State ex rel. Dick Irvin, Inc. v. Anderson, 12762

• Decision Date: 28 June 1974
• Docket Number: No. 12762,12762
• Citation: 31 St.Rep. 482,164 Mont. 513,525 P.2d 564
• Parties: The STATE of Montana ex rel. DICK IRVIN, INC., a Montana corporation, and Keller Transport, Inc., a Montana corporation, et al., Relators, v. H. J. ANDERSON, as Director of Highways of the State of Montana, et al., Respondents.
• Court: Montana Supreme Court

Page 564

525 P.2d 564

164 Mont. 513

The STATE of Montana ex rel. DICK IRVIN, INC., a Montana corporation, and Keller Transport, Inc., a Montana corporation, et al., Relators, v. H. J. ANDERSON, as Director of Highways of the State of Montana, et al., Respondents.

No. 12762.

Supreme Court of Montana.

Submitted May 21, 1974.

Decided June 28, 1974.

Scribner & Huss, A. W. Scribner (argued), Helena, Robert L. Stephens, Jr., Billings, for relators.

N. A. Rotering, Harry C. Alley (argued), Helena, for respondents.

Risken & O'Leary, John H. Risken (argued), Helena, for amicus curiae.

JOHN C. HARRISON, Acting Chief Justice.

This is an original proceeding brought by certain trucking corporations, the Montana Motor Transport Association, Inc., a Montana corporation, and the National Independent Truckers Assoc. of Montana, a Montana corporation, seeking a declaratory judgment determining their rights as holders of restricted route permits issued by the State Highway Commission authorizing transportation within the weight limitations set forth in section 32-1123(5)(c), R.C.M.1947, upon Montana's interstate highway system.

The specific legal issues sought to be determined are:

1. Can this Court adjudge and declare under the laws of the state of Montana in existence on July 1, 1956, that the State Highway Commission, its officers and agents are empowered, in appropriate cases, to issue restricted route permits authorizing the movement of vehicles over the state highways within the weight limitations set forth in section 32-1123(5)(c), R.C.M.1947, without regard to the limitations imposed by section 32-1127, R.C.M.1947.

2. That the action proposed to be taken by the Highway Commission on the basis of any other or contrary interpretation of law as it existed on July 1, 1956, is arbitrary, capricious and illegal.

Relators herein are truckers who presently hold restricted route permits issued by the State Highway Commission and this action is brought to prevent the Highway Commission from canceling these permits, as to their use on the interstate highways after midnight June 30, 1974. On December 11, 1973, the Highway Commission amended its regulations to allow restricted route-load permits to use the interstate highway within the state. See Montana Administrative Code 18-2.10(14)-S10140.

Relators argue that thereafter various individual relators applied for and received from the Highway Commission restricted route permits pursuant to the new regulation, authorizing travel within such increased weight limitations, paid the license fee for such permits, and in reliance thereon invested substantial amounts of capital for additional and heavier equipment to accommodate such loads.

On April 1, 1974, respondent Highway Commission reversed its action of December 11, 1973, declaring that such permits as issued would not be recognized after June 30, 1974. We note the reasons given by the Commission:

'The F.H.W.A. finds the action contrary to their (FHWA) interpretation of Montana statutes regulating the axle weight, tandem axle weight, gross weight of groups of axles, vehicle or combination of vehicles, and maximum width of 96 inches, July 1, 1956.

'The Montana Highway Commission rescinded their action of December 11, 1973 on April 1, 1974 in order to protect the allocation of federal highway funds to Montana for future construction from cancellation. The Montana Highway Commission, by their action, have stopped the issuance of restricted routeload permits for use on the interstate highway system (I. 15, I 90, & I 94) Effective April 1, 1974. 'Restricted route-load permits issued prior to April 1, 1974 will be recognized for interstate highway system travel until further notice, but under no circumstances after midnight June 30, 1974.' (Emphasis supplied.)

As italicized above, the Highway Commission gives two reasons for the proposed retraction of the permits (1) it is contrary to an interpretation of Montana law by employees of a federal bureau (FHWA), and (2) Montana might lose federal highway construction funds if it does not comply with the federal directive. Yet the Court was informed by relators during oral argument, and not denied by respondents, that the U. S. Department of Transportation is sponsoring legislation before Congress allowing what was done here by the Highway Commission in December 1973.

