No. 12762 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

THE STATE OF MONTANA, ex rel. DICK IRVIN, 

INC,, a Montana Corporation; Keller Transport, 

Inc . , a Montana Corporation et al., 

Relators, 

H. J. ANDERSON, as Director of Highways of the 

State of Montana; and GEORGE VUCANOVICH, WILLIAM 

M. KESSNER et al., 

Respondents. 

ORIGINAL PROCEEDING: 

Counsel of Record : 

For Relator: 

Scribner and Huss, Helena, Montana 

William A. Scribner argued, Helena, Montana 

Robert L. Stephens appeared, Billings, Montana 

For Respondents : 

N. A. Rotering, Helena, Montana 

Harry Alley argued, Helena, Montana 

Amicus Curiae 

Risken and O'~eary, Helena, Montana 

John Risken argued, Helena, Montana 

Submitted: May 21, 1974 

Decided : A#f2m'r4 

Filed: SUN2 6 19B 
Mr. Justice John Conway Harrison delivered the Opinion of the Court. 

This is an original proceeding brought by certain trucking corporations, the Montana Motor Transport Association, Inc., a Montana corporation, 

and the National Independent Truckers Assoc. of Montana, a Montana corporation, 

seeking a declaratory judgment determining their rights as holders of restricted 

route permits issued by the State Highway Commission authorizing transportation 

within the weight 1 imitations set forth in section 32-1123(5)(c), R.C.M. 1947, 

upon Montana's interstate highway system. 

The specific legal issues sought to be determined are: 

1. Can this Court adjudge and declare under the laws of the state 

of Montana in existence on July 1, 1956, that the State Highway Comnission, 

its officers and agents are empowered, in appropriate cases, to issue restricted 

route permits authorizing the movement of vehicles over the state highways 

within the weight limitations set forth in section 32-1123(5)(c), R.C.M. 1947, 

without regard to the limitations imposed by section 32-1127, R.C.M. 1947. 

2. That the action proposed to be taken by the Highway Commission 

on the basis of any other or contrary interpretation of law as it existed on 

July 1 , 1956, is arbitrary , capricious and i 1 legal . 

Relators herein are truckers who presently hold restricted route permits issued by the State Highway Commission and this action is brought to prevent the Highway Commission from canceling these permits, as to their use on 

the interstate highways after midnight June 30, 1974. On December 11, 1973, 

the Highway Commission amended its regulations to a1 1 ow restricted route-load 

permits to use the interstate highway within the state. See Montana Administrative Code 18-2.10(14)-S10140. 

Re1 ators argue that thereafter various individual re1 ators applied 

for and received from the Highway Commission restricted route permits pursuant to the new regulation, authorizing travel within such increased weight 

limitations, paid the license fee for such permits, and in reliance thereon 

invested substantial amounts of capital for additional and heavier equipment 

to accomodate such loads. 
On April 1, 1974, respondent Highway Commission reversed its action 

of December 11, 1973, declaring that such permits as issued would not be 

recognized after June 30, 1974. We note the reasons given by the Commission: 

"THE F.H.W.A FINDS THE ACTION CONTRARY TO 

INTERPRETATION OF MONTANA STATUTES REGULATING 

WEIGHT, TANDEM AXLE WEIGHT, GROSS WEIGHT OF GROUPS OF 

AXELS, VEHICLE OR COMBINATION OF VEHICLES, AND MAXIMUM 

WIDTH OF 96 INCHES, JULY 1, 1956. 

"THE MONTANA HIGHWAY COMMISSION RESCINDED THEIR ACTION 

OF DECEMBER 11, 1973 ON APRIL 1, 1974 IN ORDER TO PROTECT 

THE ALLOCATION OF FEDERAL HIGHWAY FUNDS TO MONTANA FOR 

FUTURE CONSTRUCTION FROM CANCELLATION. THE MONTANA HIGHWAY 

COMMISSION, BY THEIR ACTION, HAVE STOPPED THE ISSUANCE OF 

RESTRICTED ROUTE-LOAD PERMITS FOR USE ON THE INTERSTATE 

HIGHWAY SYSTEM (I .15, I 90, & 1 94) EFFECTIVE APRIL 1 , 1974. 

