No. 80-200
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
THE STATE OF MONTANA, ex rel.,
CHARLES R. SWART,
Petitioner and Appellant,
LORRAINE P. MOLITOR, Clerk and
Recorder, Madison County,
DAVID BOWMAN, Examining Land Surveyor,
Madison County,
Respondents.
Appeal from: District Court of the Fifth Judicial District,
In and for the County of Madison.
Honorable Frank Blair, Judge presiding.
Counsel of Record:
For Appellant:
Goetz and Madden, Bozeman, Montana
James H. Goetz argued, Bozeman, Montana
Fdr Responents:
Chester Lloyd Jones argued, County Attorney, Virginia
City, Montana
Submitted: November 20, 1980
Decided: January 14, 1981
Filed: 14 198T
Mr.J u s t i c e John C. Sheehy d e l i v e r e d t h e Opinion o f t h e
Court.
C h a r l e s R. Swart, a r e g i s t e r e d l a n d s u r v e y o r , a p p e a l s
from a r u l i n g by t h e D i s t r i c t C o u r t , F i f t h J u d i c i a l D i s t r i c t ,
Madison County, r e f u s i n g mandamus a g a i n s t L o r r a i n e P . M o l i t o r ,
c o u n t y c l e r k and r e c o r d e r , and David Bowman, county examining
l a n d s u r v e y o r , and r e q u i r i n g them t o approve and r e c o r d a c e r t i f i c a t e
of s u r v e y p r e p a r e d by Swart. W e a f f i r m t h e D i s t r i c t Court.
Swart had p r e p a r e d a c e r t i f i c a t e o f s u r v e y o f a p a r c e l
of l a n d c o n t a i n i n g 102.409 acres i n Madison County and
t e n d e r e d i t t o L o r r a i n e P. M o l i t o r , county c l e r k and r e c o r d e r ,
on December 7, 1979. L o r r a i n e P. M o l i t o r r e f u s e d t o f i l e
t h e c e r t i f i c a t e o f s u r v e y b e c a u s e t h e c o u n t y examining l a n d
s u r v e y o r , David Bowman, had n o t c e r t i f i e d t h a t t h e c e r t i f i c a t e
of s u r v e y w a s f r e e from e r r o r s and o m i s s i o n s i n c a l c u l a t i o n
and d r a f t i n g .
Before he tendered t h e c e r t i f i c a t e of survey t o t h e
c o u n t y c l e r k and r e c o r d e r , Swart had t a k e n t h e s u r v e y t o
David Bowman f o r h i s i n s p e c t i o n . A t that time, Swart informed
Bowman t h a t h e would n o t pay a s e p a r a t e f e e t o Bowman f o r
examining t h e c e r t i f i c a t e of s u r v e y . Because Swart r e f u s e d
t o pay t h e s e p a r a t e f e e , Bowman r e f u s e d t o examine t h e
c e r t i f i c a t e of s u r v e y and r e f u s e d t o c e r t i f y it as f r e e from
e r r o r s and o m i s s i o n s . S i n c e t h e c e r t i f i c a t e had n o t been
approved by Bowman, t h e c o u n t y c l e r k and r e c o r d e r r e f u s e d t o
a c c e p t t h e c e r t i f i c a t e of s u r v e y f o r r e c o r d i n g i n h e r o f f i c e .
Swart s o u g h t a w r i t of mandate i n t h e D i s t r i c t C o u r t ,
e i t h e r d i r e c t i n g Bowman t o examine t h e c e r t i f i c a t e o f s u r v e y ,
o r d i r e c t i n g L o r r a i n e P . M o l i t o r t o r e c o r d t h e document.
A f t e r a show c a u s e h e a r i n g , t h e c o u r t r e f u s e d t o i s s u e a
w r i t of mandamus. This appeal followed.
As permitted by 1972 Mont. Const., Art. XI, § 5,
Madison County has adopted a szlf-government charter. As
such, it has these powers under 1972 Mont. Const., Art. XI,
S 6:
"Self-government powers. A local government
unit adopting a self-government charter may
exercise any power not prohibited by this
constitution, law, or charter . . ."
