                          No. 13761
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                               1978


THEODORE SORENSON,
                        Plaintiff and Respondent,


THE BOARD OF COUNTY COPIIYISSIONERS
OF TETON COUNTY et al.,
                        Defendants and Appellants.



Appeal from:   District Court of the Ninth Judicial District,
               Honorable M. James Sorte, Judge presiding.
Counsel of Record:
     For Appellants:

          CharlcsM. Joslyn argued, County Attorney, Choteau,
           Jlontana
     For Respondent :
          Hartelius and Lewin, Great Falls, Montana
          Channing J. Hartelius argued, Great Falls, Montana


                                      Submitted:   January 26, 1978


Filed :   VR;e I=
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
         Defendants Roy Goodell, Martin Shannon and Bud C. Olson,
the members of the Board of County Commissioners of Teton County
(hereinafter the Board) appeal from a grant of summary judgment
reversing their order denying withdrawal of certain lands from
Teton County's hospital district.
         Plaintiff Theodore Sorenson and other residents of Teton
County petitioned the Board to withdraw an area constituting the
northeast portion of Teton County from the county-wide hospital
district, as provided in section 16-4311, R.C.M. 1947.      A hearing

on this petition was duly noticed and held in Choteau, Montana,
on December 29, 1975.     Several county residents appeared and were

heard at the hearing, after which the petition was denied by the
Board.
         Plaintiff then brought the present action in the District
Court, Teton County, seeking reversal of the Board's decision.
Following a hearing on plaintiff's motion for summary judgment,
and having considered briefs supporting and opposing that motion
as well as the transcript of the hearing before the Board, the
District Court granted summary judgment.    The District Court's
order set aside the Board's denial of the petition and granted
withdrawal of the petitioning area from the county's hospital
district.
         The sole issue on appeal is whether summary judgment was
properly granted.
         Summary judgment is governed by Rule 56(c), M.R.Civ.P.,
which provides in part:
         " * * * The judgment sought shall be rendered
         forthwith if the pleadings, depositions, answers
         to interrogatories, and admissions on file, to-
         gether with the affidavits, if any, show that
         there is no genuine issue as to any material
         fact and that the moving party is entitled to
         judgment as a matter of law. * * * "
        The parties agree there is no issue of material fact in
the present case.     Inquiry, therefore, is directed to whether
plaintiff was properly granted summary judgment as a matter of law.
        Chapter 43 of Title 16, Revised Codes of Montana, 1947,
first enacted in 1953, authorizes the establishment of public
hospital districts.    Section 16-4311, R.C.M. 1947, as amended,
allows for the withdrawal of a portion of such a district.     In
pertinent part it provides :
        "Any portion of a public hospital district may be
        withdrawn therefrom as in this section provided,
        upon receipt of a petition signed by fifty-one per
        centum (51%) of the taxpayers, or more, residing
        in and owning property within the area desired to
        be withdrawn from any public hospital district, on
        the grounds that such area will not be benefited
        by remaining in said district. The board of county
        commissioners shall, upon the filing of such a
        petition, fix a time for the hearing of such with-
        drawal petition * * * The board shall consider the
        petition and all objections thereto, and pass upon
        the merits thereof, and make its order in accordance
        therewith. * * * Such order is subject to review by
        the district court of the county, and appeal may be
        taken from the final judgment of such district court
        to the supreme court of Montana. * * *"
        Plaintiff and others who own property in the northeast por-
tion of Teton County secured the signatures of approximately 70
percent of the eligible area property owners on the petition for
withdrawal of the area from the county hospital district.
       At the hearing before the Board, proponents of withdrawal
presented testimony that they live closer to hospitals in other
cities than to the county hospital located in Choteau.    Residents
of the area seeking withdrawal, therefore, use other hospitals,
in many instances those in Great Falls, rather than traveling the
greater distance to Choteau.    One proponent of withdrawal, for
example, testified he lived in Power, which is 25 miles from Great
Falls and 37 miles from Choteau.    Proponents also referred to a
study of area hospital facilities which indicated there was a
current hospital bed surplus of 70 percent and a projected surplus
of 66 percent in the rural areas in and around Teton County.
        Opposition to withdrawal centered on the opponents' con-
cern that if the petitioning area withdrew from the county hospital
district, the mill levy to support the hospital would be borne by
too few county residents.     The opponents also stated that since
the county hospital bond issue had passed, those seeking withdrawal
from the hospital district should not be allowed to avoid supporting
the hospital through its mill levy.
        On the day after the hearing, the Board disposed of the
petition in the following manner:
        "Motion by Martin Shannon that after considering
        the facts and question of benefits available to
        the proposed area, the Petition be denied. Sec-
        onded by Bud C. Olson. Motion carried.''
        On appeal the Board argues its denial of the petition was
proper, contending there was insufficient evidence before it to
grant withdrawal.     The Board did not specify any reasons or offer
any explanation in its denial of the petition.    It is not clear
whether the Board concluded benefit to the petitioning area had
been established, or whether the proponents of withdrawal had
failed to show a lack of benefit to themselves in remaining in
the hospital district.
        The only testimony as to benefit was presented by residents
of the area seeking withdrawal from the hospital district.    Their

