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No. 81-14 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

INGRAM-CLEVENGER, INC., a Montana Corporation, EDWARD P. McHUGH, GENE R. and MARGARET L. PORTER, et al., Plaintiffs and Respondents,

LEWIS AND CLARK COUNTY; LEWIS & CLARK BOARD OF COUNTY COMMISSIONERS; BOB DECKER; et al. , Defendants and Appellants.

Appeal from:

District Court of the First Judicial District, In and for the County of Lewis and Clark. Honorable Peter Meloy, Judge presiding.

Counsel of Record: For Appellants: Charles A. Graveley, County Attorney, Helena, Montana For Respondents: Keller, Reynolds, Drake, Sternhagen, & Johnson, Helena, Montana Gough, Shanahan, Johnson & Waterman, Helena, Montana

Submitted on briefs: July 2, 1981 Decided: Filed: f)CT 2 0 18 91

OCT 2 0 1981

Mr. Justice Fred J. Weber Court.

delivered the Opinion of

the

Defendant Lewis and Clark County Board of Commissioners appeals from the order District Court granting of the First Judicial petition for a

plaintiffs'

peremptory writ of mandamus directing the defendant to grant plaintiffs' petition to partially abandon the County's claim of right-of-way easement to the outer twenty feet on each side of McHugh Lane, thus reducing the easement from one hundred feet to sixty feet. The issues: 1. Whether a writ of mandamus is the proper remedy county commissioners present the following

in this case. a. roads? b. tionary? 2. Whether any rights of the plaintiffs to the porIs the controlling statute mandatory or discreWhich statute controls the abandonment of county

tion of roadway they seek to have abandoned were adversely affected by sioners. In addition, the plaintiffs include this issue: 1. Did the defendant properly deny the petition to the actions of the board of county commis-

partially abandon McHugh Lane? We reverse the District Court. McHugh Lane (or Drive) is a county road running

north-south through the Helena Valley.

In 1890, Lewis and

Clark County was granted a 100-foot right-of-way to establish the road. On June 6, 1980, plaintiffs presented the board of

county commissioners with

a petition

signed

by

every The

landowner owning property adjacent to McHugh Lane.

petition requested that the County abandon forty feet of the McHugh Lane right-of-way (twenty feet on each side). The

petition was discussed at a regularly scheduled and noticed hearing of the Lewis and Clark County Commissioners on July 22, 1980. At this time, the commissioners found the

petition to be in proper form required under section 7-142602, MCA, a finding reiterated in defendant's brief. commissioners denied the petition. On August 22, 1980, plaintiffs filed suit, seeking a peremptory writ of mandamus against Lewis and Clark County, the board of county commissioners and the three county The

commissioners.

Oral argument as to the applicable law was Briefs were submitted at the On October 20, 1980, the

heard on September 3, 1980.

District Court judge's request.

District Court issued its order and opinion, granting plaintiffs' writ of mandate and directing the board of to

county commissioners to forthwith grant partially abandon McHugh Lane.

the petition

The District Court awarded The County appeals.

attorney fees and costs to plaintiffs. Through their

briefs, the parties agree that the

following principles should be applied: (1) The District Court may issue a writ of mandate compelling the county commissioners to perform an act which the law specifically requires as a duty of their office. State ex rel. Browman v. Wood (1975), 168 Mont. 341, 344345, 543 P.2d 184, 187. (2) If the act to be performed is discretionary

rather than mandatory, ordinarily mandamus will not lie.

Cain v.

Department

of

Health,

etc.

( 1 9 7 8 ) , 177 Mont.

448,

4 5 1 , 582 P.2d 332, 334. ( 3 ) I f t h e r e h a s been such an abuse o f d i s c r e t i o n a s t o amount t o no e x e r c i s e o f d i s c r e t i o n a t a l l , mandamus w i l l l i e t o compel t h e p r o p e r e x e r i c s e o f p o w e r s g r a n t e d . Cain 451,

v.

Department of

Health,

etc.

( 1 9 7 8 ) , 1 7 7 Mont,

448,

582 P.2d 3 3 2 , 334. ( 4 ) When s p e c i f i c s t a t u t o r y l a n g u a g e c o n f l i c t s o r i s i n c o n s i s t e n t with g e n e r a l s t a t u t o r y language, statutory repugnancy. (1980)t 666. language 1"lnt. the specific of any

w i l l

prevail

to

the Mont.

extent Bd. of

Health Systems v.

