No. 90-491 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

RICHARD J. LINGSCHEIT, 

Plaintiff and Appellant, 

-vsCASCADE COUNTY, a body politic, RICHARD J. MICHELOTTI and MONTANA 

DEPARTMENT OF REVENUE, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert P. Goff argued; Church, ~arris, Johnson & 

Williams, Great Falls, Montana. 

For Respondent: 

Geralyn Driscoll argued; Department of Revenue, 

Helena, Montana. 

Filed: 

Submitted: June 18, 1991 

~ecided: September 9, 1991 

Clerk 
1 . Justice R. C. McDonough delivered the Opinion of the Court. 

The plaintiff taxpayer, Richard J. Lingscheit appeals the 

order of the Eighth Judicial District Court, Cascade County, 

granting summary judgment to the defendants, Cascade County and the 

Montana Department of Revenue and denying taxpayer's request for 

a refund of allegedly overpaid property taxes. Taxpayer requested 

a refund pursuant to 5 15-16-601, MCA. The sole issue on appeal 

is whether the District Court erred in granting summary judgment 

to the defendants. We affirm. 

The taxpayer is the former owner of the Holiday Inn motel in 

Great Falls, Montana. The property was appraised by the Department 

of Revenue (DOR) at $2,496,924 during the taxpayer's ownership. 

In 1986 and 1987, the Cascade County Commissioners levied taxes on 

the property based on that appraised value. Taxpayer paid the 

taxes based on that appraisal for those years without protest. 

Taxpayer sold the real property on November 24, 1987. The new 

owner protested the appraised value for the 1988 taxable year and 

sought relief from the Cascade County Tax Appeal Board. A hearing 

took place on July 28, 1988. 

At that hearing, the DORIS appraiser testified that he had 

not followed the guidelines set forth under The Marshall-Swift 

Valuation Service Manual. The appraiser stated that the DORIS 

administrative regulation, A.R.M. 42.19.101(2) requires use of the 

manual. The manual requires an appraiser to use his independent 

judgment when appraising property. The appraiser also testified 

that he did not appraise the property by that method; rather, he 
utilized the DORIS policy statement 83-1, which includes appraisal 

guidelines for franchises and provides a cost ranking of Holiday 

Inns. 

In its order, the County Tax Appeal Board did not address 

whether an incorrect appraisal method was used, but merely stated 

that I1[t]he Board feels this property should be given an additional 

20% reduction for Functional Obsoles~ence.~ 

On September 29, 1988, following the issue of that order, the 

taxpayer plaintiff petitioned for a tax refund for the years 1986 

and 1987. The County Commissioners took no action on the petition. 

On February 16, 1989, the taxpayer filed an action against the 

county and its treasurer. The DOR intervened as a party defendant. 

On July 10, 1989, the DOR moved for summary judgment. The 

motion was briefed and argued on May 16, 1990 and on May 23, 1990 

the District Court issued its order granting summary judgment in 

favor of the defendants. Taxpayer now appeals. 

The statute at the center of the issue here is fj 15-16-601, 

MCA, which provides in pertinent part: 

Any taxes, interest, penalties, or costs paid more than 

once or erroneously or illegally collected . . . w, by 

order of the board of county commissioners, be refunded 

by the county treasurer. 

Section 15-16-601, MCA. Taxpayer asserts that the relief afforded 

by the statute is available to him. In his complaint he alleges 

that due to the inconsistency between the policy incorporated by 

the DOR in The Marshall-Swift Valuation Service Manual and the 

DORIS internal policy statement 83-1, the taxes levied on his 

former property were either illegally or erroneously collected. 
The taxpayer relies primarily on Christofferson v. Chouteau 

County (1937), 105 Mont. 577, 74 P.2d 427; and Department of 

Revenue v. Jarrett (1985), 216 Mont. 189, 700 P.2d 985, in support 

of his position. In Christofferson, the County erroneously 

required the plaintiff to purchase a tax sale certificate when 

purchasing a parcel of state land. Several months prior, the 

Commissioner of State Lands had directed the county treasurer to 

cancel any assessments as well as unpaid taxes against the land. 

