs of mandate
and the orders issuing the writs are vacated. The proper
action under these circumstances is to return the parties to
their initial positions. If the Department attempts to
dispose of the property in the future, however, it should
give notice to respondents and then offer the property at
public sale on demand by respondents.
The judgment of the District Court is affirmed in part
and reversed in part.
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We Concur: JUS ice
Chief Justice