No. 90-004
IN THE SUPREME COURT OF THE STATE OF MONTANA
THE AWARENESS GROUP, an Association
of Concerned Citizens of Park County,
and K. A. FRIEDLY, its Chairman,
Plaintiffs and Appellants,
BOARD OF TRUSTEES OF SCHOOL DISTRICT
NO. 4, a School District existing in
Park County duly organized under the
Laws of the State of Montana,
Defendant and Respondent.
APPEAL FROM: District Court of the Sixth Judicial District,
In and For the County of Park,
The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Robert Kolesar, Bozeman, Montana
For Respondent:
C
Sol Lovas and Laurence R. Martin, of Felt, Martin,
Frazier & Lovas, Billings, Montana
Submitted on Briefs: April 26, 1990
- -1
. -) Decided: J u l y 12, 1 9 9 0
Filed:
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
Appellant Awareness Group appeals from the order of the
District Court, Sixth Judicial District, Park County, dismissing
appellant's petitions for preliminary injunction, writ of
prohibition and writ of mandamus. We affirm.
The issues on appeal are:
1) Whether the appellant has standing to sue under 5 27-19-
104, MCA.
2 ) Whether the District Court erred in dismissing appellant's
applications for preliminary injunction, writ of prohibition, and
writ of mandate on the basis of mootness because the remedy
requested, that an election be held before respondent purchased
certain land, could no longer be granted since the land had already
been purchased.
3) Whether the District Court erred in denying appellant's
applications for preliminary injunction, writ of prohibition, and
writ of mandate which requested that respondent be enjoined from
spending the fire insurance monies on the development of the
purchased land without first getting approval from the voters.
4) Whether the findings of the District Court are clearly
erroneous.
Prior to 1965, Park County High School was located in
Livingston, Montana, at 5th and Callender. In 1959, William C.
McLeod transferred real property to "Park County High School
District No. 1." This real property consisted of land located in
Livingston known as the McLeod Island site.
In 1965, Park County High School was unified with School
District No. 4 of Park County, which assumed the operation of the
high school. Subsequently, School District No. 4 decided to build
a new high school on the McLeod Island site. The Board of Trustees
of School District No. 4, acting as the "Board of Trustees of High
School District No. In, submitted to the voters a bond issue to
finance this new high school. The bond issue was approved.
After the new high school was built, the old Park County High
School was converted into the Livingston Middle School.
In 1971, the school laws of Montana were recodified. As a
result, the elementary and high school districts were separated
into two legal entities consisting of Elementary School District
No. 4 (School Board) and High School District No. 1. The members
of the two school boards were the same except that the high school
board had two additional trustees representing a geographical area
beyond that of the School Board. These additional trustees were
to vote with the School Board trustees on high school matters.
In 1985, the Livingston Middle School burned down. In 1987,
the School Board proposed using the fire insurance proceeds to
build a new middle school as an annex to the new high school
located on the McLeod Island site. Site approval of the plan was
submitted to the voters and was narrowly approved. The School
Board subsequently decided to abandon the plan to build the middle
school as an annex to the high school.
The School Board then proposed purchasing land owned by Edward
Boehm and John C. Sheehy located directly across the county road
from the Livingston High School, to build a kindergarten through
eighth grade school. The building of this new school would have
cost in excess of the available insurance proceeds from the fire
and so, in February of 1989, the School Board held a bond issue
election to provide for these additional funds. This bond issue
was defeated.
The School Board then proposed building just a middle school
on the Boehm-Sheehy land. This proposal was approved by the
trustees and Buy-Sell Agreements with Boehm and Sheehy were
executed on April 4, 1989.
On May 26, 1989, appellant filed a complaint alleging that
respondent, Board of Trustees of School District No. 4, (School
Board), had violated appellant's civil right to vote by failing to
hold an election on the purchase of a building site for a new
middle school and subsequent construction as required by 5 5 20-6-
603 and -621, MCA. Additionally, appellant presented applications
for a temporary restraining order and a preliminary injunction.
Both applications requested the District Court to restrain the
respondent from purchasing the Boehm-Sheehy land. The request for
a temporary restraining order was denied on May 26, 1989.
