No, 12955 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 7 5 

ROBERT E. McTAGGART, 

Plaintiff and Respondent, 

PUBLIC SERVICE COMMISSION OF MONTANA 

AND DEPARTMENT OF PUBLIC SERVICE REGULATION 

OF THE STATE OF MONTANA, ERNEST C. STEEL, 

Commissioner and VICTOR H. FALL, Commissioner, 

Defendants and Respondents, 

and 

THE MONTANA POWER COMPANY, 

Intervenor Defendant and Appellant. 

Appeal from: District Court of the First Judicial District, 

Honorable Peter Meloy, Judge presiding. 

Counsel of Record: 

For Appellant : 

Robert D. Corette argued, Butte, Montana 

Kendrick Smith argued, Butte, Montana 

J. J. Burke appeared and Mark A. Clark appeared, 

Butte, Montana 

For Respondents: 

Towe, Neely and Ball, Billings, Montana 

Thomas E. Towe argued, Billings, Montana 

Russell L. Doty argued, Helena, Montana 

Charles H, Dickman, Helena, Montana 

Submitted: June 17, 1975 

Decided : OCT 1 7 1975 
PER CURIAM: 

In 1974 the Montana Public Service Commission in a 2-1 

decision issued Rate Order #4147 approving the application of 

the Montana Power Company for an increase in rates charged all 

classes of its customers for natural gas services in an amount 

equal to its increased costs of purchased gas and royalty expense. 

The dissenting member of the Commission filed an action in the 

district court, Lewis and Clark County, to vacate and set aside 

the Commission's rate order. Following trial, the district court 

entered judgment vacating the order. The Montana Power Company 

appeals from this judgment. 

The background leading to Rate Order #4147 and a more 

detailed explanation of its provisions are set forth in our decision in a companion case, Montana Consumer Counsel v. Public 

Service Commission et al., Cause No. 12944. 

On August 30, 1974, when Rate Order #4147 was issued, 

the Montana Public Service Commission was composed of three 

members, Commissioner Ernest C. Steel, Commissioner Robert E. 

McTaggart, and Commissioner Victor H. Fall. Commissioner McTaggart dissented from the rate order and subsequently filed an 

action in the district court to vacate it. 

McTaggart filed the action in district court in his own 

name as sole plaintiff. He named as defendants the "Public 

Service Commission of Montana and Department of Public Service 

Regulation of the State of Montana, Ernest C. Steel, Commissioner, 

and Victor H. Fall, Commissioner. The relief he sought was threefold : 

(1) To vacate Rate Order #4147, (2) an injunction restraining the Public Service Commission from approving the tariff 

schedules filed pursuant to Rate Order #4147, and (3) an injunction restraining the Public Service Commission from implementing 
Rate Order #4147. McTaggart brought the action under section 

70-128, R.C.M. 1947, as a "party in interest being dissatisfied 

with an order of the commission fixing any rate or rates * * *." 

The Montana Power Company was permitted to intervene as 

a defendant. A motion to dismiss the complaint was made on the 

grounds, among other things, that McTaggart had no standing to 

bring the suit. The district court denied the motion to dismiss. 

Trial was held, additional evidence was introduced, and 

the decision was taken under advisement. Findings of fact, conclusions of law and judgment were subsequently entered vacating 

Rate Order #4147 on the grounds that it was unlawful "because of 

a deprivation of due process in violation of the Montana and 

Federal Constitutions and the provisions of Section 82-4209, R.C.M. 

1947." The underlying basis of the district court's judgment was 

insufficiency of the notice of the Commission hearing, particularly in respect to the "automatic adjustment clause" and procedure 

contained in the application and rate order. 

The Montana Power Company appeals from the judgment of 

the district court. 

The controlling issue on appeal is whether McTaggart had 

standing to bring the lawsuit. The district court held he did. 

F7e reverse. 

McTaggart argues that he is a party in interest dissatisfied with the Commission's Rate Order #4147 and therefore he is 

a proper party plaintiff to institute this suit under the provisions 

of section 70-128, R.C.M. 1947. He further claims that (1) he is 

not disqualified as a member of the Commission, (2) he is a customer of the Montana Power Company and has standing to sue on this 

basis, and (3) his standing is not defeated by creation of the 

office of Consumer Counsel to represent the public in utility rate 

cases. 
Section 70-128, R.C.M. 1947 provides in material part: 

"(1) Any party in interest being dissatisfied with 

an order of the commission fixing any rate * * * 

may * * * commence an action in the district court 

of the proper county against the Commission * * * 

to vacate and set aside any such order * * *." 

In our view, McTaggart, as a member of the Public Service 

Commission, has no standing to sue because he was a part of the 

decision-making process; was not a party in interest dissatisfied 

with the action of the Commission within the meaning of the statute; and should not be permitted to appear on antagonistic and 

opposite sides of the same case. 

Here the Commission was named as a party defendant. 

McTaggart was a member of the Commission and was no less so by 

failing to name himself individually along with the other two 

Commissioners. McTaggart is also the plaintiff in the case. Chaos 

would result if any dissenting member of a state board or agency 

had standing to appeal from any board or agency decision. 

A Commissioner's personal interest in seeing his view upheld has been held insufficient to give him standing to sue in a 

variety of situations. A Commissioner of Savings and Loan has 

been held to have no standing to appeal from the decision of a 

Savings and Loan Review Board because he is not a "person aggrieved" 

and "directly affected". Mortensen v. Pyramid Savings & Loan 

Association of Milwaukee, 53 Wis.2d 81, 191 N.W.2d 730. A member 

of the Board of Zoning Appeals and city Council has no standing 

to seek a review of the decision of the Board of Zoning Appeals. 

State ex rel. Basista v. Melcher, 118 Ohio App.Rp. 37, 188 N.E.2d 

293. A Commissioner of Finance has no standing to seek review of 

a decision of the Board of Bank Appeals. State ex rel. Rouveyrol 

v. Donnelly, 365 Mo. 686, 285 S.W.2d 669. 

We hold that unless the statute expressly provides otherwise, a "party in interest being dissatisfied with an order of the 
commissioni'means a party outside the decision-making process 

and does not include a Commissioner who exercised legislative 

and quasi-judicial powers in arriving at the decision itself. 

Such Commissioner is not rehabilitated and qualified to sue 

simply because he wears a "second hat", that is because he is a 

natural gas consumer and customer of the Itontana Pov~er Company. 

We have examined the authorities cited by plaintiff in 

support of his position and find nothing therein to persuade us 

to reach a contrary result. 

The motion to dismiss should have been granted at the 

outset for the foregoing reasons. We now grant it, and order 

this case dismissed. 

.rr 

-5- Justices. i'