### No. 12375 INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

JAMES P. MURPHY, Plaintiffand Appellant,

M. E. McCLINTOCK et ale, Defendants and Respondents.

ORIGINAL PROCEEDING: 

### ForAppellant: 

### Arnold Huppert, Jr. argued,Livingston,Montana. ForRespondents: 

### Harold F. Hanser,CountyAttorney, Billings,Montana. Arnold A. Berger, Special Deputy CountyAttorney,

argued, Billings,Montana. C. W. Jones,Deputy CountyAttorney, argued, Billings,

Montana.

Submitted: October 26, 1972 Decided: 

## NCV 

## 11922 Filed:pi -i 

### ;

## 4g;Z

### Mr, Justice Wesley Castles delivered the Opinion of the Court,
This is an appeal from a summary judgment in favor of defendants in an action seeking an injunction to prevent the construction of a multi-usebuilding inYellowstone County. The Honorable Charles Luedkepresided. By the pleadings and the judgment, the injunction was denied and a declaratory judgment, in effect, rendered. Plaintiff is a resident taxpayer of Yellowstone County. Defendants are the members of the Board of County Commissioners of Yellowstone County. On

### November 2, 1971, the electorate of Yellowstone County approved a bond issue for $3,000,000 to provide for a multiuse building at Midland Empire Fairgrounds. The vote was 15,777 for and 9,838against the proposition. The ballot

11 

### provided for bonds for the purpose of constructing and equipping

a Multi-Use Building at the Midland Empire Fairgrounds, Yellowstone County,Montana, with a seating capacity of at least 10,000 and an arena area of approximately 250 feet by 

### 400 feet.If 

### The Board of County Commissioners then appointed anAdvisory Commission and an Executive Board of the Advisory Commission to study plans, view other structures,and make recommendations to the Board. TheAdvisory Commissionmade itsstudy and its recommendation to the Board of County Commissioners. On September 

### 8, 1972, the Commissioners unanimously adopted a resolutionwhich stated: "Ample study of the intent,the needs, the economics and the projected goals of the Multi-Use Building referendum having been made,we hereby direct the Advisory Commissionpreviously appointed to supervise this project in accordancewith the guidelines set forth in 

### the referendum approved by the electorate November 

### 2, 1971,and to 

### proceed with the design of said building in the modified square configuration containing approximately 100,000 square feet of plane surface area within the building walls; and, designed to best fulfill the most uses for the most ~eo~le of the County as

### heretofore and hereafter s'et 'forth by the saidAdvisory Commission. 1I

### The bonds were sold,but a controversy developed over whether the "modified square configuration", approximately 350 feetby 350 feet, sufficiently conformed as a legalmatter to the referendum requirementsapproved by the people. TheAdvisory Commission had concluded that if thebuilding could be built at a11within the funds available the shape was immaterial, as long as the building contained approximately 100,000 square feet. In a practical lay sense, the controversy develops because the square configurationwill not contain a rectangular football field. However, it goes without further development that Yellowstone County at its fairgrounds is not involved in football
or any other sports activity as its primary function. To develop furtherwhat the actual controversy is, the plaintiff maintains that in Roman times the "arena" was the place of gladiator combat, separated from the crowds. The structurewas an amphitheater. Defendantsmaintain that the term "arena" as used on the ballot would encompass the plane surface area in the entire structure, The provisions of the ballot are: 

### 1. Construction of a multi-usebuilding; 2. Constructioncost of $3,000,000; 3. Issuance of bonds not to exceed twenty years; 

### 4. Equipping said building; 5, Locating the same at the Midland Empire Fairgrounds; 

### 6. A 

### seating capacity of at least 10,000 persons; 

### 7. An arena area of approximately 250 feetby 400 feet. There canbe no question about the first six of the seven provisions enumerated. Number 

### 7, an arena area of approximately 250 feetby 

### 400 feet, is the only problem. ~ebster'sSeventhNew Collegiate Dictionarydefines "area" as: 

### "1:

### A level piece of ground; "2: A surface includedwithin 

### a set of lines; specif: the number of unit squares equal in measure to the surface; "3: JC

# **"4: A particular extent of space or surface or one serving a special function; "5: The scope of a concept, operation, or activity.11 It defines the word "arena" as:

111: An area ina Roman amphitheater for gladiatorial combats;

I I2a: An enclosed area used for public entertainment;

" b: A building containing an arena. 11 Some cases have expanded upon these dictionary definitions. J.B. Blantan Company v. Lowe, Ky.(1967), 415 S.W.2d 376,377, provides a comprehensive definition of the term "area" inthis language:

