No. 13002 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

THE STATE OF MONTANA, ex rel. 

CHESTER L. JONES, County Attorney 

of Madison County, Montana, 

Plaintiff and Appellant, 

JOHN M. GILES and LYNN GILES, 

Defendants and Respondents. 

Appeal from: District Court of the Fifth Judicial District, 

Honorable Frank E. Blair, Judge presiding 

Counsel of Record : 

For Appellant : 

Chester L. Jones, County Attorney, argued, Virginia 

City, Montana 

For Respondents : 

Goldman, McChesney and Eck, Missoula, Montana 

H. L. McChesney argued, Missoula, Montana 

For Amicus Curiae : 

Donald A. Douglas argued, Helena, Montana 

Submitted: September 11, 1975 

Decided : ncfii ., 

. . 

Filed : 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

The Madison County attorney appeals from a district 

court judgment dismissing his action to abate as a public 

nuisance, pursuant to the Montana Outdoor Advertising Act, a 

commercial sign along a primary state highway. 

The facts are undisputed. Defendants, John M. and 

Lynn Giles, own the King's Motel in Twin Bridges, Montana, 

which has on its premises, and within 660 feet of the primary 

highway, a small flashing sign, containing a forty watt light 

bulb on each side. Flashing signs are prohibited within 660 

feet of a primary highway unless they provide "public service 

information such as time, date, temperature, weather or similar 

L/ 'I/ 7 

information." Sectiors 32-474.7 and 32-4719 (j) , R.C.M. 1947. 

All outdoor advertising which does not conform to the 

requirements of the Outdoor Advertising Act is denominated a 

public nuisance. Section 32-4728, R.C.M. 1947. 

The controlling issue on appeal is whether section 32- 

4722, R.C.M. 1947, provides an administrative remedy for the 

removal of noncomplying signs that must be exhausted before 

resorting to the judicial system. 

Appellant contends the statement in section 32-4728, 

R.C.M. 1947, declaring nonconforming advertising to be a public 

nuisance grants him authority to enjoin and abate the King's 

Motel sign as a public nuisance. It is asserted that the remedy 

of abatement of public nuisances provided in section 57-108(3), 

R.C.M. 1947, is a basis for judicial action in the instant case. 

It is contended that sections 57-111 and 16-3101(1), 

R.C.M. 1947, require county attorneys to abate nonconforming 

signs as public nuisances. In our view, the fact that nonconforming signs are defined as public nuisances does not per 

se authorize circumvention of administrative remedies within 
fie Department of Highways. Section 32-4722, R.C.M. 1947, 

provides an administrative remedy for removal of nonconforming signs and judicial relief may not be sought until administrative remedies have first been exhausted. It is a general 

principle that if an administrative remedy is provided by 

statute, that relief must be sought from the administrative 

body and the statutory remedy exhausted before relief can be 

obtained by judicial review. State ex rel. Sletten Const. Co. 

v. Great Falls, 163 Mont. 307, 516 P.2d 1149; Ralph's ChryslerPlymouth v. New Car Deal. P. & A. Bd., 106 Cal.Rptr. 169, 8 Cal.3d 

792, 505 P.2d 1009; Top Hat Liquors, Inc. v. Department of Alco. 

Bev. Con., 118 Cal.Rptr. 10, 13 Cal.3d 107, 529 P.2d 42. 

Section 32-4722 establishes a specific administrative 

remedy for the removal of nonconforming outdoor advertising. 

Advertising erected after June 24, 1971, contrary to the Outdoor 

Advertising Act is unlawful. The Department of Highways is granted authority to enter upon private lands to determine whether 

outdoor advertising complies with the Act. If it is determined 

that the advertising is unlawful, the Department is instructed 

to notify the owner of the land and advertising structure of its 

intention to remove the illegal advertising. The owner then has 

forty-five days to request a hearing before the Highway Commission to show cause why the structure should not be removed. If 

no hearing is requested, or if there is no appeal from the commission's decision at the hearing, or if the Commission's decision 

is affirmed on appeal, the Department has authority to remove 

the objectionable advertising. 

In determining legislative intent, an express mention 

of a certain power or authority implies the exclusion of nondescribed powers. Reed v. Reed, 130 Mont. 409, 304 P.2d 590; 

Helena Valley Irrigation Dist. v. St. Hwy. Comm'n, 150 Mont. 
192, 433 P.2d 791, 82 C.J.S. Statutes § 333. Therefore, 

section 32-4722 sets forth the specific administrative procedure 

to be used by the Department in removing nonconforming advertising. 

