State ex rel. Bennett v. Stow

• Decision Date: 26 February 1965
• Docket Number: No. 10882,10882
• Citation: 399 P.2d 221,144 Mont. 599
• Parties: The STATE of Montana on the Relation of Larry O. BENNETT and Alma L. Bennett, Relators, v. Edward L. STOW, as Sanitarian of the Health Department of the City of Billings, Montana, a municipal corporation, Mayor Willard Fraser, Councilmen Howard E. Hultgren, James B. Patten, Charles H. Glenn, Alvin G. Wendte, Harry E. Biddinger, Duane E. Smith, Wayne H. Chestnut, Henry S. Cox, William E. Jull and Joseph A. Leone, composing the City Council of the City of Billings, Respondents.
• Court: Montana Supreme Court

Page 221

399 P.2d 221

144 Mont. 599

The STATE of Montana on the Relation of Larry O. BENNETT and Alma L. Bennett, Relators, v. Edward L. STOW, as Sanitarian of the Health Department of

the City of Billings, Montana, a municipal corporation,

Mayor Willard Fraser, Councilmen Howard E. Hultgren, James

B. Patten, Charles H. Glenn, Alvin G. Wendte, Harry E.

Biddinger, Duane E. Smith, Wayne H. Chestnut, Henry S. Cox,

William E. Jull and Joseph A. Leone, composing the City

Council of the City of Billings, Respondents.

No. 10882.

Supreme Court of Montana.

Feb. 26, 1965.

Longan & Holmstrom, Billings, Franklin Longan (argued), Billings, for relators.

James Thompson, City Atty. (argued), Billings, for respondents.

JAMES T. HARRISON, Chief Justice.

This is an original proceeding filed in this court on November 9, 1964, wherein relators seek a writ of mandate to compel the issuance of a license for the operation of a trailer park in the City of Billings, Montana. Following ex parte presentation this court issued an order to show cause.

It appeared from the petition, that for some time before the year 1963, relators were the owners of a tract of land outside the city limits of Billings, Montana; that in the Fall of 1963, the relators undertook construction of a trailer park upon their property, contract between them and a construction company was entered into on August 21, 1963, and on October 3, 1963, actual work commenced thereon and excavations for streets, sewer and water lines, were undertaken and by November 19, 1963, a total expenditure of $19,538.85 had been made by relators for labor, equipment rental and materials; and that on November 19, 1963, the tract was annexed into the City of Billings by resolution passed by the council and approved by the major. On December 2, 1963, the contractor applied for a building permit from the City and it was refused. On January 7, 1964, an ordinance was passed by the city council and approved by the mayor zoning the tract so that the construction and operation of a trailer court would not be permitted; that the relators proceeded with the construction and completed the trailer park shortly before August 21, 1964, at a cost of $234,500.00, exclusive of the value of the land; that there existed an ordinance, enacted on July 24, 1956, of the City of Billings providing for the construction and operation of trailer parks and set uniform standards for such industry and provided for the issuance of licenses, applications therefor to be filed with the health department; and that on August 21, 1964, relators made application in writing on forms furnished by the respondent sanitarian of the health department, submitted the license fee and requested such health officer to make the inspections required by the ordinance and approve the application and cause the license to be issued.

On September 11, 1964, the sanitarian reported by letter to the chairman and members of the mayor's special trailer court committee as follows:

'On September 10, 1964, an inspection was made of the Bennett Trailer Court, located at 14th and Lewis Avenue by James Neely and me. This Court is owned by Mr. Larry O. and Mrs. Alma L. Bennett and is managed by Mr. C. O. Christensen.

'This Court has eighty-nine well defined trailer spaces and from all visual appearances, has conformed to the State Trailer Court Regulations as well as the City Trailer Ordinance.

'Because this Court is going to accommodate only trailers which have independent sanitary toilets, baths and lavatories, it is the opinion of the inspecting Sanitarians that the service building is adequate.

'No inspection was made at this time of the pool facilities because the structure was not completed. But, the State Board of Health Regulations require that it be approved before use.

'If all plumbing was installed according to plans and specifications, it complies with the Billings Plumbing Code.

'At the time of inspection, no provisions were made for refuse storage and removal. Therefore, we recommend that the Court Manager and the Billings Sanitation Superintendent, devise methods and means for this disposal as prescribed by City Ordinance.'

