                                            No. 13561

               I N THE SUPREME COURT O THE STATE O MONTANA
                                      F           F

                                                 1977




THE STATE O MONTANA,
           F                       e x r e l . CHARLES R.           SWART,

                                        P e t i t i o n e r and Respondent,



EDWARD W. CASNE, C h i e f , S u b d i v i s i o n Bureau,
E n v i r o n m e n t a l S c i e n c e s D i v i s i o n , Montana Department
o f H e a l t h and E n v i r o n m e n t a l S c i e n c e s ; C R STUCKY,
                                                                  AL
C l e r k and Recorder f o r t h e County o f G a l l a t i n , S t a t e
of Montana; and t h e MONTANA DEPARTMENT O COMMUNITY               F
AFFAIRS,

                                        Respondents and A p p e l l a n t s .



Appeal from:          D i s t r i c t C o u r t of t h e E i g h t e e n t h J u d i c i a l
                       District,
                      Honorable W.W.           L e s s l e y , Judge p r e s i d i n g .

Counsel o f Record:

       F o r Respondent:

             James Goetz a r g u e d , Bozeman, Montana

       For A p p e l l a n t s :

             R i c h a r d M. Weddle a r g u e d , Helena, Montana
             S t a n Bradshaw a r g u e d , H e l e n a , Montana
             John P . S i l l y a r g u e d , Deputy County A t t o r n e y and
              Thomas Budewitz a p p e a r e d , Deputy County A t t o r n e y ,
              Bozeman, Montana



                                        Submitted:           March 9 , 1977

                                            Decided :      &!Y 19 1 a
                                                                   $
                                                                           4
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
         Defendants appeal from a writ of mandate issued by
the district court, Gallatin County, Hon. W. W. Lessley, dis-
trict judge, ordering them (1) to lift sanitary restrictions
and record a certificate of survey on certain property within
the City of Bozeman, and (2) assessing $750 attorney fees plus
costs against the State Department of Community Affairs.
         Relator is Charles R. Swart, a licensed and registered
land surveyor.   The three defendants are Edward W. Casne, chief
of the Subdivision Bureau of the Environmental Sciences Division
of the Montana Department of Health and Environmental Sciences
(MDH); Carl Stucky, the clerk and recorder of Gallatin County;
and the Department of Community Affairs of the State of Montana
(DCA).
         The subject property is a parcel of land containing 9,361
square feet located in Block 50, Northern Pacific Addition to the
City of Bozeman, Gallatin County, Montana.    The original plot
was recorded many years ago and shows 24 lots in Block 50.    The
subject property consists of five lots numbered 13, 14, 15, 16,
and 17, located in the southwest corner of Block 50.    A house
which is connected to city water and sewage facilities is located
on the subject property.
         Relator surveyed the five lots and prepared a certificate
of survey showing a straight line dividing each lot into sub-
stantially equal parts.     The owner attached a certificate of
exemption from the requirements of the Montana Subdivision and
Platting Act as an "occasional sale" pursuant to section 11-
3862(6) (d), R.C.M. 1947.   Apparently the owner wants to sell the
east half of the five lots comprising a square shaped parcel.
         The certificate of survey was presented to defendant
Casne who refused to remove the sanitary restrictions on the
subject property because two administrative regulations of DCA
provided, in effect, that any resubdivision or redesign of a
recorded subdivision plat had to be filed as an amended plat
after review and approval of local authorities.    MAC 22-2.4B(6)-

S420(4)(a), Procedural Requirements for Local Regulations and
MAC 22-2.4B (30)-S4090 (3)(a), Uniform Standards for Certificates
of Survey.
        Thereafter the Gallatin County clerk and recorder re-
fused to accept for filing the certificate of survey because he
believed that under the foregoing DCA regulations and under
Gallatin County subdivision regulations an amended plat was
required and the sanitary restrictions had not been lifted.
        Relator then filed the present action seeking a writ of
mandate to compel the lifting of sanitary restrictions, the
filing of the certificate of survey, and payment of his attorney
fees and costs in the action.    The case was submitted to the
district court on the basis of a stipulation of facts and an
evidentiary hearing.    The district court entered findings of
fact, conclusions of law, and a writ of mandate granting relator
the requested relief.
        Among other things, the district court made findings
of fact that no genuine problems existed relating to water
availability, sewage disposal, solid waste disposal, or other
environmental factors, and that the refusal to lift sanitary
restrictions and file the certificate of survey was not based
on any such factors.    The essence of the district court's con-
clusions of law was that the certificate of survey qualified as
an "Occasional sale" under the Subdivision and Platting Act

and was accordingly exempt from the surveying and platting re-
                                11-
quirements for subdivisions (Sec./3862 (6)(d), R.C .M. 1947) ; that
the two administrative regulations of DCA, Gallatin County sub-
division regulations, and the City of Bozeman subdivision regula-
tions, were in conflict with the statute and void; that there
was a clear legal duty to lift the sanitary restrictions and

file the certificate of survey; that a writ of mandate was a
proper remedy; and that attorney fees of $750 and costs should
be awarded relator against DCA.
        All defendants appeal from the judgment.
        We summarize the issues for review in this manner:
        (1) Are the administrative regulations of DCA void?
        (2) Is a writ of mandate a proper remedy?