testimony, that they use other hospital facilities rather than
those available in Choteau and that hospital bed occupancy rates
in the area are relatively low, was uncontradicted.    While lack of
accessibility and need do not conclusively establish that an area
is not benefited by remaining in a hospital district, in the ab-
sence of countervailing testimony tending to show an area is bene-
fited by continued    inclusion in a hospital district, these factors
must be considered.
        By the terms of section 16-4311 the Board is empowered to
determine whether a petitioning area will be granted withdrawal
from a hospital district.   When a board of county commissioners
exercises power within the limits of the statute granting it and
with sound discretion, such exercise is not subject to review by
the courts.    Read v. Stephens, (1948), 121 Mont. 508, 512, 513,


         The legislature, by enacting section 16-4311, specifically
provided for an area's withdrawal from a hospital district on the
grounds that area "will not be benefited by remaining in [the]
district".    Evidence as to benefit, therefore, may not be ignored
by a board of county commissioners determining such withdrawal.
As this Court stated in Grant v. Michaels, (1933), 94 Mont. 452,


         " * * * the members of the board of county
         commissioners, conducting a 'hearing' in their
         quasi-judicial capacity, are the triers of the
         facts, and, consequently, cannot arbitrarily
         and capriciously disregard competent, credible
         and undisputed evidence and decide the matter
         before them 'as they see fit,' without evidence
         supporting their decision. A determination
         reached and rendered in arbitrary~and capricious
         disregard of unimpeached testimony is 'against
         law.' (Harwood v. Scott, 65 Mont. 521, 211
         P. 316)"
         Here, uncontradicted testimony before the Board showed the
petitioning area would not be benefited by remaining in the county's
hospital district.   The District Court properly ruled the Board
had abused its discretion in denying the withdrawal petition, and
the judgment of the District Court is therefore affirmed.




We Concur:



     Chief Justice
     7
               n
M r . J u s t i c e John Conway H a r r i s o n d i s s e n t i n g :

            I dissent.

            I f i n d t h e r e a s o n i n g of t h e C a l i f o r n i a c o u r t i n Underwood

Land and Development Co. v. Bradshaw, 1957, 152 Cal.App.2d 655,

313 P.2d 216,219, p e r s u a s i v e .          I n considering the b e n e f i t t o the

a r e a withdrawing, t h e p r i n c i p a l i s s u e i n t h e i n s t a n t c a s e , t h e

C a l i f o r n i a c o u r t i n Underwood Land and Development Co., a mandamus

action, held:

