No. 14949 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

THOMAS B. CASTLES, MARJORIE A. 

CASTLES and ROBERT BROWN, 

Plaintiff and Respondent, 

STATE OF MONTANA, ex rel., MONTANA 

DEPARTMENT OF HIGHWAYS ROBERT B. CLYDE 

and NICOLA CLYDE, 

Respondents and Appellants. 

Appeal from: District Court of the Fourth Judicial District, 

In and For the County of,Mineral 

Hon. Jack L. Green Dlstrlct Judge presiding 

Counsel of Record: 

For Appellant: 

Daniel J. Sullivan argued, Highway Legal Dept., 

Helena, Montana 

For Respondent : 

Dennis Lind, Missoula, Montana 

Chris Swartley argued, Missoula, Montana 

Jeane Wilcox argued, Law Student, Missoula, Montana 

Submitted: February 29, 1980 

Decided: AP2 1 8 1980 

-KpF ; '3$Q Filed: - 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Respondents brought this action in the District Court 

of the Fourth Judicial District, in and for Mineral County, 

before the Honorable Jack L. Green. Respondents sought an 

order declaring null and void a quitclaim deed executed by 

appellant Department of Highways (herein "Department") 

transferring certain land located in Mineral County to 

appellants, the Clydes. Respondents also sought a writ of 

mandate to compel the Department to sell the land in dispute 

at a public sale. Respondents asserted a statutory right to 

acquire the property by meeting the highest bid at the 

public sale they requested. 

The parties submitted the case to the District Court on 

the following agreed facts: Respondents Marjorie and Thomas 

Castles own certain real property located in Mineral County 

known as the Nichols Ranch. They acquired the property from 

Kenneth and Melba Nichols in 1959. In 1944 the Nichols 

conveyed a part of the Nichols Ranch to the Department for a 

highway right-of-way. In 1978 the Department conveyed some 

of the right-of-way property it acquired from the Nichols in 

1944 to appellants, the Clydes. The Department quitclaimed 

the property to the Clydes in exchange for other lands the 

Department obtained from the Clydes as right-of-way for 

Interstate 90. The property, originally a part of the 

Nichols Ranch, conveyed to the Department in 1944 and then 

conveyed to the Clydes in 1978, constitutes a portion of the 

property in dispute in this case. 

Respondent Brown is in the same situation as the Castles. 

Brown owns property located in Mineral County known as the 

Brown Ranch. His predecessors in interest conveyed a part 

of the ranch to the Department in 1944 for use as highway 
right-of-way. In 1978 the Department conveyed a portion of 

the property to the Clydes in exchange for lands owned by 

the Clydes and needed by the Department for Interstate 90 

right-of-way. This property, originally a part of the Brown 

Ranch, conveyed to the Department in 1944 and and then to 

the Clydes in 1978, is the other piece of property in dispute 

here. 

The Department did not notify either the Castles or 

Brown of the exchange of the property in dispute. Respondents, 

therefore, had no opportunity to demand a public sale of the 

property and then meet the highest bid. 

After considering these facts, the District Court 

entered orders declaring the quitclaim deeds transferring 

the property in dispute to the Clydes null and void. The 

District Court also issued writs of mandate commanding the 

Department to sell the property at a public sale pursuant to 

sections 32-3909 through 32-3918, R.C.M. 1947, now sections 

60-4-201 through 60-4-205, MCA. This appeal followed. 

The issues raised on appeal are: 

1. Do statutory procedures enacted in 1959 governing 

the disposition of real property held by the Department apply 

to property acquired by the Department in 1944? 

2. Did the District Court err in issuing writs of 

mandate commanding the Department to sell the property in 

dispute at a public sale? 

An explanation of the history of the statutory provisions 

involved here is necessary to understand the first issue 

raised by appellants. When the Department acquired the 

property in dispute in 1944 the statutes required the Department 

to give public notice of its intention to sell any right-ofway property. After notice, the Department could sell the 
property at either a public auction or after accepting 

sealed bids. Section 32-1616, R.C.M. 1947 (as enacted, ch. 

92, Laws of 1939). The statutes as they read in 1944 did not 

specifically mention the right of the Department to exchange 

right-of-way property. 

The legislature amended section 32-1616 in 1959. The 

amendment included language expressly granting the Department 

the power to exchange right-of-way property that is no longer 

needed. The amendment also established a procedure for the 

Department to follow in disposing of property. The procedure 

required the Department to give notice of its intention to 

dispose of property to the party who originally sold the 

property to the Department. The statutory setup then allowed 

the party to demand a public sale of the property and repurchase 

the property by meeting the highest bid at the public sale. 

Ch. 210, Laws of 1959. 

