State ex rel. State Highway Commission of Montana v. District Court of First Judicial Dist. in and for Lewis and Clark County

• Decision Date: 29 June 1938
• Docket Number: 7838.
• Citation: 81 P.2d 347,107 Mont. 126
• Parties: STATE ex rel. STATE HIGHWAY COMMISSION OF MONTANA et al. v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY et al.
• Court: Montana Supreme Court

81 P.2d 347

107 Mont. 126

STATE ex rel. STATE HIGHWAY COMMISSION OF MONTANA et al. v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY et al.

No. 7838.

Supreme Court of Montana

June 29, 1938

Proceeding by the State of Montana, on the relation of the State Highway Commission of the State of Montana and Lloyd A. Hague and others as members of and constituting the State Highway Commission, against the District Court of the First Judicial District of the State of Montana in and for the County of Lewis and Clark and the Honorable George W. Padbury, Jr., a judge thereof, for an appropriate writ commanding the respondent court and judge to vacate and annul an order restraining the Highway Commission from accepting bids and entering into a contract for the construction of a portion of a certain highway.

Writ ordered to issue directing the respondents, court and judge commanding them to vacate and annul the restraining order.

Sherman W. Smith, of Helena, for respondents.

RUDOLPH NELSTEAD, District Judge.

On May 23, 1938, R. M. Mills, a resident and taxpayer of Lewis and Clark County, filed his complaint in the district court of that county for an order directed to the State Highway Commission and the members thereof, requiring them to show cause why an injunction should not issue restraining the commission from accepting bids and entering into a contract for the construction of a portion of Route No. 24, running from Glendive in the eastern part of the state to Bonner near the city of Missoula. The portion in question is eight miles long, known as Federal Aid Project 267-B, and commonly called the Rogers Pass Highway. The district court thereupon issued a restraining order enjoining the State Highway Commission and its members from accepting bids or awarding any contract for construction. The plaintiff Mills having subsequently filed an amended complaint, the district court made a supplemental restraining order.

On June 2, 1938, the State Highway Commission and its members filed an original proceeding in this court against the district court and one of its judges, requesting the issuance of an appropriate writ commanding the respondent court and judge to vacate and annul the restraining order. On June 20, 1938, the date on which this cause was submitted, respondents' counsel advised the court that a second amended complaint had been filed two days prior thereto in the district court, the sufficiency of which presents the only question for consideration by this court.

There is no question about the fact that pursuant to the authority vested in it by the laws of this state, the State Highway Commission in March, 1938, selected, designated and established Federal Aid Project 267-B, and that the commission, desiring to avail itself of the benefits of the Federal Highway Act (Title 23, United States Code, 23 U.S.C.A. § 1 et seq.), submitted to the Secretary of Agriculture of the United States a project statement setting forth the proposed construction of that portion of Route No 24 known as Project 267-B, as a part of a primary highway in the state. On May 12, 1938, the Secretary approved the project, together with the survey, plans, specifications and estimates made by the State Highway Commission.

The regularity of the proceedings concerning the establishment of Route No. 24, which has been designated for several years as a Federal Aid Highway, has been approved by this court in State ex rel. State Highway Commission et al., Relators v. District Court et al., Respondents, 105 Mont. 44, 69 P.2d 112.

By this present proceeding there has been an attempt to inject the element of fraud. That part of the second amended complaint pertinent here, reads as follows:

"That the defendant the State Highway Commission of the State of Montana and a majority of its commissioners or members and a majority of the individual defendants herein did vote for the letting of bids for the construction of that certain piece of highway designated as 267-B and that said votes were cast by said majority of said defendant the State Highway Commission of Montana and by the majority of the individual defendants named herein fraudulently and illegally in that and because of the fact that valuable considerations, promises and inducements were offered to the defendants by interested parties who were desirous of having 267-B constructed. That although all of the defendants herein knew that the construction of 267-B would be of no value or benefit to any person or persons other than the few families who lived directly adjacent to said project and although the defendant herein knew that the general public would not use said 267-B for traveling purposes because of the fact that at the completion of said 267-B there would be a dead end on the westerly end thereof and that it would be impossible for a person traveling west to proceed past the west end thereof and although said defendants knew that it is possible that said highway in its entirety or in fact any of said highway in addition to 267-B, would never be constructed and that said project designated as 267-B, if the entire highway was not constructed, would simply deteriorate and crumble away and that the entire cost thereof would be wasted and although said defendants knew that there were many places along the route of said highway where an eight mile strip of road could be built and where the completion of an eight mile strip would be of great benefit to the traveling public and to the people of Montana generally and although said defendant knew that the vicinity where 267-B is proposed to be built is so sparsely settled and the travel thereon is so slight that said State Highway Commission of Montana

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