No. 13761 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

THEODORE SORENSON, 

Plaintiff and Respondent, 

THE BOARD OF COUNTY COPIIYISSIONERS 

OF TETON COUNTY et al., 

Defendants and Appellants. 

Appeal from: District Court of the Ninth Judicial District, 

Honorable M. James Sorte, Judge presiding. 

Counsel of Record: 

For Appellants: 

CharlcsM. Joslyn argued, County Attorney, Choteau, 

Jlon tana 

For Respondent : 

Hartelius and Lewin, Great Falls, Montana 

Channing J. Hartelius argued, Great Falls, Montana 

Submitted: January 26, 1978 

Filed : VR;e I= 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

Defendants Roy Goodell, Martin Shannon and Bud C. Olson, 

the members of the Board of County Commissioners of Teton County 

(hereinafter the Board) appeal from a grant of summary judgment 

reversing their order denying withdrawal of certain lands from 

Teton County's hospital district. 

Plaintiff Theodore Sorenson and other residents of Teton 

County petitioned the Board to withdraw an area constituting the 

northeast portion of Teton County from the county-wide hospital 

district, as provided in section 16-4311, R.C.M. 1947. A hearing 

on this petition was duly noticed and held in Choteau, Montana, 

on December 29, 1975. Several county residents appeared and were 

heard at the hearing, after which the petition was denied by the 

Board. 

Plaintiff then brought the present action in the District 

Court, Teton County, seeking reversal of the Board's decision. 

Following a hearing on plaintiff's motion for summary judgment, 

and having considered briefs supporting and opposing that motion 

as well as the transcript of the hearing before the Board, the 

District Court granted summary judgment. The District Court's 

order set aside the Board's denial of the petition and granted 

withdrawal of the petitioning area from the county's hospital 

district. 

The sole issue on appeal is whether summary judgment was 

properly granted. 

Summary judgment is governed by Rule 56(c), M.R.Civ.P., 

which provides in part: 

" * * * The judgment sought shall be rendered 

forthwith if the pleadings, depositions, answers 

to interrogatories, and admissions on file, together with the affidavits, if any, show that 

there is no genuine issue as to any material 

fact and that the moving party is entitled to 

judgment as a matter of law. * * *" 
The parties agree there is no issue of material fact in 

the present case. Inquiry, therefore, is directed to whether 

plaintiff was properly granted summary judgment as a matter of law. 

Chapter 43 of Title 16, Revised Codes of Montana, 1947, 

first enacted in 1953, authorizes the establishment of public 

hospital districts. Section 16-4311, R.C.M. 1947, as amended, 

allows for the withdrawal of a portion of such a district. In 

pertinent part it provides : 

"Any portion of a public hospital district may be 

withdrawn therefrom as in this section provided, 

upon receipt of a petition signed by fifty-one per 

centum (51%) of the taxpayers, or more, residing 

in and owning property within the area desired to 

be withdrawn from any public hospital district, on 

the grounds that such area will not be benefited 

by remaining in said district. The board of county 

commissioners shall, upon the filing of such a 

petition, fix a time for the hearing of such withdrawal petition * * * The board shall consider the 

petition and all objections thereto, and pass upon 

the merits thereof, and make its order in accordance 

therewith. * * * Such order is subject to review by 

the district court of the county, and appeal may be 

taken from the final judgment of such district court 

to the supreme court of Montana. * * *" 

Plaintiff and others who own property in the northeast portion of Teton County secured the signatures of approximately 70 

percent of the eligible area property owners on the petition for 

withdrawal of the area from the county hospital district. 

At the hearing before the Board, proponents of withdrawal 

presented testimony that they live closer to hospitals in other 

cities than to the county hospital located in Choteau. Residents 

of the area seeking withdrawal, therefore, use other hospitals, 

in many instances those in Great Falls, rather than traveling the 

greater distance to Choteau. One proponent of withdrawal, for 

example, testified he lived in Power, which is 25 miles from Great 

Falls and 37 miles from Choteau. Proponents also referred to a 

study of area hospital facilities which indicated there was a 

current hospital bed surplus of 70 percent and a projected surplus 

of 66 percent in the rural areas in and around Teton County. 
Opposition to withdrawal centered on the opponents' concern that if the petitioning area withdrew from the county hospital 

district, the mill levy to support the hospital would be borne by 

too few county residents. The opponents also stated that since 

the county hospital bond issue had passed, those seeking withdrawal 

from the hospital district should not be allowed to avoid supporting 

the hospital through its mill levy. 

On the day after the hearing, the Board disposed of the 

petition in the following manner: 

"Motion by Martin Shannon that after considering 

the facts and question of benefits available to 

the proposed area, the Petition be denied. Seconded by Bud C. Olson. Motion carried.'' 