The legislative history of the Act is helpful in determining legislative intent. In 1967 the legislature enacted 

sections 32-4701 to 32-4714, R.C.M. 1947, regarding zoning and 

advertising regulation along highways. Section 32-4711, provided: 

"The State Highway Commission shall enforce the 

provisions of this act through the remedy of injunction or other appropriate legal proceedings, 

and shall not act except through such proceedings. " 

In 1971 sections 32-4701 to 32-4714, R.C.M. 1947, were repealed 

by Sec. 17, Ch. 2, 2nd Ex. Laws 1971 and sections 32-4715 to 

32-4728, R.C.M. 1947, (Outdoor Advertising Act) were enacted. 

The remedy of "injunction and other appropriate legal proceedings" was replaced by the administrative remedy set forth in 

section 32-4722. 

An established rule of statutory construction is that 

there is a presumption the legislature, by repealing an old law 

and adopting a new statute, intended to make some change and 

that the courts will endeavor to give some effect to this change. 

State ex rel. Dick Irvin Inc. v. Anderson, 164 Mont. 513, 525 

31 St.Rep. 482; 

P.2d 564,fian Tighem v. Linnane, 136 Mont. 547, 349 P.2d 569; 

State v. Swanberg, 130 Mont. 202, 299 P.2d 466. In light of 

this rule it is evident that the legislature intended to eliminate 

the judicial remedy prescribed by section 32-4711 until administrative remedies are first exhausted. 

Section 32-4715, a legislative policy statement, reveals the intent of the legislature as follows: 

" * * * it shall be the policy of this state 

that the erection and maintenance of outdoor 

advertising in areas adjacent to the right of 

way of the interstate and primary systems 
within this state shall be regulated in accordance with the terms of this act and the rules 

and regulations promulgated by the commission 

[Highway Commission], pursuant thereto. It is 

the intention of the legislature in this act 

to provide a statutory basis for regulation of 

outdoor advertising * * *." 

This section clearly and expressly states that it is 

the intention of the legislature that the Department of Highways administer the Act, promulgate administrative rules and 

regulations and that the Act itself is to provide the remedy 

for enforcement of its provisions. 

Undue importance cannot be attached to the statement 

that nonconforming signs are public nuisances. Section 32-4728, 

R.C.M. 1947, must not be construed in a vacuum. It is a general 

rule of statutory interpretation that legislative intent cannot 

be determined from the wording of any particular section or sentence, but rather from a consideration of the Act as a whole. 

Home Bldg. & Loan v. Bd. of Equalization, 141 Mont. 113, 375 P.2d 

312; Aleksich v. Industrial Acc. Fund, 116 Mont. 127, 151 P. 1016. 

Applying this rule to the following sections of the Act establishes 

that the legislature intended section 32-4722 to be the exclusive 

remedy for removal of nonconforming advertising. 

Throughout the Act repeated delegation of authority for 

its administration and enforcement is made to the Department of 

Highways. Sections 32-4715 and 32-4718 expressly provide that 

the erection and maintenance of outdoor advertising shall be regulated in accordance with the terms of the Act and the rules 

and regulations promulgated by the Highway Commission. 

A permit system for certain outdoor signs is established 

by sections 32-4720 and 32-4717, R.C.M. 1947. This permit system 

is to be administered by the Department of Highways. The Department has authority to take remedial action when it determines 
that a false or misleading statement has been made in a permit 

application or that a sign is unsafe or in an unreasonable 

state of repair. Under these circumstances section 32-4721 

directs that the Department notify the permit holder "of the 

violation and specify that remedial action shall be taken within 

sixty (60) days or the permit will be revoked and action for removal of the sign commenced as provided in section 32-4722. * * *" 

Here again, the legislature is expressly stating that section 

32-4722 provides an exclusive administrative remedy. 

In section 32-4723, R.C.M. 1947, the Department is empowered to acquire by gift, purchase, agreement, exchange or 

eminent domain nonconforming outdoor advertising rights which 

were in lawful existence on the effective date of the Act. 

Section 32-4724, R.C.M. 1947, gives the Department 

authority to enter into an agreement with the Secretary of the 

United States Department of Transportation establishing permissible 

specifications for outdoor advertising. 

All of these sections viewed as a whole, logically point 

to the conclusion that section 32-4722 was intended to be the 

exclusive remedy for removal of nonconforming signs. 

The judgment of the district court is affirmed. 

Justice 

i\ ,- / Justices