Doull v. Wohlschlager , 139 Mont. 274 ( 1961 )

MR. JUSTICE CASTLES

delivered the Opinion of the Court.

This is one of three causes considered in connection with zoning laws. The others are Cause No. 10198, City of Missoula v. Missoula County, 139 Mont. 256, 362 P.2d 539; and Cause No. 10175, Plath (Yellowstone County Commissioners) v. Hi-Ball Contractors, Inc., 139 Mont. 263, 362 P.2d 1021. Amicus curiae appearances were permitted by the court and we have the benefit of excellent briefing and presentations of the problem of zoning laws in municipalities, counties, and combinations of the same.

The sole question presented by this appeal is the constitutionality of Chapter 41, of Title 16, Revised Codes of Montana, 1947, relating to county planning and zoning districts.

Appellants here, plaintiffs below, residents of Missoula County Planning and Zoning District No. 1, brought an action in injunction to restrain the maintenance of a large steel building erected by the defendant within the boundaries of the district. The case went to trial on the complaint, an amended answer and a reply. Evidence was introduced in support o£ the allegations of the complaint and amended answer. Requests for findings were made by the parties, and briefs were filed. The case was taken under advisement. The district judge did not pass on the fact and law questions presented by the pleadings and evidence, because he followed the district court decisions which were the subjects of the appeals above referred to and held that the act in question constituted an unlawful delegation of legislative power and that the question was moot.

What we said in Cause No. 10198, City of Missoula v. Missoula County, holding Chapter 41, Title 16, R.C.M. 1947, as constitutional answers the problem in this case. The cause is remanded for further proceedings in conformity with that opinion.

MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICES ADAIR, DOYLE and JOHN C. HARRISON concur.