No. 12762 INTHE 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: 

### SUN26

## 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 declaratoryjudgment determining their rights as holders of restricted route permits issued by the StateHighway 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 tobe determined are: 1. Can this Court adjudge and declare under the laws of the state of Montana inexistenceon July 1, 1956, that the StateHighway Comnission, 

### its officers and agents areempowered, in appropriate cases, to issue restricted route permits authorizing the movement of vehicles over the statehighways within the weight limitations setforth insection 32-1123(5)(c), R.C.M. 1947, without regard tothe limitations imposed by section 32-1127, R.C.M. 1947. 2. That the action proposed tobe taken by the Highway Commission

on the basis of any other or contrary interpretation of law as itexisted on July 1

### , 1956, is arbitrary

### ,capricious and i1 legal

# . Relators herein aretruckers who presently hold restricted route per

### mits issued by the StateHighway Commission and this action is brought toprevent the Highway Commission from canceling these permits, as totheir use on the interstatehighways aftermidnight June 30, 1974. On December 11, 1973, the Highway Commission amended its regulations toa11 ow restricted route-load permits to use the interstate highway within the state. See Montana Administrative Code 18-2.10(14)-S10140. Re1ators argue that thereafter various individual re1ators applied forand received from the Highway Commission restricted route permits pursuant tothe new regulation, authorizing travel within such increased weight limitations, paid the licensefeeforsuch permits, and inreliance thereon invested substantial amounts of capital foradditional and heavier equipment to accomodate such loads.On April 1, 1974, respondent Highway Commission reversed itsaction 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 COMBINATIONOF 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, & 194) EFFECTIVE APRIL 1

### ,1974. "RESTRICTED ROUTE-LOAD PERMITS ISSUED PRIOR TO APRIL 1, 1974WILL 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) itiscontrary to an interpretation of Montana law by employees of a federal bureau (FHWA), and (2)Montana might lose federal highway construction funds if itdoes 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 egislation before Congress a11 owing what was done here by the Highway Comnission in December 1973. Some 4,000 to5,000 permits were issued on the basis of the action taken in December. Itisalleged that the reason for the change in December, permitting the use of the interstate, came about due tothe existing energy shortage and a request by the Governor of Montana to federal authorities who

on the basis of emergency conservation approved the request tomake the change. Itisconceded 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, isthat the respondent Comnission has since 1956 operated on either itsown interpretation of Montana statutes sections 32-1123 and 32-1127, R.C.M. 1947,orthat made by federal employees. The Highway Commission has never had or requested inany case before this Court a definitive opinion to guide it. The question of whether or not this Court can take original 

### jurisdiction of thismatter and enter a declaratoryjudgment has long been decided inMontana. Under the circumstances the Court clearly has power to accept original jurisdiction and to entera declaratoryjudgment. We quote from 42nd LegislativeAssembly 

### v. Lennon, 156Mont. 416, 421, 481 P.2d 330: 

### " 

## * * * Montana case law isreplete with authority sustaining the original jurisdiction of the Supreme Court indeclaratoryjudgment actions in a variety of situations. Stateex re1

