No. 80-200 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

THE STATE OF MONTANA, ex rel., 

CHARLES R. SWART, 

Petitioner and Appellant, 

LORRAINE P. MOLITOR, Clerk and 

Recorder, Madison County, 

DAVID BOWMAN, Examining Land Surveyor, 

Madison County, 

Respondents. 

Appeal from: District Court of the Fifth Judicial District, 

In and for the County of Madison. 

Honorable Frank Blair, Judge presiding. 

Counsel of Record: 

For Appellant: 

Goetz and Madden, Bozeman, Montana 

James H. Goetz argued, Bozeman, Montana 

Fdr Responents: 

Chester Lloyd Jones argued, County Attorney, Virginia 

City, Montana 

Submitted: November 20, 1980 

Decided: January 14, 1981 

Filed: 14 198T 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Charles R. Swart, a registered land surveyor, appeals 

from a ruling by the District Court, Fifth Judicial District, 

Madison County, refusing mandamus against Lorraine P. Molitor, 

county clerk and recorder, and David Bowman, county examining 

land surveyor, and requiring them to approve and record a certificate 

of survey prepared by Swart. We affirm the District Court. 

Swart had prepared a certificate of survey of a parcel 

of land containing 102.409 acres in Madison County and 

tendered it to Lorraine P. Molitor, county clerk and recorder, 

on December 7, 1979. Lorraine P. Molitor refused to file 

the certificate of survey because the county examining land 

surveyor, David Bowman, had not certified that the certificate 

of survey was free from errors and omissions in calculation 

and drafting. 

Before he tendered the certificate of survey to the 

county clerk and recorder, Swart had taken the survey to 

David Bowman for his inspection. At that time, Swart informed 

Bowman that he would not pay a separate fee to Bowman for 

examining the certificate of survey. Because Swart refused 

to pay the separate fee, Bowman refused to examine the 

certificate of survey and refused to certify it as free from 

errors and omissions. Since the certificate had not been 

approved by Bowman, the county clerk and recorder refused to 

accept the certificate of survey for recording in her office. 

Swart sought a writ of mandate in the District Court, 

either directing Bowman to examine the certificate of survey, 

or directing Lorraine P. Molitor to record the document. 

After a show cause hearing, the court refused to issue a 

writ of mandamus. This appeal followed. 
As permitted by 1972 Mont. Const., Art. XI, § 5, 

Madison County has adopted a szlf-government charter. As 

such, it has these powers under 1972 Mont. Const., Art. XI, 

S 6: 

"Self-government powers. A local government 

unit adopting a self-government charter may 

exercise any power not prohibited by this 

constitution, law, or charter . . ." 

Prior to the 1972 Montana Constitution, and during the 

period that the 1889 Montana Constitution controlled, counties 

in this state could exercise only such powers as were expressly 

granted to them by the state, together with such implied 

powers as were necessary for the execution of the powers 

expressly granted. Franzke v. Fergus County (1926), 76 

Mont. 150, 245 P. 962; Hersey v. Nelson (1913), 47 Mont. 132, 

131 P. 30. Under the 1889 Montana Constitution, legislative 

control over counties was supreme. Hersey, supra. 

The 1972 Montana Constitution, in addition to providing 

for the continuance of the county, municipal, and town 

governmental forms already existing, opened to local governmental units new vistas of shared sovereignty with the state 

through the adoption of self-government charters. Whereas 

the 1972 Montana Constitution continues to provide that existing 

local governmental forms have such powers as are expressly 

provided or implied by law (to be liberally construed), 1972 

Mont. Const., Art. XI, B 4, a local government unit may act 

under a self-government charter with its powers uninhibited 

except by express prohibitions of the constitution, law, 

or charter, 1972 Mont. Const., Art. XI, § 6. 

The broad expanse of shared sovereignty given to selfgoverning local units is illustrated by section 7-1-103, 

MCA, which provides: 
"A local government unit with self-government 

powers which elects to provide a service or 

perform a function that may also be provided 

or performed by a general power government 

unit is not subject to any limitation in the 

provision of that service or performance of 

that function except such limitations as are 

contained in its charter or in state law 

specifically applicable to self-government 

units. " 

And again in section 7-1-106, MCA: 

"The powers and authority of a local government unit with self-government powers shall 

be liberally construed. Every reasonable 

doubt as to the existence of a local governmental 

power or authority shall be resolved in favor 

of the existence of that power or authority." 

Acting under its charter, the Madison County Commission, 

on September 27, 1977, adopted the following ordinance: 

"1. That pursuant to Section 11-3867, R.C.M. 

1947 [now section 76-3-301, MCA], the Chief 

Executive of Madison County shall, with the 

approval of the Commission appoint an examining 

land surveyor. All final subdivision plats and 

certificates of survey shall be reviewed for 

errors or omissions in calculation or drafting by 

the examining land surveyor before recording with 

the County Recorder. When the survey data shown 

on the plat or certificate of survey meet the 

conditions set forth by or pursuant to this ordinance, 

the examining land surveyor shall so certify in a 

printed or stamped certificate on the plat or 

certificate of survey; such certificate shall be 

signed by him. 