                        " A t t h e f i n a l h e a r i n g p e t i t i o n e r s i n mandate
             sought t h e e x c l u s i o n of t h e i r l a n d s from t h e proposed
            d i s t r i c t upon t h e ground t h a t they would n o t be bene-
             f i t e d by t h e d i s t r i c t . The respondent board r e c e i v e d
            evidence upon t h e i s s u e t h u s p r e s e n t e d , found t h a t
            p e t i t i o n e r s ' l a n d s would be b e n e f i t e d , and r e f u s e d e x c l u -
             s i o n . Upon t h i s i s s u e t h e q u e s t i o n b e f o r e t h e t r i a l
            c o u r t was whether o r n o t , i n r e f u s i n g t o exclude p e t i -
            t i o n e r s ' l a n d s , t h e board was g u i l t y of an abuse of
            discretion.              'Abuse of d i s c r e t i o n i s e s t a b l i s h e d i f***
            the order       ***           i s n o t supported by t h e f i n d i n g s , o r
            t h e f i n d i n g s a r e n o t supported by t h e e v i d e n c e . '               Code
            Civ.Proc. s e c . 1094.5(b). Our examination of t h e r e c o r d
            convinces us t h a t t h e r e was s u b s t a n t i a l evidence sup-
            p o r t i n g t h e f i n d i n g s and t h a t t h e f i n d i n g s s u p p o r t t h e
            c h a l l e n g e d o r d e r s . Abuse of d i s c r e t i o n was t h e r e f o r e n o t
            e s t a b l i s h e d . The following a p p e a r s from t h e t r a n s c r i p t :
            G e n e r a l l y s p e a k i n g , t h e a r e a sought t o be excluded
            c o n s t i t u t e s l a n d s p r e s e n t l y used mainly a s h u n t i n g
            p r e s e r v e s and f o r l i v e s t o c k g r a z i n g . There a r e p r e s e n t l y
            few i n h a b i t a n t s and t h e a r e a s a r e l a r g e l y i n a c c e s s i b l e
            by road. Some of them a t l e a s t a r e n e a r e r e x i s t i n g
            p r i v a t e h o s p i t a l s t h a n they w i l l be t o t h e proposed
            h o s p i t a l i f i t i s l o c a t e d i n t h e more d e n s e l y populated
            p o r t i o n s of t h e d i s t r i c t . However, t h e s e a r e a s a r e on
            t h e edge of change, speaking i n terms of p o p u l a t i o n .
            I r r i g a t i o n i s contemplated and approaching. Roads a r e
            a l r e a d y planned and i t i s r e a s o n a b l e t o suppose t h a t
            t h e p r e s e n t p a u c i t y of p o p u l a t i o n w i l l r a p i d l y d i s -
            a p p e a r , s i n c e e s s e n t i a l l y t h e a r e a s a r e p r o d u c t i v e and
            i f made s u s c e p t i b l e t o i r r i g a t i o n and r e a c h a b l e by roads
            w i l l be developed i n t o p r o d u c t i v e farm l a n d s , w i t h a
            consequent i n f l u x of i n h a b i t a n t s . I t was a l s o shown
            t h a t d u r i n g t h e h u n t i n g seasons t h e r e were g r e a t numbers
            of persons engaged i n t h a t s p o r t and s u b j e c t t o i t s
            h a z a r d s . A s r e q u i r e d by t h e c o n t r o l l i n g s t a t u t e s , t h e
            S t a t e Department of P u b l i c H e a l t h c e r t i f i e d t o t h e board
            t h a t t h e r e was a need f o r h o s p i t a l beds and h o s p i t a l
            s e r v i c e i n t h e a r e a of t h e proposed d i s t r i c t , and t h a t
            t h e need was n o t f u l f i l l e d by e x i s t i n g h o s p i t a l s e r v i c e s
            and would n o t be by pending h o s p i t a l c o n s t r u c t i o n . "
            313 P.2d 219.
        I would hold that the standard of review of this Court

is limited, as in Underwood Land and Development Co., upon the

whole record and that the findings of the Board are supported by

substantial evidence.

        I find no abuse of discretion by the Board and would uphold

its findings.