On appeal the Board argues its denial of the petition was 

proper, contending there was insufficient evidence before it to 

grant withdrawal. The Board did not specify any reasons or offer 

any explanation in its denial of the petition. It is not clear 

whether the Board concluded benefit to the petitioning area had 

been established, or whether the proponents of withdrawal had 

failed to show a lack of benefit to themselves in remaining in 

the hospital district. 

The only testimony as to benefit was presented by residents 

of the area seeking withdrawal from the hospital district. Their 

testimony, that they use other hospital facilities rather than 

those available in Choteau and that hospital bed occupancy rates 

in the area are relatively low, was uncontradicted. While lack of 

accessibility and need do not conclusively establish that an area 

is not benefited by remaining in a hospital district, in the absence of countervailing testimony tending to show an area is benefited by continued inclusion in a hospital district, these factors 

must be considered. 

By the terms of section 16-4311 the Board is empowered to 

determine whether a petitioning area will be granted withdrawal 
from a hospital district. When a board of county commissioners 

exercises power within the limits of the statute granting it and 

with sound discretion, such exercise is not subject to review by 

the courts. Read v. Stephens, (1948), 121 Mont. 508, 512, 513, 

The legislature, by enacting section 16-4311, specifically 

provided for an area's withdrawal from a hospital district on the 

grounds that area "will not be benefited by remaining in [the] 

district". Evidence as to benefit, therefore, may not be ignored 

by a board of county commissioners determining such withdrawal. 

As this Court stated in Grant v. Michaels, (1933), 94 Mont. 452, 

" * * * the members of the board of county 

commissioners, conducting a 'hearing' in their 

quasi-judicial capacity, are the triers of the 

facts, and, consequently, cannot arbitrarily 

and capriciously disregard competent, credible 

and undisputed evidence and decide the matter 

before them 'as they see fit,' without evidence 

supporting their decision. A determination 

reached and rendered in arbitrary~ and capricious 

disregard of unimpeached testimony is 'against 

law.' (Harwood v. Scott, 65 Mont. 521, 211 

P. 316)" 

Here, uncontradicted testimony before the Board showed the 

petitioning area would not be benefited by remaining in the county's 

hospital district. The District Court properly ruled the Board 

had abused its discretion in denying the withdrawal petition, and 

the judgment of the District Court is therefore affirmed. 

We Concur: 

Chief Justice 

7 

n 
Mr. Justice John Conway Harrison dissenting: 

I dissent. 

I find the reasoning of the California court in Underwood 

Land and Development Co. v. Bradshaw, 1957, 152 Cal.App.2d 655, 

313 P.2d 216,219, persuasive. In considering the benefit to the 

area withdrawing, the principal issue in the instant case, the 

California court in Underwood Land and Development Co., a mandamus 

action, held: 

"At the final hearing petitioners in mandate 

sought the exclusion of their lands from the proposed 

district upon the ground that they would not be benefited by the district. The respondent board received 

evidence upon the issue thus presented, found that 

petitioners' lands would be benefited, and refused exclusion. Upon this issue the question before the trial 

court was whether or not, in refusing to exclude petitioners' lands, the board was guilty of an abuse of 

discretion. 'Abuse of discretion is established if * * * 

the order * * * is not supported by the findings, or 

the findings are not supported by the evidence.' Code 

Civ.Proc. sec. 1094.5(b). Our examination of the record 

convinces us that there was substantial evidence supporting the findings and that the findings support the 

challenged orders. Abuse of discretion was therefore not 

established. The following appears from the transcript: 

Generally speaking, the area sought to be excluded 

constitutes lands presently used mainly as hunting 

preserves and for livestock grazing. There are presently 

few inhabitants and the areas are largely inaccessible 

by road. Some of them at least are nearer existing 

private hospitals than they will be to the proposed 

hospital if it is located in the more densely populated 

portions of the district. However, these areas are on 

the edge of change, speaking in terms of population. 

Irrigation is contemplated and approaching. Roads are 

already planned and it is reasonable to suppose that 

the present paucity of population will rapidly disappear, since essentially the areas are productive and 

if made susceptible to irrigation and reachable by roads 

will be developed into productive farm lands, with a 

consequent influx of inhabitants. It was also shown 

that during the hunting seasons there were great numbers 

of persons engaged in that sport and subject to its 

hazards. As required by the controlling statutes, the 

State Department of Public Health certified to the board 

that there was a need for hospital beds and hospital 

service in the area of the proposed district, and that 

the need was not fulfilled by existing hospital services 

and would not be by pending hospital construction." 

313 P.2d 219. 
I would hold that the standard of review of this Court 

is limited, as in Underwood Land and Development Co., upon the 

whole record and that the findings of the Board are supported by 

substantial evidence. 

I find no abuse of discretion by the Board and would uphold 

its findings.