Prior to the 1972 Montana Constitution, and during the
period that the 1889 Montana Constitution controlled, counties
in this state could exercise only such powers as were expressly
granted to them by the state, together with such implied
powers as were necessary for the execution of the powers
expressly granted. Franzke v. Fergus County (1926), 76
Mont. 150, 245 P. 962; Hersey v. Nelson (1913), 47 Mont. 132,
131 P. 30. Under the 1889 Montana Constitution, legislative
control over counties was supreme. Hersey, supra.
The 1972 Montana Constitution, in addition to providing
for the continuance of the county, municipal, and town
governmental forms already existing, opened to local govern-
mental units new vistas of shared sovereignty with the state
through the adoption of self-government charters. Whereas
the 1972 Montana Constitution continues to provide that existing
local governmental forms have such powers as are expressly
provided or implied by law (to be liberally construed), 1972
Mont. Const., Art. XI, B 4, a local government unit may act
under a self-government charter with its powers uninhibited
except by express prohibitions of the constitution, law,
or charter, 1972 Mont. Const., Art. XI, § 6.
The broad expanse of shared sovereignty given to self-
governing local units is illustrated by section 7-1-103,
MCA, which provides:
"A local government unit with self-government
powers which elects to provide a service or
perform a function that may also be provided
or performed by a general power government
unit is not subject to any limitation in the
provision of that service or performance of
that function except such limitations as are
contained in its charter or in state law
specifically applicable to self-government
units. "
And again in section 7-1-106, MCA:
"The powers and authority of a local govern-
ment unit with self-government powers shall
be liberally construed. Every reasonable
doubt as to the existence of a local governmental
power or authority shall be resolved in favor
of the existence of that power or authority."
Acting under its charter, the Madison County Commission,
on September 27, 1977, adopted the following ordinance:
"1. That pursuant to Section 11-3867, R.C.M.
1947 [now section 76-3-301, MCA], the Chief
Executive of Madison County shall, with the
approval of the Commission appoint an examining
land surveyor. All final subdivision plats and
certificates of survey shall be reviewed for
errors or omissions in calculation or drafting by
the examining land surveyor before recording with
the County Recorder. When the survey data shown
on the plat or certificate of survey meet the
conditions set forth by or pursuant to this ordinance,
the examining land surveyor shall so certify in a
printed or stamped certificate on the plat or
certificate of survey; such certificate shall be
signed by him.
"No land surveyor shall act as an examining land
surveyor in regard to a plat or certificate of
survey in which he has a financial or personal
interest. In such case, the Chief Executive
shall delegate the duties of the examining land
surveyor under this ordinance to a registered
land surveyor of his choice. In such case, the
delegatee shall serve as examining land surveyor
for all purposes with regard to that review.
"2. Upon completion of review by the examining
land surveyor, but before recording with the
County Recorder the subdivider shall pay
to the examining land surveyor all reasonable
and necessary costs and expenses necessary to
defray the expense of reviewing final subdivision
plats and certificates of survey."
It is the position of Swart, and the principal issue in
this case, that the provision foregoing for the payment of
expenses to the examining land surveyor is illegal and in
excess of the authority of Madison County. Swart also
contends that the failure of the examining land surveyor to
deposit such fees in the Madison County treasury is in
violation of the county's charter.
There is no dispute between the parties that Madison
County may require that final subdivision plats and certificates
of survey be reviewed for errors and omissions by an examining
land surveyor. That is permitted by section 76-3-611 (2) (a),
MCA. Swart's contention is that the requirement of a fee to
be paid to the examining land surveyor is in excess of the
authority granted to Madison County, even considering its
sdf-government charter provisions.
Swart's contention is principally based upon section 7-
1-114, MCA, which provides that a local government with
self-government powers is subject, among others, to "all
laws which require or regulate planning or zoning;" and
that the examining land surveyor's fee in this case is not
one of those enumerated as proper to be charged by a county
clerk in section 7-4-2631, MCA. His further contention is
that the examination of a plat or certificate of survey for
filing is a part of "planning and zoning" and as such is
controlled by state law; in effect, that the concept of
shared sovereignty for self-governing local governmental
units does not extend to fees to be charged by Madison
County for the services of the examining land surveyor. The
fee in this case was a charge of $20.
