City of Harlem v. State Highway Commission

• Decision Date: 22 March 1967
• Docket Number: No. 11162,11162
• Citation: 149 Mont. 281,425 P.2d 718
• Parties: The CITY OF HARLEM, a Municipal Corporation, and Clarence Olson, Plaintiff and Appellant, v. STATE HIGHWAY COMMISSION of the State of Montana, and the State of Montana, Acting By and Through the State Highway Commission of the State of Montana, Defendant and Respondent.
• Court: Montana Supreme Court

Page 718

425 P.2d 718

149 Mont. 281

The CITY OF HARLEM, a Municipal Corporation, and Clarence

Olson, Plaintiff and Appellant, v. STATE HIGHWAY COMMISSION of the State of Montana, and the

State of Montana, Acting By and Through the State

Highway Commission of the State of

Montana, Defendant and Respondent.

No. 11162.

Supreme Court of Montana.

Submitted Jan. 13, 1967.

Decided March 22, 1967.

Harry L. Burns (argued), Chinook, for appellant.

Harry C. Alley (argued), Helena, for respondent.

DOYLE, Justice.

This is an appeal from an order dismissing and dissolving an injunction prohibiting the State Highway Commission from proceeding with construction of a primary highway project by-passing the City of Harlem, Montana.

For many years Highway No. 2, a primary highway, has been located adjacent to the business district of Harlem, Montana. On June 26, 1957, an agreement was executed between the State Highway Commission and the United States Bureau of Public Roads wherein the State Highway Commission agreed to construct 4.7 miles of secondary highway which would by-pass the Harlem business district. Pursuant to this agreement the State Highway Commission expended $90,926.70 to acquire all of the land necessary for the right-of-way except for one tract which for some time has been the subject of litigation. Additional preparation for the new route was made by letting a contract to construct a bridge across the Milk river which has since been completed and fully paid for.

An agreement was entered into between the City of Harlem and the State Highway Commission on June 8, 1964, wherein it was agreed that the new highway should be located over the southwest corner of the city. During 1965 the 39th Montana Legislature enacted Chapter 210, Laws of Montana, which required the State Highway Commission to secure the consent of incorporated municipalities before by-passing them with new secondary highways. The material part of Chapter 210, Laws of Montana, was codified as Section 32-1628 R.C.M.1947, and reads as follows: '32-1628. Bypassing of municipalities-consent of municipal governing body. (1) The highway commission shall not construct highway bypasses or highway relocation projects without prior consent of the governing body of an incorporated municipality when the by-passes or projects:

'(a) Are not part of the national system of interstate highways built under the national defense highway act; and '(b) Divert motor vehicles from an existing highway route through a municipality incorporated prior to January 1, 1965.

'(2) The highway commission shall notify the governing body of such municipality by certified mail that they propose to bypass the municipality. No contract shall be let nor work commenced until the governing body notifies the commission of its consent, or until the elapse of sixty (60) days after the notice has been sent by the highway commission to such municipality, whichever first occurs. The failure of such municipality to act and notify the highway commission of its action within such sixty (60) day period shall constitute implied consent to the bypass.

'(3) Actual consent or refusal to by-pass shall be in the form of a resolution, duly adopted by a majority of the members of the governing body of the municipality.

'(4) The governing body may not withdraw consent once the highway commission has been notified of such consent.

'(5) Nothing contained in this act shall in any way modify the provisions of section 32-1625, R.C.M.1947.'

After the enactment of the above-quoted section the City of Harlem brought an action to enjoin further construction of the by-pass. The matter was heard on its merits and an order issued releasing the State Highway Department from all prior restraints. From this order...