State ex rel. Professional Consultants, Inc. v. Board of County Com'rs of Ravalli County

• Decision Date: 29 March 1979
• Docket Number: No. 14481,14481
• Parties: The STATE of Montana upon the relation of PROFESSIONAL CONSULTANTS, INCORPORATED, Petitioner and Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF RAVALLI et al., Respondents and Respondents.
• Court: Montana Supreme Court

Page 945

592 P.2d 945

181 Mont. 177

The STATE of Montana upon the relation of PROFESSIONAL

CONSULTANTS, INCORPORATED, Petitioner and Appellant,

v.

The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF RAVALLI

et al., Respondents and Respondents.

No. 14481.

Supreme Court of Montana.

Submitted on Briefs Dec. 21, 1978.

Decided March 28, 1979.

As Modified March 29, 1979.

James L. Tillotson, Missoula, for petitioner and appellant.

Douglas G. Harkin, Hamilton, for respondents and respondents.

HARRISON, Justice.

Professional Consultants, Inc., petitioned the District Court, Fourth Judicial District, Ravalli County, for a writ of mandate to compel the county commissioners of Ravalli County to act concerning five minor subdivisions. From the denial of its petition, Professional Consultants, Inc., appeals.

The sole issue before this Court is whether the District Court erred in finding that petitioner had no standing to maintain this action because it lacked sufficient interest to initiate and maintain the litigation.

Petitioner, Professional Consultants, Inc., is an engineering survey group which was hired to plat subdivisions in Ravalli County. On February 21, 1978, petitioner submitted five minor subdivisions to the Ravalli County planning board for review and approval by the county commissioners as required under section 11-3866(6), R.C.M.1947, now section 76-3-609 MCA. The planning board approved the plats and submitted their recommendations to the county commissioners. Respondent commissioners had neither approved, disapproved, or conditionally approved any of the minor subdivisions by May 17, 1978. As a result, this action was brought alleging that the commissioners are in violation of their clear legal duty under the above statute.

It should be noted that the subdivision questionnaire submitted by each of the five minor subdivisions did not contain the signature of petitioner. Rather, they contained the signatures of the owners of the lands in question. Petitioner had no legal interest in any of the minor subdivisions; was not the legal title owner of any of the five minor subdivisions; and was not the purchaser of any of the property involved. Petitioner set forth no legal or equitable interest in any of the land contained in the five minor subdivisions. The petition did not allege that petitioner had been authorized by any of the owners of the property to commence any legal action regarding the property. It appears that the only interest of petitioner is that its employees conducted survey work and engineering work on the property.

Section 93-9103, R.C.M.1947, now sections 27-26-102(2) [181 Mont. 179] and 27-26-201 Mca, has long been a part of our statutes. it provides:

"Writ when and upon what to issue. The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. It must be issued upon affidavit, on the application of the party beneficially interested."

We first note that under Rule 52, M.R.Civ.P., that ". . . Findings of fact shall not be set aside unless clearly erroneous . . ." This standard for review has been often repeated by this Court and is applicable in this case. See Lovely v. Burroughs Corp. (1974), 165 Mont. 209, 527 P.2d 557; In re Mickich's Estate (1943), 114 Mont. 258, 136 P.2d 223. While an action involving a writ of mandate is one in equity, numerous cases have held that the findings of the District Court should not be reversed in an equity action unless the evidence clearly preponderates against them. See Kosel v. Stone (1965), 146 Mont. 218, 404 P.2d 894; Larsen Farms v. City of Plentywood (1965), 145 Mont. 509, 402 P.2d 410.

In a mandamus action the petitioner faces a heavy burden of proving that it is entitled to a writ of mandamus. See State v. Fire Department Relief Ass'n (1943), 114 Mont. 430, 136 P.2d 989, and State ex rel. Sletten Const. Co. v. City of Great Falls (1973), 163 Mont. 307, 516 P.2d 1149.

Courts have employed the "standing" doctrine to refuse to determine the merits of legal action, on the ground that even though the claim may be correct, the litigant advancing it is not proper. See Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3531. See also Data Processing Service v. Camp (1970), 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184.

Petitioner has stated no legal interest in any of the minor subdivisions subject of this action. It is not the owner or purchaser of any of the property involved in this cause, and admits that it lacks any legal or equitable interest in the land. Some form of ownership in the land is necessary to embark standing to bring a mandamus action. See People v. Vaglica (1968), 99 Ill.App.2d 194, 240 N.E.2d 271; Sun Oil Co. v. Macauley (1946), 72 R.I. 206, 49 A.2d 917; and Boron Oil Company v. City of Southfield (1969), 18 Mich.App. 135, 170 N.W.2d 517.

The decision of the District Court denying standing to the petitioner is affirmed.

SHEA and SHEEHY, JJ., concur.

HASWELL, Chief Justice, dissenting:

I would reverse and remand this case to the District Court for determination of the merits of the action.

The majority deny "standing" to petitioner to prosecute a writ of mandamus because petitioner has no ownership interest in the land, relying on Vaglica, Sun Oil and Boron Oil cited in the majority opinion. In my opinion, none of these cases is authority for this holding. Vaglica, a criminal case not involving mandamus, held that defen...