         (3) Should attorney   fees be awarded?

        The substance of defendants argument on the first issue
is that the DCA regulations simply implemented the Subdivision
and Platting Act; were within the rule-making authority delegated

to it by the legislature; and the DCA regulations were not in

conflict with the Subdivision and Platting Act.     They view
MAC 22-2.4B (6)-S420 (4)(a) and MAC 22-2.4B (30)-S4090 (3)(a) as
providing standards by which local authorities can determine

whether the "occasional sale" exemption in the Subdivision and
Platting Act in fact constitutes an evasion of its requirements.
They argue that the DCA administrative regulations carry out

the broad objectives of the Subdivision and Platting Act and
that absent these regulations, two conflicting sets of boundary
records and haphazard land development would result.     They fur-
ther contend that the DCA regulations do not conflict with
the Subdivision and Platting Act; that the district court's

finding that they do conflict ignores established rules of
statutory construction; and that the district court's implied
finding that the "occasional sale" exemption applies to resub-
division and redesign of lots in recorded plats is error.
        Section 11-3862(6), R.C.M. 1947, of the Subdivision

and Platting Act provides the "occasional sale" exemption:
        "(6) Unless the method of disposition is adopted
        for the purpose of evading this act, the follow-
        ing divisions of land are not subdivisions under
        this act but are subject to the surveying re-
        quirements of this section for divisions of land
        not amounting to subdivision.


        "(d) A single division of a parcel when the trans-
        action is an occasional sale."
        Section 11-3861(13), R.C.M. 1947, of the Subdivision
and Platting Act defines an "occasional sale":
        "As used in this act, unless the context or sub-
        ject matter clearly requires otherwise, the
        following words or phrases shall have the follow-
        ing meanings:


        "(13)'Occasional sale' means one sale of a division
        of land within any twelve (12) month period."
        Section 11-3861(12), R.C.M. 1947, of the Subdivision and
Platting Act provides that "any resubdivision" is a subdivision
within the meaning of the act.
        These statutes are clear and unambiguous.    They plainly
provide that although a resubdivision or redesign of an existing
subdivision constitutes a subdivision under the act, an "occa-
sional sale" is exempt from the requirements applicable to sub-
divisions, i.e., the lifting of sanitary restrictions by MDH,
the preparation of an amended plat with review and approval of
local authorities, and the filing of an amended plat instead of
a certificate of survey.     Where the language of a statute is
plain, unambiguous, direct and certain the statute speaks for
itself and there is nothing left for the court to construe.
Keller v. Smith,     Mont.       , 553 P.2d 1002, 33 St.Rep. 828;
Dunphy v. Anaconda Co., 151 Mont. 76, 438 P.2d 660, and cases
cited therein.   Our function is simply to declare what in terms
or substance is contained in the statute, and neither insert
what has been omitted nor omit what has been inserted.    Section
93-401-15, R.C.M. 1947; Clark v. Hensel Phelps Construction Co.,
    Mont .     ,   560 P.2d 515, 34 St.Rep. 61; Hammill v. Young,
    bo t
     ln    .   , 540 P.2d 971, 32 St.Rep. 935.
        Defendants argue, however, that such construction of

the pertinent provisions of the Subdivision and Platting Act
conflict with many recognized principles of statutory construc-

tion including the rule that a particular provision of a statute
controls over a general provision (section 93-401-16, R.C.M.
1947; City of Billings v. Smith, 158 Mont. 197, 490 P.2d 221);

that legislative intent must be determined by a consideration of
the act as a whole (State ex rel. Jones v. Giles,        Mont   .   I


541 P.2d 355, 32 St.Rep. 983; State ex rel. Cashmore v. Anderson,
160 Mont. 175, 500 P.2d 921, cert. denied Burger v. Anderson,
410 U.S. 931, 93 S.Ct. 1372, 35 L Ed 2d 593; Sutherland, Stat-
utory Construction, 4th Ed., Vol. 2A, Sec. 46.05, p. 56); that
in construing a statute, the court should, where possible, adopt

a construction which will give effect to all provisions (section
93-401-15, R.C.M. 1947; State Board of Equal. v. Cole, 122 Mont.
9, 195 P.2d 989); and that statutes should be construed to produce
a reasonable result (section 49-134, R.C.M. 1947; Keller v. Smith,
supra; Sutherland, Statutory Construction, 4th Ed., Vol. 2A,

