Ingram-Clevenger Inc. v. Lewis C ( 1981 )

No. 81-14
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
INGRAM-CLEVENGER, INC., a Montana
Corporation, EDWARD P. McHUGH, GENE R. and
MARGARET L. PORTER, et al.,
Plaintiffs and Respondents,
LEWIS AND CLARK COUNTY; LEWIS & CLARK
BOARD OF COUNTY COMMISSIONERS; BOB
DECKER; et al. ,
Defendants and Appellants.
Appeal from: District Court of the First Judicial District,
In and for the County of Lewis and Clark.
Honorable Peter Meloy, Judge presiding.
Counsel of Record:
For Appellants:
Charles A. Graveley, County Attorney, Helena, Montana
For Respondents:
Keller, Reynolds, Drake, Sternhagen, & Johnson,
Helena, Montana
Gough, Shanahan, Johnson & Waterman, Helena, Montana
Submitted on briefs: July 2, 1981
Decided: f)CT 2 0 18
91
Filed: OCT 2 0 1981
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.
Defendant Lewis and Clark County Board of Commis-
sioners appeals from the order of the First Judicial
District Court granting plaintiffs' petition for a
peremptory writ of mandamus directing the defendant to grant
plaintiffs' petition to partially abandon the County's claim
of right-of-way easement to the outer twenty feet on each
side of McHugh Lane, thus reducing the easement from one
hundred feet to sixty feet.
The county commissioners present the following
issues:
1. Whether a writ of mandamus is the proper remedy
in this case.
a. Which statute controls the abandonment of county
roads?
b. Is the controlling statute mandatory or discre-
tionary?
2. Whether any rights of the plaintiffs to the por-
tion of roadway they seek to have abandoned were adversely
affected by the actions of the board of county commis-
sioners.
In addition, the plaintiffs include this issue:
1. Did the defendant properly deny the petition to
partially abandon McHugh Lane?
We reverse the District Court.
McHugh Lane (or Drive) is a county road running
north-south through the Helena Valley. In 1890, Lewis and
Clark County was granted a 100-foot right-of-way to estab-
lish the road.
On June 6, 1980, plaintiffs presented the board of
county commissioners with a petition signed by every
landowner owning property adjacent to McHugh Lane. The
petition requested that the County abandon forty feet of the
McHugh Lane right-of-way (twenty feet on each side). The
petition was discussed at a regularly scheduled and noticed
hearing of the Lewis and Clark County Commissioners on July
22, 1980. At this time, the commissioners found the
petition to be in proper form required under section 7-14-
2602, MCA, a finding reiterated in defendant's brief. The
commissioners denied the petition.
On August 22, 1980, plaintiffs filed suit, seeking a
peremptory writ of mandamus against Lewis and Clark County,
the board of county commissioners and the three county
commissioners. Oral argument as to the applicable law was
heard on September 3, 1980. Briefs were submitted at the
District Court judge's request. On October 20, 1980, the
District Court issued its order and opinion, granting
plaintiffs' writ of mandate and directing the board of
county commissioners to forthwith grant the petition to
partially abandon McHugh Lane. The District Court awarded
attorney fees and costs to plaintiffs. The County appeals.
Through their briefs, the parties agree that the
following principles should be applied:
(1) The District Court may issue a writ of mandate
compelling the county commissioners to perform an act which
the law specifically requires as a duty of their office.
State ex rel. Browman v. Wood (1975), 168 Mont. 341, 344-
345, 543 P.2d 184, 187.
(2) If the act to be performed is discretionary
rather than mandatory, ordinarily mandamus will not lie.
Cain v. Department of Health, etc. ( 1 9 7 8 ) , 177 Mont. 448,
4 5 1 , 582 P.2d 332, 334.
( 3 ) I f t h e r e h a s been such an abuse o f d i s c r e t i o n a s
t o amount t o no e x e r c i s e o f d i s c r e t i o n a t a l l , mandamus w i l l
l i e t o compel t h e p r o p e r e x e r i c s e o f p o w e r s g r a n t e d . Cain
v. Department of Health, etc. ( 1 9 7 8 ) , 1 7 7 Mont, 448, 451,
582 P.2d 3 3 2 , 334.
( 4 ) When s p e c i f i c s t a t u t o r y l a n g u a g e c o n f l i c t s o r i s
i n c o n s i s t e n t with g e n e r a l s t a t u t o r y language, the specific
statutory language w i l l prevail to the extent of any
repugnancy. 1"lnt. Health Systems v. Mont. Bd. of Health
(1980)t - Mont. -, 612 P.2d 1 2 7 5 , 1 2 7 6 , 37 S t . R e p . 664,
666.