"No land surveyor shall act as an examining land 

surveyor in regard to a plat or certificate of 

survey in which he has a financial or personal 

interest. In such case, the Chief Executive 

shall delegate the duties of the examining land 

surveyor under this ordinance to a registered 

land surveyor of his choice. In such case, the 

delegatee shall serve as examining land surveyor 

for all purposes with regard to that review. 

"2. Upon completion of review by the examining 

land surveyor, but before recording with the 

County Recorder the subdivider shall pay 

to the examining land surveyor all reasonable 

and necessary costs and expenses necessary to 

defray the expense of reviewing final subdivision 

plats and certificates of survey." 

It is the position of Swart, and the principal issue in 

this case, that the provision foregoing for the payment of 

expenses to the examining land surveyor is illegal and in 
excess of the authority of Madison County. Swart also 

contends that the failure of the examining land surveyor to 

deposit such fees in the Madison County treasury is in 

violation of the county's charter. 

There is no dispute between the parties that Madison 

County may require that final subdivision plats and certificates 

of survey be reviewed for errors and omissions by an examining 

land surveyor. That is permitted by section 76-3-611 (2) (a) , 

MCA. Swart's contention is that the requirement of a fee to 

be paid to the examining land surveyor is in excess of the 

authority granted to Madison County, even considering its 

sdf-government charter provisions. 

Swart's contention is principally based upon section 7- 

1-114, MCA, which provides that a local government with 

self-government powers is subject, among others, to "all 

laws which require or regulate planning or zoning;" and 

that the examining land surveyor's fee in this case is not 

one of those enumerated as proper to be charged by a county 

clerk in section 7-4-2631, MCA. His further contention is 

that the examination of a plat or certificate of survey for 

filing is a part of "planning and zoning" and as such is 

controlled by state law; in effect, that the concept of 

shared sovereignty for self-governing local governmental 

units does not extend to fees to be charged by Madison 

County for the services of the examining land surveyor. The 

fee in this case was a charge of $20. 

Swart also contends that this case is controlled by our 

prior holding in State ex rel. Swart v. Stucky (1975), 167 

Mont. 171, 536 P.2d 762. In that case, we approved the 

issuance of a writ of mandate against a county clerk and 

recorder who had refused to record a certificate of survey 
from Swart because the survey had not first been submitted 

to the city county planning board for review, accompanied by 

a $20 reviewing fee. However, the issues presented in 

Stucky were not the same as we face here. In Stucky, the 

pertinent statute did not provide for a review of certificates 

of survey, as distinguished from subdivision plats. We 

therefore held that a review of a certificate of survey was 

not necessary for its recording and that a charge for such 

review was improper. In this case, section 76-3-611 (2) (a) , 

MCA, provides that the governing body may require that 

certificates of survey be reviewed before recording. We 

have the additional problem of the effect of the extension 

of shared powers to self-governing local units. 

In capsule, we have a statute that permits local governing 

bodies, whether operating under general powers or selfgoverning powers, to require review of subdivision plats and 

certificates of survey before recording. We have a selfgoverning unit that has required review of subdivision plats 

and certificates of survey before recording, and has provided 

that a fee be paid for such review. Further, we have a state 

statute which makes it mandatory that self-governing units be 

subject to all laws which require or regulate planning or 

zoning. 

The question becomes, does the fact that a self-governing 

unit is mandatorily subject to laws which regulate planning 

and zoning preclude the unit from prescribing a fee for 

reviewing certificates of survey where the state statutes are 

silent on that subject. 

We are told by section 7-1-113, MCA, that a local 

government with self-government powers is prohibited from 

exercising any power inconsistent with state law. We are 

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further told, in the same statute, that the exercise of a 

power is inconsistent with state law "if it establishes 

standards or requirements which are lower or less stringent 

than those imposed by state law or regulation." 

The state standard that permits the review of certificates 

of survey, from a statutory viewpoint, is found in sections 

76-3-611(2) (a), MCA, which states that such certificates may 

"be reviewed for errors and omissions in calculation or 

drafting by an examining land surveyor before recording." 

Madison County's ordinance does not prescribe a lower standard 

than that required by the state statute, nor is it less 

stringent. Therefore, under the statutory definition of 

inconsistency found in section 7-1-113(2), MCA, Madison 

County's ordinance is not the exercise of a power inconsistent 

with state law. If it is not inconsistent, it is not the 

exercise of a prohibited power by a self-governing unit 

under section 7-1-111, MCA. 

