Allen v. Madison County Commission , 211 Mont. 79 ( 1984 )

NO. 83-315
IN THE SUPFU3ME COURT OF THE STATE OF MONTANA
1984
DOUGLAS ALLEN, et al.,
Respondents and Petitioners,
v.
THE MADISON COUNTY COMMISSION, et al.,
Appellants and Respondents,
v.
DANIEL M. SEGOTA, et al.,
Appellants and Intervenors.
Appeal from: District Court of the Fifth Judicial District,
In and for the County of Madison
Honorable Arnold Olson, Judge presidinq.
Counsel of Record:
For Appellants:
Loren Tucker, County Attorney, Virqinia City, Montana
For Intervenors:
Chester Jones, Virginia City, Montana
For Respondents:
Meloy & Llewellyn, Helena, Montana
Peter Michael Meloy, Helena, Montana
Submitted on briefs: December 29, 1983
Decided : J u n e 28 , 1 9 8 4
Filed :
- \
Mr. Justice Fred 2. Weber delivered the Opinion of the Court.
This is an appeal from a writ of prohibition issued by
the Fifth Judicial District Court, Madison County,
prohibiting the Madison County Commission (Commission) and
the Madison County Recorder (Recorder) from placing on an
election ballot the question of retaining the charter form of
county government rejected by county voters in a previous
election. We affirm.
The sole issue on appeal is whether the District Court
erred in granting the writ of prohibition.
This case is the third of three actions aimed at
resolving a longstanding dispute over the form of government
in Madison County. A brief history of the dispute and the
successive legal actions is necessary to an understanding of
the issue.
In 1976 the electors of Madison County adopted a charter
form of government. In early 1980, after four years of the
charter government, a number of dissatisfied citizens formed
an organization known as the "Tobacco Root Rebellion," to
place before the electorate the question of returning to a
commission form of government. On two separate occasions, a
member of this group proposed to the Commission (so called
under the charter government) a resolution calling for a
vote by the electorate on the question of returning to the
commission form of government. The majority of the
commissioners rejected the resolution in both cases.
Thereafter, two petition drives were initiated among the
Madison County electorate. Both petitions asked the
Commission to place before the voters the question of
abandoning the charter and returning to the previous
commission form of government. On both occasions, the
Commission refused to place the question before the
electorate. Instead, in 1980 and again in 1982, the
Commission proposed modifications to the existing charter
form of government and placed its proposals on the ballot.
The first proposal involved modification of the duties of the
commissioners. This amendment was adopted. The second
proposal involved changing the position of chief executive
from an elective office to an appointive office. This change
was rejected by the voters.
In August 1982, proponents of the commission form of
government again petitioned the Madison County Commission for
an election on the question of returning to the previous
commission form of government. In September 1982, the
Commission rejected this petition and again refused to submit
the question to the electorate. The Commission based its
refusal upon section 7-3-155, MCA, which provides that the
electors of a unit of local government which has voted upon
the question of changing or amending the form of local
government may not vote on the question again for three
years. The Commission apparently took the view that since
the commissioners had proposed modifications and held
elections on those proposals, no other change could be
considered for three years following the election on the
Commission's latest proposal.
In response to the the Commission's refusal to place the
question on the ballot, certain members of the electorate
petitioned the District Court for a writ of mandate directing
the Commission to place the matter on the ballot. The court
ruled that section 7-3-155, MCA is an impermissible
legislative restriction upon the power of initiative reserved
to the electorate by the Montana Constitution. The court
concluded that as applied in the factual context of that
case, section 7-3-155 had prevented Madison County voters
from exercising their reserved power of initiative to change
the form of county government for more than eight years after
adoption of the Madison County charter. The court issued a
writ of mandate ordering the Commission to place the proposal
for change of form of government before the electorate at an
election to be held on November 2, 1982. No appeal was taken
from the judgment.
The proposal contained in the petition was accordingly
placed. upon the ballot, the election was held, and a majority
of the electors voted to abandon the charter form of
government and return to the commission form of government.
The Commission, as required by law, then adopted a schedule
for executing the transition from charter to commission form.
This transition schedule called for election of officers for
the new commission government to be held on April 28, 1983.
The new officers were to take office on June 28, 1983, when
the new form of government would come into existence.
Meanwhile, pursuant to the transition schedule and the
applicable statutes, the charter form of government remained
in existence and the Commission and its individual members
continued as the county's governing body under the existing
charter government.
In late December 1982, Russell K. Hudson, one of the
intervenors in this action, and others brought a second
action, to set aside the November 2, 1982 election and to
enjoin the holding of election of officers for the new
commission government. The District Court found there were
no statutory violations in the holding of the election and
that the petition substantially complied with the
requirements of law. None of the parties sought
post-judgment relief.
In late February 1983, certain pro-charter electors of
Madison County certified and circulated a petition
essentially proposing a re-vote on the form-of-government
question. This petition called for an election "for the
purpose of altering the existing form of government from the
existing Commission form of government to the Charter form of
government in form as under the Charter of Madison County
1976 as amended." The petition provided that should a
majority of electors vote in favor of the proposal, the
charter government would take effect on June 27, 1983 and the
present charter officers, including the Commission and its
individual members, would continue in office until the end of
their terms held under the 1976 charter.
