No. 12407 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

LLOYD BARNARD, 

Plaintiff and Appellant, 

IRMA McINERNEY, EARL DALEY, HOWARD 

CORNWELL and JOHN MAXNESS, 

Defendants and Respondents. 

Appeal from: District Court of the Seventeenth Judicial District, 

Honorable Alfred B. Coate, Judge presiding. 

Counsel of Record : 

For Appellant : 

Morrison, Ettien and Barron, Havre, Montana 

J. Chan Ettien argued, Havre, Montana 

For Respondents: 

Gordon T. White, County Attorney, Glasgow, Montana 

Francis Gallagher argued, Special Assistant County 

Attorney, Glasgow, Montana 

Lawrence Miyasato argued, Deputy County Attorney, 

Glasgow , Montana , 

Submitted: May 30, 1973 

Decided : -JW 2 1 7973 

Filed :*m 2 1 1973 
Mr, Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from denial of a writ of mandamus to 

compel Valley County Commissioners and School Superintendent 

to allow joinder of territory from Hinsdale High School District 

in Valley County, to Saco High School District in Phillips County, 

Saco Elementary School District 12A is a joint elementary 

district located in Phillips County and Valley County. The 

school is in Saco, which is in Phillips County, Residents of 

the Valley County portion of Saco Elementary District 12A have 

for many years also sent their high school students to Saco, 

though their territory is a part of Hinsdale High School District 

7C, whose high school is in Hinsdale, part of Valley County. 

Valley County pays such students' tuition to the Saco High School. 

Plaintiff Lloyd Barnard and a majority of his fellow residents of the Valley County portion of the Saco Elementary District 

12A, being qualified under the provisions of sections 75-6525 

and 75-6526, R.C.M. 1947, petitioned the Valley County Superintendent for transfer of their portion to the Saco High School District, 

stating their reasons for the baundary changes, That petition 

states : 

"Petitioners request that the above described 

lands be joined to Saco High School District #12B 

to form a joint High School District under the provisions of Section 184 (75-6525) and 185 (75-6526) 

of Senate Bill No. 1, 42nd Montana Legislative 

Assembly, for the following reasons : 

"1. Petitioners are residents, taxpayers and 

voters within the above described territory. 

"2. There is no high school in Hinsdale High 

School District within three (3) miles of the above 

described territory. 

"3. The taxable value of the above described 

territory is about $321,000.00, 

"1f this petition is granted, the remaining 

taxable value of Hinsdale High School District would 

be approximately $2,000,000.00, 
"Increased costs to all of the taxpayers of the 

remaining Hinsdale District would be about two and onefourth (2 1/4) mills, and there would be no hazard to 

its continued operation. 

"valley County would be relieved of paying yearly 

tuition to Saco High School District at the rate of 

$300.00 per high school student in the above described 

territory, a present total of $1,800.00. 

11 A number of the petitioners have land outside 

said territory which would still be subject to taxation 

by the Hinsdale High School District. 

4 There are six (6) high school students from 

the above described territory, all of whom go to the 

Saco High School, 

"5. All of the elementary students from the above 

territory go to Saco elementary school. 

"6. The telephone exchange for the above described 

territory is Saco. 

"7. Mail service for the above described territory 

is from Saco. 

"8. School bus service is now provided all students from said territory to Saco. 

"The average travel distance for students from said 

territory to Saco is six (6) miles. 

 h he average distance to Hinsdale would be twelve 

(12) miles, and would cost Hinsdale District approximately $1,000.00 per year in additional bussing costs. 

"Travel expense for the above students and their 

parents to Hinsdale for extra curricular school activities would approximately double those for Saco, estimated 

by one parent to be an additional $75.00 per year. 

"9. Saco is the trading center for all parents 

and children from said territory. 

"10, While taxpayers for the above described lands 

pay their proportionate share of taxes for Hinsdale High 

School District, 

(a) they receive no benefit from its operation; 

(b) they are deprived of all vote for Trustees; 

(c) they have no voice nor vote in its operation. 

