IN THE SUPREFILE COURT OF THE STATE OF MONTANA 

No. 14481 

THE STATE OF MONTANA, Upon the relation 

of PROFESSIONAL CONSULTANTS, INCORPORATED, 

Petitioner and Appellant, 

VS. 

THE BOARD OF COUNTY COMMISSIONERS OF THE 

COUNTY OF RAVALLI et al., 

Respondents and Respondents. .< 

ORDER 

PER CURIAM: 

In the above named cause on page on line 8 at the 

end of the first paragraph, the following sentence is added: 

"Petitioner qualifies under both tests." 

DATED this *day of March, 1979. 

L" Justices u 
No. 14481 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA, Upon the relation 

of PROFESSIONAL CONSULTANTS, INCORPORATED, 

Petitioner and Appellant, 

THE BOARD OF COUNTY COMMISSIONERS OF THE 

COUNTY OF RAVALLI et al., 

Respondents and Respondents. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Edward Dussault, Judge presiding. 

Counsel of Record: 

For Appellant: 

James L. Tillotson, Missoula, Montana 

For Respondents: 

Douglas G. Harkin, Hamilton, Montana 

Submitted on briefs: December 21, 1978 

Decided : MAP C' ' ' z75 

Filed: F. . . 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Professional Consultants, Inc., petitioned the District 

Court, Fourth Judicial District, Ravalli County, for a writ 

of mandate to compel the county commissioners of Ravalli 

County to act concerning five minor subdivisions. From the 

denial of its petition, Professional Consultants, Inc., 

appeals. 

The sole issue before this Court is whether the District Court erred in finding that petitioner had no standing 

to maintain this action because it lacked sufficient interest 

to initiate and maintain the litigation. 

Petitioner, Professional Consultants, Inc., is an 

engineering survey group which was hired to plat subdivisions 

in Ravalli County. On February 21, 1978, petitioner submitted five minor subdivisions to the Ravalli County planning board for review and approval by the county commissioners as required under section 11-3866(6), R.C.M. 1947, 

now section 76-3-609 MCA. The planning board approved the 

plats and submitted their recommendations to the county 

commissioners. Respondent commissioners had neither approved, disapproved, or conditionally approved any of the 

minor subdivisions by May 17, 1978. As a result, this 

action was brought alleging that the commissioners are in 

violation of their clear legal duty under the above statute. 

It should be noted that the subdivision questionnaire 

submitted by each of the five minor subdivisions did not 

contain the signature of petitioner. Rather, they contained 

the signatures of the owners of the lands in question. 

Petitioner had no legal interest in any of the minor subdivisions; was not the legal title owner of any of the five 
minor subdivisions; and was not the purchaser of any of the 

property involved. Petitioner set forth no legal or equitable interest in any of the land contained in the five 

minor subdivisions. The petition did not allege that petitioner had been authorized by any of the owners of the 

property to commence any legal action regarding the property. It appears that the only interest of petitioner is 

that its employees conducted survey work and engineering 

work on the property. 

Section 93-9103, R.C.M. 1947, now sections 27-26-102(2) 

and 27-26-201 MCA, has long been a part of our statutes. It 

provides: 

"Writ--when and upon what to issue. The writ 

must be issued in all cases where there is not 

a plain, speedy, and adequate remedy in the 

ordinary course of law. It must be issued upon 

affidavit, on the application of the party beneficially interested." 

We first note that under Rule 52, M.R.Civ.P., that ". 

. . Findings of fact shall not be set aside unless clearly 

erroneous . . ." This standard for review has been often 

repeated by this Court and is applicable in this case. See 

Lovely v. Burroughs Corp. (1974), 165 Mont. 209, 527 P.2d 

557; In re Mickich's Estate (1943), 114 Mont. 258, 136 P.2d 

223. While an action involving a writ of mandate is one in 

equity, numerous cases have held that the findings of the 

District Court should not be reversed in an equity action 

unless the evidence clearly preponderates against them. See 

Kosel v. Stone (1965), 146 Mont. 218, 404 P.2d 894; Larsen 

Farms v. City of Plentywood (1965), 145 Mont. 509, 402 P.2d 

410. 

