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Carter v. Department of Transportation11/13/1995
irement that the plaintiff allege "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues." Northern Border Pipeline Co. v. State (1989), 237 Mont. 117, 129, 772 P.2d 829, 836; Olson, 726 P.2d at 1166 (quoting Baker v. Carr (1962), 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678). This personal stake requirement is dispositive. If a party seeking review is not among the injured, that party is not entitled to judicial review. Olson, 726 P.2d at 1166-67 (citing Sierra Club v. Morton (1972), 405 U.S. 727, 734-35, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636, 643); but see Grossman v. State, Dept. of Natural Resources (1984), 209 Mont. 427, 438-39, 682 P.2d 1319, 1325 (holding that in special circumstances, presenting issues of an urgent nature, this Court will accept original jurisdiction and drape the taxpayer with standing).
For example, in Olson, the appellants challenged the constitutional validity of certain statutes that require county residence to obtain benefits such as obtaining a fishing or hunting license or running for county office. The appellants were citizens of Montana but did not live within any county boundaries. Olson, 726 P.2d at 1166. We held that the appellants did not allege that the statutes injured them personally or threatened them with immediate injury . Therefore, they did not meet the threshold requirement of a personal stake in the outcome of the controversy.
Similarly, Carter challenges the constitutional validity of a statute imposing a gasoline license tax. See ยง 15-70-204, MCA. That statute requires every distributor to pay a license tax for the privilege of engaging in and carrying on business within Montana. Importantly, the tax does not apply to a retailer. As a retailer, Carter was not among the injured and thus cannot allege a personal injury . Because she has not alleged the requisite personal stake in the outcome of the controversy, she is not a proper party before the court.
Where the legal incidence of the tax falls is immaterial for purposes of resolving the standing issue in this case, and our decision to affirm should not be grounded in analysis that is more appropriately directed to the merits of the taxation issues raised by Carter's complaint. Accordingly, I specially concur only in the result of our opinion.
JUSTICE TRIEWEILER concurs in the foregoing special concurrence.
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