No. 12351
I N T E SUPREME C U T O THE STATE O M N A A
H OR F F OTN
1974
STATE O M N A A ex r e l . DENZIL J. BARKER
F OTN,
and BETTY J E A N BARKER,
P e t i t i o n e r s and A p p e l l a n t s ,
-vs -
T W O STEVENSVILLE, e t a l . ,
O N F
Respondents,
-vs -
ROBERT B . BROWN and FRANCES M. BROWN, e t a l . ,
P l a i n t i f f s and Respondents,
and
T W O STEVENSVILLE ,
ON F
P l a i n t i f f and I n t e r v e n o r and Respondent,
-vs -
DENZIL J. BARKER and BETTY J E A N BARKER, e t a l . ,
Defendants and Appellants.
Appeal from: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
Honorable J a c k L. Green, Judge p r e s i d i n g .
Counsel of Record:
For Appellants :
C h r i s t i a n , McCurdy, Ingraham and Wold, Polson, Montana
Keith W. McCurdy argued, Polson, Montana
For Respondents :
Murray and H o l t , Missoula, Montana
Harold L. Holt argued, Missoula, Montana
L a r r y Persson, Hamilton, Montana
Robert B. Brown, S t e v e n s v i l l e , Montana
Submitted: A p r i l 24, 1974
Decided : Jub - 2 1
m
Filed : JUL. - 2 1974
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from a judgment denying an application
for issuance of a writ of mandate.
This is a unique case. It is in some respects moot, never-
theless we feel justice requires a study of the matter and the
granting of such relief as may be warranted.
In July 1971, Denzil and Betty Jean Barker purchased two
lots within the city limits of the Town of Stevensville, Montana.
Denzil Barker was disabled and confined to a wheelchair. Because
of his limited income and disability, Barker signed a contract
to purchase what is commonly called a "double-wide" mobile home.
Purchase was made through one Kratofil, a dealer in Hamilton,
Montana. After completing arrangements for the purchase, Barkers
left Montana on July 17, 1971 for California to sell their home
there and move their belongings to Montana. Just prior to leaving
they arranged to have one Siphers, the real estate agent who sold
them the lots, to secure a building permit for them in their
absence. Siphers agreed to so as a favor and acted gratuitously.
Siphers appeared at the Stevensville town council meeting
on July 19, 1971 to request the issuance of a building permit. He
presented the council with a color brochure, a lot layout plan,
and a floor plan. The council felt it needed more information and
appointed Robert GJeber, the Stevensville police chief, to go to
Hamilton, view the mobile home and report back to the counsil.
tlayor Summers also volunteered to view the home. Neither one
reported back to the council. Mayor Summers did view the home in
Hamilton.
At this point there is a conflict in the testimony. Mayor
Summers said he thought the council had authorized him to issue
the permit if, in his opinion, the Darker home was similar to a
home previously allowed in the town. The council members however
deny such authorization and testified they expected Mayor Summers
to report back to them with his information.
I n any e v e n t , a f t e r viewing t h e home, Summers r e t u r n e d t o
S t e v e n s v i l l e and t o l d Raymond Meadows, t h e town o f f i c i a l who i s s u e s
b u i l d i n g p e r m i t s , t o i s s u e one t o t h e Barkers. Meadows s t a r t e d t o
f i l l o u t t h e permit b u t lacked i n f o r m a t i o n a s t o t h e number of
rooms, b a t h s , e t c . and s o d i d n o t complete i t . He t e s t i f i e d t h a t
had he had t h a t i n f o r m a t i o n he would have i s s u e d i t a t t h a t time.
F u r t h e r Meadows, a s town b u i l d i n g i n s p e c t o r , caused t h e town's
w a t e r main and sewer t o b e tapped t o a c c e p t t h e c o n n e c t i o n s from
t h e Barker home. He t e s t i f i e d t h a t w a t e r and sewer t a p s a r e made
a s a p a r t of t h e normal c o u r s e of e v e n t s a f t e r a b u i l d i n g permit
h a s been i s s u e d ; t h a t t h e town c o u n c i l ' s a u t h o r i z a t i o n of b u i l d i n g
p e r m i t s was normally communicated t o him by t h e mayor and t h i s had
been t h e p r a c t i c e a s long a s he had been i n o f f i c e .
L a t e r on t h e same day Summers had t o l d Pleadows t o i s s u e t h e
p e r m i t , he encountered S i p h e r s on t h e s t r e e t and t o l d him t h e
permit would i s s u e . S i p h e r s proceeded t o Pleadowst o f f i c e t o g e t
t h e permit b u t he t o o lacked t h e i n f o r m a t i o n r e g a r d i n g t h e number
of rooms, b a t h s , e t c . , so t h e permit d i d n o t i s s u e a t t h a t t i m e ,
O August 7, 1971, a t about 1 a . m.,
n 1 Summers a g a i n t o l d
S i p h e r s t h a t t h e permit had been g r a n t e d . S i p h e r s , a c t i n g upon t h a t
i n f o r m a t i o n , c a l l e d K r a t o f i l i n Hamilton and t o l d him t h e permit
had been i s s u e d and t h e home could b e moved onto t h e Barker l o t s .
O August 8 S i p h e r s w r o t e t o t h e Barkers informing them t h e permit
n
had been i s s u e d . However, t h e c o u n c i l , Mayor Summers i n c l u d e d ,
went i n t o s e s s i o n on t h e evening of August 7 , 1971 and t e n t a t i v e l y
rejected the application. That d e c i s i o n was communicated t o S i p h e r s
by Summers o r a l l y on t h e 8 t h , a f t e r S i p h e r s had w r i t t e n t o Barkers.
K r a t o f i l , unaware of t h e r e j e c t i o n , moved one-half of t h e
home o n t o t h e Barker l o t s on t h e 9 t h , b u t due t o h i g h winds w a s
u n a b l e t o move t h e second h a l f t h a t day. L a t e r t h a t same day
Summers c a l l e d K r a t o f i l and t o l d him t h a t no permit had i s s u e d .
Being a t a l o s s , K r a t o f i l c o n s u l t e d c o u n s e l and moved t h e second
h a l f of t h e mobile home a few days l a t e r . O August 14, 1971, t h e
n
town c o u n c i l met i n formal s e s s i o n and r e j e c t e d t h e a p p l i c a t i o n .
O August 1 7 , 3 a r k e r s r e t u r n e d from C a l i f o r n i a and e a r l y on t h e
n
18th f i r s t l e a r n e d of t h e i r t r o u b l e s . They immediately g a t h e r e d
Lheir p l a n s , n e i g h b o r s ' a f f i d a v i t s i n s u p p o r t , and affidavits of a
b u i l d i n g c o n t r a c t o r and an a r c h i t e c t and p r e s e n t e d them t o t h e
5 t e v e n s v i l l e Planning Commission. A t t h a t time t h e Planning
Commission was i n t h e p r o c e s s of formation and a w a i t i n g a p p r o v a l
2rom t h e county commissioners, hence i t had no l e g a l s t a t u s and
\+,as a d v i s o r y only. The Planning Commission d i d , however, recommend
approval. This d e c i s i o n , a l o n g w i t h t h e p l a n s and a f f i d a v i t s , was
r e s u b m i t t e d t o t h e town c o u n c i l .
S h o r t l y a f t e r Barkers r e t u r n e d from C a l i f o r n i a two of t h e i r
n e i g h b o r s i n s t i t u t e d s u i t a g a i n s t t h e Rarlcers seeking an i n j u n t i o n
to compel them t o remove t h e housing u n i t . The Town of Stevens-
v i l l e i n t e r v e n e d , a p p e a r i n g a g a i n s t t h e B a r k e r s , and c i t e d town
o r d i n a n c e s which c a l l e d f o r p o s s i b l e j a i l s e n t e n c e s . O October
n
2 9 , 1 9 7 1 , Barkers sought a w r i t of mandate t ? compel i s s u a n c e of t h e
b u i l d i n g permit. O October 30, 1 9 7 1 , t h e town c o u n c i l s e n t a
n
l e t t e r t o t h e Barkers o r d e r i n g them t o remove t h e home. (The h0rr.e
was removed i n May 1 9 7 2 ) . The two c a u s e s were c o n s o l i d a t e d f o r t r i a l
b e f o r e t h e d i s t r i c t c o u r t , s i t t i n g withouc a j u r y . Judgment was
e n t e r e d i n f a v o r of t h e Town of S t e v e n s v i l l e and a g a i n s t t h e
Sarkers. They a p p e a l .