The plaintiff requested a refund upon discovering that the land was 

state land, the certificate of purchase had been cancelled, and he 

could not have a tax deed. This Court reversed the denial of the 

refund, holding that the predecessor to 5 15-16-601, MCA, was 

enacted to avoid the harsh voluntary payment common law rule in the 

case of illegal and erroneous tax collections. The former rule 

provided that taxes voluntarily paid could not be recovered. 

Christofferson, 74 P.2d at 431-32. 

In Jarrett, the DOR mistakenly appraised the taxpayer's lot 

at $14,510.00 for 1978 through 1981 under the erroneous belief that 

the lot was included in a special improvement district which 

provided sewer facilities. The lot was not located within the 

district. DOR discovered the error in 1982 and reappraised the lot 

at $7,418.00. Taxpayer had paid the taxes for 1978 through 1981 

without protest. After the lower appraisal, the taxpayer filed a 

claim for a refund of the overpaid taxes with the County 

 omm missioners pursuant to 1 15-16-601, MCA. The commissioners 

denied his claim and he appealed to the County Tax Appeal Board. 
The County Tax Appeal Board awarded the refund as did the State 

Tax Appeal Board. DOR sought judicial review, and the district 

court af f irmed the refund on summary judgment. This Court affirmed 

the district court. In Jarrett, we noted that 5 15-16-601, MCA, 

was only available to a taxpayer who has no recourse under 5 15- 

1-402, MCA, which provides for payment of taxes under protest and 

an action to recover. Jarrett, 700 P.2d at 988, see also Montana 

Bank of Roundup, N. A. v. Musselshell County Board of Commissioners 

(Mont. 1991), 810 P.2d 1192, 1195, 48 St.Rep. 392, 394. In this 

case, the taxpayer argues that at the time in 1986 and 1987 when 

he would have had to commence the remedy process under 1 15-1-402, 

MCA, by filing an administrative appeal with the Cascade County Tax 

Appeal Board, he did not know of the existence of the alleged 

illegal or erroneous valuation. The property no longer belonged 

to him in 1988. 

In this case, we first note that the use of the word ggmayw in 

the statute does not mandate that the county commissioners order 

a refund in all cases of an erroneously or illegally collected tax. 

The statute is permissive rather than mandatory. See 5 15-16-601, 

MCA. Thus, once a legal determination is made that taxes were 

erroneously or illegally collected, it is still within the 

discretion of the Board of County Commissioners to decide if the 

situation warrants a refund to the taxpayer. Hence, we review the 

denial of the refund under the abuse of discretion standard. 

We conclude that the Board did not abuse its discretion in 

denying the refund. While the case is similar to Jarrett and 
Christofferson, both Jarrett and Christofferson involved mistakes 

in appraisals that were clerical in nature. In both cases the 

assessments at issue should never have been made. In this case, 

the taxpayer does not allege that the assessment should never have 

been made; rather, he alleges an error in the methodology used by 

the appraiser and the DOR. At the hearing on taxpayer's 

successor~s refund, the DORIS appraiser gave the following 

testimony: 

Q. So you didn't use your own independent judgment in 

arriving at that cost ranking, is that correct? 

A. No, I didnot. 

Q. And you have no alternative but to assign a 3 

ranking to the property? 

A. It was my feeling that I was obligated to use their 

grade level, yes. 

The appraiser admitted that he used the DORIS cost ranking policy 

rather than exercising his own independent judgment in appraising 

the property. However, his testimony does indicate that he did use 

his independent judgment in deciding that he was obligated to 

follow the DORIS cost ranking. Thus, the alleged error here is not 

clerical, it involves the exercise of the appraiser's judgment in 

determining what method he should use. Furthermore, in its order 

reducing the taxes of the taxpayer's successor in interest, the 

board did not find that an incorrect appraisal method was used, but 

merely stated that "the Board feels this property should be given 

an additional 20% reduction for Functional Obsole~cence.~ Thus, 

unlike Jarrett and Christofferson, it is not certain that the taxes 
9 

8 

levied against the property during this taxpayer's ownership were 

in fact excessive. 

