No. 12351 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 74 

STATE OF MONTANA, ex rel. DENZIL J. BARKER 

and BETTY JEAN BARKER, 

Petitioners and Appellants, 

-vs - 

TOWN OF STEVENSVILLE, et al., 

Respondents, 

-vs - 

ROBERT B . BROWN and FRANCES M. BROWN, et al. , 

Plaintiffs and Respondents, 

and 

TOWN OF STEVENSVILLE , 

Plaintiff and Intervenor and Respondent, 

-vs - 

DENZIL J. BARKER and BETTY JEAN BARKER, et al., 

Defendants and Appellants. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellants : 

Christian, McCurdy, Ingraham and Wold, Polson, Montana 

Keith W. McCurdy argued, Polson, Montana 

For Respondents : 

Murray and Holt, Missoula, Montana 

Harold L. Holt argued, Missoula, Montana 

Larry Persson, Hamilton, Montana 

Robert B. Brown, Stevensville, Montana 

Submitted: April 24, 1974 

Decided : Jub -2 1m 

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, nevertheless 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. 
In any event, after viewing the home, Summers returned to 

Stevensville and told Raymond Meadows, the town official who issues 

building permits, to issue one to the Barkers. Meadows started to 

fill out the permit but lacked information as to the number of 

rooms, baths, etc. and so did not complete it. He testified that 

had he had that information he would have issued it at that time. 

Further Meadows, as town building inspector, caused the town's 

water main and sewer to be tapped to accept the connections from 

the Barker home. He testified that water and sewer taps are made 

as a part of the normal course of events after a building permit 

has been issued; that the town council's authorization of building 

permits was normally communicated to him by the mayor and this had 

been the practice as long as he had been in office. 

Later on the same day Summers had told Pleadows to issue the 

permit, he encountered Siphers on the street and told him the 

permit would issue. Siphers proceeded to Pleadowst office to get 

the permit but he too lacked the information regarding the number 

of rooms, baths, etc., so the permit did not issue at that time, 

On August 7, 1971, at about 11 a. m., Summers again told 

Siphers that the permit had been granted. Siphers, acting upon that 

information, called Kratofil in Hamilton and told him the permit 

had been issued and the home could be moved onto the Barker lots. 

On August 8 Siphers wrote to the Barkers informing them the permit 

had been issued. However, the council, Mayor Summers included, 

went into session on the evening of August 7, 1971 and tentatively 

rejected the application. That decision was communicated to Siphers 

by Summers orally on the 8th, after Siphers had written to Barkers. 

Kratofil, unaware of the rejection, moved one-half of the 

home onto the Barker lots on the 9th, but due to high winds was 

unable to move the second half that day. Later that same day 

Summers called Kratofil and told him that no permit had issued. 

Being at a loss, Kratofil consulted counsel and moved the second 

half of the mobile home a few days later. On August 14, 1971, the 

town council met in formal session and rejected the application. 
On August 17, 3arkers returned from California and early on the 

18th first learned of their troubles. They immediately gathered 

Lheir plans, neighbors' affidavits in support, and affidavits of a 

building contractor and an architect and presented them to the 

5tevensville Planning Commission. At that time the Planning 

Commission was in the process of formation and awaiting approval 

2rom the county commissioners, hence it had no legal status and 

\+,as advisory only. The Planning Commission did, however, recommend 

approval. This decision, along with the plans and affidavits, was 

resubmitted to the town council. 

Shortly after Barkers returned from California two of their 

neighbors instituted suit against the Rarlcers seeking an injuntion 

to compel them to remove the housing unit. The Town of Stevensville intervened, appearing against the Barkers, and cited town 

ordinances which called for possible jail sentences. On October 

29, 1971, Barkers sought a writ of mandate t? compel issuance of the 

building permit. On October 30, 1971, the town council sent a 

letter to the Barkers ordering them to remove the home. (The h0rr.e 

was removed in May 1972). The two causes were consolidated for trial 

before the district court, sitting withouc a jury. Judgment was 

entered in favor of the Town of Stevensville and against the 

Sarkers. They appeal. 

