NO. 95-267

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

JOHN FRANCHI,

Relator and Appellant,

v.

THE COUNTY OF JEFFERSON, MONTANA, PAUL

RUFFATTO, LEONARD WORTMAN, and DAVID ANDERSON,

Jefferson County Commissioners, THE JEFFERSON

COUNTY COMMISSION, and SUSAN MILLER,

Jefferson County Treasurer,

Respondents and Respondents.

APPEAL FROM: District Court of the Fifth Judicial District,

In and for the County of Jefferson,

The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Robert T. Cummins, Attorney at Law,

Helena, Montana

For Respondent:

Valerie D. Wilson, Jefferson County Attorney,

Boulder, Montana

Filed:

Submitted on Briefs: November 30, 1995

Decided: December 14, 1995
Justice Terry N. Trieweiler delivered the opinion of the Court.

On January 5, 1994, John Franchi filed a petition for writ of

mandate in the District Court for the Fifth Judicial District in

Jefferson County in which he requested that the court direct the

Jefferson County Board of Commissioners to rescind the establishment of the Boulder Mosquito Control District fee and order the

Jefferson County Treasurer to refund fees already collected for the

District. On January 5, 1994, the District Court granted the writ

and ordered the Board of Commissioners to comply with § ?-22-

2432(2), MCA, which governs the financing of mosquito control

districts, or in the alternative, to appear and show cause why they

should not comply. After a hearing on November 9, 1994, the

District Court issued an order which quashed the writ of mandate

and dismissed Franchi's petition. Franchi appeals the court's

order. We affirm the order of the District Court.

The issue on appeal is:

Did the District Court err when it denied Franchi's

application for a writ of mandate?

FACTUAL BACKGROUND

In 1973, the Jefferson County Board of Commissioners created

the Boulder Mosquito Control District for the purpose of

controlling mosquitoes within its boundaries, which include the

town of Boulder and the surrounding rural area in the upper Boulder

Valley. Prior to July 1, 1992, the District was funded by a tax of

2
five mills on the taxable value of all property situated within the

District, pursuant to § 7-22-2432(l), MCA.

On March 11, 1992, pursuant to § 7-22-2432(2), MCA, the Board

of Commissioners passed Resolution 4-92, which called for an

election to determine whether the voters in the Mosquito Control

District approved the imposition of annual fees, in addition to the

five mills then levied to support the District. The Commissioners'

Resolution provided that the election would be held on June 2,

1992, in conjunction with the primary election.

On June 2, 1992, 531 registered voters voted on the issue of

the imposition of fees for the Mosquito Control District. Of

those, 282 voted in favor of imposing the fees, and 246 voted

against additional fees. There has been no challenge to the

qualifications of those electors who voted on the issue.

On June 4, 1992, the County Commissioners concluded that a

majority of the voters had voted in favor of the additional fees,

and pursuant to their resolution and the election results, imposed

the additional fees. In accordance with § 7-22-2432(4), MCA, the

fees were included in the yearly tax notices.

Franchi, who owns real property within the District, paid the

fees in 1992 and 1993 "under protest." He did not, however, file

a tax protest lawsuit after he made the payments, as provided by

§ 15-l-406, MCA. On January 5, 1994, however, within ninety days

after his 1994 "protested" tax payment, Franchi petitioned the

District Court in Jefferson County for a writ of mandate to direct

3
the County Commissioners to rescind their action and resolution

which established the fees, and to mandate the County Treasurer not

to expend any further funds from the Mosquito District account, not

to collect any further fees assessed, and to refund all fees in the

account to those who had paid them.

On April 28, 1995, the District Court dismissed Franchi's

petition for writ of mandate. The court concluded that Franchi's

action was barred by the statute of limitations provided in

§ 13-35-107, MCA. The court further concluded that even if Franchi

was entitled to some form of relief, a writ of mandate was not an

available remedy because Franchi had an adequate legal remedy

pursuant to 5 15-l-406, MCA, which provides that an aggrieved

taxpayer may bring a declaratory judgment action to determine if a

tax was illegally or unlawfully imposed.

DISCUSSION

Did the District Court err when it denied Franchi's

application for a writ of mandate?

The issuance or denial of a writ of mandate calls for a

conclusion of law which we will review to determine if it is

correct. Phillipsv. CityofLivingston (1994), 268 Mont. 156, 161, 885 P.2d

528, 531. Pursuant to § 27-26-102, MCA, a two-part standard

applies to the issuance of a writ of mandate. State ex rd. Chisholm Y.

DistrictCourt (1986), 224 Mont. 441, 443, 731 P.2d 324, 325. A writ

is available when the party who requests it is entitled to the

performance of a clear legal duty, and where there is no available

4
speedy and adequate remedy in the course of law. Section

2 7 - 2 6 - 10 2 , MCA . State ex uel. Cobbs v. Montana Dept. of Social and Rehab. Svcs. (Mont .

1995), 52 St. Rep. 116 6 , 116 7 ( c it ing State ex rel. Galloway v. City of Great Falls

(1984), 211 Mont. 354, 350, 684 P.2d 495, 497). In Chisholm, we

clarified the inquiry: "A negative answer to the first question

bars the issuance of the writ, and, irrespective of the answer to

that question, an affirmative answer to the second, divests the

court of authority to issue it." Chisholm, 731 P.2d at 325.

In this case, as the District Court noted, it is clear that

Franchi has an adequate statutory remedy pursuant to § 15-l-406

(1) (b), MCA, which provides:

An aggrieved taxpayer may bring a declaratory judgment

action in the district court seeking a declaration that:

ibj 'a'tax authorized by the state or one of its

subdivisions was illegally or unlawfully imposed or

exceeded the taxing authority of the entity imposing the

tax.

In addition, 5 15-l-408, MCA, provides in part:

If the district court determines that the tax was

illegally or unlawfully imposed or exceeded the taxing

authority of the entity imposing the tax, the judgment

may direct:

(1) that the revenue collected under the illegal

tax be directly refunded to the taxpayers who have paid

the illegal tax and who have not been excluded from the

action . . .

Franchi sought a writ to have the Mosquito Control District

fees, which are imposed in the nature of a property tax, declared

unlawful, and the tax money refunded to him. It is clear, however,

that Franchi has a "speedy and adequate" remedy in the course of

5
law in the form of an action for a declaratory judgment. As we

noted above, where there is an adequate legal remedy the district

court has no authority to issue a writ of mandate. Chisholm , 73 1

P.2d at 325. We therefore conclude that the District Court's order

which denied Franchi's writ was correct. We affirm the order and

judgment of the District Court.

We concur:

Justices

6
December 14, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Robert T. Cummins

Attorney At Law

One North Last Chance Gulch

Helena MT 59601

Jefferson County Attorney

County Courthouse

Box H

Boulder MT 59632

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA

BY:

Deputy