Swart also contends that this case is controlled by our
prior holding in State ex rel. Swart v. Stucky (1975), 167
Mont. 171, 536 P.2d 762. In that case, we approved the
issuance of a writ of mandate against a county clerk and
recorder who had refused to record a certificate of survey
from Swart because the survey had not first been submitted
to the city county planning board for review, accompanied by
a $20 reviewing fee. However, the issues presented in
Stucky were not the same as we face here. In Stucky, the
pertinent statute did not provide for a review of certificates
of survey, as distinguished from subdivision plats. We
therefore held that a review of a certificate of survey was
not necessary for its recording and that a charge for such
review was improper. In this case, section 76-3-611 (2) (a),
MCA, provides that the governing body may require that
certificates of survey be reviewed before recording. We
have the additional problem of the effect of the extension
of shared powers to self-governing local units.
In capsule, we have a statute that permits local governing
bodies, whether operating under general powers or self-
governing powers, to require review of subdivision plats and
certificates of survey before recording. We have a self-
governing unit that has required review of subdivision plats
and certificates of survey before recording, and has provided
that a fee be paid for such review. Further, we have a state
statute which makes it mandatory that self-governing units be
subject to all laws which require or regulate planning or
zoning.
The question becomes, does the fact that a self-governing
unit is mandatorily subject to laws which regulate planning
and zoning preclude the unit from prescribing a fee for
reviewing certificates of survey where the state statutes are
silent on that subject.
We are told by section 7-1-113, MCA, that a local
government with self-government powers is prohibited from
exercising any power inconsistent with state law. We are
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further told, in the same statute, that the exercise of a
power is inconsistent with state law "if it establishes
standards or requirements which are lower or less stringent
than those imposed by state law or regulation."
The state standard that permits the review of certificates
of survey, from a statutory viewpoint, is found in sections
76-3-611(2) (a), MCA, which states that such certificates may
"be reviewed for errors and omissions in calculation or
drafting by an examining land surveyor before recording."
Madison County's ordinance does not prescribe a lower standard
than that required by the state statute, nor is it less
stringent. Therefore, under the statutory definition of
inconsistency found in section 7-1-113(2), MCA, Madison
County's ordinance is not the exercise of a power inconsistent
with state law. If it is not inconsistent, it is not the
exercise of a prohibited power by a self-governing unit
under section 7-1-111, MCA.
This is the first case we have had in which we examine
the powers of a self-governing local unit vis-a-vis mandated
state laws. In the construction of self-government powers,
we are commanded to resolve all reasonable doubts in favor
of the existence of such powers. Section 7-1-106, MCA. Had
Madison County been acting as a general power jurisdiction,
we should perforce be required to hold that adi is on County
had only such powers as were expressly or impliedly delegated
to it. Section 7-1-2101(2), MCA. As a self-governing
unit, Madison County has shared powers of legislative,
executive and administrative authority. A self-governing
unit which elects to provide a service or perform a function
that may also be provided or performed by a general power
government unit is not subject to any limitation in the
provision of such service or performance of that function,
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except such limitations found in its charter or in state law
specifically applicable to self-government units. Section
7-1-103, MCA, supra. Madison County is not limited in this
respect by its charter, and there is no state statute
specifically forbidding self-government units from assessing
a fee for the review of certificates of survey. Madison
County's prescribed fee is therefore valid. This means that
Madison County in prescribing such a fee is merely exercising
a legislative power that as a self-governing unit, it shares
with the state. It means that or it means nothing.
The parties spent considerable time in their briefs and
in oral argument discussing whether the review of certificates
of survey was a planning or zoning function. In view of our
holding that Madison County is exercising a shared legislative
power with the state in prescribing a review fee, and that
such exercise of power is not prohibited, it makes no differ-
ence to this decision whether the review of subdivision
plats or certificates of survey is a function of planning or
zoning.
Swart also contends that denying Madison County the
power to prescribe a fee for reviewing certificates of
survey would make for uniformity among the several counties
with respect to this subject. We find in the statutes,
however, that governing bodies may establish fees to be paid
by subdividers for reviewing subdivision plats (certificates
of survey are not mentioned). Sections 76-3-602 and 76-4-
105(1), MCA. We find it more compatible with uniformity
among the several counties to determine that a fee charge
for such reviews, whether of subdivision plats or certificates
of survey, and whether levied by general power governments
or self-governing units, be recognized as valid.
