No. 12375 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

JAMES P. MURPHY, 

Plaintiff and Appellant, 

M. E. McCLINTOCK et ale, 

Defendants and Respondents. 

ORIGINAL PROCEEDING : 

For Appellant : 

Arnold Huppert, Jr. argued, Livingston, Montana. 

For Respondents : 

Harold F. Hanser, County Attorney, Billings, Montana. 

Arnold A. Berger, Special Deputy County Attorney, 

argued, Billings, Montana. 

C. W. Jones, Deputy County Attorney, 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-use building in Yellowstone County. 

The Honorable Charles Luedke presided. 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 9,838 against 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 an Advisory 

Commission and an Executive Board of the Advisory Commission to 

study plans, view other structures, and make recommendations to 

the Board. The Advisory Commission made itsstudy and its recommendation to the Board of County Commissioners. On September 8, 

1972, the Commissioners unanimously adopted a resolution which 

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 Commission previously appointed to supervise 

this project in accordance with 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 said Advisory Commission. 1 I 
The bonds were sold, but a controversy developed over whether 

the "modified square configuration", approximately 350 feet by 

350 feet, sufficiently conformed as a legal matter to the referendum requirements approved by the people. The Advisory Commission 

had concluded that if the building could be built at a11 within 

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 configuration will 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 further what the actual controversy is, the 

plaintiff maintains that in Roman times the "arena" was the 

place of gladiator combat, separated from the crowds. The 

structure was an amphitheater. Defendants maintain 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-use building; 

2. Construction cost 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 feet by 400 feet. 

There can be no question about the first six of the seven 

provisions enumerated. Number 7, an arena area of approximately 

250 feet by 400 feet, is the only problem. 

~ebster's Seventh New Collegiate Dictionary defines "area" 

as: 

"1: A level piece of ground; 

"2: A surface included within 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: 

11 1: An area in a Roman amphitheater for gladiatorial 

combats; 

I I 2a: 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" in this 

language : 

I I The word 'area' has a somewhat elastic meaning. 

Originally it meant a broad piece of level ground, 

but in modern use it can 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 superficial contents of any figure, as the area 

of a square or triangle; the surface included within 

any given lines. " (Emphasis added) . This case, out of cases researched, was selected for its particular 

definition because it includes definitions taken from several 

other cases and is the most recent case found which defines 

the term. 

The term "arena" has not been frequently defined. However, 

the court in Steinberg v, Forest Hills Golf Range, 303 N.Y. 

577 (1952), 105 N.E.2d 93,95, undertook tn do so, and cited 

the R.oman concept of the term in this language: 

 h he central part of an amphitheater, in which the 

combats or spectacular displays take place, I I 

The court then used the disjuntive "or" for this definition: 

"Any place of public contest or exertion * * *." 

It then went on to explain its meaning for the purposes of the 

case involved: 

"* * * the term necessarily implies an effort before 

spectators, and, where sports events are involved, 

the element of a public contest between competitors. I I 
We 1 I find, as did the district court, that the term arena 

area" as used on the ballot means: the enclosed space upon 

which the building will stand. 

Also involved here is the term "approximately 250 feet by 

400 feet", as used on the ballot. 

I I 11 Approximate" has been defined as close to or near"; 

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

a little more or less"; Eastern Service Management Company v. 

I I United States, D.C. S.C., 243 F. Supp. 302,305. ~p~roximately" 

has also been 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 feet by 400 

feet'' is directory upon the county commissioners, not mandatory, 

and it is within 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 in pertinent part: 

"Said separate ballots shall be white in color and 

of convenient size, being only large enough to contain 

the printing herein required to be done and placed 

thereon, and shall have printed thereon, in fair-sized, 

legible type and black ink, in one line or more, as 

required, the words 'For' said bonding 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 like manner, as above) * * *I1. 

In Reid v. Lincoln County, 46 Mont. 31,44,57,59,60, 125 P. 