# . Schultz-Lindsay 

### v. Board of Equalization, 145Mont. 380, 403 P.2d 635; Carey, State Treas. 

### v. McFatridge, 115 Mont. 278, 142 P.2d 229; Gullickson 

### v. Mitchell, 113Mont. 359, 126 P.2d 1106; Bottomly v. Meagher County, 114Mont. 220, 133 P.2d 770. The foregoing cases establish the original jurisdiction of the Supreme Court in a declaratoryjudgment 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 tothe federal law establishing the interstate highway system foran understanding of why the dispute hasarisen. On August 27, 1958, the Congress of the United Statesenacted public law 85-767, which as amended iscodified as Title 23, Section 127 of the United States Code. The section reads as follows: "No funds authorized tobe appropriated forany fiscal year under section 108(b) of the Federal-Aid Highway Act of 1956 shall be apportioned to any Statewithin the boundaries of which the Interstate System may lawfully be used by vehicles withweight inexcess of eighteen thousand pounds carried on any one axle, orwith a tandem-axle weight in excess of thirty-two thousand pounds, or with an over-all gross weight inexcess of seventy-three thousand two hundred and eighty pounds, orwith a width in excess of ninety-six inches, or the corresponding maximum weights ormaximum widths permitted for vehicles using the public highways of such Stateunder laws or regulations established by appropriate Stateauthority in effect on July 1, 1956, whichever isthe greater. Any amount which iswithheld from apportionment to any Statepursuant tothe foregoing provisions shall lapse. This section shall not be construed todeny apportionment toany Stateallowing the operation within such Stateofany vehicles or combinations thereof that could be lawfully operated within such Stateon July 1, 1956. With respect tothe Stateof Hawaii, laws or regulations ineffect on February 1, 1960, shall be applicable for the purposes of this section, in 1 ieu of those ineffect on July 1, 1956. Ii The foregoing section prescribes the limitationswhich must be observed by the states inorder for them to qualify fortheir annual apportionment of federal funds forhighway 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 themaximums prescribed in the federal code orthemaximums 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 statutestobe authorized over the interstate system. Furthermore, a statestatutepassed afterJuly 1, 1956, setting forth procedures

or limitations with respect to such variations may also apply tothe interstate system, if the state statutes in effect on July 1, 1956, were broad enough toallow such operations. This ismade clear by the following provision of Title23, Section 127, U.S.C.: "This section shall not be construed todeny apportionment 

### toany Stateallowing the operationwithin such State of any vehicles orcombinations thereof that could be lawfully operated within such Stateon July 1, 1956.'' It

### thus becomes necessary for us toexamine the Montana laws ineffect

on July 1, 1956 

### todetermine, first, 

### the weight limitations having general applicabilityatthat time, and second, the extent towhich variations from these weight limitations were authorized by special permit atthat time. It is also important for us toexamine the amendments to these provisions enacted by the legislature afterJuly 1, 1956, forthe purpose of determining whether the operation of vehicles orcombinations thereof in accordance with such amendments was permitted by theMontana law inexistence on July 1, 1956.On July 1, 1956, section 32-1123, 

### R.C.M. 1947, contained tables of maximum weights which varied inaccordance withthe distance between axles of the vehicle orcombination, 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 orweights in excess of themaximum 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 toduly delegated authority from said commission, including the state highway patrol

# ."

The aforementioned statutory provisions

### ,considered without reference to other statutes, lead us tothe conclusion that 

### not only arethe general weight limitations setforth inthe statute greater than those prescribed by federal law, and therefore applicable, but also that on the controlling date the State Highway Comnission and itsagents had authority toissue special permits for weights inexcess of those granted, without limitation except as contained inthe above quotation. From this itwould follow that the Comnission and itsagents have the same authority to issue special permits foroperation over the interstate system. However, another statute in effect on July 1, 1956, must alsobe considered. On that date section 32-1127, 

### R.C.M. 1947, provided in part as fol1 ows: "The statehighway commission, and local authorities in their respectivejurisdiction, may, intheir discretion, upon application inwriting and good cause being shown therefor, issue a special permit inwriting, authorizing the applicant to operate or move a vehicle of a size or weight exceeding the maximum specified inthis actupon any highway under the jurisdiction of and for themaintenance of which the body granting the permit isresponsible; 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 inwidth or exceeding the length, height, or weight specified in this act; provided, however, that no permits aretobe issued for themoving of loads forany considerabledistances over such highways when the loads inquestion 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 aretobe granted for themoving of loads of such excess width that a hazard to trafficwouldbe 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 itwill be observed that as of July 1, 1956, there were two separate statutory provisions authorizing the issuance of special permits forweights in excess of the maximums prescribed by law. Sub-paragraph 5(f) of 32-1123, applicable only to the State Highway Commission and itsagents, contained no significant limitations upon the authority therein granted. Section 32-1127 appears tobe applicable to the State Highway Commission and to local authorities within their respectivejurisdictions, and carries the limitation that no such permits may be granted forvehicles carrying builtup or reducible loads. It should be noted atthis point that each of these statutory provisions is still on the books. Sub-paragraph (5)(f)of section 32-1123 has been reenacted with identical language in amendments to the section in theyears 1959, 1961, 1967, and 1973. Section 32-1127 was amended in 1961, 1965, 1969, and 1971. The 1961 amendment to section 32-1127 revised the language regarding built-up or reducible loads toread as follows: 