Health 664,

- Mont. -,

612 P.2d 1 2 7 5 , 1 2 7 6 , 37 S t . R e p .

I
The parties disagree as to which statutes are

s p e c i f i c and which a r e g e n e r a l , and t h e r e f o r e d i s a g r e e a s t o which
MCA,

statute or appears
et

statutes control. be mandatory
MCA,

Section wording,

7-14-2103(3), while section The

to seq.,

in

7-14-2601

appear

t o be

discretionary.
MCA,

D i s t r i c t C o u rt found t h a t s e c t i o n 7-14-2103(3),

was t h e

s p e c i f i c s t a t u t e g o v e r n i n g t h e a c t i o n and was m a n d a t o r y , and t h e r e f o r e g r a n t e d mandamus. The r e l e v a n t s t a t u t e s f o l l o w . Under the heading "General Provisions provides: Related to

C o u n t y R o a d s , " s e c t i o n 7-14-2103,

MCA,

"Duties of county c o m m i s s i o n e r s ~ n c e r n i n q county roads. ( 3 ) Each b o a r d s h a l l d i s c o n t i n u e o r a b a n d o n c o u n t y r o a d s when ....................... f r e e h o l d e r s p r o p e r l y -p ----------------. " etition therefor (Emphasis s u p p l i e d . )

. . .

Under Abando nment

the of

heading County

"Establishment, section

Alterati 7-14-260

and
MCA,

Roads",

provides in pertinent part: "7-14-2601. Petition to establish, alter, or abandon a county road. (1) Any 10, or a majority, of the freeholders of a road district taxable therein for road purposes may petition the board in writing to open, establish, construct, change, abandon, or discontinue any county road in the district." Section 7-14-2602, MCA, establishes what information must be set forth in the petition. Section 7-14-2603, MCA,

provides for an investigation to determine the merits of the petition and allow the board to reach a decision. 7-14-2604, MCA, requires the board to notify Section adjoining

landowners within ten days of its decision. Clearly, section 7-14-2103(3), MCA, is mandatory in wording, stating that the county commissioners "shall. abandon county roads" when properly petitioned.

. .

Section 7-

14-2601 et seq., MCA, require the exercise of discretion by the board; they provide for a study of the "feasibility, desirability and cost of granting the prayer," and refer several times to the "decision" of the board. is to be based and upon can the "merits or a That decision the the

demerits of to grant

petition,"

only

mean

decision

petition or deny it. Defendant argues that the provisions governing the procedure for abandoning county roads, section 7-14-2601 et seq., MCA, are specific and must prevail over section 7-142103 (3) , MCA, which appears under the heading "General Provisions

. . ."

Defendant emphasizes

that

(1) all

the

procedural requirements, including notice and hearing and an investigation of the feasibility of the petition, have been complied with; (2) the decision to deny the petition to

abandon was discretionary, and mandamus will not lie.

Plaintiffs contend that section 7-14-2103(3), MCA, is mandatory and is the specific provision and must prevail. plaintiffs further contend that the county commissioners

failed to partially abandon when properly petitioned by all adjoining landowners and thus, because they refused to

perform a duty legally required of them, mandamus is the proper remedy. This Court is aware that a District Court's decision to grant or deny a writ of mandate is a matter of discretion and will be sustained on appeal in the absence of a showing oi abuse of discretion. Cain v. Department of Health, etc. The District section 7-14-

(1978), 177 Mont. 448, 451, 582 P.2d 332, 334. Court judge here, attempting to reconcile

2103(3), MCA, with section 7-14-2601 et seq., MCA, concluded that the latter provisions apply only when the petition to abandon is disputed, and that, under the circumstances of this case, section 7-14-2103(3), MCA, is the specific

statute which governs and mandates abandonment when it is sought by all adjoining landowners by a proper petition. We must disagree. There is no language in section

7-14-2103(3), MCA, which indicates that it applies only to a unanimous petition to abandon. Nor is there language in indicates that the

section 7-14-2601 et seq., MCA, which

procedural requirements therein apply only to disputed petitions. Indeed, for a determination whether a petition of section 7-14-

to abandon is proper within the meaning

2103(3), MCA, it is necessary to look to the provisions of section 7-14-2601 and -2602, MCA, which specify who should bring the petition and what information the petition must contain.

I n Chennault v.

Sager

(1980),

--

Mon t

.

,

610

P.2d 1 7 3 , 1 7 5 , 37 S t . R e p .