Sec. 46.05, p. 56).
        The short answer to this contention is that these rules
of statutory construction apply to cases involving conflicting
or ambiguous provisions of a statute where the court is required
to construe and interpret the meaning of a statute.     They have
no application where, as here, the language of the statute is
clear and unambiguous.     In the latter case, courts cannot go
beyond the language of the statute and apply extrinsic rules of
construction but must declare what the statute plainly states.
Keller v. Smith, supra; Dunphy v. Anaconda, supra.
           The two DCA regulations in question are identical.
They were promulgated and adopted by DCA as part of the Montana
Administrative Code, MAC 22-2.4B (6)-S420 (4)(a) and MAC 22-2.4B (30)
-S4090 (3)(a).   They provide:
        "Procedures for divisions of land exempted from
        public review as subdivisions--use of exemptions
        for the purpose of evading the act. Unless the
        method of disposition is adopted for the purpose
        of evading the Montana Subdivision and Platting
        Act, divisions of land meeting the criteria set
        out in section 11-3862(6), R.C.M. 1947, are not
        subdivisions subject to review under the Act. To
        assure that the method of disposition is not
        used to evade the act the following requirements
        must be met in the use of exemptions.
        "(a) The exemptions contained in section 11-3862(6),
        R.C.M. 1947, do not apply to the resubdivision or
        redesign of subdivisions platted and filed with
        the clerk and recorder. Any such resubdivision or
        redesign must be reviewed and approved by the govern-
        ing body and an approved amended plat thereof must
        be filed with the clerk and recorder."
        These regulations are in direct conflict with the provisions
of the Subdivision and Platting Act heretofore set forth in section
11-3862.      They eliminate the statutory exemption as applied to
"resubdivisions or redesign" of platted and recorded subdivisions.
They require an amended plat reviewed and approved by the govern-
ing body to be filed with the clerk and recorder in direct con-
tradiction to the statutory exemption.    They engraft additional
and contradictory requirements on the statute in the guise of
defining and implementing the evasion of statutory requirements.
They frustrate the purpose of the "occasional sale" exemption
of the Act.    As such, the DCA regulations are void on their face.
See Bartels v. Miles City, 145 Mont. 116, 399 P.2d 768.    It is
axiomatic that a statute cannot be changed by administrative
regulation.    See Begay v. Graham, 18 Ariz.App. 336, 501 P.2d


        Defendants further contend that the DCA regulations are
clearly within the powers delegated to DCA by the legislature
and cite section 11-3863(2), R.C.M. 1947, providing that DCA
has authority to prescribe reasonable minimum requirements
for subdivision regulations under the Subdivision and Platting
Act which shall include detailed criteria for the content of
the environmental assessment required by the Act and shall
provide for review of preliminary plats.
        This grant of authority does not include the right
to promulgate regulations in direct conflict with the Act.
Where, as here, the Act provides for exemption of occasional
sales from the subdivision requirements, DCA cannot prescribe
subdivision regulations eliminating the exemption for the
reasons heretofore stated. An administrative agency is not a
"super legislature" empowered to change statutory law under
the cloak of an assumed delegated power.
        Defendants next contend that a writ of mandate is not
a proper remedy in this case.      They argue that there is no clear
legal duty to lift the sanitary restrictions or file the certifi-
cate of survey.   They point out that the thrust of relator's
complaint is that the DCA regulations are invalid which requires
a declaratory judgment action rather than extraordinary relief
by writ of mandate.
        We hold there was a clear legal duty to lift the sanitary
restrictions and file the certificate of survey.           The DCA regu-
lations were patently void on their face for reasons heretofore
discussed and furnish no justification for refusal.          The Bozeman
Area Subdivision Regulations (Sec. 16.2) were void for the same
reasons.   The refusal to file the certificate of survey was not
justifiable on the basis of section 69-5003(2) and (3), as
this applies to subdivision plats and is inapplicable to the
certificate of survey here and under our decision in State ex
rel. Swart v. Stucky,     Mont .       ,   536 P.2d 762.    The Sub-
division and Platting Act (section 11-3872, R.C.M. 1947) speci-
fically authorized the filing of the certificate of survey here.
         A writ of mandate "may be issued   * * *   to compel the
performance of an act which the law specially enjoins as a
duty resulting from an office, trust or station      * * *".       Sec-
tion 93-9102, R.C.M.    1947.   The writ will issue only where
the person seeking to invoke it is entitled to have the de-
fendant perform a clear legal duty and there is no speedy or
adequate remedy in the ordinary course of law.       State ex rel.
Kennedy v. Dist. Ct., 121 Mont. 320, 194 P.2d 256, 2 ALR2d 1050.
         Here there was a clear legal duty the defendants were
required to perform for the reasons heretofore stated.         A
declaratory judgment action would not necessarily get the
certificate of survey filed in the light of previous difficulties
between petitioner and the clerk and recorder in getting such
certificates filed as evidenced in State ex rel. Swart v. Stucky,
supra.   A declaratory judgment action would not make petitioner
whole as attorney fees are not allowable in such an action.           A
writ of mandate is the only remedy available to secure the ulti-
mate relief sought by petitioner--to compel the lifting of sani-
tary restrictions, the filing of the certificate of survey, and
an award of relator's attorney fees.
         The award of attorney fees and costs solely against DCA
is proper.   The void DCA regulations are the root of relator's
difficulties here.     Accordingly, the assessment of attorney fees
and costs entirely against DCA is justifiable.
         We award additional attorney fees and expenses on appeal
to relator solely against DCA in the amount of $973 as itemized
in the affidavit filed herewith.
         The judgment of the district court is affirmed.


