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: 

## 14198TMr. JusticeJohn C. Sheehy delivered the Opinion of the Court.

Charles R. Swart, a registered land surveyor, appeals from a rulingby theDistrictCourt, FifthJudicial District, Madison County, refusingmandamus againstLorraine P. Molitor, county clerk and recorder, and David Bowman, county examining land surveyor, and requiring them toapprove and record a certificate of survey prepared by Swart. We affirm the DistrictCourt. Swart had prepared a certificateof survey of a parcel of land containing 102.409 acres inMadison County and tendered it toLorraine P. Molitor, county clerk and recorder,

on December 7, 1979. Lorraine P. Molitor refused tofile the certificateof survey because the county examining land surveyor, David Bowman, had not certified that the certificate of surveywas free from errors and omissions incalculation and drafting. Before he tendered the certificateof survey tothe county clerk and recorder, Swart had taken the survey to David Bowman forhisinspection. Atthat time, Swart informed Bowman thathewould not pay a separate fee toBowman for examining the certificateof survey. Because Swart refused topay the separate fee, Bowman refused toexamine the certificateof survey and refused tocertify 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 certificateof survey for recording inher office. Swart sought a writof mandate inthe District Court, either directingBowman toexamine the certificateof survey,

ordirectingLorraine P. Molitor torecord the document. After a show cause hearing, the court refused toissue a writof mandamus. This appeal followed.As permitted by 1972Mont. Const., Art. XI, § 5, Madison County has adopted a szlf-government charter. As such, ithas these powers under 1972Mont. Const., Art. XI, S 6: "Self-governmentpowers. A local government unit adopting a self-government chartermay exercise any power not prohibited by this constitution, law, or charter 

# . .

# ." Prior to the 1972Montana 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, togetherwith 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), 47Mont. 132, 131 P. 30. Under the 1889 Montana Constitution, legislative control over countieswas 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 1972Montana Constitution continues to provide that existing local governmental forms have such powers as are expressly provided or implied by law (tobe liberally construed), 1972 Mont. Const., Art. XI, B 4, a local government unit may act under a self-government charterwith its powers uninhibited except by express prohibitions of the constitution, law,

or charter, 1972Mont. 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:

"Thepowers 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 [nowsection 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 surveymeet the conditions set forthby or pursuant to this ordinance, the examining land surveyor shall so certify in a printed or stamped certificate on the plat or certificateof 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 inwhich 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 reviewby 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 theprincipal issue in this case, that the provision foregoing for the payment of expenses to the examining land surveyor is illegal and inexcess 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 surveybe reviewed for errors and omissionsby an examining land surveyor. That ispermitted by section76-3-611(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-governmentpowers 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. Swartv. 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 recorderwho had refused to record a certificate of surveyfrom Swartbecause 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 Stuckywere not the same as we face here. In Stucky, the pertinent statute did notprovide for a reviewof certificates of survey, as distinguished from subdivisionplats. We therefore held that a review of a certificate of surveywas not necessary for its recording and that a charge for such reviewwas 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 certificatesof survey before recording. We have a selfgoverning unit that has required review of subdivisionplats 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 itmandatory that self-governing units be subject to all lawswhich require or regulate planning or zoning. The question becomes, does the fact that a self-governing unit ismandatorily subject to lawswhich regulate planning and zoning preclude the unit fromprescribing 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 governmentwith self-government powers isprohibited from exercising any power inconsistentwith state law. We are -6-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 certificatesmay "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 casewe have had inwhich 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 suchpowers. 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, -7-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 certificatesof survey. Madison County's prescribed fee is therefore valid. This means that Madison County in prescribing such a fee ismerely exercising

a legislative power that as a self-governing unit, it shares with the state. Itmeans that or itmeans nothing. The parties spent considerable time in their briefs and in oral argument discussing whether the review of certificates of surveywas 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 ofpower is notprohibited, itmakes 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 surveywould 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 subdivisionplats (certificates of survey are notmentioned). Sections 76-3-602 and 76-4- 105(1), MCA. We find itmore 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 themonumentation requirements of sections 76-3-401, -8-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 surveywithin 180 days as required by section 76-3-404, MCA. However, Swarthas compliedwith that provision, inasmuch as the statutemerely requires that a registered land surveyor "shallprepare 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 treasurermay 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. Thismay be true, but obedience to this provision of the charterhas no effect one way or the other upon Swart's right to 

### awrit 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 surveywithoutpayment of the fee. The disposition of the feemonies, when collected, is not material to the issues presented by Swart's request for a writ of -9-mandate. Hillv. Rae (1916), 52 Mont. 378, 391, 158P. 826, 831. Swart isnot here because Bowman refused to deposit the $20 inthe county treasury. Swart ishere because he has refused topay the $20 inthe firstplace. Moreover, this contention was not raised inthe District Court. Sincewe find theMadison County ordinance valid, we find no clear legal duty on the part of the county clerk and recorder toaccept the Swart certificateof survey for recording before it had been reviewed by the examining land surveyor, and his feepaid. Mandamus lies only tocompel a clear legal duty on the part of an officer, Statev. District Court (1914), 49 Mont. 595, 596, 144 P. 159, 160. Unless theperformance isone which the law specifically enjoins upon the officer as a duty of the office, thewritdoes not lie. Stateex re$. Lucier v. Murphy (1970), 156 Mont. 186, 478 P.2d 273; Statev. Board of Com'rs. (1919), 56 Mont. 355, 358, 185 P. 147, 148. We findno issuebefore us as toattorney fees. The judgment does not provide for attorney fees for the respondents, and Swart isnot entitledtoattorney fees under this decision. Affirmed.

WeConcur:

Chief Justice

This cause was submitted prior toJanuary 5, 1981. Mr. Justice Daniel J. Sheawillfilehis written dissent at a laterdate. -10-