No, 12955 INTHE SUPREME COURT OF THE STATE OF MONTANA 19 

### 75

ROBERT E. McTAGGART,Plaintiff and Respondent,

PUBLIC SERVICE COMMISSION OF MONTANA AND DEPARTMENT OF PUBLIC SERVICEREGULATION OF THE STATE OF MONTANA, ERNEST C. STEEL, Commissioner and VICTOR H. FALL, Commissioner, Defendants and Respondents, and THE MONTANA POWER COMPANY, IntervenorDefendant and Appellant.

Appeal from: District Court of theFirstJudicial 

### District, Honorable PeterMeloy, Judgepresiding. Counsel of Record: ForAppellant

### : Robert D. Coretteargued, Butte, Montana Kendrick Smith argued, Butte, Montana 

### J. J. Burke appeared and Mark A. Clarkappeared,

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:

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### 1975PER CURIAM: In 1974 the Montana Public Service Commission in a 2-1 decision issued Rate Order #4147approving the applicationof theMontana 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. TheMontana Power Company appeals from this judgment. The background leading to Rate Order #4147 and a more detailed explanation of itsprovisions are set forth in our decision in a companion case,Montana Consumer Counsel v. Public Service Commission et al., CauseNo. 12944. On August 30, 1974,when Rate Order #4147was issued, the Montana Public Service Commissionwas composed of three members, Commissioner Ernest C. Steel,Commissioner Robert E. McTaggart, and Commissioner Victor H. Fall. CommissionerMcTaggart 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 soleplaintiff. He named asdefendants 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 soughtwas 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 implementingRate Order #4147. McTaggart brought the action under section 70-128,R.C.M. 1947,as a "party in interestbeing dissatisfied with an order of the commission fixing any rate or rates

## * * 

## *." The Montana Power Companywas permitted to intervene as

a defendant. A motion to dismiss the complaint was made on the grounds, among other things, thatMcTaggart had no standing to bring the suit. The district courtdenied the motion to dismiss. Trialwas held, additional evidence was introduced, and the decision was taken under advisement. Findings of fact,conclusionsof law and judgmentwere subsequently entered vacating Rate Order #4147 on the grounds that itwas unlawful "becauseof

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 judgmentwas insufficiency of the notice of the Commissionhearing, particularly in respect to the "automaticadjustment clause" and procedure contained in the application and rate order. TheMontana Power Company appeals from the judgment of the district court. The controlling issue on appeal iswhether McTaggart had standing to bring the lawsuit. The district court held he did. F7e reverse. McTaggart argues that he is a party in interestdissatisfied with the Commission's Rate Order #4147 and therefore he is

a proper party plaintiff to institute this suitunder 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 inmaterial 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 

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## *."

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-makingprocess;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 Commissionwas 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 stateboard 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 thedecision of a Savings and Loan Review Board because he is not a "person aggrieved" and "directlyaffected". Mortensen

### v. Pyramid Savings & Loan Association of Milwaukee, 53 Wis.2d 81, 191N.W.2d 730. A member of the Board of Zoning Appeals and city Council has no standing to seek a review of the decisionof the Board of ZoningAppeals. State ex rel. Basista v. Melcher, 118 Ohio App.Rp. 37, 188N.E.2d 293. A Commissioner of Finance has no standing to seek reviewof a decision of the Board of Bank Appeals. State ex rel. Rouveyrol

v. Donnelly, 365Mo. 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 thecommissioni'meansa party outside the decision-making process and does not include a Commissioner who exercised legislative and quasi-judicialpowers 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. Themotion to dismiss should have been granted at the outset for the foregoing reasons. We now grant it, and order this case dismissed.

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### Justices. 

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