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: 

## AP21

## 81980 

# -KpF ; '3$Q Filed: -Mr. Justice John Conway Harrison delivered the Opinion of the Court. Respondents brought this action in the DistrictCourt of the Fourth Judicial District, in and forMineral County, before the Honorable Jack L. Green. Respondents sought an order declaring null and void a quitclaim deed executed by appellantDepartment of Highways (herein "Department") transferring certain land located in Mineral County to appellants, the Clydes. Respondents also sought awrit 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. Theparties submitted the case to the District Court on the following agreed facts: Respondents Marjorie and Thomas Castles own certain realproperty located in Mineral County known as the Nichols Ranch. They acquired the property from Kenneth and Melba Nichols in 1959. In 1944 theNichols conveyed a part of theNichols 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 Departmentquitclaimed theproperty to the Clydes in exchange for other lands the Departmentobtained 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,constitutesaportion of the property in dispute in this case. Respondent Brown is in the same situation as the Castles. Brown owns property located inMineral County known as the Brown Ranch. His predecessors in interest conveyed a part of the ranch to the Department in 1944 for use as highwayright-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. Thisproperty, 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 thenmeet the highest bid. After considering these facts, the DistrictCourt entered orders declaring the quitclaim deeds transferring theproperty indispute to the Clydes null and void. The DistrictCourt also issued writs of mandate commanding the Department to sell theproperty 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 Departmentapply to property acquired by the Department in 1944? 2. Did the District Court err in issuingwrits 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 givepublic notice of its intention to sell any right-ofway property. After notice, the Department could sell theproperty at either a public auction or after accepting sealed bids. Section 32-1616, R.C.M. 1947 (asenacted, ch. 92,Laws of 1939). The statutes as they read in 1944did 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 thepower to exchange right-of-way property that isno longer needed. The amendment also established a procedure for the Department to follow in disposing of property. Theprocedure 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 complywith the procedures for exchanging property contained in the 1959 amendmentwhen exchanging property acquired in 1944makes the amendment retroactive legislation. Appellants correctly point out thatno Montana law is retroactive unless expressly

so declared. Section 1-2-109,MCA. The 1959 amendment under consideration here isnot 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 applicationof the amendment, the DistrictCourt erred. Thus, the crucial determination in this case iswhether or not the District Court's decision makes the 1959 amendmenta retroactive statute. A retroactive law is one that takes away or impairs vested rights acquired under existing laws or create newobligations or imposesnew duties in respect to transactions alreadypast. City of Harlem v. State Highway Commission

(1967),149Mont. 281, 284, 425 P.2d 718, 720. Appellants argue the 1959 amendment as applied by the District Court is a retroactive statuteunder this definition. They contend requiring the Department to follow the procedure established to exchangeproperty impairs the Department's right to exchangeproperty and creates a new duty to offer the exchange land atpublic sale and give the partieswho 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 & SuperiorMining Company v. McIntyre (1924),71Mont. 254, 263-64, 229 P. 730, 733;Minister & Missionaries Benefit Board of American Baptist Churchesv. Goldsworthy (1978), 253 Pa. Super. Ct. 321, 385A.2d 358, 362-63. Goldsworthypresents 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 themortgagor 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 amortgagee could accelerate mortgage payments. The mortgagor defaulted on the agreement subsequent to the adoption of the new law concerning payment acceleration. Themortgagee contended the notice and redemption provisions of the new law could not be applied in this situation. The mortgagee argued that doing sowould impair a vested right ithad acquired through a contract with a mortgagor thus rendering the legislation retroactiveand impermissible.The Pennsylvania Superior Court rejected the mortgagee's contention. The court held the new lawmerely added procedural steps to the foreclosureprocess. The court concluded that

as long as these procedures did not deny themortgagee the ultimate right to foreclose,the new law only postponed the exercise of the right. The legislationwas not considered

an impairment of a vested right thus making the statute retroactive. Goldsworthy, 385A.2d at 363. The rule stated in the above cases applies to this

case. The change in the lawmade 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 enactmentof the amendment. The amendmentmerely requires the Department to followa 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 Departmenthas not been impaired nor have additional duties been imposed on the Department. In other words, applying the 1959 amendment in themanner the District Court has done does notmake the legislation retroactive. Therefore, the District Court properly held the Department shouldbe required to follow the procedure set up in the amendmentwhen disposing of property acquired before 1959. The second issue raised on appeal concerns the propriety of the issuance of thewrits ofmandate compelling the Department to offer theproperty in dispute at a public sale. A writ ofmandate is not 

### aproper tool to compel a party to correct or revise erroneous action already taken. State ex rel. Pophamv. Hamilton City Council (19791, 

### -Mont

# . - 

### , 604P.2d 312, 314, 36 St.Rep. 2307, 2309; Melton

v. Oleson (1974),165Mont. 424, 432, 530 P.2d 466, 470; and State ex rel. Thompson v. Babcock (1966),147Mont. 46, 50, 409 P.2d 808, 810. That is essentiallywhat the District Court has done here. In issuing the writs of mandate, the District Court is requiring the Department to correct an improperprocedure in the sale of the land in dispute by following the proper procedure. Requiring this type of action isbeyond the scope of awrit 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 initialpositions. 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 ondemand 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