During o r a l argument b e f o r e t h i s C o u r t , c o u n s e l informed t h e
Court Lhe mobile home had been r e p o s s e s s e d b u t t h a t E a r k e r s s t i l l
dwn t h e l o t s . O r d i n a r i l y t h i s would r e n d e r t h e a p p e a l moot, b u t
we. f i n d o t h e r m a t t e r s j-n t h i s c a s e which we f e e l should be commented
upon. W w i l l n o t d i s c u s s t h e i s s u e s r a i s e d by t h e Barkers.
e We
fi-lid t h e i s s u e rai-sed by t h e r e c o r d , b r i e f s , and argument i s whether
the conduct of t h e town c o u n c i l and t h e mayor of S t e v e n s v i l l e was
s u fundamentally u n f a i r t o t h e Barkers a s t o r e q u i r e r e v e r s a l . We
hold t h a t i t was.
The town c o u n c i l on t h e b a s i s of t h e a c t s o f t h e mayor and c l e r k
should have been estopped from a s s e r t i n g t h e Barker home would have
to be removed from t h e Town of S t e v e n s v i l l e because no b u i l d i n g
permit had been i s s u e d t h e r e f o r e p u t t i n g t h e Barkers i n v i o l a t i o n
o f town o r d i n a n c e s .
- 4 -
y,~/e e aware o f
ar he , p e a t weight of a u t h o r i t y h o l d i n g t h a t
A x u n i c i p a l c o r p o r a t i o n i s n o t bound by a c t s o r s t a t e m e n t s of i t s
dgents o r o f f i c e r s made i n e x c e s s of t h e i r a u t h o r i t y , even where
-3 s h i r d p a r t y has r e l i e d t h e r e o n t o h i s d e t r i m e n t . See: Anno. 6
.LK2d 960; 3 McQuillin Municipal C o r p o r a t i o n s , 3rd Ed., 5 12.126a.
Various r a t i o n a l e s have been advanced f o r such a r u l e b u t t h e
most soundly reasoned i s t h a t t o bind t h e c o r p o r a t i o n t o a c t s and
s u t e m e n t s of i t s a g e n t s o r o f f i c e r s would have t h e e f f e c t of
ilidking c i t y o r d i n a n c e s and r e g u l a t i o n s a n u l l i t y e v e r y time a
luunicipal a g e n t o r o f f i c e r l e d a t h i r d p a r t y t o a c t i n c o n t r a v e n -
t i o n of such ordinance r e g u l a t i o n . 6 ALR2d 960, 94.
T h i s r u l e c o u l d be extremely h a r s h i n i t s a p p l i c a t i o n . It
i s t o s n i t i g a t e t h i s h a r s h n e s s t h a t some s t a t e s have f a s h i o n e d a
qualification t o t h i s general rule. The I l l i n o i s r u l e a s s t a t e d
i n C i t i e s S e r v i c e O i l Co. v. C i t y of Des P l a i n e s , 21 I11.2d 157, 171
N.E.2d 605, 608, i s :
"The g e n e r a l r u l e i s q u a l i f i e d , however, t o e n a b l e
a p a r t y t o invoke t h e d o c t r i n e where h i s a c t i o n was
induced by t h e conduct of municipal o f f i c e r s , and
where i n t h e absence of such r e l i e f he would s u f f e r
a s u b s t a n t i a l l o s s and m u n i c i p a l i t y would be p e r m i t t e d
t o s t u l t i f y i t s e l f by r e t r a c t i n g what i t s a g e n t s had
done. 1 1
A p p l i c a t i o n of t h i s q u a l i f i c a t i o n h a s been used s p a r i n g l y .
People ex r e 1 Amer. N a t ' l Bank and T r u s t Co. of Chicago v. Smith,
110 I l l . k p p . 2 d 354, 249 N.E.2d 232; C i t y of Rockford v. S a l l e e ,
1-29 IIl.App.2d 75, 262 N.E.2d 485. Nonetheless i t i s a v a i l a b l e
f o r t h o s e e x c e p t i o n a l c a s e s where i t s u s e i s j u s t i f i e d . Emerald
Home B u i l d e r s , Inc. v. Kolton, 11 I l l . A p p . 3 r d 888, 298 N.E.2d 275.
2 Municipal Corporation Law, Antieau (1973 Ed.), 5 16A..05,
criticizes t h e g e n e r a l r u l e , s a y i n g :
he p r e v a i l i n g r u l e i s u n j u s t and should be
repudiated or a t l e a s t qualified."