8 5 7 , 859-860,

t h i s Court s t a t e d :

"The s t a t u t o r y scheme f o r t h e abandonment o f c o u n t y r o a d s i s f o u n d i n s e c t i o n s 7-14-2601 t h r o u g h 7-14-2621, MCA. To i n i t i a t e p r o c e e d i n g s , any t e n o r a m a j o r i t y of f r e e h o l d e r s o f a road d i s t r i c t p e t i t i o n t h e board of c o u n t y c o m m i s s i o n e r s f o r t h e abandonment of a p a r t i c u l a r road. S e c t i o n 7-14-2601, MCA, Within t h i r t y days a f t e r t h e f i l i n g of t h e p e t i t i o n , t h e commissioners cause an i n v e s t i g a t i o n t o be c o n d u c t e d r e g a r d i n g t h e m e r i t s of t h e p e t i t i o n . S e c t i o n 7-14-2603, MCA. A p u b l i c h e a r i n g i s t h e n s c h e d u l e d and S e c t i o n 7n o t i c e of t h e h e a r i n g is g i v e n . 1 4 - 2 6 1 5 ( 2 ) , MCA. The r e s u l t s o f t h e i n v e s t i g a t i o n and t h e h e a r i n g a r e c o n s i d e r e d by t h e commissioners, and a d e c i s i o n is e n t e r e d whether t o abandon t h e r o a d . W i t h i n t e n d a y s a f t e r t h e d e c i s i o n , t h e commissioners cause n o t i c e o f t h e i r d e c i s i o n t o be s e n t t o a l l o w n e r s o f l a n d a b u t t i n g t h e r o a d f o r which abandonment was s o u g h t . S e c t i o n 7-14-2604,
MCA

."

T h e r e i s no r e f e r e n c e i n C h e n n a u l t , s u p r a , t o s e c t i o n 7-14-2103(3), roads.
MCA,

a s governing

the

abandonment

of

county

Nor i s t h e r e any d i s t i n c t i o n drawn b e t w e e n p e t i t i o n s

b r o u g h t by a few a d j o i n i n g l a n d o w n e r s and t h o s e b r o u g h t by a l l a d j o i n i n g landowners, s e c t i o n 7-14-2601, In (19781, Dept. of
MCA,

a s long a s the guidelines set i n

a r e met. v. Puget Sound Power
&

Revenue

Light 1368,

- Mont. -,

587 P.2d 1 2 8 2 , 1 2 8 7 , 35 S t . R e p .

1373, w e s t a t e d : "Although a c a r d i n a l r u l e of statutory c o n s t r u c t i o n is t h a t t h e i n t e n t of t h e l e g i s l a t u r e m u s t f i r s t be d e t e r m i n e d from t h e p l a i n meaning o f t h e words u s e d [ c i t a t i o n omitted], i n determining the l e g i s l a t i v e i n t e n t i n e n a c t i n g a s t a t u t e , a c o u r t can r e s o r t t o t h e h i s t o r y of the statute. [Citation omitted. 1 " The s t a t u t e s i n q u e s t i o n h e r e were t h e r e s u l t o f a

f i f t e e n - m o n t h r e c o d i f i c a t i o n s t u d y d o n e by t h e Montana S t a t e U n i v e r s i t y (now U n i v e r s i t y o f Montana) S c h o o l o f Law f o r t h e

Montana United Roads. booklet

State States

Highway

Commission of

in

cooperation Bureau

with of

the

Department

Commerce,

Public

The s t u d y c u l m i n a t e d i n t h e p u b l i c a t i o n i n 1964 o f a entitled, " R e s e a r c h R e p o r t on t h e Montana Highway

C o d e , " which c o n t a i n e d t h e o l d c o d e , a p r o p o s e d new c o d e and a commentary. The p r o p o s e d code was i n t r o d u c e d d u r i n g t h e

1 9 6 5 l e g i s l a t i v e s e s s i o n by t h e Committee on Highways and Transportation as Senate
B i l l

170

and

was

adopted

with

l i t t l e r e v i s i o n and no c h a n g e s p e r t i n e n t The new law included a statement of

to this

inquiry. intent

legislative

( C h a p t e r 1, s e c t i o n 2 ) c o n t a i n i n g t h e f o l l o w i n g s t a t e m e n t s :

". . .

[TI he l e g i s l a t i v e a s s e m b l y i n t e n d s :

" ( 1 ) To p l a c e a h i g h d e g r e e o f t r u s t i n t h e h a n d s of t h o s e o f f i c i a l s whose d u t y i t i s , within the l i m i t s of a v a i l a b l e funds, t o p l a n , d e v e l o p , o p e r a t e , m a i n t a i n and p r o t e c t t h e highway f a c i l i t i e s o f t h i s s t a t e f o r present a s w e l l a s for future use.