429, the ballot in question was phrased: 

11 For the issuance against the general credit of 

Lincoln County of coupon bonds in the amount of 

one hundred and twenty-five thousand dollars, the 

purpose of said issue being to provide funds for a 
system 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 five per cent 

per annum payable semiannually. It 

The ballot also contained the same statement beginning with 

the word "Against". Challenge was made to the ballot 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 to be used at elections wherein any question or proposition of, or relating to, bonds is submitted to the people, It provides that the ballot shall state the bonding proposition 

and the terms thereof explicitly and at length. 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 in all cases is whether the people are 

willing to authorize the commissioners to spend a definite amount of money for a certain public improvement. *** 

If The opportunity is perhaps as propitious as any which 

may occur for a declaration by this court that our 

constitutional and statutory laws were designed to 

clothe the boards of county commissioners of the state 

with large discretionary powers in dealing with projects like the one we have under consideration. Certain 

well-defined constitutional restrictions must at all 

times be recognized and observed; but, aside from these, 

the policy of the law is that the mere details of contemplated public improvements shall be left to their 

discretion. Where explicit statutory directions are 

given, they must, of course, be complied with; but all 

that is necessary in the initiation of a plan like the 

instant one is, in general, that the people shall be 

given an opportunity to intelligently exercise their 

judgment. If county boards and similar administrative 

bodies are to be 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 this vast northwestern empire will 

be greatly impeded and retarded. As we read the statutes, 

the policy of the law-making bodies has been, rather, to 

make proceedings like the one in question as expeditious, 

simple, and inexpensive as possible, to accomplish the 

desired result, always bearing in mind, as heretofore 

suggested, that the consent of the people must be founded 

in an intelligent understanding on their part of the 

general purpose for which the money is to be expended. 

In preparing the ballot it was only necessary to substantially follow the directions of the statute. (Tinkel v. 

Griffin, 26 Mont. 426, 68 Pac. 859.)" 

Also in R.eid it was contended that the order and notice of 

election were insufficient because they referred only to highways 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 is not necessary to ,3) 

specify all of the details. So long as a reasonably 

comprehensive notice is given, 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 as printed upon the ballot, it was not 

incumbent upon the board to have it so. The amount 

and purpose of the loan, as stated in the ballot, 

was all that was required to be 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, the ballot 

provided : 

If San 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 site for the proposed buildings) to 

constitute a county courthouse and county jail, said 

buildings to provide quarters for the Superior and 

Municipal Courts, the county jail, and county departments 

and officials, and to be located on the site of the 

present courthouse and county jail and on land adjacent 

thereto?" 

The bond issue was approved by more than two-thirds of the voters 

of San Diego County in 1954. During the delay necessary for the 

usual architectural and engineering work, the need for additional 

facilities arose, In 1957, prior to construction of the building, 

the board of supervisors of San Diego County adopted a resolution to redesign the courthouse and jail buildings to provide 

for the additional needs of the superior and municipal courts, 

including one additional traffic court, one additional arraignment court, a separate juvenile court, and quarters for the grand 

jury, The resolution stated that the additional facilities would 

cost $3,517,680 in addition to the bond issue and that the 
additional 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 

contract was violated by stating: 

"The description of the buildings to be constructed 

is broad 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 at the 

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 in advance of the election and the 

voters disapproved the bond issue. It was argued in Perrigo 

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: 

I I No one knows how the voters would have reacted 

under such circunstances. Whether the election 

would have carried in light of the facts which 

could be known only by events which develop subsequent to the election is a question upon which the 

courts will not 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 will exist in the proposed arena area. Considering 

that the Board of County Commissioners acted in good faith and 

necessarily without detailed construction plans at the time of 

the election, the proposed modification is minor. It is 

especially minor when viewed in light of the modifications 

approved in Perrigo. Here, the ballot is not so misleading as 

to make a vote meaningless and the contemplated change in the 
dimensions of the arena area is not a substantial modification 

of the contract between the voters 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 

CWef Justice