"RESTRICTED ROUTE-LOAD PERMITS ISSUED PRIOR TO APRIL 1, 

1974 WILL BE RECOGNIZED FOR INTERSTATE HIGHWAY SYSTEM 

TRAVEL UNTIL FURTHER NOTICE, BUT UNDER NO CIRCUMSTANCES 

AFTER MIDNIGHT JUNE 30, 1974. I' (Emphasis supplied. ) 

As underlined above, the Highway Comnission gives two reasons for 

the proposed retraction of the permits (1) it is contrary to an interpretation 

of Montana law by employees of a federal bureau (FHWA), and (2) Montana might 

lose federal highway construction funds if it does not comply with the federal 

directive. Yet the Court was informed by relators during oral argument, and 

not denied by respondents, that the U. S. Department of Transportation is 

sponsoring 1 egi sl ati on before Congress a1 1 owing what was done here by the 

Highway Comnission in December 1973. 

Some 4,000 to 5,000 permits were issued on the basis of the action 

taken in December. It is alleged that the reason for the change in December, 

permitting the use of the interstate, came about due to the existing energy 

shortage and a request by the Governor of Montana to federal authorities who 

on the basis of emergency conservation approved the request to make the change. 

It is conceded there is no practical reason why the interstate highway system 

should be the subject of weight limitations which are less than those authorized upon the other highways of the state. 

The real crux of the matter here, as noted by counsel for respondents, 

is that the respondent Comnission has since 1956 operated on either its own 

interpretation of Montana statutes sections 32-1123 and 32-1 127, R.C.M. 1947, 
or that made by federal employees. The Highway Commission has never had or 

requested in any case before this Court a definitive opinion to guide it. 

The question of whether or not this Court can take original jurisdiction of this matter and enter a declaratory judgment has long been decided 

in Montana. 

Under the circumstances the Court clearly has power to accept original 

jurisdiction and to enter a declaratory judgment. We quote from 42nd Legislative Assembly v. Lennon, 156 Mont. 416, 421, 481 P.2d 330: 

" * * * Montana case law is replete with authority sustaining the original jurisdiction of the Supreme Court 

in declaratory judgment actions in a variety of situations. State ex re1 . Schul tz-Lindsay v. Board of 

Equalization, 145 Mont. 380, 403 P.2d 635; Carey, State 

Treas. v. McFatridge, 115 Mont. 278, 142 P.2d 229; Gullickson v. Mitchell, 113 Mont. 359, 126 P.2d 1106; Bottomly v. 

Meagher County, 114 Mont. 220, 133 P.2d 770. The foregoing 

cases establish the original jurisdiction of the Supreme 

Court in a declaratory judgment action where legal questions of an emergency nature are presented and ordinary 

legal procedures will not afford timely or adequate 

relief." 

Although the question involved in this case can be simply stated, 

much background information is needed before its significance can be appreciated. 

We must first go back to the federal law establishing the interstate highway 

system for an understanding of why the dispute hasarisen. On August 27, 1958, 

the Congress of the United States enacted public law 85-767, which as amended 

is codified as Title 23, Section 127 of the United States Code. The section 

reads as follows: 