"11. If said territory is established as a part 

of the Saco High School District, petitioners and other 

residents of the above described territory would; 

(a) have the right to vote for its Trustees; 

(b) have representation in the Saco High 

School Board; 

(c) in all events, would have voice and vote 

in Saco operations. 
"12, At the present, petitioners are unable to 

vote for the Trustees in either the Hinsdale or Saco 

districts, tho supporting both district school systems 

by their taxes, 

"13. If the students within the described territory attended Hinsdale High School, bus service by 

Hinsdale would be in excess of the one hour trip limitation. 

1 I Present bus service from Saco is well within 

the one hour limitation. 

"14, Winter bus service is often hazardous. 

"Bus mileage from Hinsdale being double that of 

Saco, would increase the risks to students from the 

described area if attending school in Hinsdale, II 

At the hearing on the petition, the trustees and some of the 

residents of the other territory of the Hinsdale High School 

District appeared in opposition, The Valley County Superintendent 

found that the reasons given by petitioners were not sufficient 

to grant the change and denied the petition. He also found the 

increased burden to the taxpayers of the remainder of the Hinsdale 

District would be detrimental, unfair, and of consequence. 

Appeal was made to the Valley County Board of Commissioners 

and it made findings identical to those of the Superintendent, 

plus a projection of declining school population within the area 

proposed for transfer. 

Plaintiff then brought a writ of mandamus to the district 

court to compel the county officials to agree to the proposed 

change. The district court, upon consideration of the record before 

the Valley County Board of Commissioners, affirmed the Board and 

dismissed the writ. From that decision, plaintiff brings this 

appeal. 

Although appellant lists three issues for review in his 

brief, we find they can be combined into two issues: (1) In 

denying the petition to transfer territory from the Hinsd.ale 

School District in Valley County to the Saco District in Phillips 

County, did the Valley County Board of Commissioners abuse its 

discretion? (2) Was the district court correct in dismissing 

and discharging the Alternative Writ of Mandamus? 
As to issue (1) and the real basis of this appeal--was it 

an abuse of discretion by the county officials? In the petition 

fourteen points were listed in support of the proposed move. We 

shall briefly deal with those points to determine if the Valley 

County officials abused their discretion. 

Points 1 through 4 state jurisdictional matters. These 

four points are not reasons or grounds for the transfer of the 

territory; they are requirements which must be met before the 

petition can be considered. 

Appellant argues in his brief regarding point 5 that the 

tuition statutes sections 75-6313, 75-6314, and 75-6316, R.C,M, 

1947, provide reasons for changing schoal district boundaries 

or transferring territory from one school district to another. 

He contends point 5 is controlled by section 75-6313, R.C.M. 1947, 

and is therefore authority to grant the change. But, we are not 

concerned here with the payment of elementary tuition, which is the 

subject of section 75-6313. We are concerned with the transfer 

of territory from one high school district to another, across 

county lines, Appellant's argument is not applicable to the 

facts of the instant case. 

Appellant next argues that points 6 through 9 are factors 

recognized under section 75-6314, R,C.M. 1947, another elementary 

tuition statute, and that the county superintendent was incorrect 

in not considering these items as factors requiring the transfer 

of the territory, Ofthe four points 6 through 9, only two 

points 8 and 9 are specifically listed in section 75-6314, Points 

6 and 7 concerning the telephone exchange and mail service are 

not listed in section 75-6314. As to points 8 and 9 which are 

listed in the statute, we note appellant is again relying on an 

elementary school tuition statute as a reason for transferring 

territory from one high school district to another, We do not 

find that the Valley County officials abused their discretion in 

not following a statute which is not applicable. 
Appellant also relies on section 75-6521, R.C.M. 1947. That 

statute deals with school district boundary changes within a 

county and has nothing to do with the formation of a joint high 

school district. 

Points 10, 11 and 12 of the petition, listed as reasons for 

transferring the territory by appellant, relate to voting rights 

of the petitioners. Appellant cites Box v. Duncan, 98 Mont. 216, 

223, 38 P.2d 986, as authority. - Box had to do with the consolidation of two high schools within the same county; the consolidation 

having been ordered by the county commissioners without a hearing. 

