Porch v. Powder River Bd. of Co. Comm'rs

Full title: ELDORA J. PORCH, BOBBY RAY TANNER AND FRANCIS C. CADWELL, PLAINTIFFS AND…

Court: Supreme Court of Montana

Date published: Dec 30, 1985

710 P.2d 1364 (Mont. 1985)

710 P.2d 1364

Opinion

No. 85-168.

Submitted on Briefs October 3, 1985.

Decided December 30, 1985.

Appeal from the District Court of Powder River County. Sixteenth Judicial District. Hon. Nat Allen, Judge Presiding.

Anderson, Brown, Gerbase, Cebull Jones, Joe Gerbase, Billings, for plaintiffs and appellants.

Daniel Schwarz, Co. Atty., Broadus, for defendants and respondents.

MR. JUSTICE HARRISON delivered the Opinion of the Court.

This is an appeal from a judgment entered in the Sixteenth Judicial District, in and for the County of Powder River, Montana. The District Court denied appellants' application for a writ of prohibition against respondents to prohibit them from building a swimming pool pursuant to the creation of a RSID.

Prior to May 31, 1984, a number of petitions were circulated in Powder River County, Montana, for the purpose of creating a rural special improvement district (RSID), pursuant to Section 7-12-2102, MCA (1983). The commissioners executed a resolution of intent to create the RSID and it was subsequently created for the purpose of constructing a swimming pool.

The appellants brought this action under an application for a writ of prohibition to prohibit the Commissioners from building the swimming pool. The sufficiency of the petition was challenged on the grounds it did not contain the names of the requisite percentage of freeholders within the district. A show cause hearing was held and the application was denied.

The 1985 Legislature amended Section 7-12-2102, MCA (1983), Sec. 2, Ch. 665, L. 1985. There is no longer the requirement of petition of 60% of the freeholders affected for establishment of a RSID. The county commissioners have the authority, "[w]henever the public interest or convenience may require, to order and create special improvement districts outside the limits of incorporated towns and cities . . ." The Powder River County Commissioners may proceed with establishment of the RSID to build a swimming pool. The statutes provide a method of written protest by property owners who are liable to be assessed if the district is established. The order quashing the writ of prohibition is affirmed for the reason the question is moot.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY, GULBRANDSON and HUNT concur.