Robinson v. Board of County Com'rs of Osborne County, 46671

• Decision Date: 09 December 1972
• Docket Number: No. 46671,46671
• Citation: 504 P.2d 263,210 Kan. 684
• Parties: T. F. ROBINSON, Appellee, v. The BOARD OF COUNTY COMMISSIONERS OF OSBORNE COUNTY, Kansas, et al., Appellants.
• Court: Kansas Supreme Court

Page 263

504 P.2d 263

210 Kan. 684

T. F. ROBINSON, Appellee,

v.

The BOARD OF COUNTY COMMISSIONERS OF OSBORNE COUNTY, Kansas,

et al., Appellants.

No. 46671.

Supreme Court of Kansas.

Dec. 9, 1972.

Syllabus by the Court

1. The operator of the only privately owned ambulance service with which service provided by the county will compete is affected differently than the general public by the proposed county action and therefore has standing to challenge its legality.

2. In order to preclude the county commissioners from providing ambulance service under K.S.A.1971 Supp. 19-261, there must be existing 'adequate ambulance service' provided by some agency public or private, which is not subsidized by the county.

3. Whether existing ambulance service is 'adequate' so as to prevent the county commissioners from providing service under K.S.A.1971 Supp. 19-261 is a fact which the commissioners must determine in the exercise of their discretion. The courts will not set aside such a determination unless arbitrary, capricious, or made in bad faith.

4. In determining whether there is a need for county-furnished ambulance service under K.S.A.1971 Supp. 19-261 the county commissioners are entitled to consider any factors which a prudent man would consider relevant. The likelihood that existing service will be continued is one such relevant factor.

5. Under the facts and circumstances set forth in the opinion the defendant county commissioners were authorized to enter into a contract for ambulance service and it was error to enjoin them from carrying out its provisions.

Edwin D. Smith, of Fisher, Patterson, Sayler & Smith, Topeka, argued the cause, and Donald D. Gregory, County Atty., and Donald Patterson, of Fisher, Patterson, Sayler & Smith, Topeka, were with him on the brief for appellants.

Don W. Noah, of Noah & Noah, Beloit, argued the cause and was on the brief for appellee.

FOTH, Commissioner:

Plaintiff had a contract with the Osborne county commissioners whereby they paid him $500 per month to furnish ambulance service in the county. When his contract expired the commissioners awarded a new contract to another operator. Plaintiff successfully sued to enjoin the commissioners from carrying out their new contract or from entering into any similar contract with anyone other than him so long as he continues to furnish ambulance service. The defendant commissioners and other county officials have appealed.

For many years ambulance service was furnished in Osborne county, as it was in many parts of the state, by local funeral directors as an adjunct to their main enterprises. By early 1968, however, those who had been serving the major portion of the county, and in particular the northeast communities of Osborne, Downs and Portis, went out of the ambulance business, claiming they were operating at a loss. Service remained only at Natoma, in the extreme southwest corner of the county. The operator there drew two-thirds of his business from the neighboring counties and made the bulk of his runs to hospitals in those counties. He, too, found it a losing business.

Plaintiff, then a farmer by trade, entered into a series of negotiations with the city fathers of Osborne, Downs and Portis over the question of starting a subsidized ambulance service in that part of the county. As a result of these meetings he bought a 1963 Pontiac stationwagon from one of the mortuaries and in March, 1968, went into the ambulance business with a $100 per month subsidy from the city of Osborne. A commitment of an additional $50 per month from the city of Downs led to the purchase of a new Plymouth stationwagon, and beginning in April, 1968, the city of Portis came through with another $25 per month.

This arrangement lasted through that year, but then the cities dropped their payments one by one until, in March, 1969, plaintiff was receiving nothing from the public coffers. Before reaching this unfortunate plight, however, he commenced negotiations with the county commissioners for a subsidy. He was not immediately successful, and for a time he was forced to operate without the benefit of public assistance. His efforts ultimately led to a contract dated August 28, 1969, calling for payments from the county of $500 per month, retroactive to July 1, 1969, and terminating December 31, 1969.

As this contract was nearing its expiration the commissioners tendered plaintiff a new contract for the calendar year 1970, on identical terms as his old one. Plaintiff refused to sign this contract, maintaining that he would need more money. The figure he suggested was $1,000 per month. No true accord was ever reached, but on March 30, 1970, plaintiff did sign a new contract at $500 per month retroactive to January 1, 1970, to extend, however, only to July 31, 1970.

According to the commissioners he stated at that time that unless he received the $1,000 per month he demanded he would quit, and that he had bid on service in two other counties at $1,200 and $1,500 per month. They, in turn, indicated that they could not meet his demand and would have to look for someone else to furnish the needed service; the new contract with plaintiff was only a stop-gap arrangement. They thereupon proceeded to advertise in area newspapers for persons interested in furnishing the service to get in touch with them before June 1.

The only serious prospect turned up by the advertisements was Robert L. Burch, then the sheriff of Osborne county. Burch, like plaintiff when he first proposed to go into the ambulance business, had no equipment or experience, but figured to use the proposed subsidy contract to finance the venture. Burch offered to perform for $650 per month the services then being rendered by plaintiff under his contract.

Shortly before June 1, 1970, and before settling anything with Burch, the commissioners summoned plaintiff to see what his best figure would be. This meeting was inconclusive, but as he left plaintiff wrote the figure $750 on a piece of note paper, signed it, and left it with the commissioners. The commissioners naturally understood this to be his best offer for ambulance service; plaintiff testified and the trial court found that it was meant to be merely a figure for their guidance in preparing the next year's budget. He said it was based on $500 per month for his services and $250 per month for the operator at Natoma. While the trial court found that plaintiff did not refuse at this meeting to sign a new contract, it is equally clear that he did not agree to sign one, nor did he convey in any intelligible fashion that he might be willing to do so.

The upshot of it was that the commissioners contracted with Burch for $650 per month for one year, commencing on the expiration of plaintiff's contract on July 31, 1970. Burch proceeded to purchase the necessary equipment, and on August 1 he commenced business and the county commenced paying him the $650 per month.

In the meantime plaintiff was not idle. He consulted counsel who, on June 22, 1970, wrote to the commissioners setting forth his position that any contract for ambulance service entered into while plaintiff was providing service was invalid; he threatened suit if the contract with Burch were carried out. This letter evoked no response, nor did a follow-up letter of July 26, 1970, and the result was this action. There was a false start in that a petition filed September 18, 1970, was dismissed for failing to show plaintiff's standing to sue, and hence to state a cause of action; the amended petition on which the parties went to trial was filed December 2, 1970. Plaintiff, despite his threats, continued to operate his service and was doing so at the time of trial.

At the threshold we are met with a challenge to plaintiff's standing to maintain the action, a point presented below and preserved on appeal. Plaintiff predicated standing on his dual status as a taxpayer and as a competing ambulance operator.

We would agree with defendants that as a mere taxpayer, affected no differently than other taxpayers, plaintiff lacked standing to challenge the alleged unlawful expenditure of county funds. Haines v. Rural High School Dist. No. 3, 171 Kan. 271, 232 P.2d 437; Dunn v. Morton County Comm'rs., 162 Kan. 449, 177 P.2d 207. However, as the operator of the only ambulance service in the county with which Burch's subsidized service would compete, we think he was affected differently from the general public, and thus fit into the well recognized exception to the general rule against private citizens' enforcing public rights. Watson v. City of Topeka, 194 Kan. 585, 400 P.2d 689; Tripp v. Board of County Commissioners, 188 Kan. 438, 362 P.2d 612. Estoppel wasn't pleaded, and we see no basis for a claim of laches. We therefore turn to the merits.

The case turns on the interpretation of the 1965 act (Laws 1965, ch. 200) which authorizes counties to furnish ambulance service to their residents at county expense, and a 1968 amendment to it (Laws 1968, ch. 42). Section 1 of the act now appears as K.S.A.1971 Supp. 19-261. As amended in 1968 it now reads (with 1968 deletions stricken and additions italicized):

". . . 19-261. The board of county commissioners of any county [DELETED: having a population of less than fifty thousand (50,000)] may [ADDED: provide as a county function or may] contract with any city, person, firm, or corporation for the furnishing of ambulance service within [ADDED: all or any part of] their respective counties upon such terms and conditions, and for such compensation as may be agreed upon which shall be payable from the county general fund: [ADDED: Provided,] . . . [here follow immunity and liability insurance provisions]. [ADDED:The board of county commissioners shall not provide ambulance service under the provisions of this act in any part of the county which receives adequate ambulance service, but the county shall reimburse any taxing district which provides...