No. 80-292 IN THE SUPRE1F;E COURT OF THE STATE OF MONTANA 1980

THE DEPARTMENT OF REVENUE OF THE STATE OF MONTANA,Petitionerand Appellant,

DAVIDSON CATTLE COMPANY, Respondent and Respondent.

a1 from: District Courtof The ThirteenthJudicial District, In and for the County of BigHorn, The Honorable Diane G. Barz, Judge presiding.

Counselof Record: ForAppellant: Thomas A. Pouliot, Tax Counsel, Dept. of Revenue, Helena, Montana For Respondent: Davidson, Veeder, Baugh, Broeder & Poppler, Billings, Montana

Submittedon Briefs: October 23, 1980 Decided

# :DE~ 3

Y &' ClerkMr. Chief JusticeFrank I. Haswell delivered theOpinion of the Court.

The Big Horn County District Court entered a default judgment against the StateTax Appeal Board (STAB) and subsequentlydenied the Montana StateDepartment of Revenue

## 's (Department)motion 

### to set the default aside. The Department appeals. This controversy commenced in 1978when the Department's CorporateTax Division conducted an audit of Davidson Cattle Company's 

### state corporate license tax returns forthe years 1972 through 1976. Following the audit, the Department assessed the taxpayer an additional $10,525.00 intaxes and interest. The taxpayer protested the additional assessment before the Department. The Department denied the protest on September 13, 1978. An appeal 

### was timely filed with STAB. Following a hearing, STAB entered 

### its findings of fact, conclusions of 

### law and final order affirming the Department's decision on October 3, 1979. On October 22, 1979, the taxpayer filed a petition for judicial review of the STAB decision in the Big Horn County District Court. On October 23, 1979, the taxpayer mailed a copy of the summons and petition to the attorneywho represented the Department at the STAB hearing; on October 29, 1979, a copy of the summons and petition

### was served upon STAB. Taxpayer 

### asserts in its brief that 

### its attorney contacted

a STAB member in earlyDecember on several occasions to inform STAB that an answer to its petition had been due on November 19, 1979. The STAB member was requested to discuss the matter with Helen Peterson, chairperson of STAB, and with the attorney representing the Department. The Department's memorandum filed with the DistrictCourt on its motion to set aside the default judgment admits that the Department had knowledge of the taxpayer's intent 

### to take 

### a default. It appears that the Department

## 's attorney contacted taxpayer's counsel prior 

### to adefault being taken and stated that "notice and servicenupon the Department 

### were required. On December 21, 1979, the taxpayer mailed a motion for default to the Clerk of the District Court, the Department's attorney and 

### to the chairperson of STAB. On December 24, 1979, the Clerk of Big Horn County District Court entered the default of STAB. On January 30, 1980, the District Court entered a defaultjudgment against STAB for its failure to answer 

### or appear. The judgment further stated that STAB'S final order

### was reversed and that the taxpayer owed no additional corporation license tax 

### to the State for the years inquestion. The Clerk of the District Court mailed notice of entryof the default judgment toSTAB and the Department on January 31, 1980. On April 14, 1980, the Department filed a motion to set aside the default judgment based on lack of jurisdiction. The District Court entered 

### its order denying the Department's motion

on June 24, 1980. The Department appeals. The first issuepresented 

### is whether Davidson Cattle Co. complied with procedural requirements in seeking judicial review. The Department contends thatDavidson Cattle Co. failed to comply with section 2-4-702, MCA, and thereby failed to obtainjurisdiction over the Department. The taxpayer asserts that section 15-2-303, MCA, is the applicable statute. Section 2-4-702, MCA, is contained inMontana's Administrative Procedure Act and provides procedures for initiatingjudicial review of agency determinations incontested



### cases. Section 15-2-303, MCA, on the other hand, provides appeal procedures for initiating judicial review of decisions of STAB. These statutesprovide inpertinent part, as follows: "2-4-702. Initiating judicial review of contested cases. (1) (a)A person who hasexhausted alladministrative remedies available within the agency and who 

### is aggrieved by 

### a final decision ina contested 

### case 

### is entitled 

### to judicial review under this chapter. This sectiondoes not 

### limitutilizationof or the scope of iudi

# -- L 

### cia1review availableunder othermeans 

### - of review, redress, relief, ortrial de novo 

### -provided by statute. 

### -

### "(b) A party who proceeds before an agency under the 

### terms of 

### a particular statute shall not be precluded from questioning the validity of that statuteon judicial review, but such partymay not 

