### No. 80-169 INTHE SUPREMECOURT OF THE STATEOF MONTANA 1980

PAUL RYAN, DefendantandAppellant,

THE BOARD OF COUNTY COMMISSIONERS FOR GALLATINCOUNTYAND GALLATINCOUNTY REFUSE DISTRICTNO. 1 et al., Plaintiffsand Respondents.

Appeal from: District Court of the Eighteenth JudicialDistrict, Inand for the County of Gallatin. Honorable

### W. W. Lessley,Judgepresiding. Counsel of Record: For Appellant: Bolinger,Higgins andAndes, Bozeman,Montana For Respondents: DonaldWhite, CountyAttorney,Bozeman,Montana MichaelJ. Lilly,DeputyCounty Attorney, Bozeman,Montana

Submitted on briefs: September 25, 1980 Decided:

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### Mr. JusticeGene B. 

### Daly delivered theOpinion of the Court. Defendant appeals from a judgment in favor of the plaintiff granted by the District Court of the Eighteenth Judicial District, in and for the County of Gallatin, the Honorable W. W. 

### Lessleypresiding. At

### the request of the County Commissioners of Gallatin County, theBoard of Directorsof theGallatinCountyRefuse DistrictNumber 1

### entered into a written contract with 

### Paul Ryan on July 11, 

### 1978. The purpose of the contract was to

secure defendant Ryan's services and equipment for the operation of the Logan Sanitary Landfill near Logan, Montana. Ryan was to commence operation on December 1, 

### 1978, with the contrzct expiring atthe end of five years. Included in the contractwas the followingprovision: "6. 

### CompliancewithLaws: The contractor shall operate the disposal site 

### in compliance with all applicable laws, ordinances and regulations, from whatever governmental agency may have jurisdictionover theoperation. (Copiesof said laws and regulations and recommended standards are attached as Exhibit "B".) 

### Any changes in said laws and regulations shall be applicable to the contract upon receipt of a copy thereof." As 

### indicated, the above clause provides that copies of applicable laws, regulations and recommended standardswould be attached as Exhibit "B." 

### However, no such exhibit was attached tothe contract. At 

### the time the contract was let, section 75-10-221, MCA, 

### was in effectand provided inpertinentpart: "(1)

### Except as provided in 75-10-214, no person may 

# . . .operate a solidwastemanagement system



# . ..without a licensefrom thedepartment. "(2) The department shall provide application forms for a license asprovided inthispart. "(3) 

### The application shall contain the name and business address of the applicant, location of the proposed solid waste management system, a

### plan of operation and maintenance, and such other information as the department may by rule require." Pursuant to section 75-10-221, MCA, Erick Armstrong, 

### a member of the Gallatin County Health Office, requested that Ryan obtain a license from the Department of Health and Environmental Sciences for the operation of the sanitary landfill. Armstrong made the request on the date the contract was awarded and provided Ryan with an application, asking that itbe returned immediately. As of April 10, 1979, Ryan had yet to obtain the license as requested. Ryan's failure in this regard was based on his belief that it was the Refuse Board's obligation,not his, to obtain the required license. In response to Ryan's failure to obtain the license, Deputy Gallatin County Attorney, Michael 

### J. Lilly, wrote Ryan a letter,dated April 10, 1979, again requesting him to complete the license application for the Logan Sanitary Landfill immediately. The letter also warned Ryan that if he did not complete the application by April 20, 1979, he would be held in breach of contract pursuant to "paragraph 6" 

### of the contract with the Refuse Board. As a result of this letter, Ryan filled out the application and gave it to Lilly. Lilly then forwarded the application to the State Department of Health. The application, marked "incomplete," was returned to Ryan in May 1979. John Geech of the State Department of Health indicated at this time that certain additional information was necessary to complete the application. In addition, Vic Anderson, also from the State Department of Health, met with Ryan at the landfill site in September,1979, and gave Ryan the information needed to be submitted to complete the application. Anderson sent a followup letter on September 24, 1979, confirming the instructions he had given Ryan at the 

