No. 12407 INTHE 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, SpecialAssistant County

Attorney, Glasgow, Montana Lawrence Miyasato argued, Deputy County Attorney,

Glasgow

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Submitted: May 30, 1973 Decided:

## -JW217973 Filed

# :*m 21

## 1973Mr, JusticeWesley Castles delivered the Opinion of the Court.

This is an appeal from denial of a writof mandamus to compel Valley County Commissioners and School Superintendent toallowjoinder of territory from Hinsdale High School District inValley County, to Saco High School District in Phillips County, Saco Elementary School District 12A is a joint elementary district located inPhillips County and Valley County. The school 

### is in Saco, which is inPhillips County, Residents of theValley County portion of Saco Elementary District 12A have formany 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 inHinsdale, part of Valley County. Valley County pays such students' tuition tothe 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 theirportion tothe Saco High School District, stating their reasons for thebaundary changes, That petition states: "Petitioners request that the above described landsbe joined to Saco High School District #12B toform a joint High School Districtunder the provisions of Section 184 (75-6525) and 185 (75-6526) of Senate BillNo. 1, 42nd Montana Legislative Assembly, for the following reasons: "1. Petitioners areresidents, taxpayers and voters within the above described territory. "2. There isno high school inHinsdale High School District within three (3)miles of the above described territory. "3. The taxable value of the above described territory

### isabout $321,000.00, "1f this petition is granted, the remaining taxablevalue 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 therewould be no hazard to its continued operation. "valley Countywould 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.

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A 

### number of the petitioners have land outside said territorywhich would stillbe 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. Schoolbus 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 territorywould; (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 studentswithin the described territory attended Hinsdale High School, bus service by Hinsdale would be in excess of the one hour trip limitation.

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### Present bus service from Saco iswellwithin the one hour limitation. "14, Winter bus service is often hazardous. "Bus mileage from Hinsdalebeing 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 givenby 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 theValley County Board of Commissioners and it made findings identical to those of the Superintendent, plus a projection of declining schoolpopulationwithin 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 theValley 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 canbe combined into two issues: (1) In denying the petition to transfer territory from the Hinsd.ale School District inValley 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 toissue (1) and the realbasis 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 dealwith those points todetermine ifthe Valley County officials abused their discretion. Points 1through 4 statejurisdictional matters. These four points arenot reasons or grounds for the transfer of the territory; they arerequirements which must be met before the petition can be considered. Appellant argues inhisbrief regarding point 5 that the tuition statutes sections 75-6313, 75-6314, and 75-6316, R.C,M, 1947, provide reasons for changing schoal districtboundaries

or transferring territory from one school district to another. He contends point 5 iscontrolledby section 75-6313, R.C.M. 1947, and 

### istherefore authority to grant the change. But, we arenot concerned here with the payment of elementary tuition, which is the subject of section 75-6313. Weare concerned with the transfer of territory from one high school district to another, across county lines, Appellant's argument isnot 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 innot considering these items as factors requiring the transfer of the territory, Ofthe four points 6 through 9, only two points 8 and 9are specifically listed in section 75-6314, Points 6 and 7concerning the telephone exchange and mail service are not listed in section 75-6314. As topoints 8 and 9which are listed in the statute, wenote appellant isagain 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 statutewhich isnot applicable.Appellant alsorelies on section 75-6521, R.C.M. 1947. That statute deals with school district boundary changes within a county and has nothing todo with the formation of a joint high school district. Points 10, 11 and 12 of the petition, listed asreasons for transferring the territory by appellant, relate tovoting 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 consolida

# - tion of two high schoolswithin the same county; the consolidation having been ordered by the county commissioners without a hearing. This Court held that the actionwas 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 toquality thatby saying:

I IWe 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 citedby appellant ascontrolling, In any event, the situation in Box isnot that of the 

# - instant case. In the instant case the residents of the Beaverton area do have the right tovote upon special levies inthe 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 intoPhillips County. Here, we do not find any form of taxation without representation and therewas no abuse of discretion on the part of the Valley county officials. Point 13of the petition deals with students traveling in k2xcessof one hour on the bus in order toget to school. Appellant relies on section 75-7008, R.C.M. 1947, which again deals with elementzry students and not high school students as tobus riding time limitations, We note that section 75-7008 provides thecondition can be waived by the parent or guardian. But, since the statutedeals with elementary students, it isnot 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 forchanging school district boundaries or transferring territory from one school district toanother. Notwithstanding appellant's argument, itwas clear from the evidence that Valley County school officials are concerned about the safety of the children and do allin their power to protect them. Allthis evidencewas presented to the county superintendent, the county commissioners and the districtcourt, They made their decisions that therewas no reason to change the boundary based on the question of danger to the children. We findnothing 

### in the evidence which indicates the officials abused their discretion inmaking that decision. We have reviewed the petition and the order denying that petition. As statedheretofore our review goes tothe question of whether theValley County officiaIs abused their discretion. We findnothing inthe record which would indicate any abuse of discretion. The second issue on appeal concerns whether the district court was correct indismissing and discharging the Alternative Writof Mandamus. The district court, ineffect, sustained the action of theValley County officialsby dismissing the writ. This isnot a case where theValley County officials were to perform a ministerial duty. Rather, the dutywas toexercise discretion, The function of the district court was to determine whether ornot the Valley County officials manifestly abused that discretion, The general rule and the qualification of the general rule with respect to mandamus actionswas clearly set forthby this Court in Paradise Rainbow v, Fish & Game Comm'n, 148Mont. 412,"As a general rulemandamus is available only tocompel performance of a clear legal duty not involving discretion, McCarten v, Sanderson, 111Mont, 407, 109 P.2d 1108, 132A.L.R. 1229. IBut evenwhere discretion 

### is involved, if there has been such an abuse as to amount tono exercise of discretion atall, mandamus willlietocompel 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 arbitraryor capricious actionby an administrative board isan abuse of discretion. Stateex rel. Sanders v. Hill (P.E.R,S.), 141Mont. 558, 381 P,2d 475." In Erie v. StateHwy. Comm'n, 154Mont. 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 itsauthority and such board may be compelled toperform an act it 

### islegallybound toperform; but neither of these extraordinaryremedies willlietocontrol the discretion of a board unless it has been clearly shown that the board has manifestly abused such discretion.1I It 

### isclear that the remedy sought inthe instant case willlieonly 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 AlternativeWritof Mandamus. The decision of the district court isaffirmed.

Associate Justices.