                                            Justice
Justices
           Y
             4 N THE SUPREME COURT OF THE STATE OF MONTANA



                                          No.      13561


THE STATE O F MONTANA, ex r e l .
CHARLES R. SWART,

                                                P e t i t i o n e r and R e s p o n d e n t ,

             VS.

EDWARD W. CASNE, C H I E F , S U B D I V I S I O N BUREAU,
ENVIRONMENTAL S C I E N C E S D I V I S I O N , MONTANA
DEPARTMENT OF HEALTH AND ENVIRONMENTAL SCIENCES;                                                      -
                                                                                                JUN 9 1971
CARL STUGKY, CLERK AND RECORDER FOR THE COUNTY
OF GALLATIN, STATE OF MONTANA; AND THE MONTANA                                       . ! ,d
                                                                                     5k                J(8nmOg.I
DEPARTMENT OF COMMUNITY A F F A I R S ,                                                CLERK OF SUPREWE COUBI
                                                                                              STATE P E MONTANA
                                                R e s p o n d e n t s and A p p e l l a n t s .



                                            O R D E R


P E R CURIAM:

             T h e p e t i t i o n of t h e M o n t a n a D e p a r t m e n t of C o m m u n i t y

A f f a i r s and E d w a r d W.      C a s n e f o r r e h e a r i n g and t h e response of

C h a r l e s R.    S w a r t t h e r e t o w i t h r e q u e s t f o r a l l o w a n c e of addi-

t i o n a l a t t o r n e y ' s fees having been s u b m i t t e d t o t h e C o u r t f o r

decision,

             I T I S ORDERED:

              ( 1 ) T h a t t h e f o l l o w i n g phrase be s t r i c k e n f r o m l i n e 11

f r o m t h e b o t t o m of page 5 of t h e o p i n i o n :

             "     t h e l i f t i n g of s a n i t a r y r e s t r i c t i o n s by MDH",

              ( 2 ) T h a t t h e f i n a l paragraph on page 8 be s t r i c k e n and

t h e f o l l o w i n g language s u b s t i t u t e d :

             "While MDH h a s t h e s t a t u t o r y a u t h o r i t y under
             s e c t i o n 6 9 - 5 0 0 3 ( 3 ) t o r e v i e w a c e r t i f i c a t e of
             survey regarding s a n i t a r y r e s t r i c t i o n s , t h i s
             p r o v i d e s no j u s t i f i c a t i o n e i t h e r f o r t h e MDH
             o r t h e c l e r k and recorder t o r e f u s e t o process
             r e l a t o r ' s c e r t i f i c a t e of s u r v e y . MDH's a u t h o r i t y
             t o r e v i e w a c e r t i f i c a t e of s u r v e y under s e c t i o n
             6 9 - 5 0 0 1 , e t seq., R.C.M.            1 9 4 7 , relates t o s e w a g e
             d i s p o s a l , w a t e r q u a l i t y and a v a i l a b i l i t y , s o l i d
             w a s t e d i s p o s a l and o t h e r e n v i r o n m e n t a l f a c t o r s
             s u c h a s r e c r e a t i o n and w i l d l i f e . S e c t i o n 69-5001,
             R.C.M.        1947. H e r e it i s a d m i t t e d t h a t no s u c h
             problems e x i s t e d w i t h r e s p e c t t o r e l a t o r ' s cer-
             t i f i c a t e of survey. Rather, t h e s o l e reason f o r
             MDH's refusal t o process r e l a t o r ' s c e r t i f i c a t e
             o f s u r v e y was i t s r e l i a n c e on t h e i n v a l i d DCA
             regulations."

              ( 3 ) C h a r l e s R.   Swart's request f o r additional attorney's

f e e s i s denied.

              ( 4 ) A s s o modified, t h e o p i n i o n o f t h e Court i s approved

a n d c o n f i r m e d and r e h e a r i n g i s d e n i e d .

             DATED t h i s 9 t h d a y o f J u n e , 1977.




                                                                  Chief J u s t i c