Appellants contend requiring them to comply with the 

procedures for exchanging property contained in the 1959 

amendment when exchanging property acquired in 1944 makes 

the amendment retroactive legislation. Appellants correctly 

point out that no Montana law is retroactive unless expressly 

so declared. Section 1-2-109, MCA. The 1959 amendment 

under consideration here is not expressly declared retroactive. 

It cannot, therefore, be applied in a manner that renders it 

retroactive. Under this analysis, if the action of the 

District Court is a retroactive application of the amendment, the District Court erred. Thus, the crucial determination 

in this case is whether or not the District Court's decision 

makes the 1959 amendment a retroactive statute. 

A retroactive law is one that takes away or impairs 

vested rights acquired under existing laws or create new 
obligations or imposes new duties in respect to transactions 

already past. City of Harlem v. State Highway Commission 

(1967), 149 Mont. 281, 284, 425 P.2d 718, 720. Appellants 

argue the 1959 amendment as applied by the District Court is a 

retroactive statute under this definition. They contend 

requiring the Department to follow the procedure established 

to exchange property impairs the Department's right to 

exchange property and creates a new duty to offer the exchange 

land at public sale and give the parties who sold the property 

to the Department the opportunity to repurchase it. 

Statutes that modify the procedure for exercising a 

vested right or carrying out a duty do not constitute retroactive 

legislation. Butte & Superior Mining Company v. McIntyre 

(1924), 71 Mont. 254, 263-64, 229 P. 730, 733; Minister & 

Missionaries Benefit Board of American Baptist Churches v. 

Goldsworthy (1978), 253 Pa. Super. Ct. 321, 385 A.2d 358, 

362-63. Goldsworthy presents a situation similar to the 

case at bar. The parties in Goldsworthy entered into a 

mortgage agreement. The terms of the agreement allowed the 

mortgagee to accelerate mortgage payments on default without 

giving the mortgagor a redemption right. After the parties 

executed the agreement, the Pennsylvania legislature enacted 

a law requiring notice to a mortgagor and a redemption 

period before a mortgagee could accelerate mortgage payments. The mortgagor defaulted on the agreement subsequent 

to the adoption of the new law concerning payment acceleration. 

The mortgagee contended the notice and redemption provisions 

of the new law could not be applied in this situation. The 

mortgagee argued that doing so would impair a vested right 

it had acquired through a contract with a mortgagor thus 

rendering the legislation retroactive and impermissible. 
The Pennsylvania Superior Court rejected the mortgagee's 

contention. The court held the new law merely added procedural 

steps to the foreclosure process. The court concluded that 

as long as these procedures did not deny the mortgagee the 

ultimate right to foreclose, the new law only postponed the 

exercise of the right. The legislation was not considered 

an impairment of a vested right thus making the statute 

retroactive. Goldsworthy, 385 A.2d at 363. 

The rule stated in the above cases applies to this 

case. The change in the law made by the 1959 amendment to 

the right-of-way disposition statute only changes the procedure 

the Department must follow in disposing of property. The 

Department still has the power to dispose of property after 

the enactment of the amendment. The amendment merely requires 

the Department to follow a certain procedure in disposing of 

property. The end result under both pre and post-1959 law 

is the disposition of right-of-way property by the Department. 

The underlying right claimed by the Department has not been 

impaired nor have additional duties been imposed on the 

Department. In other words, applying the 1959 amendment in 

the manner the District Court has done does not make the 

legislation retroactive. Therefore, the District Court 

properly held the Department should be required to follow 

the procedure set up in the amendment when disposing of 

property acquired before 1959. 

The second issue raised on appeal concerns the propriety 

of the issuance of the writs of mandate compelling the 

Department to offer the property in dispute at a public 

sale. A writ of mandate is not a proper tool to compel a 

party to correct or revise erroneous action already taken. 

State ex rel. Popham v. Hamilton City Council (19791, - 
Mont . - , 604 P.2d 312, 314, 36 St.Rep. 2307, 2309; Melton 

v. Oleson (1974), 165 Mont. 424, 432, 530 P.2d 466, 470; and 

State ex rel. Thompson v. Babcock (1966), 147 Mont. 46, 50, 

409 P.2d 808, 810. That is essentially what the District 

Court has done here. In issuing the writs of mandate, the 

District Court is requiring the Department to correct an 

improper procedure in the sale of the land in dispute by 

following the proper procedure. Requiring this type of 

action is beyond the scope of a writ of mandate. Therefore, 

the District Court improperly issued the writs of mandate 

and the orders issuing the writs are vacated. The proper 

action under these circumstances is to return the parties to 

their initial positions. If the Department attempts to 

dispose of the property in the future, however, it should 

give notice to respondents and then offer the property at 

public sale on demand by respondents. 

The judgment of the District Court is affirmed in part 

and reversed in part. 

t 

gdY-&-&---- 

We Concur: R- JUS ice 

Chief Justice