I
The parties disagree as to which statutes are
s p e c i f i c and which a r e g e n e r a l , and t h e r e f o r e d i s a g r e e a s t o
which statute or statutes control. Section 7-14-2103(3),
MCA, appears to be mandatory in wording, while section
7-14-2601 et seq., MCA, appear t o be discretionary. The
D i s t r i c t C o u rt found t h a t s e c t i o n 7-14-2103(3), MCA, was t h e
s p e c i f i c s t a t u t e g o v e r n i n g t h e a c t i o n and was m a n d a t o r y , and
t h e r e f o r e g r a n t e d mandamus.
The r e l e v a n t s t a t u t e s f o l l o w .
Under the heading "General Provisions Related to
C o u n t y R o a d s , " s e c t i o n 7-14-2103, MCA, provides:
"Duties of county c o m m i s s i o n e r s ~ n c e r n i n q
county roads. . . . ( 3 ) Each b o a r d s h a l l
.......................
d i s c o n t i n u e o r a b a n d o n c o u n t y r o a d s when -
f r e e h o l d e r s p r o p e r l y -p ----------------. "
etition therefor
(Emphasis s u p p l i e d . )
Under the heading "Establishment, Alterati and
Abando nment of County Roads", section 7-14-260 MCA,
provides in pertinent part:
"7-14-2601. Petition to establish, alter, or
abandon a county road. (1) Any 10, or a
majority, of the freeholders of a road dis-
trict taxable therein for road purposes may
petition the board in writing to open, estab-
lish, construct, change, abandon, or discon-
tinue any county road in the district."
Section 7-14-2602, MCA, establishes what information
must be set forth in the petition. Section 7-14-2603, MCA,
provides for an investigation to determine the merits of the
petition and allow the board to reach a decision. Section
7-14-2604, MCA, requires the board to notify adjoining
landowners within ten days of its decision.
Clearly, section 7-14-2103(3), MCA, is mandatory in
wording, stating that the county commissioners "shall. . .
abandon county roads" when properly petitioned. Section 7-
14-2601 et seq., MCA, require the exercise of discretion by
the board; they provide for a study of the "feasibility,
desirability and cost of granting the prayer," and refer
several times to the "decision" of the board. That decision
is to be based upon the "merits or demerits of the
petition," and can only mean a decision to grant the
petition or deny it.
Defendant argues that the provisions governing the
procedure for abandoning county roads, section 7-14-2601 et
seq., MCA, are specific and must prevail over section 7-14-
2103 (3) , MCA, which appears under the heading "General Pro-
visions . . ." Defendant emphasizes that (1) all the
procedural requirements, including notice and hearing and an
investigation of the feasibility of the petition, have been
complied with; (2) the decision to deny the petition to
abandon was discretionary, and mandamus will not lie.
Plaintiffs contend that section 7-14-2103(3), MCA, is
mandatory and is the specific provision and must prevail.
plaintiffs further contend that the county commissioners
failed to partially abandon when properly petitioned by all
adjoining landowners and thus, because they refused to
perform a duty legally required of them, mandamus is the
proper remedy.
This Court is aware that a District Court's decision
to grant or deny a writ of mandate is a matter of discretion
and will be sustained on appeal in the absence of a showing
oi abuse of discretion. Cain v. Department of Health, etc.
(1978), 177 Mont. 448, 451, 582 P.2d 332, 334. The District
Court judge here, attempting to reconcile section 7-14-
2103(3), MCA, with section 7-14-2601 et seq., MCA, concluded
that the latter provisions apply only when the petition to
abandon is disputed, and that, under the circumstances of
this case, section 7-14-2103(3), MCA, is the specific
statute which governs and mandates abandonment when it is
sought by all adjoining landowners by a proper petition.
We must disagree. There is no language in section
7-14-2103(3), MCA, which indicates that it applies only to a
unanimous petition to abandon. Nor is there language in
section 7-14-2601 et seq., MCA, which indicates that the
procedural requirements therein apply only to disputed
petitions. Indeed, for a determination whether a petition
to abandon is proper within the meaning of section 7-14-
2103(3), MCA, it is necessary to look to the provisions of
section 7-14-2601 and -2602, MCA, which specify who should
bring the petition and what information the petition must
contain.
