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: 

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-J I Denzil R. Young; Fallon County Attorney; Baker, 

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=! a, k gFor Respondent: 

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=2 n * Gene Huntley, Baker, Montana 2 L'lz, 

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Submitted: October 12, 1990 

_ Decided: November 29, 1990 

Filed: 

4' 

Clerk 
Justice Fred J. Weber delivered the Opinion of the Court. 

Relators Fallon County and Delane Beach, Gary Lang and Art 

Koenig (County Commissioners 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 certiorari without notice and conclude that the 

December 29, 1988 order of the District Court should be annulled. 

The underlying case is cause No. 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 appearance prior 

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 

intersection with 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 

2 
one-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 the previous portion was 

done by the defendants without 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 abandoning the easterly one-fourth mile 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 road without prior notice to the public 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 are petitioned for by freeholders. In 

addition it referred to § 7-14-2601 (1) , MCA (1981) , which provided 
that any ten or a majority of the freeholders of a road district 

may petition the board in writing to open, establish, construct, 

change, abandon or discontinue any county road. The District Court 

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 Judgment which was filed on January 12, 1982 which decreed 

that the defendants had no authority to change the road by closing 

and abandoning and causing it to turn in the manner 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 change and are permanently enjoined 

from using the road as changed. Defendants are directed 

to restore the road in question to its original 

configuration. 

The court adjudged that the defendants had no authority to attempt 

to abandon the road and any attempted abandonment was void. In a 

specific indication that it expected that the defendants would 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 changes required by the judgment should 

be done as soon as weather reasonably permitted. 

The attorney for the defendants filed a motion for stay of 

execution on April 22, 1982. Attached to the motion was a copy of 

a Petition to Alter a Roadway which was signed by more than ten of 

the freeholders residing in the road district whereby the 

petitioners requested the county commissioners of Fallon County not 
to restore the roadway to its original right angle but to leave the 

roadway in the present rebuilt location. The petition pointed 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. It pointed out that the new approach was 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 further petitioned 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 conducted by the Board of County Commissioners even though 

not required by statute and that twelve people testified in favor 

of the change and the only opposition were Bert Halmans and John 

Halmans and their counsel. The motion pointed out that the county 

commissioners stand ready to restore the roadway as required by the 

order of the District Court but that the freeholders desire the 

present roadway pattern. The motion therefore requested a stay of 

execution of the judgment, and a review of the proceedings of the 

county commissioners to determine the adequacy of the petition and 

the proceedings. Notice of motion was given to opposing counsel. 

The District Court file does not indicate that the motion 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 January 
12, 1982. An order to show cause was issued and served upon the 

defendants. Extensive briefs were filed by both sides. The matter 

came on for hearing before the District Court on August 3, 1983. 

A copy of a Resolution Granting Road Petition, dated May 17, 1982, 

was filed by the Board of County Commissioners of Fallon County. 

That Resolution set forth the details of the filing of the petition 

by more than ten freeholders, the giving of notice as provided by 

statute to the public, the holding of a hearing attended by twelve 

of the freeholders of the road district, a notation that the 

petition was signed by more than twenty-five residents of the road 

district and also signed by twenty-one persons who are frequent 

users though not freeholders. The Resolution pointed out that all 

of the witnesses save and except H. J. Halmans and his son, John 

Halmans, approved the present configuration. The Board stated that 

it was totally familiar with the roadway and found that the 

petition substantially complied with the requirements of law and 

that no further investigation concerning the roadway was necessary. 

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 review by the District Court in the civil action in which the 

District Court found the Board lacked jurisdiction to alter the 

roadway; and if the District Court should decide that the 
proceedings were inadequate, then the commissioners would 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 on August 9, 1983. Nothing further took 

place in the cause for more than five years when the District Court 

issued its order of December 29, 1988, finding the defendants in 

contempt of court. The contempt order provided that the defendants 

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 certiorari are brought to this Court. In that order 

the District Court stated that after a prior hearing in this cause 

the court enjoined the defendants from changing a county road from 

its prior location without following the procedure provided by law 

and that the defendants failed to abide by that court order. No 

reference was made in the Order to the proceedings on the part of 

the defendants to comply with the statutory requirements for 

abandonment and construction of a new road, and no reference to 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 

District Court on August 27, 1990. As a result it is apparent that 

after a delay of more than five years the judge of the District 
Court 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 the District Court had the opportunity of considering 

the various motions and instruments which had 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 distance was 1050 feet but that the old approach only 

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 to perform a survey on 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 the plaintiff's opposition to the petition for certiorari, 

he points out that the petition did not state the "owners affected" 
and "whether the owners who can be found consent theretof1 as 

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 

sustained by each owner. 

As mentioned, the proceedings 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 Commissioners had the benefit of the letter from the Montana 

Highway Department and that the commissioners not only were 

familiar with the road, but engineered it to determine whether the 

road was safe. 

Our careful review of the transcript and the record has caused 

US to conclude there was 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 is 
appropriate 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.