*1 CAIN, DEPARTMENT respondent, v. Petitioner JACK al., OF HEALTH AND ENVIRONMENTAL SCIENCES et Respondents Appellants. No. 14040. 14, 1978. Submitted June Decided Aug.
Rehearing
Denied
Brown, Kommers, Bozeman, Brown, & Gene I. Pepper argued, Bozeman, Beck, Helena, Legal for Highway petitioner Dept., James and respondent.
MR. CHIEF delivered the HASWELL of the opinion JUSTICE Court. (DOH) of Health and Environmental Sciences a from entered in the
appeals District Court Gallatin which County mandated issuance a license from DOH for peti- tioner’s business. The junkyard and the other not did from respondents appeal the judgment. 1976,
In April petitioner was Gallatin charged County with Court a motor operating vehicle wrecking facility Justice it without shielded having from view. He was con- properly public victed, 10, a of the on by jury, charge 1977. The August Justice the Peace ordered to shield his within six months. facility 1977, for license for his petitioner applied DOH. The was denied petitioner’s because was application 1977, 17, shielded. On properly February instituted action a writ for of mandate obtain license for his facility from DOH. the District Court entered find- Following hearing, 1977, fact, On August conclusions of law judgment.
ings but not in sub- amended the in form stance. entitled to a writ of found that
The District Court mandate; he had no to fence screen his obligation legal had a of Highways legal obligation facility; 16-2.14(2)— rule MAC fence or screen the DOH facility; SI4261, facilities to be which motor vehicle requires license, is void as being view to obtain shielded from public 1947, et that the crim seq.; with sections conflict void; and that petitioner inal against petitioner prosecution fees. to a license and of his recovery attorney was entitled on 1977. Following The court entered its judgment August trial, for new DOH denial of a motion appeals. has raised three issues for our consideration
In its appeal, the District err in issu- can be summarized in one: Did which a writ of mandate? *3 to two statutes because his licensing Petitioner here is subject 1,000 is located within feet a motor vehicle wrecking facility are: Roads Junkyards Along The two statutes primary highway. 1947; 45, and, Act, 32, Motor Vehicle Wreck R.C.M. Title Chapter 69, 68, Act, 1947. The licensing Title R.C.M. Chapter Facilities ing for each of these acts DOH. authority a requires specifically Roads Act Along The Junkyards as a condition of Section licensing. view public be shielded does, 32-4517, act grant exception 1947. The existence to July for facilities in prior to this shielding requirement 1, that the shielding 32-4518. This section provides 1967. Section carried out the Department High facilities shall be by of such is to move the the Department if feasible. If ways, facility. did not 1977, Act Wrecking Facility
Prior to the Motor Vehicle facilities. such for shielding statutory provisions have any specific rules for to establish DOH authorizing It did have a provision of the act. Section enforcement and administration 451 R.C.M.1947. Pursuant this section DOH its adopted rule, 16-2.14(2) 1977, In this a MAC rule was part made —S14261. 69-6808(6). act. Section
Petitioner this action so he get could brought necessary license for erred facility. argues court in granting the writ. claim that as They is not long petitioner’s facility shielded, license, cannot a they him license. To him a give ac- give DOH, would contravene the cording both statutes. purpose contend then that the Accordingly they of the District must be reversed. We disagree. This Court has held that the aof writ of granting mandate a matter of discretion to be determined
will be sustained on unless there is a appeal that the Dis showing trict Court abused discretion. State ex rel. v. Browman Wood (1975), 341, case, 168 Mont. 543 P.2d DOH has not shown us the court abused its discretion in granting writ.
A writ of mandate will issue
where the
only
seek
person
to invoke it
is entitled to have the defendant
a
perform clear
legal
there is no
duty
adequate
speedy
remedy in
ordi
(1977),
course of law.
nary
State ex rel. Swart v.
Casne
Mont.
