No. 84-528 

RONALD L. BURGESS, 

Petitioner and Appellant, 

GALLATIN COUNTY COP?LMISSION, 

consisting of Joy Nash, Wilbur 

Visser and Jane Jelinski, 

Respondents and Respondents. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Xat Allen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Madden, Knuchel & McGregor; Karl Knuchel, Livingston, 

Montana 

For Respondent : 

Mike Salvagni, County Attorney, Bozeman, Montana 

Robert R. Throssel, Deputy County Attorney, 

Bozeman, Montana 

Submitted on Briefs: Jan. 31, 1985 

Decided: April 30, 1985 

P P ,,. 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

This is an appeal from the District Court of the 

Eighteenth Judicial District, Gallatin County, denying 

petitioner's request for a writ of certiorari to review the 

action of the Gallatin County Commission, or, alternatively, 

for a writ of mandamus compelling the Commission to follow 

the Gallatin County Outdoor Recreation and Open Space Plan. 

We affirm. 

Petitioner is a taxpayer in Gallatin County. He 

objects to the Gallatin County Commission's appropriation of 

$100,000 from the County Park Fund to a golf course 

development in the area of the City of Three Forks. The 

Gallatin County Park Fund consists of funds donated to the 

county in lieu of park land dedication as required by 

subdivision regulations. Petitioner appeared at the 

Commission meeting and objected to the appropriation. He 

contends that the use of the park fund in this manner 

violates the Gallatin County Outdoor Recreation and Open 

Space Plan, and is also unwarranted because only three 

percent of Gallatin County's population resides in Three 

Forks. 

The Gallatin County Outdoor Recreation and Open Space 

Plan was prepared pursuant to section 7-16-2324 (3) (b) , MCA, 

and subsequently adopted by the Commission. It does not 

specifically mention a golf course development for the Three 

Forks area, but rather sets out varying types and intensities 

of development, recreation, and open space use for the 

county. Most of the plan's recommendations involve the 

development of facilities near the population centers of 

Bozeman and Belgrade. Despite that, the City of Three Forks 
put together a proposal and presented it to the County 

Commission. The residents of that area offered land, 

material, cash contributions, and maintenance agreements, 

toward the construction of a golf course in the area. 

Further, the proponents pointed out that the climate in Three 

Forks would allow fifty more days per year of playing time 

than any similar development in Bozeman, thirty miles away. 

Acting upon this, the County Commission appropriated $100,000 

to the Three Forks development. 

Burgess then petitioned the District Court to hear the 

matter on certiorari, or alternatively, issue a writ of 

mandamus directing the Commi-ssion not to appropriate money 

from the Park Fund in that manner. The District Court denied 

Burgess's request. It held that since the Commission's 

action was legislati.ve, it wa.s not reviewable by certiorari. 

As to the request for a writ of mandamus, the court held that 

the Commission's action was discretionary, and not controlled 

h~ any duty set forth in statutes or regulations and thus 

there was nothing to mandate. 

Petitioner presents the following issues for review: 

(1) Should the District Court have reviewed this matter 

on certiorari? 

(2) Should the District Court have issued a writ of 

mandamus directing the Gallatin County Commission to not 

appropriate the park fund in this manner? 

Certiorari 

Certiorari, also called the writ of review, is provided 

for by section 27-25-102, MCA, stating in pertinent part: 

"A writ of review may be granted by: 
(2) the supreme court - or the district 

court or any judge thereof, when an 

inferior tribunal, board, or officer 

exercising judicial functions has 

exceeded the jurisdiction of such 

tribunal, board, or officer and there is 

no appeal or, in the judgment of the 

court, any plain, speedy, and adequate 

remedy." (Emphasis added.) 

We have also extended the scope of certiorari to 

"quasi-judicial" actions, State ex. rel. Jacobson v. Board of 

County Commissioners (1913), 47 Mont. 531, 134 P. 291. 

Certiorari does not lie in this case because the County 

Commission, in appropriating money was acting in a 

legislative, not judicial, capacity. There is no action more 

clearly legislative than that of the appropriation of public 

funds. In State ex. rel. Journal Publishing Co. v. Kenney 

(1890), 9 Mont. 389, 24 P. 96, we noted: 

"Appropriation . . . may, perhaps, be 

defined to be an authority -- from the 

legislature, given at the proper time, 

and in legal form, to the proper 

officers, to apply sums of money out of 

that which may be in the treasury, in a 

given year, to specified objects or 

demands against the state." 9 Mont. at 

397, 24 P. at 96. (Emphasis added. ) 

We find the discussion of this issue by the Supreme Court of 

Iowa, in Welden v. Ray (Iowa 1975) , 229 N.W.2d 706 I 709, to 

be enlightening: 

"The appropriation of money is 

essentially a legislative function under 

our scheme of government. The classic 

statement of the doctrine followed 

throuqhout - the country - was made in a 

Mississippi decision, Culbert v. State, 

86 Miss. 769, 775, 39 So. 65, 667 

"'Under all constitutional governments 

recognizing three distinct and 

independent magistracies, the control of 

the purse strings of government is a. 

legislative function. Indeed, it is the 

supreme legislative prerogative, 

indispensable to the independence and 

integrity of the legislature, and n.ot to 

be surrendered or abridged, save by the 
Constitution itself, without disturbing 

the balance of the system and endangering 

the liberties of the people. The right 

of the Legislature to control the public 

treasury, to determine the sources from 

which the public revenue shall be derived 

and the objects upon which they shall be 

expended, to dictate the time, the 

manner, and the means, both of their 

collection and disbursement, is firmly 

and inexpungably established in our 

political system . . . I 11 

Certiorari does not lie. 

Mandamus 

The writ of mandamus is provided for by section 

27-26-102, MCA: 

"When and by whom issued. (1) It may be 

issued by the supreme court or the 

district court or any judge of the 

district court to any inferior tribunal, 

corporation, board, or person to compel 

the performance of an act which the law 

specially enjoins as a duty resulting 

from an office, trust, or station . . . " 

Mandamus is not appropriate in this case because the action 

petitioner seeks to compel is not one "which the law 

specially enjoins as a duty." The County Commission is 

enjoined by law to appropriate moneys from the in-lieu fund 

to park and recreation purposes, section 76-3-606(2), MCA. 

The County Commission -- is not told, other than in general 

terms, how each dollar is to be spent. That function is 

clearly discretionary, and not an appropriate object for 

mandamus. Martel Const. Inc. v. Bd. of ~xaminers (~ont. 

1983), 668 P.2d 222, 40 St.Rep. 1340; Foster v. Bozeman city 

Comm'n. (Mont. 1980), 614 P.2d 1072, 37 St. Rep. 1362. 

Petitioner's a.rgument raises the question of whether 

land-use plans such as the Gallatin County Outdoor Recreation 

and Open Space Plan set up substantive, enforceable, 

guidelines for county action. Although we recognize that to 
be of any utility at all, such plans must have some force and 

effect, they do not have the force of substantive law. They 

are meant to be general guidelines that are compelling 

primarily for their reference value. We can envision some 

circumstances where such a plan may be so baldly disregarded 

that the courts may be required to act, but this is not such 

a case. The record reveals that there was substantial reason 

for the decision to allocate money to the Three Forks 

development, and we will not substitute our judgment, nor 

that of the petitioner's, for the judgment of the County 

Commissioners. 

The District Court is affirmed. 

We concur: f / 4574 

*'@ief Justice