In a mandamus action the petitioner faces a heavy 

burden of proving that it is entitled to a writ of mandamus. 
See State v. Fire Department Relief Ass'n (1943), 114 Mont. 

430, 136 P.2d 989, and State ex rel. Sletten Const. Co. v. 

City of Great Falls (1973), 163 Mont. 307, 516 P.2d 1149. 

Courts have employed the "standing" doctrine to refuse 

, to determine the merits of legal action, on the ground that 

even though the claim may be correct, the litigant advancing 

it is not proper. See Wright, Miller & Cooper, Federal 

Practice and Procedure: Jurisdiction S3531. See also Data 

Processing Service v. Camp (1970), 397 U.S. 150, 90 S.Ct. 

827, 25 L Ed 2d 184. 

Petitioner has stated no legal interest in any of the 

minor subdivisions subject of this action. It is not the 

owner or purchaser of any of the property involved in this 

cause, and admits that it lacks any legal or equitable 

interest in the land. Some form of ownership in the land is 

necessary to embark standing to bring a mandamus action. 

See People v. Vaglica (1968), 99 111.App.2d 213, 240 N.E.2d 

271; Sun oil Co. v. Macauley (1946), 72 R.I. 206, 49 A.2d 

917; and Boron Oil Company v. City of Southfield (1969), 18 

Mich.App. 135, 170 N.W.2d 517. 

The decision of the District Court denying standing to 

the petitioner is affirmed. 

We concur: /' \ 

Chief Justice /-- ', 
Mr. Chief Justice Haswell dissenting: 

I would reverse and remand this case to the District 

Court for determination of the merits of the action. 

The majority deny "standing" to petitioner to prosecute 

a writ of mandamus because petitioner has no ownership interest 

in the land, relying on Vaglica, Sun Oil and Boron Oil cited in 

the majority opinion. In my opinion, none of these cases is 

authority for this holding. Vaglica, a criminal case not involving mandamus, held that defendant had standing to seek suppression of evidence seized in alleged violation of the rights of the 

owner of the premises where the evidence was seized. Sun Oil 

involved no issue of "standing" but was decided on the basis of 

insufficiency of the pleadings. Boron Oil was decided on the 

basis of whether petitioner for a writ of mandate was "the real 

party in interest." "The concepts of 'standing to sue' and 'real 

party in interest' are very different." Stewart v. Bd. of Cty. 

Cornrn'rs of Big Horn Cty. (19771, Mont. , 573 P.2d 184, 

188, 34 St.Rep. 1594, 1599; 6 Wright & Miller, Federal Practice 

and Procedure: Civil S1542. 

Here I would grant standing to petitioner to prosecute a 

writ of mandamus. Petitioner is a professional engineering survey 

corporation hired by the landowners to survey, plot and qualify 

five minor subdivisions in Ravalli County. The corporation claims 

it cannot complete its contract because of the alleged failure 

of the county commissioners to act when they have a clear legal 

duty to do so. In my view, petitioner's contract rights are 

sufficient to invest it with standing to prosecute this action. 

We have twice previously permitted a surveyor to prosecute a writ 

of mandamus in similar situations. State ex rel. Swart v. Stucky 

(1975), 167 Mont. 171, 536 P.22 762; State ex rel. Swart v. 

Casne (1977), Mont . , 564 P.2d 983, 34 St.Rep. 394. 

As I see it, the essence of "standing" is twofold: (1) to 
insure that petitioner has such a personal stake in the outcome 

of the controversy that concrete adverseness and full development of the issues in controversy is assured (cf. Flast v. Cohen 

(1968), 392 U.S. 83, 88 S.Ct. 1942, 20 L Ed 2d 947) and (2) to 

conserve the time and judicial resources of the courts by elirninating adjudication of matters purely of academic interest (cf. 

Association of Data Processing Service Org., Inc. v. Camp (1970), 

397 U.S. 150, 90 S.Ct. 827, 25 L Ed 2d 184). 

The majority would limit "standing" in a mandamus action 

to those who possess "some form of ownership in the land." This 

is indeed a novel position that would exclude lessees, lienholders, mortgagees and others who have legitimate contract and 

statutory interests to protect short of ownership. 

For these reasons, I respectfully dissent. 

Chief Justice 

Mr. Justice Gene B. Daly concurs with the dissent. 

Justice I 

I/