### " * 

## * * provided, however, that only the statehighway commission shall have the discretion to issue permits for movement of vehicles carrying built-up or reducible loads inexcess of nine (9) feet in width or exceeding the length, height or weight specified inthis act

## * * 

## *." More about this amendment later. In 1967, the legislature amended section 32-1123 by adding a provision which authorized the StateHighway 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 application 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 statefrom receiving any federal funds for highway purposes.

### "Atthe time of this amendment and the other amendments to this (5) statute, the legislature reenacted into law sub-paragraph/(f) giving the StateHighway Commission exclusive authority to issue permits for excess weights. Prior to itsreconsideration of this question in December 1973, the State Highway Commission recognized its right togrant restricted route permits for excess weights on the interstate system, but only withrespect to nonreducible loads. Shortly after the legislature amended section 32-1127, R.C.M. 1947, toremove 

### 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'seligibilityfor federal highway funds. By letterdated March 28, 1961

### ,the bureau quoted

a ruling from itslegal division concluding that the amendments tothe law would enlarge the exemptions in effect on July 1, 1956, and would 

### thus place Montana ina position of jeopardy. The Highway Commission replied stating that itwould adhere toa policy of not allowing permits formovement of reducible loads exceeding the statutoryweight specifications, and thereafter,

on June 21, 1962, itcertified to the bureau that by reason of itspolicy statement no changes had been effected by the statewithrespect tothe 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 crisiswas announced by the President lastfall, and when the extent of the fuel shortage became known, the Montana Highway Commission reconsidered itsposition and directed its legal department to review the applicable law to determine whether the Commission did in facthave authority to issue restricted route permits within the Table B maximums on July 1, 1956. Similarmovements were under way in otherwestern states. In Montana, itwas concluded the power toissue such permits was always vested inthe Highway Comission, by virtue of the provisions of sub-paragraph (5)(f)

### , section 32-1123, R.C.M. 1947. In arriving atthis conclusion, the Commissionconsidered 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 authoritiestherein referred to. We find the interpretations placed upon these Montana statutes by the federal highway administration, and since acquiesced inby respondents, if concurred inby this Court, would constitute a repeal of the provisions of sub-paragraph (5)(f)of section 32-1123, R.C.M. 1947. This sub-paragraph, which was ineffect July 1, 1956, and which has been repeatedly reenacted into law each time other provisions of the section were changed, clearly provides the authoritywhich isnow 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, isby a construction of these statutes together, to the effect that sub-paragraph (5)(f)of section 32-1123 isan 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 itsaid when itgranted exclusive powers to the StateHighway 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

ormeaningless legislation. St. Paul Fire & Marine Ins. Co. 

### v. Thompson, 150Mont. 182, 433 P.2d 795. In the construction of a statutory provision itwill be presumed that the legislature, inadopting it, intended tomake some change inthe existing law, and the courts will endeavor to give some effect tothe enactment. Nichols 

### v. School District No. 3, 87 

### Mont. 181, 287 P. 624; State 

### v. Swanberg, 130Mont. 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, 103Mont. 576, 64 P.2d 115; Stateex 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 isserved by the Highway Comnission's cancellation 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 inthe 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 permitson July 1, 1956, for either nonreducible or reducible loads and, accordingly, ithas the power to do so now, withoutjeopardizing the right of the State of Montana toreceive federal funds for highway purposes. This opinion shall constitute a declaratoryjudgment and ishereby entered inaccordance with the foregoing opinion.

We concur:



## ----------

Justices