We do not see how the charging of such a fee would
offend the monumentation requirements of sections 76-3-401,
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et seq., MCA., as Swart contends.
Swart also contends that he has been prevented, through
Madison County's requirement of review and the payment of a re-
view fee from "recording" his certificate of survey within
180 days as required by section 76-3-404, MCA. However,
Swart has complied with that provision, inasmuch as the
statute merely requires that a registered land surveyor
"shall prepare and submit for filing a certificate of survey."
Swart has done this.
Swart also attacks the validity of the Madison County
ordinance on the ground that the fee is to be paid personally
to the examining land surveyor, and is not required to be
deposited with the county treasurer of Madison County.
While a deposit with the county treasurer may be preferable,
we find no clear statutory duty concerning it. As we have
said, sections 76-3-602 and 76-4-105(1), MCA, provide that
the governing body may establish a fee for the review of
subdivision plats, yet such fees are not among those enumerated
to be collected by a county clerk in sections 7-4-2631, et
seq., MCA.
Swart also contends that under the self-governing
charter of Madison County, all monies collected by any
county officer, or any county department, must be paid into
the county treasury. This may be true, but obedience to this
provision of the charter has no effect one way or the other
upon Swart's right to a writ of mandamus against the county
clerk and recorder, nor would disobedience of this provision
by Bowman require us to order by mandate that Bowman approve
the certificate of survey without payment of the fee. The
disposition of the fee monies, when collected, is not material
to the issues presented by Swart's request for a writ of
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mandate. H i l l v. Rae ( 1 9 1 6 ) , 52 Mont. 378, 391, 158 P.
826, 831. Swart i s n o t h e r e b e c a u s e Bowman r e f u s e d t o
d e p o s i t t h e $20 i n t h e c o u n t y t r e a s u r y . Swart i s h e r e
b e c a u s e h e h a s r e f u s e d t o pay t h e $20 i n t h e f i r s t p l a c e .
Moreover, t h i s c o n t e n t i o n was n o t r a i s e d i n t h e D i s t r i c t
Court.
S i n c e we f i n d t h e Madison County o r d i n a n c e v a l i d , w e
f i n d no clear l e g a l d u t y on t h e p a r t of t h e county c l e r k and
r e c o r d e r t o a c c e p t t h e Swart c e r t i f i c a t e o f s u r v e y f o r
r e c o r d i n g b e f o r e i t had been reviewed by t h e examining l a n d
s u r v e y o r , and h i s f e e p a i d . Mandamus l i e s o n l y t o compel a
clear l e g a l d u t y on t h e p a r t of an o f f i c e r , S t a t e v. D i s t r i c t
C o u r t ( 1 9 1 4 ) , 49 Mont. 595, 596, 1 4 4 P. 159, 160. Unless
t h e performance i s o n e which t h e l a w s p e c i f i c a l l y e n j o i n s
upon t h e o f f i c e r as a d u t y of t h e o f f i c e , t h e w r i t d o e s n o t
lie. S t a t e e x re$. L u c i e r v. Murphy ( 1 9 7 0 ) , 156 Mont. 1 8 6 ,
478 P.2d 273; S t a t e v. Board of Com'rs. ( 1 9 1 9 ) , 56 Mont. 355,
358, 185 P . 147, 148.
W e f i n d no i s s u e b e f o r e u s a s t o a t t o r n e y f e e s . The
judgment d o e s n o t p r o v i d e f o r a t t o r n e y f e e s f o r t h e r e s p o n d e n t s ,
and S w a r t i s n o t e n t i t l e d t o a t t o r n e y f e e s under t h i s d e c i s i o n .
Affirmed.
W e Concur:
Chief J u s t i c e
T h i s c a u s e was submitted p r i o r t o J a n u a r y 5 , 1981.
Mr. J u s t i c e D a n i e l J. Shea w i l l f i l e h i s w r i t t e n d i s s e n t a t
a l a t e r date.
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