No. 80-169 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

PAUL RYAN, 

Defendant and Appellant, 

THE BOARD OF COUNTY COMMISSIONERS 

FOR GALLATIN COUNTY AND GALLATIN COUNTY 

REFUSE DISTRICT NO. 1 et al., 

Plaintiffs and Respondents. 

Appeal from: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin. 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellant: 

Bolinger, Higgins and Andes, Bozeman, Montana 

For Respondents: 

Donald White, County Attorney, Bozeman, Montana 

Michael J. Lilly, Deputy County Attorney, Bozeman, Montana 

Submitted on briefs: September 25, 1980 

- 

Decided: UeC 1 7 3980 ,Ir#*? nEc ! !~i J 

Filed: 

Q.k!.@ 9 eM*, 

Clerk 
Mr. Justice Gene B. Daly delivered the Opinion 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. Lessley presiding. 

At the request of the County Commissioners of Gallatin 

County, the Board of Directors of the Gallatin County Refuse 

District Number 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 at the end of five years. 

Included in the contract was the following provision: 

"6. 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." 

As indicated, the above clause provides that copies of 

applicable laws, regulations and recommended standards would 

be attached as Exhibit "B." However, no such exhibit was 

attached to the contract. 

At the time the contract was let, section 75-10-221, 

MCA, was in effect and provided in pertinent part: 

"(1) Except as provided in 75-10-214, no person 

may . . . operate a solid waste management system . . . without a license from the department. 

"(2) The department shall provide application 

forms for a license as provided in this part. 

"(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 Off ice, 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 it be 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 to have 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 ref using to approve subdivisions 

serviced by the Gallatin County Refuse Board District Number 

1 for solid waste disposal. The ban was to remain in effect 

until a complete license application was 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 in breach. 

After receiving notice that his contract was to be 

terminated, Ryan furnished the additional information 

requested by the State Department 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 to the hearing on the matter. 

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 Ryan 
for 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 Lilly draft a letter discharging Ryan 

from his contract to be 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, the Board 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 

conclusions of law, finding that plaintiffs were 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 efforts on the following: 

1. Whether the District Court erred in finding that 

the Refuse Board's contract with Ryan required him to obtain 

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 to withdraw 

its approval of the contract entered into by the Refuse 

Board and Ryan and then direct the Refuse Board to terminate 

the contract? 

3. Whether the District Court erred in finding that 

the County Commissioners and the Refuse Board are entitled 

to rescind their contract with Ryan? 

In regards to the first issue, defendant argues that 

state law indicates that it is the Refuse Board, and not he, 

who is obligated to obtain a license to operate the Logan 

Sanitary Landfill. In the alternative defendant claims that 

even if state law does not so obligate the Refuse Board, his 

contract does not impose any requirement that he 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 solid waste management system . . . without a license from the department." 

Section 75-10-203(6), MCA, defines the term "person": 

" (6) 'Person' means any individual, firm, 

partnership, company, association, corporation, 

city, town, local government entity, or any other 

governmental or private entity, whether organized 

for profits or not." 

When these two sections are read together, it is 

apparent that the County Commissioners, the Refuse 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 

districts and county commissioners, but there is nothing in 

the statute to indicate that an individual, such as 
defendant, is exempt from an obligation to seek the required 

license. 

Defendant contends in his reply brief that since public 

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 

plaintiffs who are solely obligated to obtain 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 section 75-10-112(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 site when 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 solid waste 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 to obtain 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 to obtain the requisite license. 

Paragraph 6 of the contract between the Refuse Board 

and defendant provides as follows: 

"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 j ur isdiction 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 this provision requires defendant to 

obtain the license. Defendant argues to the contrary. 

Section 28-3-301, MCA, provides: "A contract must be 

so interpreted as to give effect to the mutual intention of 

the parties 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, to the other provisions of this chapter .'I 

Here, the language is clear and unambiguous and, 

therefore, needs no construction. Thus, it is the duty of 

&)au l z 

the court to enforce it as made by the parties. See 42wJ-a 

v. Peake (1978), Mont. , 583 P.2d 425, 35 St.Rep. 

1295; Danielson v. Danielson (1977), 172 Mont. 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 the power to withdraw its approval 
of the contract entered into by the parties and thereby 

direct the Refuse Board to terminate 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 

following powers 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 in the district; 

"(2) to employ 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 Routt County a country 

judge set the salary of his clerical assistant, which salary 

was approved by the board of county commissioners. At the 

end of one year the Commissioners, by resolution, reduced 

the salary without consulting the judge. The applicable 

statute read : 

"'All county judges may appoint such clerical 

assistants and reporters as shall be necessary 

for the transaction of the business of their 

courts, at such compensation as shall be fixed by 

said judges with the approval of the board of 

county commissioners.'" 

The Colorado Supreme Court held: 

"When the salary has been fixed by the judge and 

approved by the board, it is the established 

salary until the two parties which established it 

agree to change it." 210 P. at 326. 

This case has been given accord in other cases in 
Colorado, but the holding has been limited solely to actions 

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. 

In determining the extent of any such power, 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 implied by law. 

"(2) The powers of incorporated cities and towns 

and counties shall be liberally construed. " 

It is held that when a board of county commissioners is 

given an express power of approval, such power is to be 

complimented by the implied power to withhold 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 to withdraw approval. 

In this instance, the Refuse Board entered into a 

binding contract with defendant which was approved by the 

County Commissioners. A provision of that contract provides 

that defendant satisfy state licensing requirements. The 

Refuse Board, however, failed to enforce this provision and 
allowed the landfill to be operated in violation 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 this being 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 case cited by defendant but 

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, that has virtually eliminated the propriety 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 direct the Refuse Board 

to terminate the contract. 

The third issue raised is whether plaintiffs are 

entitled to rescind the contract with defendant. 

Section 28-2-1711, MCA, provides in pertinent part: 

"A party to a contract may rescind the same in 

the following cases only: 

"(2) if, to the fault of the party as to whom he 

rescinds, the consideration for his obligation 

fails in whole or in part;" 

A claim for rescission must also establish damages if 

the action is based on partial or total failure of 

consideration. See Beierle v. Taylor (1974), 164 Mont. 436, 

524 P.2d 783. Damages in such a situation can be shown by 

pecuniary loss or the alteration of one's position to his 
prejudice. See v.w (1931), 90 Mont. 489, 5-043- 

ma madaon 

P.2d 475. 

Here, defendant, due to his own fault and disregard, 

failed to comply with the statutory requirement of obtaining 

a license to operate the landfill in accordance 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 Solid Waste 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 to potential liability. The liability in 

this instance would arise from other parties seeking 

mandamus to compel performance of plaintiffs' statutory duty 

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 

District Court was proper in rescinding 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 for 
the first time on appeal. Thus, they will not 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), 133 Mont. 230, 321 P.2d 1080. 

1 

The decision of the 

We concur: 

@,,a, J.y,& Chief Justice