I dissent.
The majority opinion ignores the fact that the defendant Wohlsehlager was not under the provisions of the zoning regulations at the time he built the building on his forty odd acres of real property in Missoula County, in that he had variance from the rule of the zoning district.
Additionally the defendant had over forty acres upon which there were horses grazing and the number of horses is not material as what is to determine the mathematical requirements of animals to classify the land as grazing. This is simply agricultural land mentioned in R.C.M.1947, § 16-4102.
*370A recent ease by tbe Supreme Court of the United States Schroeder v. City of New York, 83 S.Ct. 279, involves the question of notice. There the court spoke of the due process of law under the Fourteenth Amendment to the Constitution of the United States and said: “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections, [citing cases.] ”
The defendant was granted a variance on Friday, January 30, 1959, and on Sunday, February 1, 1959, constructed the building in question. The majority opinion recites that the defendant had full knowledge that an appeal was to be taken from the variance granted the defendant, which petition was subsequently filed and the decision of the district court was adverse to the defendant’s position. But the basic fact is this, that prior to the time of the filing of the petition for injunctive relief against the defendant, the defendant had constructed the building on over forty acres of land that he owned in fee simple and he is now being told that this is illegal by this court.
In City of Missoula v. Missoula County, 139 Mont. 256, 362 P.2d 539, this court held that the City of Missoula had power to establish zoning districts and that there were sufficient guide lines and that if the statutory method of zoning were followed the function of the county board was not of legislative character to violate section 1 of Article IV, of the Constitution of this state. Under section 16-4102, R.C.M.1947, the county zoning commission is denied power to regulate the use of land for grazing, horticulture, agriculture or the growing of timber.
In City of Missoula v. Missoula County, supra, this court quoting from Bacus v. Lake County, 138 Mont. 69, 354 P.2d 1056, said:
*371tt * * on q^qj. hand, a statute is complete and validly delegates administrative authority when nothing with respect to a determination of what is the law is left to the administrative agency and its provisions are sufficiently clear, definite, and certain to enable the agency to lmow its rights and obligations.” Emphasis supplied’.”
Where, as here, the defendant Wohlschlager obtained a variance from the duly authorized legally constituted zoning board and constructed the building which he, under the circumstances and on that date, had a perfect right to build, then he had a right to believe that no one, either administrative, legislative or judicial would enact an ex post facto law or rule of law depriving him of the right of that building on his own premises. This is what the majority has accomplished. This majority opinion is predicated upon the doctrine of what the defendant might or should have known with a reference to an injunction to be subsequently filed against him.
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865, was a case which involved notice by publication to the beneficiaries of a common trust fund, and the court thoroughly canvassed the problem with a sufficiency of notice under the due process, pointing out the reasons behind the basic constitutional rule, as well as the practical considerations which make it impossible to draw a standard set of specifications as to what is constitutionally adequate notice, to be mechanically applied in every situation.
The court further observed that the requirement that parties be notified of proceedings affecting their legal rights, which is obviously a vital corollary to one of the most fundamental requisites of due process — the right to be heard.
The court further observed: “The ways of an owner with tangible property are such that he usually arranges means to learn of any direct attack upon his possessory or proprietary rights. Hence, libel of a ship, attachment of a chattel or entry *372upon real estate in the name of the law may reasonably be expected to come promptly to the owner’s attention.”
Here the defendant in conformity with the district zoning law in district 1 of Missoula county, obtained his variance and built his building and he had every reason and right to rely upon the variance granted to him. One of his sources of revenue for many years prior to the enactment of the zoning district law was a part-time automobile repair shop which was a wooden building. Yet because he erects a steel building, this court in its majority opinion holds that this violates the district zoning law. His reason was obvious as he believed and had reason to believe that he could not and would not come within the provisions of the zoning district. The record discloses that on April 12, 1955, the defendant received a used ear dealers license from the State Board of Equalization. On May 5, 1955, he commenced the operation of a repair shop on a full-time basis in wooden buildings north of his residence, all on this over forty-odd acres of land owned by him in fee simple.
I would affirm the judgment of the district court in this cause.