During oral argument before this Court, counsel informed the 

Court Lhe mobile home had been repossessed but that Earkers still 

dwn the lots. Ordinarily this would render the appeal moot, but 

we. find other matters j-n this case which we feel should be commented 

upon. We will not discuss the issues raised by the Barkers. We 

fi-lid the issue rai-sed by the record, briefs, and argument is whether 

the conduct of the town council and the mayor of Stevensville was 

su fundamentally unfair to the Barkers as to require reversal. We 

hold that it was. 

The town council on the basis of the acts of the mayor and clerk 

should have been estopped from asserting the Barker home would have 

to be removed from the Town of Stevensville because no building 

permit had been issued therefore putting the Barkers in violation 

of town ordinances. 

- 4 - 
y,~/e are aware of he ,peat weight of authority holding that 

A xunicipal corporation is not bound by acts or statements of its 

dgents or officers made in excess of their authority, even where 

-3 shird party has relied thereon to his detriment. See: Anno. 6 

.LK2d 960; 3 McQuillin Municipal Corporations, 3rd Ed., 5 12.126a. 

Various rationales have been advanced for such a rule but the 

most soundly reasoned is that to bind the corporation to acts and 

sutements of its agents or officers would have the effect of 

ilidking city ordinances and regulations a nullity every time a 

luunicipal agent or officer led a third party to act in contravention of such ordinance regulation. 6 ALR2d 960, 94. 

This rule could be extremely harsh in its application. It 

is to snitigate this harshness that some states have fashioned a 

qualification to this general rule. The Illinois rule as stated 

in Cities Service Oil Co. v. City of Des Plaines, 21 I11.2d 157, 171 

N.E.2d 605, 608, is: 

"The general rule is qualified, however, to enable 

a party to invoke the doctrine where his action was 

induced by the conduct of municipal officers, and 

where in the absence of such relief he would suffer 

a substantial loss and municipality would be permitted 

to stultify itself by retracting what its agents had 

done. 11 

Application of this qualification has been used sparingly. 

People ex re1 Amer. Nat'l Bank and Trust Co. of Chicago v. Smith, 

110 Ill.kpp.2d 354, 249 N.E.2d 232; City of Rockford v. Sallee, 

1-29 IIl.App.2d 75, 262 N.E.2d 485. Nonetheless it is available 

for those exceptional cases where its use is justified. Emerald 

Home Builders, Inc. v. Kolton, 11 Ill.App.3rd 888, 298 N.E.2d 275. 

2 Municipal Corporation Law, Antieau (1973 Ed.), 5 16A..05, 

criticizes the general rule, saying: 

 he prevailing rule is unjust and should be 

repudiated or at least qualified." 

In 2 Nunicipal Corporation Law, Antieau (1973 Ed.), S16A.06, 

a test is suggested for circumstances in which the doctrine should 

I I It is suggested that there should be no general rule 

that estoppel is not to be applied in police power 

situations. Rather courts should be encouraged to weigh 

in every case the gravity of the injustice to the citizen 
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 substantial 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 representations 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 to~m council. The to~m council 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~m council. 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 the ~roblern of granting appropriate relief. 'the 

huusing unit is gone and cannot be put back. We will not go so far 

i3 to give the Barkers carte blanche to move any housing unit of 

Chcir choice onto their lots, without meeting the terms of the 

il~plicable ordinances. We do hold however, that upon proper appliddcion they are entitled to a fair review, and if denied, a written 

2xplanation of the reasons within a reasonable time. 

Costs in these consolidated cases shall be taxed in the 

district court in favor of the Barkers and against the Town of 

~revensville, including an attorney fee hereby fixed at the sum 

ui $750.00. 

We Concur : fl \ 

i . (b , -4 - ,i. -: *m. \ 

-J-,4:-rld-jSui-2$ ---- -- we----- ----- 

Chief Justice 

................................. Justices. 
Nlr. Justice Gene B. Daly specially concurring: 

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 before 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. A/% ------------ ------- 

Justice 

h.fr. J~~~-: L~ce Frank 1. Yaswell specially concurring -in Justice 

~aiy's specially concurring opinion< 

I concur in the foregoing specially concurring opinion of 

3r. Justice Dafy. 

Justice.