"No funds authorized to be appropriated for any fiscal 

year under section 108(b) of the Federal-Aid Highway Act 

of 1956 shall be apportioned to any State within the boundaries of which the Interstate System may lawfully be used 

by vehicles with weight in excess of eighteen thousand 

pounds carried on any one axle, or with a tandem-axle 

weight in excess of thi rty-two thousand pounds, or with an 

over-all gross weight in excess of seventy-three thousand 

two hundred and eighty pounds, or with a width in excess 

of ninety-six inches, or the corresponding maximum weights 

or maximum widths permitted for vehicles using the public 

highways of such State under laws or regulations established by 

appropriate State authority in effect on July 1, 1956, whichever 

is the greater. Any amount which is withheld from apportionment to any State pursuant to the foregoing provisions shall 

lapse. This section shall not be construed to deny apportionment to any State allowing the operation within such State of 
any vehicles or combinations thereof that could be lawfully 

operated within such State on July 1, 1956. With respect 

to the State of Hawaii, laws or regulations in effect on 

February 1, 1960, shall be applicable for the purposes of 

this section, in 1 ieu of those in effect on July 1, 1956. Ii 

The foregoing section prescribes the limitations which must be observed by the states in order for them to qualify for their annual apportionment of federal funds for highway purposes. The section reveals the following 

criteria for determining permitted sizes and weights on the interstate system: 

a. The state laws in effect on July 1, 1956, must be examined for 

the purpose of determining whether the maximums prescribed in the federal 

code or the maximums prescribed by state law apply. If the state law permitted greater maximums as of July 1, 1956, these are controlling, otherwise, 

the federal maximum prevails. 

b. If the state law in effect on July 1, 1956, authorized variations 

from the maximums, by special permit or otherwise, such variations are also 

permitted by the federal statutes to be authorized over the interstate system. 

Furthermore, a state statute passed after July 1, 1956, setting forth procedures 

or limitations with respect to such variations may also apply to the interstate system, if the state statutes in effect on July 1, 1956, were broad 

enough to allow such operations. This is made clear by the following provision 

of Title 23, Section 127, U.S.C.: 

"This section shall not be construed to deny apportionment 

to any State allowing the operation within such State 

of any vehicles or combinations thereof that could be lawfully operated within such State on July 1, 1956.'' 

It thus becomes necessary for us to examine the Montana laws in effect 

on July 1, 1956 to determine, first, the weight limitations having general 

applicability at that time, and second, the extent to which variations from 

these weight limitations were authorized by special permit at that time. It 

is also important for us to examine the amendments to these provisions enacted 

by the legislature after July 1, 1956, for the purpose of determining whether 

the operation of vehicles or combinations thereof in accordance with such 

amendments was permitted by the Montana law in existence on July 1, 1956. 
On July 1, 1956, section 32-1123, R.C.M. 1947, contained tables of 

maximum weights which varied in accordance with the distance between axles 

of the vehicle or combination, up to a maximum of 76,800 pounds for the 

maximum distance. Another portion of the same section, sub-paragraph 5(f), 

provided as follows: 

"(f) The operation of vehicles or combinations of 

vehicles having dimensions or weights in excess of the maximum limits herein recomnended shall be permitted only if 

and when authorized by special permit issued by the state 

highway commission or its officers, supervisors or agents 

acting pursuant to duly delegated authority from said 

commission, including the state highway patrol ." 

The aforementioned statutory provi sions , considered without reference to other statutes, lead us to the conclusion that not only are the 

general weight limitations set forth in the statute greater than those prescribed by federal law, and therefore applicable, but also that on the controlling 

date the State Highway Comnission and its agents had authority to issue 

special permits for weights in excess of those granted, without limitation 

except as contained in the above quotation. From this it would follow that 

the Comnission and its agents have the same authority to issue special permits 

for operation over the interstate system. 

