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

• Decision Date: 12 June 1937
• Docket Number: 7697.
• Citation: 69 P.2d 112,105 Mont. 44
• Parties: STATE ex rel. STATE HIGHWAY COMMISSION et al. v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY et al.
• Court: Montana Supreme Court

69 P.2d 112

105 Mont. 44

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

No. 7697.

Supreme Court of Montana

June 12, 1937

Appeal from District Court, Lewis and Clark County, First District George W. Padbury, Judge.

Proceeding by the State of Montana, on the relation of the State Highway Commission and the members thereof, for a writ of mandamus commanding the District Court of the First Judicial District in and for the County of Lewis and Clark and George W Padbury, Jr., a Judge thereof, to vacate, annul, and set aside a temporary restraining order and order to show cause why relator should not be enjoined from letting a contract for construction of a highway and to dismiss the petition for such orders.

District court directed to annul and set aside the orders and dismiss action.

W. D. Rankin and Arthur P. Acher, both of Helena, for respondents.

MORRIS Justice.

April 21, 1937, the State Highway Commission of the State of Montana called for the submission of bids to construct Federal Aid Project Number 267-A, consisting of approximately eight miles of the trunk highway known as Route No. 24 running from the city of Glendive to Bonner, near the city of Missoula. The eight miles of such highway that give rise to this controversy are a part of Route 24 between the town of Augusta and the village of Lincoln, in Lewis and Clark county. May 5, 1937, the Chamber of Commerce of Helena, Montana, and Shirley C. Ashby, a taxpayer of Lewis and Clark county, filed a petition in the district court of that county, alleging failure of the State Highway Commission to comply with certain provisions of the statutes in laying out and establishing such highway, asked for a restraining order and an order to show cause why an injunction should not issue enjoining the commission from awarding any contract for the construction of such project. A temporary restraining order was issued May 5, 1937, directing the State Highway Commission and the members thereof to appear on May 8 and show cause why they should not be enjoined from letting the contract. May 7 the relators here filed an application praying for a writ commanding Hon. George W. Padbury, Jr., judge of the district court of Lewis and Clark county, to vacate, annul, and set aside the restraining order, the order to show cause and dismiss the above mentioned petition. Pursuant thereto oral arguments were heard by this court May 22, briefs were filed, and the matter has been duly considered.

Counsel for the respective litigants have raised a number of questions for determination and have argued such questions at length, citing numerous authorities; but after a careful review of the applicable legislative acts and the amendments thereto, we are of the opinion that court decisions have but little bearing on the questions pertinent to a determination of the controversy, except certain decisions of this court which will be adverted to later, and in which some of the statutory provisions of our highway laws have been interpreted and applied to some extent. It appears to us that there are not any very reasonable grounds for any material difference of opinion as to the construction that must be placed upon the particular provisions of our statutes the meaning of which is brought in question here.

The question of general highway improvement throughout the country had been agitated in the Congress of the United States for a number of years prior to 1913, in which year our Legislative Assembly enacted chapter 78, Thirteenth Session Laws, as the initial highway act. No means of raising revenue for road building was provided by that act, but a scheme of road building was modestly provided for, obviously in anticipation of the agitation of the subject of highway building in Congress resulting in some feasible and substantial plans for road construction. The 1913 Act was repealed and superseded by chapter 170 of the Fifteenth Session, 1917, which divided the counties of the state into twelve districts, with a highway commission of twelve persons, one from each district, appointed by the Governor, and the commission was vested with power to make all rules and regulations necessary for its guidance and for the guidance of an executive committee of three, to be appointed from its own membership, and "in its discretion to make all rules necessary to comply with the provisions of the Federal Aid Road Act of Congress, approved July 11, 1916 (39 Stat.L. 355), and to obtain for the State of Montana the full benefit of the said Act of Congress." Section 5(a). No provision was made by that act for any participation by the counties.

Section 5(b) of that act provided: "The State Highway Commission is hereby authorized to designate what public roads in the State shall be classed as State Highways and subject to improvements under the provisions of this Act and under the provisions of the said Federal Aid Road Act of Congress; and the State Highway Commission shall also formulate necessary rules and regulations for the construction, repair and maintenance of State Highways and may provide for local supervision in such cases." By section 8 the commission was authorized on behalf of the state to assent to the provisions of the act of Congress above referred to, and further authorized to enter into all contracts with the United States Government relating to the survey, construction, and maintenance of the roads under the provisions of the act of Congress as may be required, "and, do all other things necessary to fully carry out the co-operation, contemplated and provided for by the said Act or Acts." The good faith of the state was pledged to furnish funds equal to the amount furnished by the federal government for the construction and maintenance of rural post roads; 75 per cent. of all moneys collected for motor license fees was directed to be credited to the state highway fund, and 25 per cent. to be credited to the various counties to be placed in the general road fund.

The 1917 Act was repealed and superseded by chapter 10 of the Extraordinary Session of 1921, which is the present law except for subsequent amendments not relating to any provisions involved in this controversy.

Running through the original Act of 1913, and all subsequent acts and amendments to the highway laws, we see a clear legislative intent to create a State Highway Department as an arm of the state government, vested with broad powers in order that such department might bring to realization the state's vision of a system of highways such as we enjoy today. The only part the counties have had, or were intended to have, in this work of progress was by giving cooperative aid to the commission, and their participation was merely incidental. Counties are vested with no affirmative or constructive power by any of the old acts nor by the present law. We are clearly of opinion that the Legislature did not intend to create the highway commission as a state agency to carry out the state's highway construction plans and at the same time vest in any county, another state agency, the power to control and, in effect, veto constructive acts of the commission done in compliance with the mandate of the legislature. And we think that to the extent that this court has heretofore construed our state highway statutes its decisions confirm our conclusions here.

In State ex rel. McMaster v. District Court, 80 Mont. 228, 260 P. 134, it was held, in substance, that the highway commission was vested with exclusive power to secure a right of way for state highways by the exercise of the right of eminent domain, and that the county could not exercise such power except to secure a right of way for a county road.

In State v. Hoblitt, 87 Mont. 403, 288 P. 181, 183, it was said: "The highway commission is empowered, 'in conjunction with the board of county commissioners of the several counties of the state,' to designate what public roads shall be state highways; the establishment and construction of such highways, under federal aid projects, is under the control of the state highway commission, and it is authorized to make changes in state highways (sections 1788 to 1796, Rev.Codes 1921), but nowhere in the act granting powers to the commission (chapter 139, part. 3, Political Code 1921, §§ 1783-1802) is the commission empowered to discontinue or abandon a county road superseded by a state highway. The power to lay out and establish, construct, or maintain highways does not confer power to vacate them. [Citing cases from other jurisdictions.] The power to discontinue a public highway is vested in the board of county commissioners of the county on petition of freeholders of the road district. Section 1635, Rev.Codes 1921. The construction of the new highway is therefore entirely separate and distinct from the matter of the discontinuance of the present road, and the two acts are under divergent authority. The present action has only to do with the establishment of the state highway." In that action a county road had been designated as a state highway and the highway commission thereafter sought to change the route approximately a quarter of a mile away from the former line established along the old county road to a new route. The court held the commission might establish the new route but could not abandon the old road as a county highway for the reasons stated. (In passing we think it well to state that that part of the foregoing opinion wherein it is stated that the power to lay out and construct highways does not confer the power to abandon, and that part relative to the power to discontinue public highways, obviously refer to county highways and not to state highways, as the...