No. 90-357 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

STATE OF MONTANA, ex rel., FALLON COUNTY, a body politic and corporate, DELANE BEACH, GARY LANG and ART KOENIG, Relator

DISTRICT COURT OF THE SIXTEENTH JUDICIAL DISTRICT, Fallon County,Montana Respondent.

ORIGINAL PROCEEDING: Writ of Certiorari

COUNSEL gF RECORD: CC - 

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### a ,+ LL1W -J I Denzil R. Young; Fallon County Attorney; Baker, t OW Montana 0 CI= -_.a W -- L 

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## * Gene Huntley, Baker, Montana 

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# . I Submitted: October 12, 1990



## _ Decided: November 29, 1990 Filed:

4' ClerkJustice Fred J. Weber delivered the Opinion of the Court.

Relators Fallon County and Delane Beach, Gary Lang and Art Koenig (CountyCommissioners of that county), herein collectively referred to as Fallon County, have filed an application for writ of certiorari requesting that this Court review the order dated December 29, 1988 of the District Court of the Sixteenth Judicial District, Fallon County, finding the relators in contempt. We grant the writ of certiorariwithout notice and conclude that the December 29, 1988 order of the District Court should be annulled. Theunderlying case is causeNo. 4852,Fallon County District Court, in which 

### H. J. Halmans is plaintiff and the relators named herein are defendants. The District Court order of contempt was dated December 29, 1988 and was filed on January 4, 1989. The District Court file shows that the last filing or appearanceprior to the December 29, 1988 order was the filing of a brief dated August 9,1983, resulting in a delay of more than five years. In its order the District Court pointed out that the matter had been deemed submitted, that it was lost in chambers and the court apologized for the delay. We conclude that it is necessary to set forth facts in some detail. The underlying action was commenced by the filing of a complaint on October 17, 1980. The complaint referred to a gravel road in Fallon County, the east end of which terminated at its intersectionwith state highway No. 7,about seven miles north of Baker, Montana. The plaintiff alleged that the defendants undertook to change the road by closing and abandoning the east 2one-quarter mile of the road and curving it back to the east to reenter state highway No. 7 approximately one-quarter mile south of the previous intersection. The complaint alleged that the change in the road and the abandonment of theprevious portion was done by the defendantswithout regard to the controlling laws and requested a permanent injunction restraining the defendants from utilizing the altered road. After various motions, filings and other procedures, the District Court made and entered findings of fact and conclusions of law dated December 29, 1981. The court found that the defendants undertook to change the road by closing and abandoningthe easterly one-fourthmile and causing it to turn south to intersect with highway No. 7, which was approximately one-quarter mile south of the previous intersection. The court found that there had been no prior petition from the freeholders for a change in the roadway and also found that the defendants altered the roadwithoutprior notice to thepublic as required by statute. The court did find that the defendants believed the change would be in the interest of the traveling public. In its conclusions of law, the District Court referred to 

### 5 7-14- 2101(1)(a)(i)

## , MCA (1981), which provided that the general power of the county commissioners relating to roads is to lay out, maintain, control and manage roads as provided in that section. The court quoted the portion of the section which provided that each board shall survey, view, lay out, record, open, work and maintain county roads which arepetitioned forby freeholders. In addition it referred to § 7-14-2601(1)

### ,MCA (1981)

### ,whichprovidedthat any ten or a majority of the freeholders of a road district may petition the board in writing to open, establish, construct, change, abandonordiscontinueany county road. The DistrictCourt then concluded that the defendants were without authority to alter the county road without having received a petition or holding the public hearing required by law. The District Court executed its undated Judgmentwhich was filed on January 12, 1982which decreed that the defendantshad no authority to change the road by closing and abandoningand causing it to turn in themanner set forth. In addition, the judgment stated as follows: (2) Absent the utilization by defendants of the appropriate procedure in the future defendants are permanently enjoined from abandoning the road as it was before the indicated changeand arepermanently enjoined from using the road as changed. Defendantsaredirected to restore the road in question to its original configuration. The courtadjudged that the defendantshad no authority to attempt to abandon the road and any attempted abandonmentwas void. In a specific indicationthat itexpected thatthedefendantswould take the appropriate steps under the statute to abandon and approve the road changes, the court noted the inclement weather at that time of year and ruled that the changesrequired by the judgment should be done as soon asweather reasonably permitted. The attorney for the defendants filed a motion for stay of execution onApril 22, 1982. Attached to themotion was a copy of

a Petition toAlter a Roadway which was signed by more than ten of the freeholders residing in the road district whereby the petitionersrequestedthecounty commissionersofFallonCountynotto restorethe roadwayto its original right angle but to leave the roadway in thepresent rebuilt location. Thepetitionpointed out that there had been no additional cost and that the disadvantage of the old approach was that it was located immediately south of the crest of a hill and created a snow problem and a traffic hazard. Itpointed out that the new approachwas situated at the school bus stop alleviating a traffic hazard created by vehicles coming out of the old approach and stacking up at the school bus stop. The freeholders furtherpetitioned the county commissioners to abandon the old right angle approach to the highway. The substance of the Motion for Stay of Execution was that a hearing had been conductedby theBoard of County Commissionerseven though not required by statute and that twelve people testified in favor of the change and the only oppositionwere Bert Halmans and John Halmans and their counsel. Themotion pointed out that the county commissioners stand readyto restorethe roadway as requiredby the order of the District Court but that the freeholders desire the present roadwaypattern. Themotion therefore requested a stay of execution of the judgment, and a review of the proceedings of the county commissioners todetermine the adequacy of thepetition and the proceedings. Notice of motion was given to opposing counsel. The District Court filedoes not indicate that themotion was ever considered or ruled upon by the District Court. On July 12, 1983, the plaintiff filed an affidavit for contempt requesting that the court impose civil contempt sanctions against the defendants until they comply with the order of January12, 1982. An order to show cause was issued and served upon the defendants. Extensive briefs were filedby both sides. Thematter