The petition further stated that as to that portion of the report concerning the disposal of refuse it was satisfactorily worked out with the superintendent of garbage disposal and such advice was transmitted to the sanitarian by letter of September 15, 1964, which reads:

'This is to advise you that I have discussed with Mr. and Mrs. Larry O. Bennett arrangements for refuse storage and removal at the trailer court which they are constructing between 14th and 15th Streets on Lewis Avenue. As a result of our conference we have reached an understanding for the storage and removal of the refuse which is satisfactory to my department.'

That no license was issued, though during 1964 twelve trailer park licenses were issued within the City of Billings; that relators applied to the Montana State Board of Health for a license for the operation of the trailer park and such license was issued on September 16, 1964, and that the respondent sanitarian approved the issuance of such license by endorsing his approval thereof; that the relators have complied with all state and city regulations, laws and ordinances with respect to the trailer park and that the refusal of the respondent sanitarian to issue or cause to be issued the trailer park license is arbitrary and the relators have no plain, speedy or adequate remedy at law.

Following ex parte presentation of the petition this court issued an order to show cause which provided in part:

'Upon ex parte application for a writ of mandate to compel the respondent, Sanitarian of the City of Billings, to issue a license to relators for the operation of a trailer park, the following matters were alleged and made to appear:

'A. Relator has made application for a license under the City of Billings ordinances.

'B. Relator has met all the requirements of the State Board of Health regulations and of the statutes of the State of Montana and has been issued a state license.

'C. Relator has complied with all city ordinances with regard to plans and specifications, health, morals and public welfare.

'D. That, even though relator has complied with all state and municipal requirements, the City of Billings, through its officers, respondent above and its mayor and council has illegally refused to issue a license.

'In view of the circumstances apparent, it is hereby ordered that Mayor Willard E. Fraser, Councilmen Howard E. Hultgren, James B. Patten, Charles H. Glenn, Alvin G. Wendte, Harry E. Biddinger, Duane E. Smith, Wayne H. Chestnut, Henry S. Cox, William E. Jull and Joseph A. Leone, composing the City Council of the City of Billings and its Mayor, be, and they are hereby, joined as parties respondent.

'Now, therefore, this orders that respondents, Edward L. Stow, as Sanitarian of the Health Department of the City of Billings, and Mayor Willard E. Fraser, Councilmen [naming them] composing the City Council of the City of Billings and its Mayor, issue the said Trailer Park license as applied for, or appear and show cause before this court on the 7th day of December, 1964, at the hour of 10:00 A.M. why the license has not been issued, and why a writ of mandate as applied for should not issue. If such appearance or appearances be made, the return or returns by the above-named officials of the City of Billings shall specify with particularity the exact failure of compliance, if any, by relators with the ordinance or ordinances involved.'

Pursuant to said order to show cause, respondents on December 4, 1964, filed their return on order to show cause which contained, as an exhibit, responsive answers to the allegations of the petition which, so far as the allegations of the petition above recited are concerned, denies that respondent Stow as sanitarian is the city health officer; alleged that no power to issue or cause to be issued any license had been delegated to Stow and that the city council has power to grant or refuse to grant any city license; that the relators built their trailer park with full knowledge that the city council was reserving to itself the right and power to make a determination pursuant to section 11-904, R.C.M.1947, whether a license should be granted or denied and that relators had full knowledge of such position; that a special committee had held hearings with regard to the license and made a written report on September 23, 1964, a copy of which was served upon relators and their counsel and notice given that it would be presented to the city council on September 28, 1964; that at such city council meeting such report was approved and the council ordered that the application for license be refused on the ground that the council deemed it best in the public interests to refuse to issue it.

While there are many other allegations contained in the petition and return the foregoing is sufficient at this time to illustrate the situation which prevailed. It is undisputed that a class action was filed by a taxpayer and property owner against relators in the district court of Yellowstone County seeking to enjoin relators from constructing the trailer park. This action was tried in the summer of 1964 and resulted in a judgment dated August 17, 1964, denying the injunction and dismissing the action. At the time of the action by the council refusing the license on September 28, 1964, it was the position of the City that since it was not a party to this class action it was not bound by the findings or judgment therein.

In the order to show cause, we required that the respondent officials of the City specify with particularity the exact failure of compliance, if any, by relators with the ordinance or ordinances involved. While the author has some difficulty because this requirement has not been respected, it would appear that relators applied for a...