302,
ty wrecking facility on the DOH. DOH has clear part legal grant petitioner duty a license if his is in with the law. compliance Admittedly, *4 However, does not have the petitioner’s facility required shielding. found, is due no fault of own. his As the District Court of not has the Highways, petitioner, legal duty Thus, shield for a license be- facility. deny petitioner is of this state when another agency is not shielded cause his facility of discretion to no exercise amounts to shield the facility, obligated to a writ of man- entitled Petitioner was at all on the DOH. part remedy. as it was his only adequate date Nonetheless, a technical error committed District Court fact, the court which was entered. In in the judgment had the legal obligation of Highways found that the Department inwas ex facility because facility petitioner’s shield petitioner’s that the shielding The court found istence However, court did in the judgment, was feasible. facili petitioner’s to shield the Department not order of the judgment. have been part an order should Such ty. modify has the authority An court appellate 374; Mandamus, ex People § in mandamus proceedings. C.J.S. (1972), D. 6 Ill.App.3d Louis S. U. S. D. v. East St. rel. Cahokia 487; 286 So.2d v. (LaApp.1973), Bussie Long 285 N.E.2d to the Therefore, is modified of the District Court the judgment ordered to shield peti- that the Department Highways extent with the acts question it into to bring compliance tioner’s modified, we affirm. so here. As concur. DALY HARRISON
MR. JUSTICES himself did not disqualified deeming SHEEHY MR. JUSTICE this cause. participate disenting. SHEA
MR. JUSTICE that a writ and hold decision reverse I would not available against mandamus of the department The clear duty Sciences. and Environmental shielded. It was properly unless the license to issue a a license to operate can be entitled howme escapes have his property not in fact if he does result, the least. to say an anomalous This other remedy, not have any does not to say This is , had Indeed of the majority. conclusion which is the
453 the of Health and Environmen- both remedy, against Department tal and the Department Highways. Sciences
It the from his conviction in does petitioner appealed appear failure have his shielded. wrecking yard Court for his Justice desired, the Had he he could have obtained injunction against Health, the from commenc- enjoining department him. are available in Injunctins criminal proceedings against statutes or certain instances to the enforcement criminal enjoin Am.Jur.2d, at ordinances. In municipal Injunctions, § 957-958, it is stated:
“It is that an will lie to restrain recognized, injunctin the threatened enforcement of an invalid law where the lawful use and will be affected enjoyment private property injuriously enforcement, or where the of a to conduct a right lawful person unless, business or will be affected calling injuriously thereby, course, the at law is remedy manifestly complete adequate * * *” as an injunction. Am.Jur.2d,
Also see 42 188-190. where Injunctions, Clearly, § statute, had the under another Highway Department duty shield it to petitioner’s wrecking yard, remove another location if was not could have shielding petitioner enjoined of Health from the criminal law enforcing against him.
Petitioner could still commenced an action against Depart- Court, ment of after Health his conviction in and could Justice have asked the the enforcement of the im- enjoin penalty (the months) him of his within six posed upon shielding further from enjoin commencing criminal him for failure to have his proceedings against not, however, would yard He be entitled to license. Moreover, also had mandamus remedy directly section against Under Highway Department.
1947, had a to shield from Department Highways legal duty facilities were in existence before public wrecking yard which July 1, 1967. Petitioner’s was in operation 32-4518 also provided Department High- Section was to shield the if feasible. Mandamus could
ways property only have to either shield the compelled Highway Department pro- or to make a determination that was not feasible. In perty event, either would have been relieved of the obligation shield his personally wrecking yard. The result would be would still be excused a license. If the refused fence having Highway Department *6 facilities because it was not or to remove wrecking yard location, his to another would still be per- mitted to without a license. If the Highway Department operate of would then be fenced his the wrecking yard, Department authorized, to a license to It petitioner. indeed required, grant defies of Health logic, compel Department grant license when he does not have his prop- petitioner wrecking yard shielded. erty in
The is also in error District holding majority opinion made a that it was feasible for the Depart- Court distinct finding Such is not ment of to shield petitioner’s yard. Highways at all. oral counsel for Cain agreed the case arguments one or the other that the District did not make finding way The yard. as to the of feasibility shielding petitioner’s wrecking two sets of bear this out. The Court entered findings Court’s finding substance). (the in form but not in second amending findings of in first set The only finding relating feasibility as follows: findings an of the Montana agent Department
“That Norman Dairy, entered as an exhibit in testified his through deposition Highways matter, that it that was the determination of his department this it No. Fact yard.” (Finding was feasible to screen Petitioner’s junk 12) course, as to feasibil- not a of the Court
This finding finding ity. how-
The above with relation to finding deposition testimony ever, turned out to be error and the Court corrected the finding amended findings by stating: 4, 1977, “That of Fact Number filed on be Finding August tunc, nunc of the amended as date said pro making filing, follows: read as
“That Norman of the Montana agent Department Dairy, submitted a on Cain’s vehicle Highways, report junk Jack to the of Health and Environmental indi- Sciences of that was feasible.” cating screening this is not a finding the Court that Again, was feasi- screening Court, ble. basis of the On Court’s it has no to order that the authority Department of must shield petitioner’s wrecking yard.
The stand. judgment cannot I would reverse the judgment against Department of Health and Environmental Sciences be- such cause Department cannot be grant license to compelled until his to the As even if this court has Highways, to amend or authority modify concluded, judgment mandamus has majority I do not see we how can order the Highway shield the prop- involved when erty the District Court made no finding shield- feasible. has converted a holding today writ of mandamus into a gen- eral all writ. Now purpose imaginative unimaginative counsel *7 can use it as a method of fees and obtaining attorneys compelling government to act under most tenuous circumstances. It has been always my understanding when a District Court enters in violation the law he has abused his discretion. there is an Clearly., abuse discretion in this case.