This Court held that the action was void because the consolidation 

took place at a time during the year when such action on the part 

uf the commissioners was prohibited by statute. It is true that 

in - Box this Court said the situation there was one which would 

constitute a rather extreme instance of taxation without representation; but the Court went on immediately to quality that by saying: 

I I We do not assume to say, for the purposes of this 

opinion, that the results we have mentioned have 

any controlling effect in the decision of this appeal," 

We do nat then consider the language cited by appellant as controlling, In any event, the situation in - Box is not that of the 

instant case. 

In the instant case the residents of the Beaverton area do 

have the right to vote upon special levies in the Hinsdale High 

School District, Although it is true they have no vote for 

trustees, that came about by the action of the Beaverton area 

taxpayers when they petitioned their elementary district out of 

Valley County and into Phillips County. Here, we do not find any 

form of taxation without representation and there was no abuse of 

discretion on the part of the Valley county officials. 

Point 13 of the petition deals with students traveling in 

k2xcess of one hour on the bus in order to get to school. Appellant 

relies on section 75-7008, R.C.M. 1947, which again deals with 

elementzry students and not high school students as to bus riding 

time limitations, We note that section 75-7008 provides the 
condition can be waived by the parent or guardian. But, since 

the statute deals with elementary students, it is not pertinent 

here, 

Point 14 of the petition has to do with road conditions. 

Again, appellant has used elementary tuition statutes as authority, 

Appellant argues that reasons for paying tuition constitute 

reasons for changing school district boundaries or transferring 

territory from one school district to another. Notwithstanding 

appellant's argument, it was clear from the evidence that Valley 

County school officials are concerned about the safety of the 

children and do all in their power to protect them. All this 

evidence was presented to the county superintendent, the county 

commissioners and the district court, They made their decisions 

that there was no reason to change the boundary based on the 

question of danger to the children. We find nothing in the evidence 

which indicates the officials abused their discretion in making 

that decision. 

We have reviewed the petition and the order denying that 

petition. As stated heretofore our review goes to the question 

of whether the Valley County officia Is abused their discretion. 

We find nothing in the record which would indicate any abuse of 

discretion. 

The second issue on appeal concerns whether the district 

court was correct in dismissing and discharging the Alternative 

Writ of Mandamus. The district court, in effect, sustained the 

action of the Valley County officials by dismissing the writ. 

This is not a case where the Valley County officials were to 

perform a ministerial duty. Rather, the duty was to exercise 

discretion, The function of the district court was to determine 

whether or not the Valley County officials manifestly abused that 

discretion, 

The general rule and the qualification of the general rule 

with respect to mandamus actions was clearly set forth by this 

Court in Paradise Rainbow v, Fish & Game Comm'n, 148 Mont. 412, 
"As a general rule mandamus is available only 

to compel performance of a clear legal duty not 

involving discretion, McCarten v, Sanderson, 

111 Mont, 407, 109 P.2d 1108, 132 A.L.R. 1229. 

I But even where discretion is involved, if there 

has been such an abuse as to amount to no exercise 

of discretion at all, mandamus will lie to compel 

the proper exercise of the powers granted.' Skaggs 

Drug Center v. Mont. Liquor Control Board, 146 

Mont. 115, 124, 404 P,2d 511, 516. This, court has 

indicated that arbitrary or capricious action by 

an administrative board is an abuse of discretion. 

State ex rel. Sanders v. Hill (P.E.R,S.), 141 Mont. 

558, 381 P,2d 475." 

In Erie v. State Hwy. Comm'n, 154 Mont. 150, 153, 461 P,2d 

207, this Court held: 

sa he rule simply put is that a board may be enjoined from acting outside the scope of its authority 

and such board may be compelled to perform an act it 

is legally bound to perform; but neither of these 

extraordinary remedies will lie to control the discretion of a board unless it has been clearly shown 

that the board has manifestly abused such discretion. 1 I 

It is clear that the remedy sought in the instant case 

will lie only when it is shown that there has been a manifest 

abuse of discretion. Fbe have examined that question and find 

no such abuse. Therefore, the district court was correct in 

denying the Alternative Writ of Mandamus. 

The decision of the district court is affirmed. 

Associate Justices.