No. 12640 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

STATE ex rel. DELBERT E. BARNES 

and ETHEL BARNES, 

Petitioners, 

THE TOWN OF BELGRADE, MONTANA et al., 

Respondents. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W. Lessley , Judge presiding. 

Counsel of Record : 

For Petitioners: 

Anderson and Dasinger, Bozeman, Montana 

McKinley Anderson argued, Bozeman, Montana 

For Respondents : 

Bennett and Bennett, Bozeman, Montana 

Lyman H. Bennet, Jr. appeared and Lyman H. Bennett, I11 

argued, Bozeman, Montana 

submitted: April 26, 1974 

Decided : JUL 1 9 1974 

Filed : JUL 19 1974 
Mr. Chief Justice James T. Harrison delivered the Opinion of the 

Court. 

This is an appeal from the refusal of the district court of 

Gallatin County to issue a writ of mandamus and a judgment entered 

in favor of respondents. 

Relators Delbert E. Barnes and Ethel Barnes commenced this 

action against respondents the Town of Belgrade (hereinafter 

referred to as the Town), Mayor Dewey Cooper, Aldermen James H. 

Monger, LaVon Carter, Ted Mangun and David Spring, and Town Clerk 

Marie Essex, for the purpose of obtaining a license to operate a 

mobile home court within the town limits of the Town. 

An affidavit for a writ of mandamus was filed by relators on 

July 12, 1973. The district court issued an alternative writ of 

mandamus requiring respondents to issue relators a mobile home court 

license or to show cause why such a license should not be issued. 

Hearing on the order to show cause was held on August 27, 1973. 

The district court, sitting without a jury, heard this evidence: 

On July 31, 1972, relators obtained a license to operate a 

mobile home court within the town limits of the Town. The license 

was issued by town clerk Marie Essex without the knowledge or 

consent of the town council. The next day, upon learning of the 

license and the circumstances under which it was issued, Mayor 

Cooper revoked it and so notified relators. 

Relators then requested the town council to issue them a 

license to operate a mobile home court. In answering, respondents 

set forth several conditions precedent to the issuance of the 

license: Relators were to clean up their property; remove a house 

which encroached upon an alley; and, take certain other steps to 

ensure that the mobile home court would be an asset rather than a 

detriment to the community. 

Thereafter a lengthy dispute ensued concerning the condition 

that the house be removed from the alley. The Town insisted no 

license would be forthcoming until the encroachment was cured. 
Relators, who rented out the house for $75 per month, felt this 

condition was unreasonable and suggested instead that the Town 

replat or vacate the alley. Because of this impasse, none of the 

conditions precedent was in fact fully performed and consequently 

no license was issued to relators. 

At the conclusion of the evidence, the district court denied 

the issuance of a writ of mandamus and entered judgment in favor 

of respondents. 

Relators appeal and seek resolution of two issues: 

(1) Are relators entitled to a writ of mandamus compelling 

respondents to issue them a license to operate a mobile home court 

within the Town? 

(2) Are relators entitled to damages for respondents' 

failure to issue them a license? 

The rule that a writ of mandamus will issue to compel action 

but not control discretion by an administrative board is well 

settled in Montana. This Court recently reviewed this principle 

in Barnard v. McInerney, Mont . , 511 P.2d 330,334, 30 

St. Rep. 656, 662: 

"The general rule and the qualification of the 

general rule with respect to mandamus actions was 

clearly set forth by this Court in Paradise Rainbow 

v. Fish 6 Game Comm n, 148 Mont. 412, 417, 421 P.2d 

717, 720: 

11 I As a general rule mandamus is available only 

to compel performance of a clear legal duty not involving discretion. McCarten v. Sanderson, 111 Mont. 

407, 190 P.2d 1108, 132 A.L.R. 1229. "But even where 

discretion is involved, if there has been such an 

abuse as to amount to no exercise of discretion at all, 

mandamus will lie to compel the proper exercise of the 

powers granted." Skaggs Drug Centers v. Mont. Liquor 

Control Board, 146 Mont. 115, 124, 404 P.2d 511, 516. 

This Court has indicated that arbitrary or capricious 

action by an administrative board is an abuse of discretion. State ex rel. Sanders v. Hill (P.E.R.S.), 

141 Mont. 558, 381 P.2d 475.' 

11 In Erie v. State Hwy, Comm'n, 154 Mont. 150, 153, 461 

P.2d 207, 209, this-Cour~.held: 

11 1 The rule simple put is that a board may be 

enjoined from acting outside the scope of its authority 

and such board may be compelled to perform an act it is 

legally bound to perform; but neither of these extraordinary remedies will lie to control the discretion of 
a board unless it has been clearly shown that the 

board has manifestly abused such discretion. t 

"It is clear that the remedy sought in the instant 

case will lie only when it is shown that there has 

been a manifest abuse of discretion. It 

A duly elected governing body of a town is sufficiently like 

an administrative board to bring it within the purview of this 

this rule. 

The question now becomes whether the Town manifestly abused 

its:discretion in refusing to grant relators a license to operate 

a mobile home court. Clearly the Town had discretionary powers 

in this case. Section 11-904, R.C.M. 1947, provides: 

It The city or town council has power: To fix the 

amount, terms and manner of issuing and revoking 

licenses; but the council may refuse to issue 

licenses when it may deem it best for the public 

interests. I1 

Relators contend the Town acted arbitrarily in refusing to 

issue them a license and thereby abused its discretionary powers 

and denied them due process and equal protection under the law 

with respect to the use of their property. In support relators 

rely on State ex rel. Bennett v. Stow, 144 Mont. 599, 399 P.2d 221. 

In Bennett relators applied to the city of Billings for a license 

to operate a trailer park. The city refused the license even 

though relators had completely satis- all conditions imposed by 

state law and by a city ordinance concerning licenses to operate 

a trailer park. This Court found for relators on the grounds the city'

refusal to issue them the license in the face of full compliance 

with all existing regulations was arbitrary and violative of the 

constitutional guarantees of the lawful use of private property 

and equal protection of the laws. 

Bennett is easily distinguishable from the instant case. Here, 

relators have not fully complied with the conditions precedent to 

obtaining a mobile home court license from the Town. Full compliance was the crux of Bennett., Moreover, the record is barren of 

any evidence tending to show that relators were treated differently 

from other persons who also may have desired to operate a mobile 

home court-in Belgrade. Certainly the fact that the Town dealt with 
relators on an individual basis does not, without more, establish 

a denial of equal protection. 

~elators' assertion that the Town acted capriciously by 

insisting upon removal of the encroachment from the alley is not 

persuasive. A town has direct authority under sections 11-906 

and 11-910, R.C.M. 1947, to compel the removal of encroachments upon 

public property within its boundaries. A town may achieve the 

same result indirectly under section 11-904, R.C.M. 1947, by tying 

the removal of an encroachment to the issuance of a license ''when 

it may deem it best for the public interests.'' The Town chose the 

latter route, and we find no manifest abuse of discretion. It 

did not authorize relators to construct a building which encroached 

upon a dedicated alley, nor did it approve of the encroachment 

after the same was discovered. Not unreasonably, the Town feared 

that following relators' suggestion to replat or vacate the alley 

might set bad precedent for other encroachers. In short, how can 

relators maintain the Town deprived them of the lawful use of their 

property when it requested them to do what they were legally 

obligated to do---to remove the encroachment? 

It has been determined that relators are not entitled to a 

writ of mandamus compelling the Town to issue them a license to 

operate a mobile home court, therefore the question of damages is 

moot. 

The judgment of the distrfct court is affirmed. 

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Chief Justice 

We Concur: