State ex rel. Thompson v. Babcock

• Decision Date: 12 January 1966
• Docket Number: No. 10859,10859
• Citation: 147 Mont. 46,409 P.2d 808
• Parties: STATE ex rel. Richard J. THOMPSON, Petitioner and Appellant, v. Tim BABCOCK, Harriet Miller, Frank Murray, Forrest H. Anderson and the State Board of Land Commissioners of the State of Montana, Respondents and Respondents.
• Court: Montana Supreme Court

Page 808

409 P.2d 808

147 Mont. 46

STATE ex rel. Richard J. THOMPSON, Petitioner and Appellant, v. Tim BABCOCK, Harriet Miller, Frank Murray, Forrest H.

Anderson and the State Board of Land Commissioners

of the State of Montana, Respondents and

Respondents.

No. 10859.

Supreme Court of Montana.

Submitted Dec. 1, 1965.

Decided Jan. 12, 1966.

Hubert J. Massman (argued), Helena, for appellant.

Forrest H. Anderson, Atty. Gen., Louis Forsell, (argued), Helena, for respondents.

CASTLES, Justice.

This is an appeal by petitioner, Richard J. Thompson, from an order denying a new trial after an alternative writ of mandate had been vacated. The action was presented to the district court on an agreed statement of facts, from which the court drew its own findings of fact and conclusions of law.

The State of Montana is the owner of certain farm lands situated in Pondera County. These lands are under the control, direction and management of the respondents, the State Board of Land Commissioners. It is the Board's statutory duty under section 81-103, R.C.M.1947, to hold these, and all state lands, in trust for the 'support of education, and for the attainment of other worthy objects helpful to the well being of the people of this state * * *.' Moreover, the respondents are 'so to administer this trust as to secure the largest measure of legitimate and reasonable advantage to the state.'

During 1954 to 1959 the lands in question were leased to John Woods and Loren Warwick, hereinafter referred to as the lessees, for twenty-five percent of the crop share. The same lessees held the lands in 1960 and 1961 at fifty percent crop share. The same individuals leased the land for fifty-five percent crop share during 1962. At the time of renewal of the lease, in January of 1963, after notice of consideration by the State Board of competitive bids, six applications for a lease were received by the Board. The petitioner's bid of fifty percent was the highest, with the lessees' bid of thirty-three and one-third percent the lowest.

Pursuant to statute, the Board notified the lessees that a fifty percent bid had been received, and that they were entitled to meet it. The lessees, however, requested to appear before the Board. In making their appearance, on February 27, 1963, financial statements were presented which indicated Woods and Warwick were losing money at their former lease arrangements. There were also statements from accountants and bankers to the effect that in this part of the state it was impossible to make money with a fifty percent share bid. None of the statements were taken under oath, nor were they recorded verbatim. It was noted at the appearance that the petitioner here had no other land.

No notices to any prospective lessees were issued which would indicate the Board was going to consider the questioned lease, nor was any evidence to support the other applications solicited. The petitioner, however did attend this meeting, and did make a statement. At the conclusion of the hearing the Board took the matter under advisement for further investigation.

On March 13, 1963, the bid of Woods and Warwick was accepted and their old lease renewed. The petitioner demanded its revocation, which was denied by the Board. The following reasons were stated:

'In the approval or disapproval of bids, we do not act in a ministerial capacity. We are expected to exercise discretion. As trustees of school lands, our duty is to obtain a sustained income in the management of the land. Evidence presented to this Board showed that a 50 percent bid was considerably higher that the usual landlord's share prevailing in this area. To obtain a sustained income and insure good husbandry practices we must have a qualified lessee who will complete the term. If a competing bid is considerably higher, there is danger that the lessee will not fulfill his term because of inability to make money or that he will cut corners on good husbandry practice. In the meantime, the qualified proven farmer may have gone out of business or left the area. As trustees charged with managing this land in a prudent careful manner, I do not believe we can take these risks.'

Then petitioner filed, on April 10, 1963, a petition in the District Court seeking a writ of mandamus to compel the Board to invalidate its lease to lessees Woods and Warwick and to issue a lease to petitioner. An alternative writ issued and was met by a motion to quash on the grounds that the petition failed to state a claim for relief in mandamus and further that the respondent State Board lacked the power to perform the command of the alternative writ, namely, cancellation of an existing lease. The trial court granted the motion to quash the alternative writ and an agreed statement of facts was submitted. The trial court made its own findings and conclusions and dismissed the action.

Appellant cites as error the lower court's order vacating the alternative writ of mandate, and denying his petition for a new trial.

It is axiomatic that an action already done may not be undone by mandamus. It lies only to compel the performance of an act, section 93-9102, R.C.M.1947, not to correct errors. 'The writ of mandamus is used to stimulate action pursuant to some legal duty and not to cause the respondent to undo action already taken, or to correct or revise such action, however erroneous, it may have been.' 34 Am.Jur., Mandamus, § 8, p. 813 (1941). The same rule is employed by Montana. In State v. State Board of Equalization, 56 Mont. 413, 450, 454, 185 P. 708, 186 P. 697, 699 (1920), it was stated, 'The court could compel action * * * but, having proceeded in the matter, exercising its own judgment and discretion, in the absence of any statutory provision directing how the board shall proceed, and in the absence of fraud or what amounts to fraudulent action, the court is powerless to compel the board to proceed in any particular manner in arriving at its conclusion or to reverse its decision. The writ of mandamus is not a writ to correct errors, but to compel action. [Citing cases.]'

The same circumstances are in existence in this case. The Board has already acted, using its own judgment and discretion, and there is no fraud involved.

Thus, the petitioner has misconceived his remedy. A writ of certiorari might have been a more appropriate legal tool, although it does not provide for attorney's fees as does mandamus (under R.C.M.1947, § 93-9112) which may account for the latter's continued popularity among lawyers.

The trial court was correct, therefore, and this Court need go no further in denying relief. However, because of public policy involved this court desires to consider several of appellant's questions.

The questions may be simply denominated as follows: (1) Does the Board only act in a ministerial capacity when granting a lease; (2) in granting a lease does the Board have a large discretionary power; and (3) was such power, if available at all, abused in the instant case?

There is no doubt that the State Board of Land Commissioners has considerable discretionary power when dealing with the disposition of an interest in land they hold in trust for the people of this state. Section 81-103, R.C.M.1947, indicates, 'The enumeration in this act of specific powers conferred upon the board shall not be so construed as to deprive the board of other powers not enumerated but inherent in the general and discretionary powers conferred by the constitution, and necessary for the proper discharge of its duties; but there can be no such implied powers inconsistent with any part of the constitution, nor shall any inherent powers be assumed to exist which would be inconsistent with any statutory provision or with the general rule and principle herein stated.' If the 'largest measure of legitimate and reasonable advantage' from the use of state lands is to accrue to the state, then the State Land Board must, necessarily, have a large discretionary power. Every facet of the Board's action cannot, and is not, explicitly laid out in the statutes or State Constitution. This view was confirmed by Justice Sanner in State ex rel. Gravely v. Stewart, 48 Mont. 347, 349, 137 P. 854, 855 (1913), where he said, 'The grant of lands for school purposes by the federal government to this state constitutes a trust [Citing cases.] and the state board of land commissioners, as the instrumentality created to administer that trust, is bound, upon principles that are elementary, to so administer it as to secure the largest measure of legitimate advantage to the beneficiary of it. To that end, and of necessity, the board must have...