I n Chennault v. Sager (1980), -- Mon t . , 610
P.2d 1 7 3 , 1 7 5 , 37 S t . R e p . 8 5 7 , 859-860, t h i s Court s t a t e d :
"The s t a t u t o r y scheme f o r t h e abandonment o f
c o u n t y r o a d s i s f o u n d i n s e c t i o n s 7-14-2601
t h r o u g h 7-14-2621, MCA. To i n i t i a t e p r o -
c e e d i n g s , any t e n o r a m a j o r i t y of f r e e -
h o l d e r s o f a road d i s t r i c t p e t i t i o n t h e board
of c o u n t y c o m m i s s i o n e r s f o r t h e abandonment
of a p a r t i c u l a r road. S e c t i o n 7-14-2601,
MCA, Within t h i r t y days a f t e r t h e f i l i n g of
t h e p e t i t i o n , t h e commissioners cause an
i n v e s t i g a t i o n t o be c o n d u c t e d r e g a r d i n g t h e
m e r i t s of t h e p e t i t i o n . S e c t i o n 7-14-2603,
MCA. A p u b l i c h e a r i n g i s t h e n s c h e d u l e d and
n o t i c e of t h e h e a r i n g is g i v e n . S e c t i o n 7-
1 4 - 2 6 1 5 ( 2 ) , MCA. The r e s u l t s o f t h e i n v e s t i -
g a t i o n and t h e h e a r i n g a r e c o n s i d e r e d by t h e
commissioners, and a d e c i s i o n is e n t e r e d
whether t o abandon t h e r o a d . W i t h i n t e n d a y s
a f t e r t h e d e c i s i o n , t h e commissioners cause
n o t i c e o f t h e i r d e c i s i o n t o be s e n t t o a l l
o w n e r s o f l a n d a b u t t i n g t h e r o a d f o r which
abandonment was s o u g h t . S e c t i o n 7-14-2604,
MCA ."
T h e r e i s no r e f e r e n c e i n C h e n n a u l t , s u p r a , t o s e c t i o n
7-14-2103(3), MCA, a s governing the abandonment of county
roads. Nor i s t h e r e any d i s t i n c t i o n drawn b e t w e e n p e t i t i o n s
b r o u g h t by a few a d j o i n i n g l a n d o w n e r s and t h o s e b r o u g h t by
a l l a d j o i n i n g landowners, a s long a s the guidelines set i n
s e c t i o n 7-14-2601, MCA, a r e met.
In Dept. of Revenue v. Puget Sound Power & Light
(19781, - Mont. -, 587 P.2d 1 2 8 2 , 1 2 8 7 , 35 S t . R e p . 1368,
1373, w e s t a t e d :
"Although a c a r d i n a l r u l e of statutory
c o n s t r u c t i o n is t h a t t h e i n t e n t of t h e
l e g i s l a t u r e m u s t f i r s t be d e t e r m i n e d from t h e
p l a i n meaning o f t h e words u s e d [ c i t a t i o n
omitted], i n determining the l e g i s l a t i v e
i n t e n t i n e n a c t i n g a s t a t u t e , a c o u r t can
r e s o r t t o t h e h i s t o r y of the statute.
[Citation omitted. 1 "
The s t a t u t e s i n q u e s t i o n h e r e were t h e r e s u l t o f a
f i f t e e n - m o n t h r e c o d i f i c a t i o n s t u d y d o n e by t h e Montana S t a t e
U n i v e r s i t y (now U n i v e r s i t y o f Montana) S c h o o l o f Law f o r t h e
Montana State Highway Commission in cooperation with the
United States Department of Commerce, Bureau of Public
Roads. The s t u d y c u l m i n a t e d i n t h e p u b l i c a t i o n i n 1964 o f a
booklet entitled, " R e s e a r c h R e p o r t on t h e Montana Highway
C o d e , " which c o n t a i n e d t h e o l d c o d e , a p r o p o s e d new c o d e and
a commentary. The p r o p o s e d code was i n t r o d u c e d d u r i n g t h e
1 9 6 5 l e g i s l a t i v e s e s s i o n by t h e Committee on Highways and
Transportation as Senate B i l l 170 and was adopted with
l i t t l e r e v i s i o n and no c h a n g e s p e r t i n e n t to this inquiry.
The new law included a statement of legislative intent
( C h a p t e r 1, s e c t i o n 2 ) c o n t a i n i n g t h e f o l l o w i n g s t a t e m e n t s :
". . . [TI he l e g i s l a t i v e a s s e m b l y i n t e n d s :
" ( 1 ) To p l a c e a h i g h d e g r e e o f t r u s t i n t h e
h a n d s of t h o s e o f f i c i a l s whose d u t y i t i s ,
within the l i m i t s of a v a i l a b l e funds, t o
p l a n , d e v e l o p , o p e r a t e , m a i n t a i n and p r o t e c t
t h e highway f a c i l i t i e s o f t h i s s t a t e f o r
present a s w e l l a s for future use.
