No. 13761 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978

THEODORE SORENSON, Plaintiff and Respondent,

THE BOARD OF COUNTYCOPIIYISSIONERS 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: ForAppellants: CharlcsM. Joslyn argued, County Attorney, Choteau,

Jlontana For Respondent: Hartelius and Lewin, Great Falls,Montana Channing J. Hartelius argued, Great Falls,Montana

Submitted: January 26, 1978

Filed: 

# VR;eI=Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Defendants Roy Goodell,Martin Shannon and Bud C. Olson, themembers 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 inpart: 

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## * The judgment sought shallbe 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. 

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## * *"The parties agree there isno issue ofmaterial fact in the present case. Inquiry, therefore, is directed to whether plaintiff was properly granted summary judgment as amatter 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 itprovides: "Anyportion of a public hospital districtmay be withdrawn therefrom as in this sectionprovided, upon receipt of a petition signed by fifty-oneper centum (51%)of the taxpayers, ormore, 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 themerits thereof, and make its order in accordance therewith. 

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## * Such order is subject to reviewby the district court of the county,and appealmay be taken from the final judgment of such district court to the supreme court of Montana. 

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## *" Plaintiff and others who own property in the northeastportion 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 seekingwithdrawal, therefore,use other hospitals, inmany 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 areawithdrew 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 seekingwithdrawal from the hospital district should not be allowed to avoid supporting the hospital through itsmill levy. On the day after the hearing, the Board disposed of the petitionin the followingmanner: "Motionby Martin Shannon that after considering the facts and question of benefits available to the proposed area, the Petitionbe 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 grantwithdrawal. 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 seekingwithdrawal 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 withdrawalfrom a hospital district. When a board of county commissioners exercisespower within the limits of the statute granting it and with sound discretion, such exercise is not subject to reviewby the courts. Read v. Stephens, (1948), 121Mont. 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 "willnot 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), 94Mont. 452,



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## * * * themembers 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 thematter before them 'asthey 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 testimonybefore 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 withdrawalpetition, and the judgment of the District Court is therefore affirmed.

We Concur:

Chief Justice 7 

## nMr. JusticeJohn Conway Harrison dissenting: I dissent. I find the reasoning of the California court inUnderwood Land and Development Co. v. Bradshaw, 1957, 152 Cal.App.2d 655, 313 P.2d 216,219, persuasive. Inconsidering thebenefit to the

area withdrawing, the principal issue inthe instant case, the California court inUnderwood Land and Development Co., a mandamus action, held: "At the finalhearing petitioners inmandate sought the exclusion of their lands from the proposed districtupon the ground that they would not be benefitedby 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 ornot, inrefusing toexclude petitioners' lands, theboard was guilty of an abuse of discretion. 'Abuse of discretion is established if

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# ** the order

# *** isnot supported by the findings, or the findings arenot supported by the evidence.' Code Civ.Proc. sec. 1094.5(b). Our examination of the record convinces us that there was substantialevidence supporting the findings and that the findings support the challenged orders. Abuse of discretionwas therefore not established. The following appears from the transcript: Generally speaking, the area sought tobe excluded constitutes lands presently used mainly ashunting preserves and for livestockgrazing. There are presently few inhabitants and the areas are largely inaccessible by road. Some of them atleast arenearer existing privatehospitals than they willbe 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 isreasonable to suppose that the present paucity of population willrapidly disappear, since essentially the areas are productive and ifmade susceptible to irrigation and reachable by roads willbe developed intoproductive farm lands, with a consequent influxof inhabitants. It was also shown that during the hunting seasons there were greatnumbers of persons engaged in that sport and subject to

### its hazards. As requiredby the controlling statutes, the StateDepartment of Public Health certified to the board that therewas a need forhospitalbeds and hospital service inthe area of theproposed district, and that theneed was not fulfilledby existinghospital services and would notbe by pending hospital construction." 313 P.2d 219.

### Iwould hold that the standard of review of this Court is limited, as inUnderwood Land and Development Co., upon the whole record and that the findings of the Board are supportedby substantial evidence. 

### I find no abuse of discretionby the Board and would uphold its findings.