The case of North Butte Mining Co. v. Silver Bow County 

(1946), 118 Mont. 618, 169 P.2d 339, supports our decision in this 

case. There, the taxpayer sought refunds of net proceeds paid to 

the County in 1942 and 1943. The value of the net proceeds 

reported in 1942 and 1943 had included a I1government bonus or 

subsidy8I which in 1945 this Court held was not part of the net 

proceeds of a mine. The County denied the refunds and this Court 

upheld the refusal stating that "[a] mistake in the valuation of 

property resulting in an excessive tax is no ground of recovery 

under a statute such as section 2222 [the predecessor of 5 15-16- 

601, MCA]." North Butte Mininq Co., 169 P.2d at 341. This Court 

further stated: 

It is our view that neither the levy, assessment nor the 

collection of the tax was wrongful or illegal. To 

constitute a wrongful or illegal levy, assessment or 

collection there must have been unwarranted or illegal 

action on the part of the taxing officials. There is 

none such here. The only assessment and levy that could 

have been made under the facts contained in the statement 

furnished by the plaintiff was the assessment and levy 

which was made and the only proper tax to be collected 

from the statement furnished was that which was 

collected. 

North Butte Mininq Co., 169 P.2d at 340. Here the taxpayer's 

allegations pertain strictly to the method used in appraising the 

property, there is no evidence that if the appraiser had followed 

the manual that a lower valuation would definitely have been 

reached. It is possible that use of his independent judgment may 

have resulted in a higher appraisal. The taxpayer each year was 
provided notice that he had available the administrative appeal 

procedures provided by 55 15-1-402, 15-7-102, and 15-15-102, MCA, 

if he felt the valuation for any reason was not the fair market 

value. He failed to use these remedies. In light of this and the 

discretion conferred by the statute to the County Commissioners, 

we conclude that the commissioners did not abuse their discretion 

in denying the refund. This being strictly a legal question, the 

District Court did not err in granting summary judgment to the DOR 

and the County. Rule 56(c), M.R.Civ.P. The order of the District 

Court is 

AFFIRMED. 

We Concur: H 

- - I 

Chief ~usticfl --. 

&,&d Justice 

Justices 
I 

Justice John Conway Harrison, dissenting. 

I dissent. I would find that this case is controlled by our 

holding in Department of Revenue v. Jarrett (1985), 216 Mont. 189, 

700 P.2d 985, where this Court interpreted S 15-16-601, MCA, in 

favor of the taxpayer. In Jarrett, the taxpayer alleged that a 

portion of his taxes were erroneously collected from him. Under 

5 15-16-601, MCA, that taxpayer in Jarrett was entitled to recover 

that portion of the tax based on the erroneous assessment which he 

voluntarily paid in prior years. Jarrett, 700 P.2d at 989. 

I would hold that under this Court's holding in Jarrett, and 

the interpretation of 5 15-16-601, MCA, the taxpayer in the instant 

case is entitled to the recourse provided under that code section. 

Here the taxpayer did not own the subject property at the time he 

learned that the erroneous or illegal taxes had been collected or 

at the time he made claim for the recovery of those taxes. Nor do 

I find it significant to the decision that the taxpayer's successor 

in interest and not the taxpayer made the appeal to the county 

board through which the erroneous or illegal tax collection was 

discovered. I would further note that in this decision the 

taxpayer has met the requirements in 5j 15-16-601, MCA, for illegal 

or erroneously collected taxes. 

In an early case, ~hristofferson v. Chouteau County (1937), 

105 Mont. 577, 74 P.2d 427, the Court recognized that the remedy 

created in § 15-16-601, MCA, is an exception to the common law 

"voluntary payment rule." That rule does not and should not bar 
the taxpayer from a remedy in this case. As I view this section, 

it provides a taxpayer a remedy for illegally or erroneously 

collected taxes even though he or she voluntarily paid those taxes 

when they became due and believed at the time that the taxes were 

being lawfully and correctly collected. 

I would reverse the District Court's grant of summary judgment 

and allow the taxpayer to present his case to the trier of fact for 

a decision on the merits. 
Justice Terry N. Trieweiler dissenting. 

I dissent from the opinion of the majority. 

This case was dismissed by summary judgment for the wrong 

legal reasons. The majority treats it as if it went to trial and 

failed for lack of proof. 

In plaintiff's affidavit in opposition to the Department of 

Revenue's motion for summary judgment, he pointed out that he owned 

the property in question from January 1, 1986, through November 24, 

1987, but that it was not until late 1987, after he could no longer 

file an appeal under 5 15-1-402, MCA, that he learned about the 

illegal and erroneous manner in which his property had been 

appraised. In late 1987, he learned that the Department of Revenue 

had issued Policy Statement 83-1 which resulted in an appraisal 

precluding independent judgment of the appraiser, contrary to the 

Marshall Swift Valuation Service Manual which had been adopted by 

the Department of Revenue by administrative regulation, A.R.M. 