" ( 2 ) To make t h e s t a t e highway c o m m i s s i o n
c u s t o d i a n of the federal-aid and s t a t e
h i g h w a y s , and t o impose s i m i l a r r e s p o n s i -
b i l i t i e s upon t h e b o a r d s of c o u n t y commis-
s i o n e r s w i t h r e s p e c t t o c o u n t y r o a d s and upon
municipal o f f i c i a l s with respect t o t h e
s t r e e t s under t h e i r j u r i s d i c t i o n .
" ( 3 ) T h a t t h e s t a t e of Montana s h a l l h a v e
i n t e g r a t e d s y s t e m s o f h i g h w a y s , r o a d s , and
s t r e e t s , and t h a t t h e s t a t e highway commis-
s i o n , t h e c o u n t i e s and m u n i c i p a l i t i e s a s s i s t
and c o o p e r a t e w i t h e a c h o t h e r t o t h a t e n d .
" ( 4 ) To p r o v i d e s u f f i c i e n t l y b r o a d a u t h o r i t y
t o e n a b l e t h e highway o f f i c i a l s a t a l l l e v e l s
o f government t o f u n c t i o n a d e q u a t e l y and
e f f i c i e n t l y i n a l l a r e a s of t h e i r r e s p e c t i v e
responsibilities, subject t o the limitations
of t h e c o n s t i t u t i o n and t h e l e g i s l a t i v e
mandate h e r e i n a f t e r imposed."
Clearly, the legislature intended t o v e s t broad authority
and d i s c r e t i o n i n c o u n t y o f f i c i a l s .
In t h e Research Report a t pages 45-46 and a g a i n a t
p a g e 1 3 7 , t h e commentary t o b o t h p r o p o s e d new c o d e s e c t i o n s
referring to the abandonment of county roads (now sections
7-14-2103 and 7-14-2601, MCA) indicates that the purpose of
the sections is to ensure that county commissioners can
discontinue or abandon roads only when they are properly
petitioned by interested landowners. There is no statement
of intent to force county commissioners to abandon county
roads at the landowners' request.
We must keep in mind that the board of county
commissioners is given the discretion to do whatever is
necessary for the best interests of county roads. This
discretion is contained in section 7-14-2102, MCA, which
states: "Each board of county commissioners may in its
discretion do whatever may be necessary for the best
interest of the county roads and the road districts."
After a consideration of all applicable statutes, we
conclude that the specific statutes applicable to this
action are section 7-14-2601 et seq., MCA. These statutes
show that the county commissioners have the discretion to
grant or deny a petition to abandon county roads. As above
quoted, Chennault supports that conclusion.
Such a conclusion does not render section 7-14-
2103(3), MCA, meaningless or without effect, as suggested by
plaintiffs. The section reasonably can be interpreted to
mean that the county commissioners shall abandon county
roads when a sufficient petition is filed, which, after the
requisite investigation, is found to be feasible and
desirable for the use and benefit of the public. In this
case, the county commissioners concluded that: (1) Snow
removal activity and drainage improvements would be hampered
by the abandonment of a twenty-foot strip on either edge of
the McHugh Lane right-of-way. (2) The county is considering
constructing a bike/pedestrian way along McHugh Drive for
the benefit of school children. (3) Finally, there is the
possibility that the planning office of the State Highway
Department is considering using McHugh Lane as a main
roadway, as it is more centrally located than Montana
Avenue. Each of the above conclusions supports the decision
of the board of county commissioners not to grant the
petition which would narrow the McHugh Lane right-of-way by
40 percent.
This Court finds that because the specific statutes
governing abandonment of county roads are discretionary, and
because the county commissioners have not manifestly abused
their discretion in denying plaintiffs' petition, mandamus
will not lie.
It is unnecessary for this Court to address the
second issue, since, even if plaintiffs' property interests
are adversely affected by the denial of their petition to
abandon, a writ of mandate may not be brought under the
circumstances of this case.
111
Plaintiffs argue that the defendant improperly denied
the petition to partially abandon the McHugh Lane right-of-
way. But plaintiffs' argument is based entirely upon their
position that defendant violated a mandatory duty as set
forth in section 7-14-2103(3), MCA. We have held above that
the discretionary statutes, section 7-14-2601 et seq., MCA,
are the specific statutes which govern in this case and that
the county commissioners did not abuse their discretion.
Plaintiffs' argument is without merit.
W e therefore vacate the order of the District Court.
The denial by the board of county commissioners of the
petition to abandon remains in full force and effect.
W e concur: