disenting.
I would reverse the District Court decision and hold that a writ of mandamus was not available against the Department of Health and Environmental Sciences. The clear duty of the department was not to issue a license unless the property was properly shielded. It escapes me how petitioner can be entitled to a license to operate a wrecking yard if he does not in fact have his property shielded. This is an anomalous result, to say the least.
This is not to say that petitioner does not have any other remedy, which is the conclusion of the majority. Indeed , petitioner had a *453remedy, both against the Department of Health and Environmental Sciences and the Department of Highways.
It does appear that the petitioner appealed from his conviction in Justice Court for his failure to have his wrecking yard shielded. Had he desired, he could have obtained an injunction against the Department of Health, enjoining the department from commencing criminal proceedings against him. Injunctins are available in certain instances to enjoin the enforcement criminal statutes or municipal ordinances. In 42 Am.Jur.2d, Injunctions, § 187, at 957-958, it is stated:
“It is recognized, however, that an injunctin will lie to restrain the threatened enforcement of an invalid law where the lawful use and enjoyment of private property will be injuriously affected by its enforcement, or where the right of a person to conduct a lawful business or calling will be injuriously affected thereby, unless, of course, the remedy at law is manifestly as complete and adequate as an injunction. * * *”
Also see 42 Am.Jur.2d, Injunctions, § 188-190. Clearly, where the Highway Department had the duty under another statute, to shield petitioner’s wrecking yard, or remove it to another location if shielding was not feasible, petitioner could have enjoined the Department of Health from enforcing the criminal law against him.
Petitioner could still commenced an action against the Department of Health after his conviction in Justice Court, and could have asked the Court to enjoin the enforcement of the penalty imposed upon him (the shielding of his property within six months) and to further enjoin the Department of Health from commencing criminal proceedings against him for failure to have his wrecking yard shielded. He would not, however, be entitled to a license.
Moreover, petitioner also had a mandamus remedy directly against the Highway Department. Under section 32-4518, R.C.M.1947, the Department of Highways had a legal duty to shield from public wrecking yard facilities which were in existence before July 1, 1967. Petitioner’s wrecking yard was in operation before July *4541967. Section 32-4518 also provided that the Department of Highways was to shield the property only if feasible. Mandamus could have compelled the Highway Department to either shield the property or to make a determination that shielding was not feasible. In either event, petitioner would have been relieved of the obligation to personally shield his wrecking yard.
The result would be that petitioner would still be excused from having a license. If the Highway Department refused to fence his wrecking yard facilities because it was not feasible, or to remove his wrecking yard to another location, petitioner would still be permitted to operate without a license. If the Highway Department fenced his wrecking yard, the Department of Health would then be authorized, indeed required, to grant a license to petitioner. It defies logic, however, to compel the Department of Health to grant petitioner a wrecking yard license when he does not have his property shielded.
The majority opinion is also in error in holding that the District Court made a distinct finding that it was feasible for the Department of Highways to shield petitioner’s wrecking yard. Such is not the case at all. In oral arguments counsel for petitioner Cain agreed that the District Court did not make a finding one way or the other as to the feasibility of shielding petitioner’s wrecking yard. The Court’s finding bear this out. The Court entered two sets of findings (the second amending the findings in form but not in substance). The only finding relating to feasibility of shielding in the first set of findings was as follows:
“That Norman Dairy, an agent of the Montana Department of Highways testified through his deposition entered as an exhibit in this matter, that it was the determination of his department that it was feasible to screen Petitioner’s junk yard.” (Finding of Fact No. 12)
This finding of course, is not a finding of the Court as to feasibility.
The above finding with relation to deposition testimony however, turned out to be error and the Court corrected the finding in his amended findings by stating:
*455“That Finding of Fact Number 12, filed on August 4, 1977, be amended nunc pro tunc, as of the date of said making and filing, to read as follows:
“That Norman Dairy, an agent of the Montana Department of Highways, submitted a report on Jack Cain’s junk vehicle facility to the Department of Health and Environmental Sciences indicating that screening of that facility was feasible.”
Again, this is not a finding by the Court that screening was feasible. On the basis of the Court’s findings before this Court, it has no authority to order that the Department of Highways must shield petitioner’s wrecking yard.
The judgment cannot stand. I would reverse the judgment against the Department of Health and Environmental Sciences because such Department cannot be compelled to grant a license to petitioner until his property is shielded. As to the Department of Highways, even if this court has the authority to amend or modify a judgment in mandamus as the majority has concluded, I do not see how we can order the Highway Department to shield the property involved when the District Court made no finding that shielding was feasible.
The holding today has converted a writ of mandamus into a general all purpose writ. Now imaginative or unimaginative counsel can use it as a method of obtaining attorneys fees and compelling government to act under the most tenuous circumstances. It has always been my understanding that when a District Court enters judgment in violation of the law he has abused his discretion. Clearly., there is an abuse of discretion in this case.