IIThe word 'area' has a somewhat elastic meaning. Originally itmeant a broad piece of level ground, but inmodern use itcan mean anv plane surface. the inclosed space on which a building stands, the sunken space or court giving ingress and affording light to the basement of a building; a particular extent of surface; an inclosed yard or opening in a house; an open space adjoining a house; any particular extent of surface; region; tract. In geometry, the superficialcontents of any figure, asthe area of a square or triangle; the surface included within any given lines. " (Emphasis added)

# . This case, out of cases researched, was selected for itsparticular definitionbecause it includes definitions taken from several other cases and 

### is the most recent case found which defines the term. The term "arena" has notbeen frequently defined. However, the court in Steinbergv, Forest HillsGolf Range, 303 N.Y. 577 (1952), 105 N.E.2d 93,95, undertook 

### tndo so, and cited the R.oman concept of the term inthis language: 

### h he central part of an amphitheater, inwhich the combats or spectacular displays take place,II The court then used the disjuntive "or" for this definition: "Any place of public contest or exertion

# ***."
It then went on to explain itsmeaning for the purposes of the

case involved: 

### "*

# *

# * the term necessarily implies an effortbefore spectators, and, where sports events are involved, the element of a public contest between competitors.II1I We find, as did the district court, that the term arena area" asused on the ballot means: the enclosed space upon which the buildingwill stand. Also involved here isthe term "approximately 250 feetby 400 feet", asused on the ballot.

II 11

Approximate" has been defined as close to or near";

It Potter v, Anderson 85 S.D. 142, 178 N,W,2d 743,746. ApproxifI mately" has been defined as near the amount, near to, about;

a littlemore or less"; Eastern Service Management Company v.
II United States, D.C. S.C., 243 F.Supp. 302,305. ~p~roximately" has alsobeen defined as "'nearlj, 'about', or 'close to"'; Garre v. Geryk, 145 Conn. 669, 145 A.2d 829,831. The language of the ballot "approximately 250 feetby 400 feet'' 

### is directory upon the county commissioners, not mandatory, and it 

### iswithin the discretion of the Board of County Commissioners to order the construction of the building recommended by the Executive Board of the Advisory Commission. That building contains approximately 100,000 square feet of enclosed plane surface area. The following citations of authority, in our opinion, support this analysis. The applicable statute, section 16-2306, R.C.M. 1947, provides inpertinent part: "Said separateballots shallbe white incolor and of convenient size, being only large enough tocontain the printingherein required tobe done and placed thereon, and shallhave printed thereon, in fair-sized, legible type and black ink, inone line ormore, as required, the words 'For' saidbonding proposition (stating it and the terms thereof explicitly and at length), and thereunder the words 'Against' said bonding proposition (stating it and the terms thereof explicitly and at length in likemanner, as above) 

# *

# * *I1.
In Reid v. Lincoln County, 46 Mont. 31,44,57,59,60, 125 P. 429, the ballot in question was phrased:

11For the issuance against the general credit of Lincoln County of coupon bonds inthe amount of one hundred and twenty-five thousand dollars, the purpose of said issuebeing toprovide funds for asystem of public highways, bridges, and free ferries in said county, said bond being payable in twenty years and redeemable in fifteen years, and bearing interest at the rate of fiveper cent per annum payable semiannually. It The ballot also contained the same statement beginning with the word "Against". Challenge was made to theballot on the ground that it did not sufficiently state the proposition to be voted on. This Court stated: "Section 2938, [section 1.6-2306,R.C.M. 19471, Revised Codes, relates to forms of ballots tobe used atelectionswherein any question or proposition of, orrelating to, bonds is submitted tothe people, It provides that theballot shall statethe bonding proposition and the terms thereof explicitly and atlength. We think the form of ballot was sufficiently comprehensive and explicit. It was not necessary to state therein the course, termini, or exact location of the proposed highway, or the number or location of the proposed bridges and ferries. The fundamental and initial question to be determined inallcases iswhether the people are willing to authorize the commissioners to spend a definite amount of money for a certain public improvement. 

