                                 No. 14765
                   IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1979


JACK GUNDERSON,
                         Plaintiff and Appellant,


THE BOARD OF COUNTY COMMISSIONERS OF
CASCADE COUNTY,
                         Defendants and Respondents.


Appeal from:           District Court of the Eighth Judicial District,
                       Honorable H. William Coder, Judge presiding.
Counsel of Record:
  For Appellant:
         Channing J. Hartelius, Great Falls, Montana
  For Respondents:

         J. Fred Bourdeau, County Attorney, Great Falls, Montana


                                     Submitted on briefs:       August 15, 1979
                                                    Decided :   SEF I r? 1979
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Filed:   r-,
Mr. Justice John C. Sheehy delivered the Opinion of the Court.


       Plaintiff Jack Gunderson appeals from an order dismissing
his amended complaint for failure to state a claim upon which
relief could be granted.     Rule 12 (b)(6), Mont. R.Civ.P.     The
order was entered by the District Court, Eighth Judicial
District, Cascade County, in favor of the Board of County
Commissioners of Cascade County, defendants.
       Gunderson's account of the facts is accurate and is
substantially as follows.
       Gunderson is a taxpayer and a resident of School District
74 in Cascade County.     He and a majority of the residents
of his territory petitioned to become a part of School
District 30 in Teton County.
       A hearing before the County Superintendents of Cascade
and Teton Counties was held as required by section 20-6-213,
MCA.    Evidence was produced at that hearing and duly recorded
by a court reporter.     Subsequently, the Superintendent of
Teton County approved the transfer, and the Superintendent
of Cascade County rejected it.
       An appeal to the Board of Commissioners of Teton and
Cascade Counties was perfected pursuant to section 20-6-213,
MCA.   A joint hearing was held before the two Boards.        The
Teton County Commissioners approved the transfer, while the
Cascade County Commissioners rejected it.
       Gunderson then filed a complaint against the Board of
Commissioners of Cascade County.       Subsequently, an amended
complaint alleging an abuse of discretion by the Board of
County Commissioners was filed.
       The Board of County Commissioners filed a motion to
dismiss the amended complaint for failure to state a claim
upon which relief could be granted.      Rule 12(b) ( 6 ) , Mont.
R.Civ.P.    The District Court granted the motion and dismissed
the amended complaint.
                                 -2-
     This appeal followed.
     Gunderson raises two issues upon this appeal.
     1.   Was it error to dismiss the complaint when there
is an allegation of abuse of discretion?
     2.   Did the District Court err in holding the phrase

"in the best interests of the residents of the territory"
in section 20-6-213(4), MCA, superfluous?
     Having examined both the District Court record and the
briefs of the parties, we are compelled to hold in favor of
the Board of County Commissioners of Cascade County on both
issues.
     Gunderson asserts the amended complaint states a cause
of action for abuse of discretion by the Board of Commissioners.
We cannot agree with this contention.
    As Gunderson points out, the heart of his amended
complaint is paragraph 6.    In that paragraph, Gunderson
first alleges the Board of Commissioners abused its discretion
by failing to meet jointly with the Teton County Board of
Commissioners, as required by section 20-6-213, MCA.
    As a matter of law, we must take this first allegation
as true for purposes of the motion to dismiss.   Potter v.
Miller (1965), 145 Mont. 197, 198, 399 P.2d 994, 995.   However,

the amended complaint also alleges each Board of County
Commissioners was unanimous in its decision, though their
decisions were contrary, and no facts are alleged that any
other mode of decision would have produced a different result.
In the absence of such a statutory provision, Gunderson has
alleged no injury from the procedure followed, and one who
is not injured will not be heard to complain.    State v. Lensman
(1939), 108 Mont. 118, 129, 88 P.2d 63, 68.
     Gunderson further alleges in paragraph 6 of his amended
complaint that the Board of Commissioners abused its discretion
                               -3-
by (1) failing to consider the best interests of the residents
of the territory to be withdrawn, (2) solely basing their
decision on the financial considerations of the territory to
remain, and (3) disregarding all other evidence as to advis-
ability and best interest presented at the hearing.
      All three allegations appear to be inferences made by
Gunderson because the three matters were not addressed in the
Board's written decision.
      Section 20-6-213, MCA, does not contain any explicit
legislative direction as to what matters the Board of Com-
missioners is to consider in reaching its decision.       The
statute vests great discretion in the county officials,
and so long as the transfer power is exercised within the
limits of section 20-6-213, MCA, that exercise is not subject
to interference by the courts.   Sorenson v. Bd. of Cty.
Com'rs. of Teton Cty. (19781,       Mont   .        , 577 P.2d 394,
396, 35 St.Rep. 436, 439.
      Pursuant to section 20-6-213(4), MCA, the transfer
petition here could be granted only if the requested transfer
is deemed both advisable - in the best interests of the
                         and
residents of the territory in question.        One factor pertaining
to advisability is the financial condition of the remaining
territory.   Potter v. Miller, supra.    Having determined the
proposed transfer was financially inadvisable, the Board of
Commissioners was required by the express language of the
statute to deny the transfer petition.     They properly did
SO.

      The case law Gunderson cites in support of his contention
is not convincing.    See generally, Ballard v. Gregory (1975),
166 Mont. 110, 530 P.2d 1163; Read v. Stephens (1948), 121
Mont. 508, 193 P.2d 626; Grant v. Michaels (1933), 94 Mont.
452, 23 P.2d 266.    Certainly, the Board of County Commissioners
would be acting arbitrarily if it disregarded - evidence
                                              all
of matters which by the terms of the statute it should
consider.     However, such is not the case here.
     Gunderson next contends the District Court erred in
holding the phrase "in the best interests of the residents
of the territory" in section 20-6-213(4), MCA, superfluous.
    We need look no further than the District Court's
opinion itself to decide this issue.       In that opinion, the
District Court said:
    "Having determined that the transfer was
    inadvisable, it was the duty of the Defendants
    to act otherwise than to grant the petition
    i.e. deny it. That there may have been
    persuasive and competent evidence that the
    transfer was in the best interests of the
    residents of the territory to be transferred
    is, as the law is written, superfluous."
     The District Court did not rewrite the statute.        Section
20-6-213(4), MCA, requires the proposed transfer be both
advisable and in the best interests of the residents of the
territory.    Any evidence of the best interests of the residents
would, indeed, be superfluous since the transfer was deemed
inadvisable.
     The District Court properly granted the motion to
dismiss for failure to state a claim upon which relief could
be granted.    Rule 12 (b)(6), Mont. R. Civ. P.   Furthermore, the
District Court did not hold the phrase "in the best interests
of the residents of the territory" in section 20-6-213(4),
MCA, is superfluous.     It merely declared that any evidence
of the best interests of the residents would be superfluous
in this case.
     The District Court's decision is affirmed.
W e Concur:




          Chief J u s t i c e
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