On May 31, 1989, before respondent had filed an answer,
appellant filed an amended complaint. Appellant also filed an
application for a writ of prohibition requesting the court to
enjoin respondent from purchasing the Boehm-Sheehy land because
such a purchase, without an election, was outside respondent's
authority. The applications for preliminary injunction and writ
of prohibition were supplemented on July 13, 1989. A show cause
hearing was set for July 24, 1989.
Prior to the hearing, respondent closed the purchase on the
properties: The Boehm land on June 2, 1989, and the Sheehy land
on June 19, 1989.
The show cause hearing regarding the preliminary injunction
and the writ of prohibition began on July 25, 1989, and was
continued to and concluded on August 8, 1989. At the hearing,
appellant also presented an application for a writ of mandamus
requesting the court to compel the respondent to perform its
statutory duty to hold an election to approve school site selection
and building costs.
The District Court denied appellant any relief and entered
its Finding of Facts and Conclusions of Law and subsequent order.
Appellant appeals that order.
The first issue is whether appellant has standing to sue under
5 27-19-104, MCA.
Section 27-19-104, MCA, discusses the standing of ' a citizen'
'
[sic] group or other public interest associationg1 to sue for
injunctive relief when the individual members of the group allege
in the complaint that an injury has occurred to their property or
civil rights. Section 27-19-104, MCA, states that:
Whenever an action for injunctive relief is initiated by
a citizens1 [sic] group or other public interest
association and it appears by the complaint that there
is an injury to a property or civil right of individual
members of the association, which injury is
distinguishable from an injury to the public generally,
the names and addresses of injured members and a
statement of injury shall be provided in the complaint.
An injunction may not be granted unless such information
is provided in the complaint.
In this case, appellant has standing to sue under the statute.
Appellant has alleged that respondent has violated its civil right
to vote by denying its individual members their right to vote.
Therefore, as is required by 5 27-19-104, MCA, in order to obtain
injunctive relief, appellant must include the following within the
complaint: (1) Some indication that the injury to its individual
members is different than that of the general public and, (2) the
names and addresses of those members who have been uniquely
injured. Respondent alleges that appellant has failed to comply
with these requirements.
The right to vote is an individual constitutional right.
Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481
(1964). Although appellant is trying to get the issues of site
and construction approval for the Livingston middle school on the
general voting ballot, if respondent is statutorily required to
submit these issues to the voters, failure to do so significantly
effects the constitutionally protected right to vote of each
individual member of appellant organization. As this Court has
held in the application of § 27-19-104, MCA, when the "alleged
injury [is] coextensive with the injury of the public generally,"
standing is appropriate. Montana Wildlife Federation v. Sager, 190
Mont. 247, 255, 620 P.2d 1189, 1194 (1980). Although the general
public right to vote is coextensive with that of appellant,
appellant has standing to sue because the individual members have
standing to sue based upon their individual right to vote.
Appellant is not required to provide the names, addresses and
a statement of the respective injuries of the individual members
of appellant organization if [n]o damages for individual injuries
are sought in the complaint.I1 Saser, 620 P.2d at 1194. Because
appellant has not asked for damages but only that the issues of
site and construction approval for the Livingston middle school be
submitted to the voters, appellant has complied with the statutory
requirements of 5 27-19-104, MCA, and, therefore, has standing to
sue.
The second issue is whether the District Court erred in
dismissing appellantls applications for preliminary injunction,
writ of prohibition and writ of mandate on the basis of mootness
because the remedy requested, that an election be held before
respondent purchased certain land, could no longer be granted since
the land had already been purchased.
The District Court properly dismissed appellant's initial
applications for preliminary injunction and writ of prohibition,
filed on May 26, 1989, and May 31, 1989, respectively, on the basis
of mootness because the relief requested could not be granted. A
portion of appellantls application for writ of mandate, filed on
August 8, 1989, was also properly dismissed on the basis of
mootness. All applications requested that respondent be prevented
from purchasing the Boehm-Sheehy land without submitting such
purchase to the voters. At the time of hearing on July 25, 1989,
the land had already been purchased.
The central issue in resolving a mootness question is whether
"a change in the circumstances that prevailed at the beginning of
litigation has forestalled the prospect for meaningful relief."
Zoning Board of Adjustment v. DeVilbiss, 729 P.2d 353, 356 (Colo.