# ***

If

The opportunity isperhaps as propitious as any which may occur for a declaration by this court that our constitutional and statutory laws were designed to clothe theboards of county commissioners of the state with large discretionary powers indealing with projects like the one we have under consideration. Certain well-defined constitutional restrictionsmust atall times be recognized and observed; but, aside from these, the policy of the law 

### isthat the mere details of contemplated public improvements shallbe left to their discretion. Where explicit statutory directions are given, they must, of course, be complied with; but all that 

### isnecessary in the initiation of a plan like the instant one 

### is, in general, that the people shallbe given an opportunity to intelligently exercise their judgment. If county boards and similar administrative bodies are tobe continually harassed and hampered by the nice technicalities of the law, oftentimes lacking in substance and devoid of real merit, the settlement and development of thisvast northwestern empire will be greatly impeded and retarded. Aswe read the statutes, the policy of the law-making bodies has been, rather, to make proceedings like the one inquestion as expeditious, simple, and inexpensive as possible, to accomplish the desired result, always bearing inmind, asheretofore suggested, that the consent of the people must be founded in an intelligent understanding on their part of the general purpose forwhich the money istobe expended. In preparing the ballot itwas only necessary to substantially follow the directions of the statute. (Tinkel v. Griffin, 26 Mont. 426, 68 Pac. 859.)" Also inR.eid itwas contended that the order and notice of electionwere insufficient because they referred only tohighways and bridges but not to free ferries. 

### On this point, the Court stated:"Section 2935 [section 16-2303, R,C.M. 1947

## 3, Revised Codes, merely provides that the notice of election shall clearly state the object of the loan, This means a ~eneral object of the loan. It 

### isnot necessary to ,3) specify allof the details. So long as a reasonably comprehensive notice isgiven, the courts have no power to declare it insufficient.It Tn Xorse v, Granite County, 44 Mont. 78, 87, 93, 119 P, 286, the ballot stated that the bonds were "for the purpose of the construction of a county courthouse for the said county and the purchase of additional ground therefor, and the furnishing and equipment thereof." Concerning the sufficiency of the ballot, this Court stated: "While the form of bond adopted incorporated the proposition asprinted upon the ballot, itwas not incumbent upon theboard tohave it so. The amount and purpose of the loan, as stated intheballot, was allthat was required tobe stated,"

In County of San Diego v, Perrigo, 155 Cal.App.2d 644, 318 P,2d 542,545,546, a case similar to the instant case, theballot provided:

IfSan Diego County Bond Proposition. Shall the County of San Diego incur a bonded indebtedness in the principal 

### sum of $8,400,000 for the purpose of the construction, furnishing and equipping of buildings (including clearing of the sitefor the proposed buildings) to constitute a county courthouse and countyjail, said buildings toprovide quarters for the Superior and Municipal Courts, the county jail, and county departments and officials, and tobe located on the siteof the present courthouse and countyjail and on land adjacent thereto?" The bond issuewas approved by more than two-thirds of the voters of San Diego County in 1954. During the delay necessary for the usual architectural and engineeringwork, the need for additional facilities arose, In 1957, prior toconstruction of thebuilding, the board of supervisors of San Diego County adopted 

### a resolution toredesign the courthouse and jailbuildings toprovide for the additional needs of the superior and municipal courts, including one additional traffic court, one additional arraignment court, a separatejuvenile court, and quarters for the grand jury, The resolution stated that the additional facilitieswould cost $3,517,680 inaddition to the bond issue and that theadditional funds could be supplied from the general fund of the county, The matter was cha.llenged on the ground that the bond issue constituted a contract between the board and the electors, and therefore the board must build the type of buildings specified on the ballot proposition. The court agreed that a contractual relationship was created but disagreed that the contractwas violated by stating: "The description of the buildings tobe constructed 

### isbroad and general and contains no fixed plan or building program. The proposed changes specified in the resolution of the Board of Supervisors dated September 10, 1957, do not violate the terms of the contract in that respect. (Citing cases)" Similarly, here, no specific building plan existed atthe time of the election. From a practical standpoint, huge sums of money would be wasted if detailed plans for construction of the building were drawn inadvance of the election and the voters disapproved the bond issue. It was argued inPerrigo that the voters may not have approved the bond issue in 1954, if they had known the facts of which the board of supervisors

was aware in 1957. 

### On this point, the court stated:

IINo one knows how the voters would have reacted under such circunstances. Whether the election would have carried in light of the factswhich could be known only by events which develop subsequent to the election 

### is a question upon which the courts 

### willnot speculate,It

We note that the arena area contemplated on the ballot in the instant case 

### is 100,000 square feet. The same square footage 

### willexist in the proposed arena area. Considering that the Board of County Commissioners acted ingood faith and necessarilywithout detailed construction plans at the timeof the election, the proposed modification 

### isminor. It is especially minor when viewed in light of the modifications approved inPerrigo. Here, the ballot 

### isnot so misleading as tomake a vote meaningless and the contemplated change inthe

### dimensions of 

### the arena area is 

### not a substantial modification of 

### the contract between thevoters and the county commissioners. The 

### proposed modification is, rather, a legitimate exercise of 

### the discretionary powers of the county commissioners, as noted in 

# - Reid. Accordingly, we affirm the judgment of the district court.

~ssoc($te Justice

CWefJustice