However, another statute in effect on July 1, 1956, must also be 

considered. On that date section 32-1127, R.C.M. 1947, provided in part as 

fol 1 ows : 

"The state highway commission, and local authorities in 

their respective jurisdiction, may, in their discretion, 

upon application in writing and good cause being shown 

therefor, issue a special permit in writing, authorizing 

the applicant to operate or move a vehicle of a size or 

weight exceeding the maximum specified in this act upon 

any highway under the jurisdiction of and for the maintenance of which the body granting the permit is responsible; 

provided, however, that no permits are to be issued for 

movement of vehicles carrying built-up or reducible loads in 

excess of nine (9) feet in width or exceeding the length, 

height, or weight specified in this act; provided, however, 

that no permits are to be issued for the moving of loads 

for any considerable distances over such highways when the 

loads in question are of such excess width that all traffic 

lanes upon the highway concerned would be blocked to the 

serious inconvenience of normal traffic; and further provided that no permits are to be granted for the moving of 

loads of such excess width that a hazard to traffic would 
be involved for any considerable distances over the highways concerned except to those applicants who carry public 

liability and property damage insurance for the protection 

of the traveling public as a whole. No permit shall be 

issued for a period of more than nine (9) months." 

From this it will be observed that as of July 1, 1956, there were 

two separate statutory provisions authorizing the issuance of special permits 

for weights in excess of the maximums prescribed by law. Sub-paragraph 5(f) 

of 32-1123, applicable only to the State Highway Commission and its agents, 

contained no significant limitations upon the authority therein granted. 

Section 32-1127 appears to be applicable to the State Highway Commission and 

to local authorities within their respective jurisdictions, and carries the 

limitation that no such permits may be granted for vehicles carrying builtup or reducible loads. It should be noted at this point that each of these 

statutory provisions is still on the books. Sub-paragraph (5) (f) of section 

32-1 123 has been reenacted with identical language in amendments to the section in the years 1959, 1961, 1967, and 1973. Section 32-1 127 was amended 

in 1961, 1965, 1969, and 1971. The 1961 amendment to section 32-1127 revised 

the language regarding built-up or reducible loads to read as follows: 

" * * * provided, however, that only the state highway 

commission shall have the discretion to issue permits for 

movement of vehicles carrying built-up or reducible loads 

in excess of nine (9) feet in width or exceeding the length, 

height or weight specified in this act * * *." 

More about this amendment later. 

In 1967, the legislature amended section 32-1123 by adding a provision 

which authorized the State Highway Commission to issue special permits for 

weights in excess of the table of maximums therein prescribed, in accordance 

with an increased table of weights, commonly referred to as "Table B" up to 

a maximum of 105,500 pounds. This added provision contained the following state 

ment . 

"This subdivision shall have no appl i cation to highways 

which are a part of the National System of Interstate and 

Defense Highways (as referred to in section 127 of title 

23, United States Codes) when such application would 

prevent this state from receiving any federal funds for 

highway purposes. " 
At the time of this amendment and the other amendments to this 

(5) statute, the legislature reenacted into law sub-paragraph /(f) giving the 

State Highway Commission exclusive authority to issue permits for excess 

weights. 

Prior to its reconsideration of this question in December 1973, 

the State Highway Commission recognized its right to grant restricted route 

permits for excess weights on the interstate system, but only with respect to 

nonreducible loads. Shortly after the legislature amended section 32-1127, 

R.C.M. 1947, to remove the reducible load feature, comnunications were exchanged between the bureau of public roads and the Highway Commission regarding the effect this amendment would have on the state's eligibility for 

federal highway funds. By letter dated March 28, 1961 , the bureau quoted 

a ruling from its legal division concluding that the amendments to the law 

would enlarge the exemptions in effect on July 1, 1956, and would thus place 

Montana in a position of jeopardy. The Highway Commission replied stating 

that it would adhere to a policy of not allowing permits for movement of 

reducible loads exceeding the statutory weight specifications, and thereafter, 

on June 21, 1962, it certified to the bureau that by reason of its pol icy 

statement no changes had been effected by the state with respect to the 

granting of permits. Apparently, neither the bureau of public roads nor the 

(5) 

Highway Commission considered the provisions of sub-paragraph/ (f) of section 

32-1123 when these conclusions were reached. 