### site. Ryan received this letter but claims tohave misplaced it before reading it. As of December 13, 1979, the Logan Sanitary Landfill

was 

### still not properly licensed. Consequently, the State Department of Health began refusing to approve subdivisions serviced by the GallatinCounty Refuse Board DistrictNumber 1for solidwaste disposal. The ban was toremain in effect until a complete license applicationwas submitted. Shortly after the ban was initiated, Ryan was notified orally by Lilly that the County Commissioners were terminating his contract with the Refuse Board for the operation of the landfill because he did not hold a valid license to operate a solid waste management system. A written notice was also mailed to Ryan indicating that the contract was terminated and that the commissioners were to hold him inbreach. After receiving notice that his contract was to be terminated, Ryan furnished the additional information requested by the StateDepartment of Health. Upon receiving the additional information, the Department deemed the license application complete on December 17, 1979. An actual license, however, was not issued at this time, nor

was one issued prior tothehearing on thematter. Two days later, on December 19, 1979, Lilly advised the Refuse Board that the County Commissioners were holding Ryan in breach of his landfill contract. The Refuse Board, however, voted 7 to 2, with one abstention, to retain Ryanfor operation of the landfill site. The Board of County Commissioners thereafter informed the Refuse Board that it was withdrawing its approval of Ryan's contract with the Refuse Board. The County Commissioners then had Lillydrafta letterdischarging Ryan from his contract tobe signed by Bob Brownell, Chairman of the Refuse Board. After the letter was signed by Brownell, it was personally served on Ryan by Lilly, on December 20, 1979.On December 21, 1979, theBoard of County Commissioners and the Refuse Board filed a complaint seeking declaratory and injunctive relief. In addition, plaintiffs filed a motion for a temporary restraining order, which was granted

on the same day, restraining Ryan's operation of the Logan Sanitary Landfill. A hearing was held on December 27, 1979. On January 15, 1980, the court entered 

### its findings of fact and conclusionsof law, finding thatplaintiffswere entitled to

a permanent injunction and adjudging that the contract was rescinded pursuant to section 28-2-1714, MCA. Judgment was entered on January 16, 1980. Ryan filed a motion to alter or amend the judgment on January 22, 1980. This motion was denied, and defendant Ryan now appeals. Defendant raises various issues on appeal, but this Court need only focus its effortson the following: 1. Whether the District Court erred in finding that the Refuse Board's contractwith Ryan required him toobtain

a license to operate the Logan Sanitary Landfill? 2. Whether the 

### District Court erred in finding that

### the Board of County Commissioners has the power towithdraw its 

### approval of the contract entered into by the Refuse Board and Ryan and then directtheRefuseBoard toterminate the contract? 3. 

### Whether the District Court erred in finding that the County Commissioners and the Refuse Board are entitled torescind their contractwithRyan? In regards to the first issue, defendant argues that statelaw indicatesthat it 

### is

### theRefuseBoard, and not he, who 

### is obligated to obtain a license to operate the 

### Logan Sanitary Landfill. In the

### alternativedefendant claimsthat

even if statelaw does not soobligatetheRefuse Board, his contract does not impose any requirement thathe procure the license. As 

### stated earlier, section 75-10-221, MCA, 

### provides in part:"(1)Except as provided in 75-10-214, no person may

# ..

# .operate a solidwastemanagement system



# ...without a licensefrom thedepartment." Section 75-10-203(6), MCA, 

### definestheterm "person": 

### "(6) 

### 'Person' means any individual, firm, partnership, company, association, corporation, city, town, localgovernment entity, or any other governmental or private entity, whether organized forprofitsor not." When these two sections are read together, it 

### is 

### apparent thatthe County Commissioners, theRefuse Board, 

### - or the defendant could be proper parties on an application to obtain the requisite landfill license. It

### may well be that the Department of Health has in the past issued these licenses primarily to municipalities, refuse disposal districtsand county commissioners, but there 

### is nothing in the statute to indicate that an individual, such asdefendant, 

### is exempt from an obligation to seek the required license. Defendant contends inhisreply brief that sincepublic policy dictates it 

### is the primary responsibility of local government to provide solid waste management, the duty to obtain an operator's license 

### is nondelegable; thus, it 

### is plaintiffswho are solelyobligated toobtain the license. We agree with defendant that 

### it 

### is the duty of local government to plan, develop, and implement a solid waste management system. See section75-10-112(1), MCA. However,

we are unable to find that this duty should be extended to require all local governments to obtain the requisite license for operation of a disposal 