I n 2 Nunicipal Corporation Law, Antieau (1973 Ed.), S16A.06,
a t e s t i s suggested f o r c i r c u m s t a n c e s i n which t h e d o c t r i n e should
II
It i s suggested t h a t t h e r e should be no g e n e r a l r u l e
t h a t e s t o p p e l i s n o t t o be a p p l i e d i n p o l i c e power
s i t u a t i o n s . Rather c o u r t s should be encouraged t o weigh
i n e v e r y c a s e t h e g r a v i t y of t h e i n j u s t i c e t o t h e c i t i z e n
if the doctrine is not applied against the injury
to the common weal if the doctrine is applied in
that case. Where any danger to the public is
slight and. a citizen has made a good faith and sub-
stantial change in position in reasonable reliance
upon the conduct or representations of municipal
officials and agents, several courts have estopped
the local government from exercising their 'police
power' in a way inconsistent with their prior re-
presentations ar actions. II
We agree with this approach. In cases of this kind there
should be a balancing of the municipal corporation's unwarranted
assumption of risk of liability for acts or statements of its
agents or employees made in excess of their authority against the
harm done to good faith, innocent and unknowledgeable third
parties who act in reliance upon those representations. It
follows that each case will necessarily have to be judged upon
its own unique factual situation.
We do not suggest that a municipal corporation will not be
able to enforce valid city ordinances when its agents have acted
in excess of their authority. However, by the same token, we
are not willing to permit the municipal corporation to deny the
validity of its agents' actions in all cases. To do so lends
itself too readily to situations in which equity and justice would
be denied.
Applying what has been said heretofore to the instant case,
we find that a town official, the mayor, represented to ~arkers'
agent that a building permit had issued, when in fact it had not,
thereby resulting in a course of action by the Barkers and their
agent leading to a substantial loss.
We have a situation where application for a building permit
was made to the t o ~ mcouncil. The t o ~ mcouncil felt that more
information was necessary in order for it to reach a decision. To
that end one man was appointed by the council and another volunteered
to obtain that information. Neither man ever reported back to the
to~mcouncil. Yet at a subsequent meeting, the application was
rejected for lack of that information. Such a procedure does not
comport with elemental fairness.
'de now have t h e ~ r o b l e r nof g r a n t i n g a p p r o p r i a t e r e l i e f . 'the
h u u s i n g u n i t i s gone and cannot be put back. W w i l l n o t go s o f a r
e
i3 t o g i v e t h e Barkers c a r t e blanche t o move any housing u n i t of
Chcir c h o i c e o n t o t h e i r l o t s , w i t h o u t meeting t h e terms of t h e
i l ~ p l i c a b l e rdinances.
o W do hold however, t h a t upon proper a p p l i -
e
ddcion t h e y a r e e n t i t l e d t o a f a i r review, and i f d e n i e d , a w r i t t e n
2 x p l a n a t i o n o f t h e r e a s o n s w i t h i n a r e a s o n a b l e time.
Costs i n t h e s e c o n s o l i d a t e d c a s e s s h a l l be t a x e d i n t h e
d i s t r i c t c o u r t i n f a v o r of t h e Barkers and a g a i n s t t h e Town of
~ r e v e n s v i l l e ,i n c l u d i n g a n a t t o r n e y f e e hereby f i x e d a t t h e sum
ui $750.00.
W Concur :
e fl
\
i .
( ,
b
-J-,4:-rld-jSui-2$ ------ -4
-
we-----
,i.-:
----- * m . \
Chief J u s t i c e
.................................
Justices.
N r Justice Gene B. Daly specially concurring:
l.
I concur with the majority that to prevent unnecessarily
harsh results to the common weal in selected cases, where the
facts permit, an equitable exception to the rule can be applied.
However, once committed to this rationale the Court must proceed
to do equity.
Here the majority has given the Barkers the right to a
fair review upon proper application. I assume this would be be-
fore the municipal authorities, in which case this result could
have been obtained without the aid of this Court.
These people asked for the right to proceed to assemble
and occupy a two-wide preconstructed home on their property, not
carte blanche authority to move any house onto the property. The
housing unit is gone by repossession, but nowhere in the record is
it indicated it cannot or will not be replaced.
Therefore, the appellants have gained nothing unless equity
gives them the relief prayed for.
h.fr. J ~L ~
~ e - :
A/% ------------ -------
Justice
c~Frank 1. Yaswell specially concurring -in Justice
~ a i y ' s specially concurring opinion<
I concur i n the foregoing specially concurring opinion of
3r. Justice Dafy.
Justice.