42.19.101, as the acceptable method for appraising commercial 

improvements. 

Upon learning about the irregularity and the method by which 

his property had been appraised, plaintiff consulted his attorney, 

who advised the party that had purchased plaintiff's property. 

That party then brought an administrative appeal before the Cascade 

County Tax Appeal Board, which resulted in a reduction of the 

appraised value. 
George Tyner, the person who had appraised plaintiff's 

prolperty, testified at the appeal hearing before the Cascade County 

Tax: Appeal Board. A partial transcript of his testimony was 

prolvided to the District Court in opposition to the Department of 

Revenue's motion for summary judgment, and established the 

following facts: 

Q. Anyhow, in evaluating this property for the current 

appraisal cycle, you then were given a directive by 

Helena to rank it as a 3, is that correct? 

A. Yes. 

Q. Okay. So the Department of Revenue in Helena just 

arbitrarily saidthatthe particular franchise motel 

here will have a 3 regardless of what physical 

condition it's in, is that correct? 

A. They put out the policy. I don't how they arrived 

at it; if it was arbitrary, if they did some market 

analysis, or what they did. I don't know. They 

didn't . . . 

Q. But somebody in Helena . . . . 

A. Yes. 

Q- . . . determined what the quality of this particular motel was here in Great Falls, is that a fair 

statement? 

A. Yes. 

Q. Did you personally determine it to be a 3? 

A. No. 

Q. You were simply told by Helena that it was 3? 

A. Yes. 

Q. So you didn't use your own independent judgment in 

arriving at that cost ranking, is that correct? 
No. I did not. 

And you have no alternative but to assign a 3 

ranking to the property? 

It was my feeling that I was obligated to use their 

grade level, yes. 

Isn't use of the Marshall Valuation Service Manual 

mandated by the Administrative Rules of the State 

of Montana? 

Yes. 

And you're familiar with . . . Does not the Marshall 

Valuation Service Manual require the use of 

independent judgment in arriving at the value of the 

subject property? 

That's my interpretation of it, yes. 

Is it a fair statement then that the Department of 

Revenue has made no attempt to follow its own 

guidelines in the Marshall Valuation Service which 

requires an appraiser to use his own independent 

judgment when you've arbitrarily taken the cost 

classification from Helena? 

I would say that's a fair statement. 

That's contrary to the manual, isn't that correct? 

Yes. 

Prior to this policy statement coming out, I would 

think that it's a fair statement that this office 

in Great Falls exercised its own independent 

judgment and found it to be a Class 2 building. 

They may have. I don't know because I don't have 

a grade entered. 

At any rate, the DOR say in Helena to place it at 

a Class 3 building, correct? 

Yes. 

Okay. How does Helena really know what the quality 

of that building is? 
A. I don1 t know. I 'm assuming before they put out the 

policy that they did some market analysis. I don't 

know if they did or not. I really don't know. 

Q. If they did any market analysis, you don't know if 

it included the Great Falls property or not? 

A. No, I don't. 

It is clear from Tynerls testimony that the taxes levied on 

plaintiff's property were based upon a method of appraisal which 

violated the Department of Revenue's own administrative rules. The 

method of assessment was, therefore, erroneous and illegal, and the 

County Tax Appeal Board found that the assessment which resulted from 

that method of appraisal was excessive. 

Plaintiff was not in possession of this information within the 

time allowed for filing appeals under 1 15-1-402, MCA. Therefore, 

his situation is exactly the kind of situation for which 1 15-16-601, 

MCA, was intended. 

Section 15-16-601, MCA, provides in relevant part that: 

(1) (a) Any taxes . . . erroneously or illegally 

collected . . . may, by order of the board of county 

commissioners, be refunded by the county treasurer. 