When the energy crisis was announced by the President last fall, and 

when the extent of the fuel shortage became known, the Montana Highway Commission reconsidered its position and directed its legal department to review 

the applicable law to determine whether the Commission did in fact have 

authority to issue restricted route permits within the Table B maximums on 

July 1, 1956. Similar movements were under way in other western states. In 

Montana, it was concluded the power to issue such permits was always vested 

in the Highway Comission, by virtue of the provisions of sub-paragraph (5) (f) , 

section 32-1123, R.C.M. 1947. In arriving at this conclusion, the Commission 
considered also the provisions of section 32-1127, but concluded the only 

harmonious construction of the two sections was that the nonreducible load 

restriction in the latter section was applicable only to the local authorities therein referred to. 

We find the interpretations placed upon these Montana statutes by 

the federal highway administration, and since acquiesced in by respondents, 

if concurred in by this Court, would constitute a repeal of the provisions 

of sub-paragraph (5) (f) of section 32-1 123, R.C.M. 1947. This sub-paragraph, 

which was in effect July 1, 1956, and which has been repeatedly reenacted 

into law each time other provisions of the section were changed, clearly 

provides the authority which is now denied by the Commission and further 

grants such authority exclusively to the State Highway Commission and its 

agents. We find the only reasonable resolution of the conflict between 

this sub-paragraph and section 32-1127, R.C.M. 1947, is by a construction 

of these statutes together, to the effect that sub-paragraph (5)(f) of 

section 32-1123 is an expansion of the powers granted in section 32-1127. 

A contrary interpretation would necessarily lead to the following conclusions: 

that sub-paragraph (5)(f) is a nullity; that the legislature did not mean 

what it said when it granted exclusive powers to the State Highway Commission; and, that each time the sub-paragraph was reenacted the legislature 

was performing an idle act. This strained interpretation would also violate 

established principles of statutory construction. Some of these principles 

are as follows: 

The court will presume that the legislature would not pass useless 

or meaningless legislation. St. Paul Fire & Marine Ins. Co. v. Thompson, 

150 Mont. 182, 433 P.2d 795. 

In the construction of a statutory provision it will be presumed 

that the legislature, in adopting it, intended to make some change in the 

existing law, and the courts will endeavor to give some effect to the enactment. Nichols v. School District No. 3, 87 Mont. 181, 287 P. 624; State v. 

Swanberg, 130 Mont. 202, 299 P.2d 446; Van Tighem v. Linnane, 136 Mont. 547, 
349 P.2d 569; State ex re1 . Special Road Dist. v. Millis, 81 Mont. 86, 261 

P. 885; In re McLurels Estate, 68 Mont. 556, 220 P. 527; 73 Am Jur 2d, Statutes, 

5 253, p* 424. 

The court must harmonize statutes relating to the same subject, if 

possible, and give effect to each. State ex rel. Riley v. District Court, 

103 Mont. 576, 64 P.2d 115; State ex rel. Patterson v. Lentz, 50 Mont. 322, 

146 P. 932; 82 C.J.S. Statutes $ 366, p. 810. 

In conclusion, we observe that no useful purpose is served by the 

Highway Comnission's cancel lation of these restricted route permits. Fuel 

costs have skyrocketed since last fall when the restricted route permits 

were authorized, and the energy shortage is still critical. No responsible 

authority would contend that our system of interstate highways will not withstand the Table B weights, which have been utilized since 1967 on the primary 

highways in the state, and which the department of transportation has recommended for adoption on all interstate highways. 

We hold the State Highway Commission had the authority to issue such 

permi ts on July 1, 1956, for either nonreduci ble or reducible loads and, accordingly, it has the power to do so now, without jeopardizing the right of the 

State of Montana to receive federal funds for highway purposes. 

This opinion shall constitute a declaratory judgment and is hereby 

entered in accordance with the foregoing opinion. 

We concur: 

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Justices