State ex rel. Jones v. Giles

• Decision Date: 10 October 1975
• Docket Number: No. 13002,13002
• Parties: The STATE of Montana ex rel. Chester L. JONES, County Attorney of Madison County, Montana, Plaintiff and Appellant, v. John M. GILES and Lynn Giles, Defendants and Respondents.
• Court: Montana Supreme Court

Page 355

541 P.2d 355

168 Mont. 130

The STATE of Montana ex rel. Chester L. JONES, County Attorney of Madison County, Montana, Plaintiff and Appellant, v. John M. GILES and Lynn Giles, Defendants and Respondents.

No. 13002.

Supreme Court of Montana.

Submitted Sept. 11, 1975.

Decided Oct. 10, 1975.

Chester L. Jones, County Atty., Virginia City, argued for plaintiff and appellant.

Goldman, McChesney & Eck, H. L. McChesney argued, Missoula, for defendants and respondents.

Donald A. Douglas argued, Helena, for amicus curiae.

HASWELL, Justice.

The Madison County attorney appeals from a district court judgment dismissing his action to abate as a public nuisance, pursuant to the Montana Outdoor Advertising Act, a commercial sign along a primary state highway.

The facts are undisputed. Defendants, John M. and Lynn Giles, own the King's Motel in Twin Bridges, Montana, which has on its premises, and within 660 feet of the primary highway, a small flashing sign, containing a forty watt light bulb on each side. Flashing signs are prohibited within 660 feet of a primary highway unless they provide 'public service information such as time, date, temperature, weather or similar information.' Sections 32-4717 and 32-4719(j), R.C.M.1947.

All outdoor advertising which does not conform to the requirements of the Outdoor Advertising Act is denominated a public nuisance. Section 32-4728, R.C.M.1947.

The controlling issue on appeal is whether section 32-4722, R.C.M.1947, provides an administrative remedy for the removal of noncomplying signs that must be exhausted before resorting to the judicial system.

Appellant contends the statement in section 32-4728, R.C.M.1947, declaring nonconforming advertising to be a public nuisance grants him authority to enjoin and abate the King's Motel sign as a public nuisance. It is asserted that the remedy of abatement of public nuisances provided in section 57-108(3), R.C.M.1947, is a basis for judicial action in the instant case.

It is contended that sections 57-111 and 16-3101(1), R.C.M.1947, require county attorneys to abate nonconforming signs as public nuisances. In our view, the fact that nonconforming signs are defined as public nuisances does not per se authorize circumvention of administrative remedies within the Department of Highways. Section 32-4722, R.C.M.1947, provides an administrative remedy for removal of nonconforming signs and judicial relief may not be sought until administrative remedies have first been exhausted. It is a general principle that if an administrative remedy is provided by statute, that relief must be sought from the administrative body and the statutory remedy exhausted before relief can be obtained by judicial review. State ex rel. Sletten Const. Co. v. Great Falls, 163 Mont. 307, 516 P.2d 1149; Ralph's Chrysler-Plymouth v. New Car Deal. P. & A. Bd., 8 Cal.3d 792, 106 Cal.Rptr. 169, 505 P.2d 1009; Top Hat Liquors, Inc. v. Department of Alco. Bev. Con., 13 Cal.3d 107, 118 Cal.Rptr. 10, 529 P.2d 42.

Section 32-4722 establishes a specific administrative remedy for the removal of nonconforming outdoor advertising. Advertising erected after June 24, 1971, contrary to the Outdoor Advertising Act is unlawful. The Department of Highways is granted authority to enter upon private lands to determine whether outdoor advertising complies with the Act. If it is determined that the advertising is unlawful, the Department is instructed to notify the owner of the land and advertising structure of its intention to remove the illegal advertising. The owner then has forty-five days to request a hearing before the Highway Commission to show cause why the structure should not be removed. If no hearing is requested, or if there is no appeal from the commission's decision at the hearing, or if the Commission's decision is affirmed on appeal, the Department has authority to remove the objectionable advertising.

In determining legislative intent, an express mention of a certain power or authority implies the exclusion of nondescribed powers. Reed v. Reed, 130 Mont. 409, 304 P.2d 590; Helena Valley Irrigation Dist. v. St. Hwy. Comm'n, 150 Mont. 192, 433 P.2d 791, 82 C.J.S. Statutes § 333. Therefore, section 32-4722 sets forth the specific administrative procedure to be used by the Department in removing nonconforming advertising.

The legislative history of the Act is helpful in determining legislative intent. In 1967 the legislature enacted sections 32-4701 to 32-4714, R.C.M.1947, regarding zoning and advertising regulation along highways. Section 32-4711, provided:

'The State Highway Commission shall enforce the provisions of this act through the remedy of injunction or other appropriate legal proceedings, and shall not act except through such proceedings.'

In 1971 sections 32-4701 to 32-4714, R.C.M.1947, were repealed by Sec. 17, ch. 2, 2nd Ex.Laws 1971 and sections 32-4715 to 32-4728, R.C.M.1947, (Outdoor Advertising Act) were enacted. The remedy of 'injunction and other appropriate legal proceedings' was replaced by the administrative remedy set forth in section 32-4722.

An established rule of statutory construction is that there is a presumption the legislature, by repealing an old law and adopting a new statute, intended to make some change and that the courts will endeavor to give some effect to this change. State ex rel. Dick Irvin Inc. v. Anderson, 164 Mont. 513, 525 P.2d 564, 31 St.Rep. 482; Van Tighem v. Linnane, 136 Mont. 547, 349 P.2d 569; State v. Swanberg, 130 Mont. 202, 299 P.2d 466. In light of this rule it is evident that the legislature intended to eliminate the judicial remedy prescribed by...