1986). See generally Billings Assoc. v. State Board of Plumbers,
184 Mont. 249, 602 P.2d 597 (1979); Dutton v. Rocky Mountain
Phosphate, Inc., 152 Mont. 352, 450 P.2d 672 (1969). If there can
be no meaningful relief, the issue before the court is moot. Since
meaningful relief is determinable by a particular set of facts, a
finding of mootness can only occur on a case-by-case basis.
Generally, the purpose of a preliminary injunction and a writ
of prohibition is to direct a party to refrain from performing
certain activities until further order of the court. Sections 27-
19-101 and 27-27-103, MCA. More specifically, the purpose of an
preliminary injunction is to I1requir[e] a person to refrain from
a particular act" until further action by the court. Section 27-
19-101, MCA. The purpose of a writ of prohibition is to direct
Ifandcommand [a] party [who is without jurisdiction or has exceeded
its jurisdictional authority] to desist or refrain from further
proceedings . . . until further order of the court.I1 Section 27-
27-103, MCA. See also 5 27-27-101, MCA.
In this case, in its applications for preliminary injunction
and writ of prohibition, appellant specifically asked that
respondent be enjoined from purchasing the Boehm-Sheehy land. This
land had been purchased prior to the show cause hearing on the
applications. The court could not order respondent to refrain from
an act that has already occurred. Billinqs Assoc. Plumbers, 184
Mont. at 254, 602 P.2d at 600. Therefore, no meaningful relief to
appellant's applications for preliminary injunction or writ of
prohibition could be granted at the time of the show cause hearing.
A writ of mandate is the I1counterpart" to the writ of
prohibition. Section 27-27-101, MCA. See generally 5 27-26-101,
MCA. Since the purpose of a writ of prohibition is to refrain
activity, the purpose of a writ of mandate is to compel activity.
Section 27-26-102, MCA. More specifically, a writ of mandate
llcompel[s] the performance of an act which the law specially
enjoins as a duty ... or .. . compel[s] the admission of a party
to the use and enjoyment of a right or office to which he is
entitled and from which he is unlawfully precluded . . .I1 Section
27-26-102, MCA.
Appellant requested the District Court to compel the
respondent to seek approval of the purchase of the Boehm-Sheehy
land from the voters of School District No. 4 through an election.
Since the land had already been purchased, the District Court
properly concluded, when it dismissed the applications, that
approval of the purchase by the voters would be meaningless.
The third issue on appeal is whether the District Court erred
in denying appellant's applications for preliminary injunction,
writ of prohibition, and writ of mandate which requested that
respondent be enjoined from spending the fire insurance monies on
the development of the purchased land without first getting
approval from the voters.
Appellant's applications and complaint for relief focus upon
the argument that, based upon § § 20-6-603, -621, MCA and 5 20-9-
508, MCA, respondent lacked the authority to construct a new middle
school without first getting approval from the voters. We find
that substantial, credible evidence exists to support the District
Court's conclusion that respondent has the authority to proceed
with construction.
Section 20-6-603, MCA, grants school board trustees the
authority to ''acquire or dispose of [school] sites and buildings.I1
Generally, such action cannot be taken by the trustees "without the
approval of the qualified electors of the district . . ." Section
20-6-603, MCA. Exceptions exist to the this approval requirement.
See 5 20-6-603, MCA.
The relevant exception to the approval requirement states that
if ''the cost of constructing, purchasing, or acquiring the site or
building is financed without exceeding the maximum-general-fund-
budget-without-a-vote amount . . . an election is not required.
Section 20-6-603 (l)(c), MCA. The District Court correctly found
that the construction of the middle school could be financed
without exceeding the maximum-general-fund-budget-without-a-vote
amount. These monies would come from the insurance proceeds
acquired after the old middle school at 5th and Callender burned
down.
Insurance proceeds can be used to credit the building fund of
a school district. Section 20-9-508 (1)(d), MCA. Section 20-9-
508 (1)(d), MCA, states:
(1) The trustees of any district shall establish or
credit the building fund whenever such district: . . .
(d) receives money as an insurance settlement for the
destruction of any property or portion of property
insured by the district. . .
Appellant argues that, even if there are sufficient insurance
proceeds to finance construction, respondent is still required to
hold a site approval election. We disagree. Section 20-6-621(1),
MCA, generally requires that the "trustees of any district shall
have the authority to select the sites for school buildings [and]
such selection shall first be approved by the qualified electors
of the district before any contract for the purchase of such site
is entered into .. . .I1 Section 20-6-621, MCA, also contains an
exception that is applicable to this case. This exception states
that a site approval election is not required if the trustees
I1acquireproperty contiguous to an existing site that is in use for
school purposes." Section 20-6-621(1), MCA.
Respondent argues that the Boehm-Sheehy land is contiguous to
the McLeod Island site. We agree. Although the only Montana case
dealing with this issue held that "where two tracts of land corner
with each other . . .
they are c o n t i g u ~ u s , ~ ~ the land involved
if
would touch but for a public road, such land is also contiguous.
Oregon Mtg. Co., Ltd. v. Dunbar et al., 87 Mont. 603, 607, 289 P.
559, 560 (1930). Other states have held that a contiguous piece
of land is one that either substantially touches the second piece
of land or would substantially touch the second piece of land but
for a public road. In the case of Town of Lyons v. City of Lake
Geneva, 202 N.W.2d 228 (Wis. 1973), in holding that a gap of 23
feet caused by a public road was close enough to the city limits
to be contiguous, the Wisconsin court defined contiguous as I1[i]n
close proximity; near, though not in contact; neighboring. 11 . .
Similarly, the Nebraska court has held that I1two tracts separated
only by a public highway are contiguous . . . In re Thomas1
Estate, 134 N.W.2d 237 (Neb. 19
~ e f e n d a n t ' s Exhibit E
TOTAL kiREAm20.383 AC.
The Boehm-Sheehy land, designated by Defendant's Exhibit E as
"Tract 1 is located directly across the county road from the
McLeod Island site, designated as the "High School Tract.'' But for
this road, the Boehm-Sheehy land and the McLeod Island site would
touch for a distance of more than eight hundred feet. Under these
set of facts we hold that the land is contiguous within the meaning
of 5 20-6-621(1), MCA.
The acquired land must also be llcontiguous an existing site
to
that is in use for school purposes. I Section 20-6-621 (1), MCA.
'
The building in which both the Livingston High School and the
Livingston Elementary School are presently operating is located on
the McLeod Island site and is "an existing site that is in use for
school purposes." Section 20-6-621(1), MCA.
Appellant argues that this exception only applies if the
acquired land and the existing site are both owned by the same
school district. Appellant argues that the existing site of McLeod
Island is owned by High School District No. 1, therefore respondent
should be unable to acquire the Boehm-Sheehy land without a site
approval election. We disagree with appellant's statutory
interpretation.
Section 20-6-621(1), MCA, simply recognizes that obtaining
additional land immediately adjacent, or contiguous, to sites
previously approved by district electors is not necessary. The
intent of this statute is obviously to promote the building of
schools within the same general area of a city thereby easing both
transportation within the remainder of the city and school
administrative procedures. Title 20, MCA, the school code of which
5 20-6-621(1), MCA, is a part, gives great attention to
distinguishing between elementary and high school districts.
Therefore, if the legislature had intended that contiguous sites
be contiguous to the same district's previously owned sites, it
would have said so. Since the McLeod Island site was previously
approved by the voters and the Boehm-Sheehy land is contiguous to
such site, it is unnecessary for the voters to subsequently approve
an adjacent site.
Appellant's applications for preliminary injunction and writ
of prohibition are premised upon a finding that respondent lacked
authority to purchase the Boehm-Sheehy land and to construct a
middle school thereon without direct approval from the electors.
Based upon the above discussion, we conclude that respondent did
have authority to purchase the land and does have authority to
construct a middle school thereon. The District Court's dismissal
of appellant s applications for preliminary injunction and writ of
prohibition was proper.
Likewise, appellant's application for writ of mandate was
premised upon a finding that the law imposes a duty upon respondent
to submit the purchase of the Boehm-Sheehy land and the
construction of the middle school to the voters for approval.
Again, based upon the above discussion, we conclude that such a
duty does not exist. Therefore, the District Court's dismissal of
appellant's application for writ of mandate was proper.
The fourth issue raised by appellant is whether certain
District Court's findings are clearly erroneous. The findings
appellant protests are irrelevant to the ultimate decision of this
Court and, therefore, will not be discussed.
Affirmed. /
We Concur: -7