" ( 2 ) To make t h e s t a t e highway c o m m i s s i o n c u s t o d i a n of the federal-aid and s t a t e h i g h w a y s , and t o impose s i m i l a r r e s p o n s i b i l i t i e s upon t h e b o a r d s of c o u n t y commiss i o n e r s w i t h r e s p e c t t o c o u n t y r o a d s and upon municipal o f f i c i a l s with respect t o t h e s t r e e t s under t h e i r j u r i s d i c t i o n .
" ( 3 ) T h a t t h e s t a t e of Montana s h a l l h a v e i n t e g r a t e d s y s t e m s o f h i g h w a y s , r o a d s , and s t r e e t s , and t h a t t h e s t a t e highway commiss i o n , t h e c o u n t i e s and m u n i c i p a l i t i e s a s s i s t and c o o p e r a t e w i t h e a c h o t h e r t o t h a t e n d .
" ( 4 ) To p r o v i d e s u f f i c i e n t l y b r o a d a u t h o r i t y t o e n a b l e t h e highway o f f i c i a l s a t a l l l e v e l s o f government t o f u n c t i o n a d e q u a t e l y and e f f i c i e n t l y i n a l l a r e a s of t h e i r r e s p e c t i v e responsibilities, subject t o the limitations of t h e c o n s t i t u t i o n and t h e l e g i s l a t i v e mandate h e r e i n a f t e r imposed." Clearly, the legislature intended t o v e s t broad authority

and d i s c r e t i o n i n c o u n t y o f f i c i a l s . In t h e Research Report a t pages 45-46 and a g a i n a t

p a g e 1 3 7 , t h e commentary t o b o t h p r o p o s e d new c o d e s e c t i o n s

referring to the abandonment of county roads (now sections 7-14-2103 and 7-14-2601, MCA) indicates that the purpose of the sections is to ensure that county commissioners can discontinue or abandon roads only when they are properly petitioned by interested landowners. There is no statement

of intent to force county commissioners to abandon county roads at the landowners' request. We must keep in mind that the board of county is

commissioners is given the discretion to do whatever necessary for the best interests of county roads.

This

discretion is contained in section 7-14-2102, MCA, which states: "Each board of county commissioners may in its for the best

discretion do whatever may be necessary

interest of the county roads and the road districts." After a consideration of all applicable statutes, we conclude that the specific statutes applicable to this

action are section 7-14-2601 et seq., MCA.

These statutes

show that the county commissioners have the discretion to grant or deny a petition to abandon county roads. quoted, Chennault supports that conclusion. Such a conclusion does not render section 7-14As above

2103(3), MCA, meaningless or without effect, as suggested by plaintiffs. mean that The section reasonably can be interpreted to the county commissioners shall abandon county

roads when a sufficient petition is filed, which, after the requisite investigation, is found to be feasible and In this (1) Snow

desirable for the use and benefit of the public. case, the county commissioners concluded that:

removal activity and drainage improvements would be hampered by the abandonment of a twenty-foot strip on either edge of

the McHugh Lane right-of-way. constructing a bike/pedestrian

(2) The county is considering way along McHugh Drive for (3) Finally, there is the

the benefit of school children.

possibility that the planning office of the State Highway Department roadway, Avenue. of the as is considering it is more using McHugh Lane as a main

centrally

located

than

Montana

Each of the above conclusions supports the decision board of county commissioners not to grant the

petition which would narrow the McHugh Lane right-of-way by 40 percent. This Court finds that because the specific statutes governing abandonment of county roads are discretionary, and because the county commissioners have not manifestly abused their discretion in denying plaintiffs' petition, mandamus will not lie.

It

is

unnecessary

for

this Court

to

address

the

second issue, since, even if plaintiffs' property interests are adversely affected by the denial of their petition to abandon, a writ of mandate may not be brought under circumstances of this case.
111

the

Plaintiffs argue that the defendant improperly denied the petition to partially abandon the McHugh Lane right-ofway. But plaintiffs' argument is based entirely upon their a mandatory duty as set We have held above that

position that defendant violated forth in section 7-14-2103(3), MCA.

the discretionary statutes, section 7-14-2601 et seq., MCA, are the specific statutes which govern in this case and that

the county

commissioners did

not

abuse

their discretion.

Plaintiffs' argument is without merit. W e therefore vacate the order of the District Court. The denial by the board of county commissioners of the

petition to abandon remains in full force and effect.

W e concur:



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