This is the first case we have had in which we examine 

the powers of a self-governing local unit vis-a-vis mandated 

state laws. In the construction of self-government powers, 

we are commanded to resolve all reasonable doubts in favor 

of the existence of such powers. Section 7-1-106, MCA. Had 

Madison County been acting as a general power jurisdiction, 

we should perforce be required to hold that adi is on County 

had only such powers as were expressly or impliedly delegated 

to it. Section 7-1-2101(2), MCA. As a self-governing 

unit, Madison County has shared powers of legislative, 

executive and administrative authority. A self-governing 

unit which elects to provide a service or perform a function 

that may also be provided or performed by a general power 

government unit is not subject to any limitation in the 

provision of such service or performance of that function, 

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except such limitations found in its charter or in state law 

specifically applicable to self-government units. Section 

7-1-103, MCA, supra. Madison County is not limited in this 

respect by its charter, and there is no state statute 

specifically forbidding self-government units from assessing 

a fee for the review of certificates of survey. Madison 

County's prescribed fee is therefore valid. This means that 

Madison County in prescribing such a fee is merely exercising 

a legislative power that as a self-governing unit, it shares 

with the state. It means that or it means nothing. 

The parties spent considerable time in their briefs and 

in oral argument discussing whether the review of certificates 

of survey was a planning or zoning function. In view of our 

holding that Madison County is exercising a shared legislative 

power with the state in prescribing a review fee, and that 

such exercise of power is not prohibited, it makes no difference to this decision whether the review of subdivision 

plats or certificates of survey is a function of planning or 

zoning. 

Swart also contends that denying Madison County the 

power to prescribe a fee for reviewing certificates of 

survey would make for uniformity among the several counties 

with respect to this subject. We find in the statutes, 

however, that governing bodies may establish fees to be paid 

by subdividers for reviewing subdivision plats (certificates 

of survey are not mentioned). Sections 76-3-602 and 76-4- 

105(1), MCA. We find it more compatible with uniformity 

among the several counties to determine that a fee charge 

for such reviews, whether of subdivision plats or certificates 

of survey, and whether levied by general power governments 

or self-governing units, be recognized as valid. 

We do not see how the charging of such a fee would 

offend the monumentation requirements of sections 76-3-401, 

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et seq., MCA., as Swart contends. 

Swart also contends that he has been prevented, through 

Madison County's requirement of review and the payment of a review fee from "recording" his certificate of survey within 

180 days as required by section 76-3-404, MCA. However, 

Swart has complied with that provision, inasmuch as the 

statute merely requires that a registered land surveyor 

"shall prepare and submit for filing a certificate of survey." 

Swart has done this. 

Swart also attacks the validity of the Madison County 

ordinance on the ground that the fee is to be paid personally 

to the examining land surveyor, and is not required to be 

deposited with the county treasurer of Madison County. 

While a deposit with the county treasurer may be preferable, 

we find no clear statutory duty concerning it. As we have 

said, sections 76-3-602 and 76-4-105(1), MCA, provide that 

the governing body may establish a fee for the review of 

subdivision plats, yet such fees are not among those enumerated 

to be collected by a county clerk in sections 7-4-2631, et 

seq., MCA. 

Swart also contends that under the self-governing 

charter of Madison County, all monies collected by any 

county officer, or any county department, must be paid into 

the county treasury. This may be true, but obedience to this 

provision of the charter has no effect one way or the other 

upon Swart's right to a writ of mandamus against the county 

clerk and recorder, nor would disobedience of this provision 

by Bowman require us to order by mandate that Bowman approve 

the certificate of survey without payment of the fee. The 

disposition of the fee monies, when collected, is not material 

to the issues presented by Swart's request for a writ of 

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mandate. Hill v. Rae (1916), 52 Mont. 378, 391, 158 P. 

826, 831. Swart is not here because Bowman refused to 

deposit the $20 in the county treasury. Swart is here 

because he has refused to pay the $20 in the first place. 

Moreover, this contention was not raised in the District 

Court. 

Since we find the Madison County ordinance valid, we 

find no clear legal duty on the part of the county clerk and 

recorder to accept the Swart certificate of survey for 

recording before it had been reviewed by the examining land 

surveyor, and his fee paid. Mandamus lies only to compel a 

clear legal duty on the part of an officer, State v. District 

Court (1914), 49 Mont. 595, 596, 144 P. 159, 160. Unless 

the performance is one which the law specifically enjoins 

upon the officer as a duty of the office, the writ does not 

lie. State ex re$. Lucier v. Murphy (1970), 156 Mont. 186, 

478 P.2d 273; State v. Board of Com'rs. (1919), 56 Mont. 355, 

358, 185 P. 147, 148. 

We find no issue before us as to attorney fees. The 

judgment does not provide for attorney fees for the respondents, 

and Swart is not entitled to attorney fees under this decision. 

Affirmed. 

We Concur: 

Chief Justice 

This cause was submitted prior to January 5, 1981. 

Mr. Justice Daniel J. Shea will file his written dissent at 

a later date. 

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