These electors, essentially the same individuals who had
unsuccessfully challenged the previous election, submitted
their petition to the Commission pursuant to section 7-3-125,
MCA, which authorizes submission of a petition proposing "the
alteration of an existing form of local government." After
examining the petition for sufficiency and number of
signatures and consulting with counsel, the Commission
directed the question to be placed on the ballot at a special
election to be held April 28, 1983.
Petitioners then brought this, the third action,
petitioning the District Court for a writ of prohibition
enjoining the holding of another election on the question of
returning to the charter form of government. Petitioners
alleged that the Commission had no authority to order an
election, except as authorized by the provisions of Title 7,
Chapter 3, MCA. They argued that because the commission form
of government was not yet an "existing form" of government,
the statute did not authorize the proposed election and the
Commission had no jurisdiction to order an election. The
individuals who sought the new election intervened in the
action and participated in its resolution.
After hearing, the District Court issued a writ of
prohibition enjoining the proposed election. The writ
expressly stated it would remain i.n effect "until June 27,
1983, at which time the modified commission form of
government shall be in existence." In its findings and
conclusions dated April 26, 1983, the court concluded:
"The actions of the Respondent Commission in
placing the question before the electors is an act
which is in excess of its jurisdiction, and
Petitioners have no plain, speedy, or other
adequate remedy by which to pursue this unlawful
act of the Respondents."
The court also awarded to petitioners their expenses
including attorneys' fees and costs. The Commission, the
Recorder and individual intervenors appeal from the writ of
prohibition and award of attorneys' fees granted by the
District Court.
A writ of prohibition is a proper remedy to arrest the
proceedings of any tribunal, corporation, board or person
when the proceedings are without or in excess of the
jurisdiction of such tribunal, corporation, board or person.
Section 27-27-101, MCA; State ex rel. Shea v. Judicial
Standards Commission (Mont. 1982), 643 P.2d 210, 216, 39
St.Rep. 521, 528. The writ may issue in all cases in which
there is not a plain, speedy and adequate remedy in the
ordinary course of law. Section 27-27-102, MCA; Shea, 643
P.2d at 216, 39 St.Rep. at 528.
Appellants argue that the District Court erred in
concluding that placing the change-of-government.question on
the ballot was beyond the jurisdiction of the Commission.
They argue the Comission was mandated by the language of
sections 7-3-125 and -149, MCA and by the court's judgment in
the mandamus action to place the question on the ballot
because it had received a petition proposing alteration of
the "existing" commission form of county government. We
disagree.
Section 7-3-123, MCA provides:
"An alteration of an existing form of local
government may be proposed by a petition of the
electors." (emphasis added)
Section 7-3-125, MCA further provides in part:
" (1) A, petition for the alteration of an existing
form of local government may be presented to the
governing body of the local government. The
petition must meet the requirements of 7-3-142
through 7-3-145.
"(2) The petition must be signed by a least 15% of
the electors of the local government registered at
the last general election, and upon receipt of the
petition the governing body shall call an election,
as provided for in 7-3-149 through 7-3-151, on the
proposed alteration . . ..
" (emphasis added)
See also section 7-3-149 (I), MCA.
The new commission government was not to take effect
until June 28, 1983, after election of new county officers.
See section 7-3-156, MCA. During the transition period, the
existing charter government remained in power with statutory
authority to continue to govern, so long as consistent with
the plan of transition to the new form of government.
Section 7-3-157 through 7-3-159, MCA. When a second election
was proposed in February 1983 to change from the commission
to the charter form of government, the commission form of
government was not yet an "existing form" of local government
and neither the petition nor the proposed election was
authorized.
Appellants contend it is ill-ogi-cal
and inconsistent that
county officers were previously mandated to call an election
because it was deemed a "clear legal duty," and yet were
prohibited in this case from calling an election because to
do so was beyond their jurisdiction. However, this argument
ignores the clear distinction between the two cases. In the
mandamus action, the petition proposed alteration of the
existing charter form of government, and insofar as other
statutory prerequisites were satisfied, the election was
required. In this case, the petition proposed alteration of
a form of government not yet in existence. The conclusions
in the previous case and this case were based upon different
facts and were not inconsistent. Further, none of appellants
additional arguments suggesting the Commission had authority
to call the disputed election merit discussion.
We hold that the District Court properly concluded that
placing on the ballot the question of changing from the
commission form of government to the charter form of
government was in excess of the Commission's jurisdiction.
Appellants contend that even if the Commission's act is
in excess of its jurisdiction, the writ of prohibition will
not lie if the act is ministerial in nature, citing State ex
rel. Lee v. Montana Livestock Sanitary Board 11959), 135
Mont. 202, 208-09, 339 P.2d 487, 490-91. Thus, they argue
that the District Court erred in failing to address whether
this act was ministerial or quasi-judicial in nature. They
contend that calling an election is a ministerial act which
cannot be restrained by a writ of prohibition.