In DepartmentofRevenuev. Jarrett (1985), 216 Mont. 189, 700 P.2d 985, 

the issue was simply whether the value of property can be changed for 

past tax years pursuant to 1 15-8-601, MCA, when a taxpayer has not 

filed any administrative appeals as to those tax years. We held that 

it could. In disposing of the Department of Revenue's argument that 

the taxpayer was barred under 8 15-8-601, MCA, by failing to have 
availed himself of the appeal process under 1 15-1-402, MCA, we 

stated: 

This statute is permissive not mandatory. Ataxpayer can 

only use this protest procedure if he is aware that his 

taxes may be incorrect at the time he pays them. A 

taxpayer who does not know he is being overtaxed will not 

pay his taxes under protest and can not receive a refund 

under section 15-1-402, MCA. 

Section 15-16-601, MCA, provides the necessary relief for 

respondent. 

Clearly, section 15-16-601, MCA, was not meant to be used 

in lieu of the section 15-1-402, MCA, requirements of 

paying under protest, but when the recourse of section 

15-1-402, MCA, is not available, a taxpayer can obtain 

a refund under section 15-16-601, MCA. 

Jarrett, 216 Mont. at 192-94, 700 P.2d at 987-88. 

Furthermore, even though the relief provided for by 1 15-16-601, 

MCA , is discretionary, this Court found that the discretion the 

county commissioners can be abused, and so held on appeal. We 

stated: 

Section 15-16-601, MCA, provides that taxes paid 

erroneously may be refunded by the county treasurer, "by 

order of the board of county commhsioners." The Yellowstone Board 

of County Commissioners denied respondent's request for 

a tax refund. However, respondent has followed the 

proper procedure for appealing that decision. 

The Yellowstone County Tax Appeal Board properly reviewed 

the respondent's case and determined respondent was due 

a refund. 
. . . The state board found an erroneous appraisal 

resulted in a mistaken levy. This finding was contrary 

tothe finding ofthe county commissioners. The evidence 

was in dispute and the finding could go either way. 

It is the opinion of the Court that under section 

15-16-601, MCA, respondent should receive a tax refund 

for the erroneous assessment made on his land in 1978 

through 1981. We remand to the Yellowstone Board of 

County Commissioners with instructions to order the 

Yellowstone County Treasurer to issue a refund to 

respondent. 

Jarrett, 216 Mont. at 194-95, 700 P.2d at 988-989. 

In spite of the majority's efforts, the circumstances in Jarrett 

are indistinguishable from the circumstances in this case. In Jarrett, 

the taxpayer's land was erroneously appraised based on inaccurate 

factual information. In this case, the taxpayer's land was 

erroneously and illegally appraised, based upon an improper method 

of appraisal which was based upon arbitrary and inaccurate 

information about its true value. In both cases, the taxpayer was 

unaware of the error or irregularity until after the time had expired 

for filing appeals under S 15-1-402, MCA. Therefore, in neither case 

could the taxpayer avail himself of the administrative appeal 

process. 

The majority emphasizes that the statute relied upon by 

plaintiff uses the word and is therefore permissive, rather 

than mandatory. However, the permissive language in the statute did 

not prevent this Court from reversing a decision of the county 
commissioners in Jarrett when its discretion was found to have been 

abused. 

Furthermore, the County Commissioners in this case failed to 

exercise the discretion which 5 15-16-601, MCA, requires that they 

exercise. The plaintiff filed a verified petition for a refund of 

taxes with the County Commissioners on September 29, 1988. As of 

February 16, 1989, five and one-half months later, the County 

Commissioners had taken no action on the plaintiff's petition. 

On February 16, 1989, plaintiff filed a complaint in the 

District Court for review of the commissioners1 inaction. However, 

the District Court did not review the commissioners1 inaction to 

determine whether its discretion had been abused. The District Court 

erroneously dismissed plaintiff's complaint by summary judgment based 

upon its erroneous conclusions about the applicability of the Jarrett 

decision to this case. The District Court concluded that Jarrett was 

inapplicable for the following reasons: 

1. In Jarrett, the Department of Revenue discovered its own 

error; 

2. In Jarrett, the same person owned the property at the time 

the error was made and at the time it was discovered; and 

3. The person who succeeded plaintiff as the owner of the 

property in this case paid under protest and appealed to the County 

Tax Appeal Board. 
None of the factual distinctions relied upon by the District 

Court were in any way material to this Court's decision in Jarrett. 

The County Commissioners gave no reasons for not granting 

plaintiff's petition, and the District Court failed to review the 

County Commissioners1 inaction to determine whether they abused their 

discretion. Therefore, the fact that 5 15-16-601, MCA, is permissive 

is irrelevant to our review of this case. How can we conclude that 

the board did not abuse its discretion when the board never exercised 

its discretion and we have absolutely no record from which to 

determine how it arrived at its decision to ignore plaintiff's 

petition? We do not even have any basis to conclude that it decided 

to ignore plaintiff's petition. For all we know, and for all 

plaintiff knows, the petition could have been lost on a clerk's desk 

and the commissioners may have never seen it. 

The majority tries to distinguish Jarrett on the ground that the 

mistake in that case was clerical in nature and resulted in an 

assessment which should never have been made. However, that is not 

correct. There was ultimately a correct appraisal from which a tax 

was levied. The problem with the original appraisal was simply that 

it was "erroneo~s.~ 

The basis of plaintiff's claim in this case is that when the 

appraiser failed to use his own independent judgment while appraising 

his property, he violated the regulations, rules, and laws 

established by the Department of Revenue. Therefore, the appraisal 
was illegal and the tax levied pursuant to that appraisal was illegal 

and erroneous. The majority's effort to ignore that undisputed fact 

is at best a classic example of sophistic reasoning. The majority 

states: 

The appraiser admitted that he used the DORIS cost 

ranking policy rather than exercising his own independent 

judgment in appraising the property. However, his 

testimony does indicate that he did use his independent 

judgment in deciding that he was obligated to follow the 

DORIS cost ranking. Thus, the alleged error here is not 

clerical, it involves the exercise of the appraiser's 

judgment in determining what method he should use. 

In other words, what Tyner did was okay because he used his own 

judgment in deciding not to exercise his own judgment. 

Next, the majority concludes that w[t]hus, unlike Jarrett and 

Christofferson, it is not certain that the taxes levied against the 

property during this taxpayer's ownership were in fact excessi~e.~~ 

Of course, it is not clear that they were excessive. We can 

presume that they were excessive by the mere fact that the County 

Tax Appeal Board reduced them by 20 percent when they were appealed. 

However, we cannot know they were excessive because plaintiff was 

denied an opportunity to prove what the results would have been had 

the correct appraisal method been used when his claim was dismissed 

by summary judgment for the wrong legal reasons. 

Finally, this Court relies on its previous decision in North Butte 

Mining Co. v. Silver Bow County (1946), 118 Mont. 618, 169 P.2d 339. 

However, the facts on which that decision was based are in no way 

similar to the facts in this case. In North Butte Mining Co., plaintiff Is 
net proceeds taxes were computed by the State Board of Equalization 

based upon figures submitted by plaintiff. The plaintiff's figures 

included government bonuses or subsidies which should not have been 

included. This Court found that any error in that case was a direct 

result of actions by the taxpayer and not by the government. That 

was the basis for our decision that !j 2222, R.C.M. (predecessor to 

!j 15-16-601, MCA) , was inapplicable. We stated: 

To constitute a wrongful or illegal levy, assessment or 

collection there must have been unwarranted or illegal 

action on the part of the taxing officials. There is 

none such here. The only assessment and levy that could 

have been made under the facts contained in the statement 

furnished by plaintiff was the assessment and levy which 

was made and the only proper tax to be collected from the 

statement furnished was that which was collected. 

Since the statute does not authorize the refund of taxes 

voluntarily paid throuqh mistake of law on the part of 

the taxgaver, plaintiff's claim was properly disallowed 

by the county. 

North Butte Mining Co., 118 Mont. at 620, 622, 169 P.2d at 340, 341 

(emphasis added). 

In this case, unlike North Butte Mining Co., the error or illegality 

complained of was committed by the State's appraiser. The plaintiff 

had nothing to do with the conduct complained of. Therefore, North 

Butte Mining Co. has nothing to do with the facts in this case. 

For these reasons, I would find that, while the County 

Commissioners have some discretion under !j 15-16-601, MCA, they have 

abused that discretion by failing to act in any way. I would reverse 
the District Court and remand this case to the Board of County 

Commissioners for Cascade County with instructions to properly 

consider plaintiff's petition, and either grant it, or in the event 

that it is denied, to set forth proper findings and conclusions which 

form the basis for its denial so that that decision can be properly 

reviewed by the District Court.