No. 13043 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

MARY FRANCESCA PALFFY, Plaintiff and Appellant,

DIRECTOR OF FINANCE OF THE CITY OF BOZEMAN and The City of Bozeman, Montana, Defendants and Respondents.

Appeal from: District Court of theEighteenthJudicial District, HonorableW. W. Lessley, Judge presiding. Counsel of Record: ForAppellant: Bolinger and Wellcome, Bozeman, Montana H. A. Bolinger argued, Bozeman, Montana For Respondents: Berg, Angel, Andriolo and Morgan, Bozeman, Montana Ben E. Berg, Jr. argued, Bozeman, Montana

,#A 1 Filed: 

## <:,:;7 *,', ' Submitted: September 

### 11, 1975Mr. Justice Gene B. Daly delivered the Opinion of the Court. This is an appeal from a summary judgment granted by the district court,Gallatin County, in favor of the defendants Director of Finance of the City of Bozeman and the City of Bozeman. The district court at the same time denied plaintiff's motion for summary judgment. The case is based upon a special assessment for a sidewalk leviedby the city of Bozeman against plaintiff's property. The casewas heard, considered and decided entirely on thepleadings, consisting of the complaintand answer. Plaintiff's landwithin the city limits of Bozeman fronts

on State Highway No. 191which has a 100 foot wide right of way. There is 25 feet of unpaved right ofway between plaintiff's property line and the highway pavement. The City ordered plaintiff to install a five foot sidewalk, ten feet from the paved portion of the highway and fifteen feet from plaintiff's property linewithin the right of way of the state highway. The highway department of the statewas not involved in these proceedings. Plaintiff refused to install the sidewalk and the city installed the sidewalk and levied an assessment against plaintiff's land for costs in the amount of $10,360.07, to be paid in five annual installments of $2,072.03 plus interest of $153.49 or total installmentsof $2,225.52 each. Plaintiff protested the assessment and this action resulted. On appeal plaintiff's sole issue is that the district court erred in granting the summary judgment for the reason that the state highway department has exclusive jurisdiction to let contracts and control construction in or along the state highway right of way. The city concedes that all streets, including municipalities,are within the primary jurisdiction of the state of Montana. That the city acts upon authority granted by the state in themanagement of city streets and relies on section 11-2226, R.C.M. 1947,which provides authority to construct sidewalks, curbs and gutters without the formation of special improvement districts and the assessment of costs to theproperty "in front" of the construction. The city contends that section 32-2406,R.C.M. 1947, "General Power of [Highway] Department" does not usurp or revoke by implication any of the powers granted the city in section 11-2226. Section 32-2406 reads: "Thedepartmentmay plan, lay out,alter, construct, reconstruct, improve, repair, maintain, and the commissionmay abandon highways on the federal-aid systems and state highways. The departmentmay cooperate and contractwith counties and municipalities to provide assistance inperforming these functions on other highways and streets." The city reasons that section 32-2134, R.C.M. 1947,which gives exclusive control over signs and traffic control devices within municipalities does notmention sidewalks. The city concludes that itmakes no difference that the state of Montana owns the street as all streets belong to the state ofMontana and the city is but a trustee thereof. It citesWood v. City of Kalispell, 131Mont. 390, 396, 310 P.2d 1058, for authority that the city is not precluded frombuilding an improvement on a state highway. The city has a good case until it gets to ownershipby the state. It is true the state as a sovereign owns all streets and local government units are trustees thereof. Yet,when ownership passes to a department of the state sovereign the broad general principles set forthby the state do not always apply or at least they are restricted or diminished. Wood, cited to us by the city,does stand for the proposition that a city canparticipate with the department of highways through a special improvement district. Wood also treats the aspect of highway ownership which the city failed to consider:"Theprovisions of the FederalAid Road Act require that contracts for projects under that act must be letby the highway commission of the particular state, 39 Stat. 355,approved July 11, 1916,as subsequently amended and supplemented, 23 U.S.C.A., section 1 et seq. The legislature of Montana,by R.C.M. 1947, section 32-1609

[sincerepealed, now section 32-24011, has assented to the terms of the FederalAid Road Act and has authorized the highway commission to do all 'thingsnecessary or required to carry out fully the cooperation contemplated by said act of congress

## * 

## * * relative to the construction and maintenance of roads and highways in the State of Montana'. "R.C.M. 1947, section 32-1608 [sincerepealed, now section 82A-701.1(2)(4)], provides in part: 'All contracts forwork on state highways shallbe let by the state highway commission.' The project in the instant case involves two state highways, or more particularly, a portion of each of two state highways that is also used as a city street. Contracts for suchwork clearlymust be letby the state highway commission. "Thiscourt, in State ex rel. State Highway Comm. v. District Court, 105Mont. 44, 69 P.2d 112,and in Bidlingmeyerv. City of Deer Lodge, 128 Mont. 292, 274 P.2d 821,recognizes that a city is but a subdivisionor agent of the state and that by assenting to the provisions of the FederalAid Road Act the legislature, as the principal, has withdrawn some of the powers previously given to its aqent, themunicipality. "The legislative intent is clear that a city may create a special improvementdistrict for street improvementswhere the street is also a part of a ., state highway and that, in such instance, the contracts for the work to be done must be awarded by the state hiqhway commission." (Emphasissupplied.) Itmust follow from the language cited that the power of the city canbe diminished; that the city can participate with the state highway department but not independent of it. The fact situation here demonstrates the equity of the rule. Both parties agree that once the city constructed the improvement on the highway right of way,particularly 15 feetwithin its boundary line, that the highway department could order it removedwith no recourseby the property owner or the city. The order granting summary judgment to the city ofBozeman is reversed and the cause remanded to the district court for further proceedings not inconsistent with this opinion.

Justice



### / fiief Justice