However, we need not decide whether a writ of
prohibition will lie to restrain a ministerial act in excess
of the Commission's jurisdiction, because we conclude that
the act involved here is not ministerial. The calling of an
election by the Commission under these facts is an act
involving discretionary determinations and is therefore a
quasi-judicial rather than ministerial act. State Bar of
Montana v. Krivec (Mont. 1981), 632 P.2d 707, 711, 38 St.Rep.
1322, 1326; State ex rel. Lee v. State Livestock Sanitary
Board (1960), 138 Mont. 536, 357 P.2d 685. In addition to
determining whether the petition requesting an election met
the technical requirements as to number and validity of
signatures, the Commission was required to determine whether
the petition proposed alteration of an "existing form" of
local government and whether the express statutory
limitations on elections applied. As clearly demonstrated by
the history of this case, these determinations involved the
exercise of discretion based upon the existing facts.
Because the calling of an election here is a quasi-judicial
function, we need not address the parties' arguments
regarding whether prohibition lies to restrain a ministerial
act.
Appellants further contend that prohibition will not lie
because other plain, speedy and adequate remedies are
available to petitioners. They argue that injunction,
declaratory judgment and judicial review are each plain,
speedy and adequate remedies available to petitioners in this
case. We conclude that the District Court properly exercised
its discretion in concluding that petitioners had no plain,
speedy and adequate remedy in the ordinary course of law.
Section 27-27-1-02, PICA authorizes issuance of the writ
of prohibition "in all cases where there is not a plain,
speedy, and adequate remedy in the ordinary course of law."
A remedy is speedy when, having in mind the subject matter
involved, it can be pursued with expedition and without
essential detriment to the party aggrieved; and it is neither
speedy nor adequate if its slowness is likely to produce
immediate injury or mischief. Bradbook v. City of Billings
(1977), 174 Mont. 27, 30, 568 P.2d 527, 529; State ex rel.
Taylor v. District Court,(1957), 131 Mont. 397, 402, 310 P.2d
779, 781.
The judicial review procedure set forth in section
7-3-154, MCA does not meet the standard set forth in Bradbook
and Taylor. This procedure provides for challenge to the
validity of procedures whereby an alternative plan of local
government has been adopted, but the statute does not appear
to provide for challenging the holding of the election. To
invoke this remedy, petitioners would be required to await
the outcome of the election and then challenge the election
in the face of a presumption of procedural validity. The
expense of placing the question on the ballot would be wasted
if the election were later deemed to have been unauthorized.
This remedy could not be pursued without essential detriment
to petitioners. Further, its slowness would result in the
immediate injury of unnecessary public expense and further
uncertainty as to the status of the new commission
government. This is clearly an inadequate remedy.
Appellants next contend that petitioners have a plain,
speedy and adequate remedy in the injunction procedures set
forth in section 27-19-101, et seq., MCA. Even if injunction
would lie in this case, which we do not decide, it would not
preclude a writ of prohibition. State ex rel. Department of
Health v. Lincoln County (1978), 178 Mont. 410, 584 P.2d
1293. In Department - Health, we found that there was no
of
plain, speedy and adequate remedy in the ordinary course of
law and that prohibition w3.s a proper remedy, even though we
also found that injunction was available as an alternative
remedy. 178 Mont. at 416-17, 584 P.2d at 1296-97.
Appellants finally contend that declara.tory judgment
under section 27-8-101, et seq., MCA, is a plain, speedy and
adequate remedy available to petitioners. However,
declaratory judgment is inadequate because it merely declares
rights or duties, but does not compel nor restrain
performance. State ex rel. Konen v. City of Butte (1964),
144 Mont. 95, 102, 394 P.2d 753, 757. Declaratory judgment
would not prohibit the holding of an election, but would
merely determine whether the election was properly called.
Declaratory judgment is therefore an inadequate remedy in
this case.
We hold that the District Court properly concluded that
petitioners had no plain, speedy and adequate remedy in the
ordinary course of law and the court properly issued the writ
of prohibition.
Appellants suggest that the writ of prohibition should
be vacated because it is inappropriate to grant petitioners
attorney fees against the county government. However,
attorney fees are allowable as an item of damages in
prohibition cases if pleaded. Sections 27-27-104 and
27-26-402 (1), MCA; Kadillak v. The Anaconda Company (1979),
184 Mont. 127, 144, 602 P.2d 147, 157; State ex rel. Taylor
v. District Court (1957), 131 Mont. 397, 403, 310 P.2d 779,
782. Further, an award of attorney fees is allowable in a
prohibition action against a local governmental body, so long
as government officers appear and defend the proceedii~g in
good faith. Section 27-26-403, MCA; State ex rel. Morales v.
City Commission (1977), 174 Mont. 237, 342, 570 P.2d 887,
890; State ex rel. Willumsen v. City of Butte (1959), 135
Mont. 350, 355-56, 340 P.2d 535, 538. The District Court did
not err in awarding attorney fees to petitioners to be set by
the District Court in a reasonable amount.
The judgment is affirmed.
We concur: