No. 12640 INTHE SUPREME COURT OF THE STATE OF MONTANA 1974

STATE ex rel. DELBERT E. BARNES and ETHEL BARNES, Petitioners,

THE TOWN OF BELGRADE, MONTANA etal., 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 

### 191974

### 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 awrit 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 courtwithin the town limits of the Town. An affidavit for a writ of mandamus was filedby relators on July 12, 1973. The district court issued an alternativewrit 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 causewas held onAugust 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 courtwithin the town limits of the Town. The license
was issued by town clerkMarie 

### Essexwithout the knowledge or consent of the town council. The next day,upon learning of the license and the circumstances underwhich 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: Relatorswere 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 insistedno license would be forthcoming until the encroachmentwas cured.Relators, who rented out the house for $75 per month, felt this conditionwas 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 licensewas 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 ofmandamus will issue to compel action but not control discretionby an administrativeboard is well settled inMontana. 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 forthby this Court in Paradise Rainbow 

### v. Fish 6 Game Commn, 148Mont. 412, 417, 421 P.2d 717, 720:

11IAs a general rule mandamus is available only to compelperformance of a clear legal duty not involving discretion. McCarten v. Sanderson, 111Mont. 407, 190 P.2d 1108, 132A.L.R. 1229. "But evenwhere 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 actionby an administrativeboard is an abuse of discretion. State ex rel. Sanders v. Hill (P.E.R.S.), 141Mont. 558, 381 P.2d 475.'

11In Erie v. State Hwy, Comm'n, 154Mont. 150, 153,461 P.2d 207, 209, this-Cour~.held:

111The rule simple put is that a board may be enjoined fromacting outside the scope of its authority and suchboard may be compelled to perform an act it is legally bound to perform; but neither of these extraordinary remedieswill 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 casewill lie onlywhen it is shown that there has been a manifest abuse of discretion.It 

### A duly elected governingbody of a town is sufficiently like
an administrativeboard to bring it within the purview of this this rule. The questionnowbecomes whether the Townmanifestly abused its:discretionin refusing to grant relators a license to operate
a mobile home court. Clearly the Townhad discretionarypowers 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 councilmay refuse to issue licenseswhen 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 discretionarypowers and denied themdue 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, 144Mont. 599,399 P.2d 221. InBennett 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 imposedby 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 regulationswas arbitrary and violative of the constitutional guarantees of the lawfuluse of private property and equal protection of the laws. Bennett is easily distinguishable from the instant case. 

### Here, relators have not fully compliedwith 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 relatorswere treated differently from other persons who also may have desired to operate a 

### mobile home court-inBelgrade. Certainly the fact that the Town dealtwithrelators on an individual basis does not,without more, establish
a denial of equal protection. ~elators' assertion that the Town acted capriciouslyby insistingupon 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 encroachmentsupon public propertywithin its boundaries. 

### A townmay achieve the
same result indirectlyunder 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 buildingwhich encroached upon a dedicated alley,nor did it approve of the encroachment after the samewas 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 propertywhen it requested them to do what theywere legally obligated to do---toremove 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.

-. 

### . # - +-- 

## - -c---------L-,---------------- Chief Justice We Concur: