Billings Properties, Inc. v. Yellowstone County

• Decision Date: 16 July 1964
• Docket Number: No. 10577,10577
• Citation: 394 P.2d 182,144 Mont. 25
• Parties: BILLINGS PROPERTIES, INC., Plaintiff and Appellant, v. YELLOWSTONE COUNTY et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 182

394 P.2d 182

144 Mont. 25

BILLINGS PROPERTIES, INC., Plaintiff and Appellant, v. YELLOWSTONE COUNTY et al., Defendants and Respondents.

No. 10577.

Supreme Court of Montana.

Submitted April 6, 1964.

Decided July 16, 1964.

Sandall, Moses & Cavan, Billings, John P. Acher, Great Falls, James L. Sandall (argued), Billings, for appellant.

William J. Speare, County Atty., C. W. Jones, Deputy County Atty. (argued), Billings, Forrest H. Anderson, Helena, for respondent.

JOHN C. HARRISON, Justice.

This is an appeal from a judgment of the district court of the thirteenth judicial district, in and for the County of Yellowstone, in favor of the defendants. Plaintiff, Billings Properties, Inc., a corporation, has brought this appeal.

This suit was brought under the Uniform Declaratory Judgments Act, Secs. 93-8901 et seq., R.C.M.1947, for the purpose of securing a judicial determination of the validity of section 11-602, subd. 9, R.C.M.1947, and the meaning of section 11-614, R.C.M.1947. The plaintiff below is a corporation which owns real estate in Yellowstone County and desires to subdivide property and sell the land in small tracts. The defendants are Yellowstone County, the individual Commissioners of said County constituting the Board of County Commissioners and the Billings-Yellowstone City-County Planning Board.

The cause was submitted to the court below upon an agreed statement of facts. Essentially, the facts are that the plaintiff, engaged in the business of subdividing and selling real property, caused a survey to be made, and plats prepared of certain described real property in Yellowstone County. These plats, referred to as Parcel B (containing 11.261 acres), and Parcel B (containing 1.252 acres), were prepared for the purpose of complying with sections 11-601, 11-608, 11-614 and 11-614.1, R.C.M.1947. Prior to commencing this action the plaintiff caused these plats to be filed in duplicate with the Planning Board and with the County Commissioners, together with a request for their approval. There was also submitted with said plats, an abstract of title to each plat, prepared and certified by a duly qualified abstracter. The abstracts were submitted to the office of the County Attorney of Yellowstone County, which office endorsed on the plats that the plaintiff was the owner in fee simple of the lands so platted. The plats conformed in all respects to the requirements of the Montana statutes, except that neither plat contained any dedication of land for parks and playground purposes as is required by section 11-602, subd. 9, R.C.M.1947.

On June 4, 1962, the Planning Board rejected both plats for the reason that no dedication of land was made therein for parks and playgrounds, and on June 15, 1962, the Board of County Commissioners rejected the plats for the same reason.

On June 20, 1962, the plaintiff brought its action in district court; the facts were stipulated to by the parties, and the matter was submitted on briefs. On January 10, 1963, the district court found that the statute in question did not contravene the provisions of section 14, Article III, of the Montana Constitution nor the Fourteenth Amendment to the Constitution of the United States. The court also found that section 11-602 was not an unconstitutional delegation of legislative authority in contravention to section 1, Article IV, of the Montana Constitution. Finally the court found that section 11-614 taken in connection with section 11-614.1 did not exempt the plaintiff from dedicating any land for park and playground purposes merely because it was a tract less than ten acres in area.

The plaintiff (hereinafter referred to as appellant) alleges five separate specifications of error, however, these can be resolved into three basic contentions, which will be handled separately. The first two relate to the constitutionality of section 11-602, subd. 9, and the third concerns the interpretation to be given to section 11-614.

Appellant's first contention is that the requirement that land must be dedicated to the public for park and playground purposes as a condition precedent to the approval of a subdivision plat is unconstitutional in that it is an exercise of the power of eminent domain without provision for compensation under the guise of the police power.

We will first discuss areas over ten acres and under twenty acres. The pertinent language of section 11-602, subd. 9, the statute in question, reads as follows:

'For the purpose of promoting the public comfort, welfare, and safety, such plat and survey must show that at least one-ninth of the platted area, exclusive of streets, alleys, avenues, and highways, is forever dedicated to the public for parks and playgrounds; the one-half of such area so dedicated to the public for parks and playgrounds may be distributed in small plots of not less than one block in area through the different parts of the area platted; and the one-half shall be consecrated into larger parks on the outer edge of the area so platted. The board of county commissioners of the county, or the council of the city or town, is hereby authorized to suggest suitable places for such parks and playgrounds, and for good cause shown may make an order in the proceedings of such body (to be indorsed and certified on said plat), diminishing the amount of such area herein required to be dedicated as public parks and playgrounds to not less than one-twelfth thereof, exclusive of streets, alleys, avenues, and highways; provided, that where such platted area consists of a tract of land containing less than twenty acres, such board of county commissioners of the county, or the council of the city or town, may make an order in the proceedings of such body, to be indorsed and certified on said plat, that no park or playground be set aside or dedicated.'

This subdivision 9 of section 11-602, was passed as an amendment to the original statute in the Fifteenth Legislative Session in 1917. A check of the House and Senate Journals for that session reveals that it went through both houses with but one dissenting vote and that significantly enough was by the Senator from Yellowstone County. From that date until the present suit, there has never been a case even remotely questioning its constitutionality, however, that has no bearing on the ultimate question. Statutes requiring dedication of park and playground land as a condition precedent to the approval of plats are in force in one form or another in most all states. The question of their constitutionality on the ground that it amounts to a taking of property without compensation under the guise of the police power has not, to the best of our knowledge, been met head on. The cases cited in appellant's brief have not passed upon the constitutionality of these statutes on this particular ground as will be pointed out later in this opinion.

The task of deciding whether a statute is constitutional or not is not an easy one, due to the fact that the ultimate question of its constitutionality is oft times clouded by opinions as to the wisdom of the legislation. It is for this reason that we think that this rule has been laid down again and again:

'An act of the legislature is presumed to be valid; every intendment is in favor of upholding its constitutionality; it will not be condemned unless its invalidity is shown beyond a reasonable doubt; but when it appears that an act manifestly violates a constitutional guaranty, the court will not hesitate to pronounce the act void. Gas Products Co. v. Rankin, 63 Mont. 372, 207 P. 993 ; Hale v. County Treasurer, 82 Mont. 98, 265 P. 6.

'Unless there is a clear and palpable abuse of power a court will not substitute judgment for legislative discretion. Local authorities are presumed to be familiar with local conditions and to know the needs of the community. Allion v. City of Toledo, 99 Ohio St. 416, 124 N.E. 237, 6 A.L.R. 426, and exhaustive note.' State v. Gateway Mortuaries, Inc., 87 Mont. 225, 235, 287 P. 156, 158, 68 A.L.R. 1512.

Section 11-602, subd. 9, in effect requires a person who desires to subdivide and sell his property from approved plats to dedicate a portion thereof to the public for parks and playgrounds, without compensation therefor. The language of the statute obviously contemplates that this be done pursuant to the police power of the state.

The 'police power' of the State of Montana is contained in Article XV, Sec. 9, of the Constitution which states only that 'the police powers of the state shall never be abridged.' An exact definition of the phrase 'police power' is not only impossible but also impractical. As Mr. Justice Douglas stated in the case of Berman v. Parker 348 U.S. 26, 32, 75 S.Ct. 98, 102, 99 L.Ed. 27, concerning the definition of 'police power':

'* * * An attempt to define its reach or trace its outer limits is fruitless, for each case must turn on its own facts. The definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, whether it be Congress legislating concerning the District of Columbia [Citing case.] or the States legislating concerning local affairs. * * *

'Public safety, public health, morality, peace and quiet, law and order--these are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. Yet they merely illustrate the scope of the power and do not delimit it.'

The exercise of the police power is gauged by a standard of reasonableness. In Bettey v. City of Sidney, 79 Mont. 314, 257 P. 1007, 56 A.L.R. 872, this court...