### raise any other question not raised before the agency unless it 

### is shown to the satisfaction of the court that therewas good cause for failure to

### raise the question before the agency. "(2) (a)Proceedings forreview shall be instituted by filing a petition indistrict court within 30 days af

### ter service of the final decision of the agency 

### or, if a rehearing is requested, within 30 days af

### ter the decision thereon. Except as otherwise provided by statute, the petition shall be filed in the districtcourt for the county where the petitioner resides orhas hisprincipal place of business orwhere the agencymaintains its principal office. Copies 

### -- of thepetition shallbe promptly served 

### -- upon the agency 

## -- and 

### allparties of record. 'I (Emphasis added.) 

### - "15-2-303. Judicial review of contested cases. (1)Any party 

### to an appeal before the 

### state tax appeal board who is aggrieved by a final decision in a contested 

### case is entitled 

### to judicial reviewunder 

### -- thispart. "(2) Proceedings forreview shall be instituted by filing a petition indistrict court inthe county wherein the taxable property 

### or some portion thereof is located (except the taxpayer may, athis option, file in the district court of the firstjudicial district) and 

### serving a copy of thepetitionon the state tax appeal

### -- --

# -- board within 30 days af

### ter servlce of the final decision of the 

### state tax appeal board 

### or, if 

### a rehearing is requested, within 30 days af

### ter the decision thereon. Allparties to the appeal shallcause 

### -- tobe served 

### -- on the 

### state tax appeal board a copy of allpleadings 

### -- and documents they 

# -- shall

### File insuchprocedings.

### " (Emphasis added

# .) - - We note that section 15-2-303, MCA, is a specific statute governing appeals from STAB decisions and does not require 

### service of summons 

### or a copy of the petition on the Department. On the other hand, section 2-4-702, MCA, 

### is a general statute covering judicial review of determinations of any agency which is subject 

### to the provisions of the Montana Administrative Procedure Act. It requires service on the agency involved, here the Department. A specific statute controls over a general statute to the extentof any inconsistency. Bryant v. Hall (1971), 157Mont. 28, 33, 482 P.2d 147, 149-150; Fickes v. Missoula County (1970), 155Mont. 258, 272, 470 P.2d 287, 294; Monarch Lumber Company v. Haggard(1961), 139Mont. 105, 114, 360 P.2d 794, 798; In re Stevenson's Estate (1930), 87Mont. 486, 498, 289 P. 566, 570. Of more significance in the present 

### case 

### is the District Court's scope of judicial review. The guidelines inthisregard



### are provided by section 2-4-704, MCA, which provides as follows: 2-4-704. Standards of review. (1)The review ,hallbe conducted byThe court without a jury .nd shall be confined to the record. In cases of alleged irregularities inprocedure before the agency not shown in the record, proof thereof may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs. "(2)The court may not substitute 

### its judgment for thatof the agency 

### as to the weight 

### of the evidence on questions of fact. The court may affirmthe decision of the agency 

### or remand the 

### case for furtherproceedings: 

### he courtmay reverse

### ormodify thedecision if substantial rights

### -- oftheappellant 

### -- have beenprejudiced because the administrative findings, inferences, conclusions, 

### - or decisions

### are: 

### "(a) inviolation of constitutional 

### or statutoryprovisions; 

### "(b) inexcess of the statutoryauthority of the agency;

(c) made upon unlawful procedure; "(d) affected by other 

### error of 

### law; 

### "(e) clearlyerroneous inview of the reliable, probative, and substantial evidence on the whole record; 

### "(f) arbitrary

### or capricious 

### or characterized by abuse of discretion 

### or clearlyunwarranted exerciseof discretion; 

### or "(g) because findingsof fact, upon issues essential to the decision, 

### were not made a1 though requested

# .I' Separate standards of review forSTAB decisions 

### are not provided with the exception of section 15-2-303 (4 ) which states that the District Court may permit additional evidence notwithstanding section 2-4-704(1), MCA. Turning to the default judgment entered in the present 

### case, the 

### District Court reversed STAB'S determination and granted the relief requested by the taxpayer based on the Department's failure 

### to answer 

### or appear. There 

### is no basis for thisjudgment in the record, other than the Department's failure

### to appear. However, the failure to appear does not suspend the standardsof review. 

### In short, the District Court 

### was not entitled to enter a default judgment reversing STAB without reviewing the record and complying with the standards of review contained in section 2-4-704, MCA. The default judgment entered by the District Court is vacated and this case is remanded for furtherproceedings consistentwith section 2-4-704, MCA, and thisopinion.

Chief Justice