came on for hearing before the District Court on August 3, 1983. A copy of a Resolution GrantingRoad Petition,dated May 17, 1982,

was filed by the Board of County Commissioners of Fallon County. ThatResolution set forththedetails of the filing of thepetition by more than ten freeholders,the giving of notice asprovided by statuteto thepublic, theholding of a hearing attended by twelve of the freeholders of the road district, a notation that the petitionwas signed by more than twenty-five residents of the road district and also signed by twenty-one persons who are frequent users thoughnot freeholders. TheResolutionpointed out that all of the witnesses save and except H.J. Halmans and his son, John Halmans,approvedthepresent configuration. TheBoard stated that it was totally familiar with the roadway and found that the petition substantially complied with the requirements of law and thatno furtherinvestigation concerningtheroadwaywasnecessary. The Board then resolved that the new roadway was desired by the vast majority of freeholders, that the proceedings referred to vested the Board with jurisdiction to alter the roadway and that the petition to alter the roadway should be granted and that the old roadway was deemed abandoned. The Resolution further stated that the resolution and granting of the petition was conditioned upon reviewby the District Court in the civil action inwhich the District Court found the Board lacked jurisdiction to alter the roadway; and if the District Court should decide that theproceedings were inadequate,then the commissionerswould restore the roadway to its original condition. Following the hearing, briefs were submitted, the last of which was the brief previously mentioned which was filed onAugust 9, 1983. Nothing further took place in the cause formore than fiveyearswhen theDistrict Court issued its order of December 29, 1988, finding the defendants in contempt of court. The contempt orderprovided that thedefendants may purge themselves by the payment of attorney fees and costs, payment of damages in the amount of $1,000, and abiding by the original court order. It is from that order of contempt that the proceedings in certiorariarebrought to thisCourt. Inthat order the District Court stated that after a prior hearing in this cause the court enjoined thedefendants from changing a county road from its prior location without following theprocedure provided by law and that the defendants failed to abide by that court order. No referencewas made in the Order to the proceedings on the part of the defendants to comply with the statutory requirements for abandonmentand constructionof anew road,and no referenceto the petition, notice, and resolution adopted by the defendants or the notice of the 1983 hearing. This Court has now been furnished with a copy of the transcript of the proceedings before the District Court on August 3, 1983. We note in particular that the transcript was prepared and certified on August 17, 1990 and filed with the Clerk of the DistrictCourt onAugust 27, 1990. As a result it isapparent that after a delay of more than five years the judge of the DistrictCourt did not have available for his review the same transcript which we have considered. After a careful review of the file, we are not able to determine if theDistrict Court had the opportunity of considering thevariousmotions and instruments whichhad been filed,including the petition filed by the freeholders and the resolution adopted by the Board of County Commissioners. From the order of contempt of the court, it appears likely that none of these matters came to the District Court's attention. The transcript shows that the Chairman of the Board of County Commissioners testified in the August 3, 1983 hearing. He testified that he had relied upon a letter from the Highway Department of the State of Montana which reviewed the safety aspects of the former approach and pointed out that the desired safe stopping distancewas 1050 feet but thattheold approachonly gave 700 feet. The chairman testified as to the public hearing, the matters presented and the conclusions reached on the part of the Board of County Commissioners. He testified that the county attorney had asked the state toperform a surveyon the corners and angles as contained in the copy of the letter. The chairman further testified that the proceedings which the county commissioners had taken were conducted upon the advice of the county attorney and that the county attorney had advised them that the proceedings gave them jurisdiction to alter the roadway. In theplaintiff's opposition to thepetition for certiorari, hepoints out thatthepetitiondid not state the "ownersaffected"and "whether the owners who can be found consent theretof1as required by 

### 5 7-14-2602, MCA. He also argues that the commissioners did not cause an investigation to be made of the feasibility,desirability and cost as required under § 7-14-2603, MCA, and did not make a finding as to the amount of damages sustainedby each owner. As mentioned, theproceedings suggest that the District Court did not consider any of the matters presented at the hearing nor the various papers filed with it, including the petition and resolution. The transcript also demonstrates that the Board of County Commissionershad thebenefit of the letter from theMontana Highway Department and that the commissioners not only were familiarwith the road,but engineered it todetermine whether the road was safe. Our careful reviewof the transcript and therecordhas caused

US to conclude therewas not a basis for the issuance of the order of contempt by the District Court. We conclude the record demonstrates that the defendants had followed the procedure originally suggested by the District Court in the abandonment of the old road and approval of the changed road. We note that the Judgment filed in the District Court on January 12, 1982 pointed out that the defendants are permanently enjoined from abandoning the road as it was before the indicated change, and were permanently enjoined from using the road as changed "absent the utilization by defendants of the appropriate procedure." It may be that the parties will conclude that it isappropriate to request the District Court to dissolve any injunction. This opinion shall constitute a judgment under the statute /988 specifically annulling the contempt order dated December 29, l989, which found the relators in contempt.