Porch v. Powder River Board of County Commissioners , 219 Mont. 179 ( 1985 )

No. 8 5 - 1 6 8
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
ELDORA J. PORCH, BOBBY RAY TANNER
and FRANCIS C. CADWELL,
Plaintiffs and Appellants,
POWDER RIVER BOARD OF COUNTY COMMISSIONERS,
ALVIN =SCHKOW, F.F. HUCKINS, TED FLETCHER,
Commissioners,
Defendants and Respondents.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Powder River,
The Honorable Nat.Allen, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Anderson, Brown, Gerbase, Cebull & Jones; Joe Gerbase,
Billings, Montana
For Respondents:
Daniel Schwarz, County Attorney, Broadus, Montana
Submitted on Briefs: Oct. 3, 1 9 8 5
Decided: December 30, 1 9 8 5
Filed: i%!X 0 1985
3
Clerk
Mr. Justice John Conway 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 Nay 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 § 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 S 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, "[wlhenever the public interest or convenience may
require, to order and create special improvement d.istricts
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.
Justices
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