Some 4,000 to 5,000 permits were issued on the basis of the action taken in December. It is alleged that the reason for the change in December, permitting the use of the interstate, came about due to the existing energy shortage and a request by the Governor of Montana to federal authorities who on the basis of emergency conservation approved the request to make the change. It is conceded there is no practical reason why the interstate highway system should be the subject of weight limitations which are less than those authorized upon the other highways of the state.

The real crux of the matter here, as noted by counsel for respondents, is that the respondent Commission has since 1956 operated on either its own interpretation of Montana statutes sections 32-1123 and 32-1127, R.C.M.1947, or that made by federal employees. The Highway Commission has never had or requested in any case before this Court a definitive opinion to guide it.

The question of whether or not this Court can take original jurisdiction of this matter and enter a declaratory judgment has long been decided in Montana.

Under the circumstances the Court clearly has power to accept original jurisdiction and to enter a declaratory judgment. We quote from 42nd Legislative Assembly v. Lennon, 156 Mont. 416, 421, 481 P.2d 330, 333:

'* * * Montana case law is replete with authority sustaining the original jurisdiction of the Supreme Court in declaratory judgment actions in a variety of situations. State ex rel. Schultz-Lindsay v. Board of Equalization, 145 Mont. 380, 403 P.2d 635; Carey, State Treas. v. McFatridge, 115 Mont. 278, 142 P.2d 229; Gullickson v. Mitchell, 113 Mont. 359, 126 P.2d 1106; Bottomly v. Meagher County, 114 Mont. 220, 133 p.2d 770. The foregoing cases establish the original jurisdiction of the Supreme Court in a declaratory judgment action where legal questions of an emergency nature are presented and ordinary legal procedures will not afford timely or adequate relief.'

Although the question involved in this case can be simply stated, much background information is needed before its significance can be appreciated. We must first go back to the federal law establishing the interstate highway system for an understanding of why the dispute has arisen. On August 27, 1958, the Congress of the United States enacted Public Law 85-767, which as amended is codified as Title 23, Section 127 of the United States Code. The section reads as follows:

'No funds authorized to be appropriated for any fiscal year under section 108(b) of the Federal-Aid Highway Act of 1956 shall be apportioned to any State within the boundaries of which the Interstate System may lawfully be used by vehicles with weight in excess of eighteen thousand pounds carried on any one axle, or with a tandem-axle weight in excess of thirty-two thousand pounds, or with an over-all gross weight in excess of seventy-three thousand two hundred and eighty pounds, or with a width in excess of ninety-six inches, or the corresponding maximum weights or maximum widths permitted for vehicles using the public highways of such State under laws or regulations established by appropriate State authority in effect on July 1, 1956, whichever is the greater. Any amount which is withheld from apportionment to any State pursuant to the foregoing provisions shall lapse. This section shall not be construed to deny apportionment to any State allowing the operation within such State of any vehicles or combinations thereof that could be lawfully operated within such State on July 1, 1956. With respect to the State of Hawaii, laws or regulations in effect on February 1, 1960, shall be applicable for the purposes of this section, in lieu of those in effect on July 1, 1956.'

The foregoing section prescribes the limitations which must be observed by the states in order for them to qualify for their annual apportionment of federal funds for highway purposes. The section reveals the following criteria for determining permitted sizes and weights on the interstate system:

a. The state laws in effect on July 1, 1956, must be examined for the purpose of determining whether the maximums prescribed in the federal code or the maximums prescribed by state law apply. If the state law permitted greater maximums as of July 1, 1956, these are controlling, otherwise, the federal maximum prevails.

b. If the state law in effect on July 1, 1956, authorized variations from the maximums, by special permit or otherwise, such variations are also permitted by the federal statutes to be authorized over the interstate system. Furthermore, a state statute passed after July 1, 1956, setting forth procedures or limitations with respect to such variations may also apply to the interstate system, if the state statutes in effect on July 1, 1956, were broad enough to allow such operations. This is made clear by the following provision of Title 23, Section 127, U.S.C.:

'This section shall not be construed to deny apportionment to any State allowing the operation within such State of any vehicles or combinations thereof that could be lawfully operated within such State on July 1, 1956.'

It thus becomes necessary for us to examine the Montana laws in effect on July 1, 1956 to determine, first, the weight limitations having general applicability at that time, and second, the extent to which variations from these weight limitations were authorized by special permit at that time. It is also important for us to examine the amendments to these provisions enacted by the legislature after July 1, 1956, for the purpose of...