### sitewhen the operations by contract are to be performed by another individual. If the legislature had wanted to limit license application to local governmental bodies, it could have easily done so. The legislature, however, chose to merely provide that no "person" may operate a solidwaste management system without

a license, and then defined "person" so as to include 

### any individual who operates the disposal site. With this being the case, 

### we cannot find that it 

### is solely plaintiffs' responsibility toobtain an operator's license. Having concluded that defendant can be a proper party

on an application for a license to operate a solid waste management system, 

### it now becomes necessary to examine the parties' contract to determine whether it required plaintiffs or defendant toobtain the requisite license. Paragraph 6 of the contract between the Refuse Board and defendant provides asfollows: "Compliance

-- with Laws: The contractor shall operate the disposal site in compliance with all 

### -applicable laws, ordinances and regulations, from whatever governmental agency may have jurisdiction over the operation. (Copies of said laws and regulations and recommended standards are attached as Exhibit "B".) Any changes in said laws and regulations shall be applicable to the contract upon receipt of a copy thereof

# ." (Emphasis added.) Plaintiffs contend thisprovision requiresdefendant to obtain the license. Defendant argues tothe contrary. Section 28-3-301, MCA, provides: "A contract must be

so interpreted as togive effect to themutual intention of theparties as 

### it existed the time of contracting, so far

as the same 

### is ascertainable and lawful." Section 28-3-303, MCA, provides: "When a contract 

### is reduced to writing, the intention of the parties 

### is to be ascertained from the writing alone if possible, subject, however, tothe other provisions of thischapter.'I Here, the language 

### is clear and unambiguous and, therefore, needs no construction. Thus, it 

### is the duty of 

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## l z the court to enforce 

### it as made by the parties. See42wJ-a v. Peake (1978), Mont. 

## , 583 P.2d 425, 35 St.Rep. 1295; Danielson v. Danielson (1977), 172Mont. 55, 560 P.2d 893. The contract, as made by the parties, states that defendant, in operating the sanitary landfill, 

### is to comply with - all applicable laws and regulations governing 

### its operation. The license requirement, as imposed by section 75-10-221, MCA, 

### is clearly applicable to the operation of the disposal 

### site at issue. Consequently, defendant was required by the terms of the contract to obtain the operator's license. The second issue on appeal 

### is whether the Board of County Commissioners have thepower towithdraw 

### its approvalof the contract entered into by the parties and thereby directthe Refuse Board toterminate the contract. The County Commissioners have been given supervisory authority over its Refuse Board by section 7-13-215, MCA, which provides: "The board of a refuse disposal district established and organized under this part has the followingpowers and duties, with the approval of the county commissioners of the counties ---- involved: "(1) to develop and administer a program for the collection or disposal of refuse inthedistrict; "(2)toemploy personnel;" (Emphasis added.) Defendant acknowledges that the commissioners have control over the approval of actions taken by the refuse board but argues they cannot unilateral& terminate a contract which they previously approved. In support of this position defendant cites Board of Commissioners of Routt County v. Morning (1922), 72 Colo. 200, 210 P. 326. In Board of Commissioners of RouttCounty a country judge setthe salaryof hisclerical assistant, which salary

was approved by the board of county commissioners. Atthe end of one year the Commissioners, by resolution, reduced the salary without consulting the judge. The applicable statuteread: "'All county judges may appoint such clerical assistants and reporters as shall be necessary for the transaction of the business of their courts, atsuch compensation as shallbe fixedby said judges with the approval of the board of county commissioners.'" The Colorado Supreme Court held: "When the salary has been fixed by thejudge and approved by the board, it 

### is the established salaryuntil the two partieswhich established it agree tochange it." 210 P. at326. This case has been given accord in other cases in

### Colorado, but theholding hasbeen limited solelytoactions involving the unilateral reduction of salaries previously approved by a board of county commissioners. See Kanaly v. Wadlow (1972), 31 Colo.App. 193, 502 P.2d 83; Schroeder v. Board of County Commissioners (1963), 152 Colo. 313, 381 P.2d 820. Montana has yet to deal with the issue of whether a board of county commissioners has an implied power to withdraw approval of an action taken by 

### its refuse board. Indetermining the extentof any suchpower, we look to 1972 Mont. Const., Art. XI, §4, 

### which provides: "(1) A 

### local government unit without selfgovernment powers has the following general powers:


## "(

### b) A 

### county has legislative, administrative and other powers provided or impliedby law.

"(2)

### The powers of incorporated cities and towns and counties shallbe liberallyconstrued. " It 

### is

### held thatwhen a board of county commissioners 

### is given an express power of approval, such power 

### is to be complimented by the implied power towithhold approval upon

a showing of adequate cause. See McCarten v. Sanderson et. al. (1941), 111 

### Mont. 407, 109 P.2d 1108. A 

### logical extension of an implied power to withhold approval 

### is an implied power towithdraw approval. In this instance, the Refuse Board entered into a 

### binding contract with 

### defendant which was approved by the County Commissioners. A 

### provision of thatcontractprovides that defendant satisfy state licensing requirements. The Refuse Board, however, failed 

### toenforce thisprovision and

### allowed the landfill tobe operated inviolation of law. As



### a result of the Board's failure, Vic Anderson of the Department of Health, Solid Waste Management Bureau, began refusing to lift sanitary restrictions on subdivisions in the area, thereby exposing the County Commissioners to possible liability. With thisbeing the case, withdrawal of approval of defendant's contract is 

### an obvious necessity, supported by adequate cause, and should be deemed proper under the circumstances. We acknowledge the Colorado casecitedby defendantbut find that the circumstances involved here should be distinguished. In this instance we are dealing with a changing set of circumstances, arising after the initial approval, thathas virtually eliminated thepropriety of the approval. Therefore, the Board of County omm missioners 

### should be extended the implied power to withdraw its 

### approval of defendant's contract and directtheRefuseBoard toterminate the

### contract. The third issue raised 

### is whether plaintiffs are entitled torescind the contractwith defendant. Section28-2-1711, MCA, 

### provides inpertinent part: "A party to a contract may rescind the same in the following casesonly:

"(2)if, tothe faultof the party astowhom he rescinds, the consideration for his 

### obligation failsinwhole or inpart;" A 

### claim for rescission must also establish damages if the action is 

### based on partial or total failure of consideration. SeeBeierle

### v. Taylor (1974), 164Mont. 436, 524 

### P.2d 783. Damages in such a situation can be shown by pecuniary loss or the alteration of one's position to hisprejudice. See v.w (1931), 90 Mont. 489, 5-043- 

### ma 

# madaon P.2d 475. Here, defendant, due to his own fault and disregard, failed tocomply with the statutoryrequirement of obtaining

a license tooperate the landfill inaccordance with section 75-10-221, MCA, and paragraph 6 of the parties' contract. As a result of this failure, the Department of Health, through the SolidWaste Management Bureau, began refusing to lift sanitary restrictions on proposed subdivisions in the

area. This refusal, in effect, prevented the approval of those subdivisions for solid waste disposal and thereby exposed plaintiffs topotential liability. The liability in this instance would arise from other parties seeking mandamus tocompel performance of plaintiffs' statutoryduty to "enforce Department of Health and Environmental Sciences

or Local Board of Health rules pertaining to the storage, collection and disposal of refuse." See section 7-13-215, MCA

# . It 

### is apparent from a review of the matter that when the County Commissioners chose to terminate defendant's contract, there was a failure of consideration through the fault of defendant, resulting in an alteration of plaintiffs' position to their prejudice, Consequently, the DistrictCourtwas proper inrescinding the contract. Defendant contends that he was entitled to hearing prior to the termination of his contract. Defendant also contends that laches bars rescission by plaintiffs. In rejecting these arguments, we need only note that upon reviewing the submitted transcript and District Court file,

we find that defendant improperly raises these issues forthe firsttime on appeal. Thus, they

### willnot be considered

as a basis for reversal. See Northern Plains v. Board of Natural Resources (1979), Mont. 

## , 594 P.2d 297,

Defendant has listed numerous other issues but has failed to discuss their application, present his contentions, or support any conclusions with applicable authority. Thus, the alleged specifications of error are deemed to be waived without further consideration. See La Chute v. Brinski (1957), 133Mont. 230, 321 P.2d 1080. 1 The decision of the

We concur: 

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# J.y,& Chief Justice