No. 81-14 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

INGRAM-CLEVENGER, INC., a Montana 

Corporation, EDWARD P. McHUGH, GENE R. and 

MARGARET L. PORTER, et al., 

Plaintiffs and Respondents, 

LEWIS AND CLARK COUNTY; LEWIS & CLARK 

BOARD OF COUNTY COMMISSIONERS; BOB 

DECKER; et al. , 

Defendants and Appellants. 

Appeal from: District Court of the First Judicial District, 

In and for the County of Lewis and Clark. 

Honorable Peter Meloy, Judge presiding. 

Counsel of Record: 

For Appellants: 

Charles A. Graveley, County Attorney, Helena, Montana 

For Respondents: 

Keller, Reynolds, Drake, Sternhagen, & Johnson, 

Helena, Montana 

Gough, Shanahan, Johnson & Waterman, Helena, Montana 

Submitted on briefs: July 2, 1981 

Decided: f)CT 20 1981 

Filed: OCT 2 0 1981 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court. 

Defendant Lewis and Clark County Board of Commissioners appeals from the order of the First Judicial 

District Court granting plaintiffs' petition for a 

peremptory writ of mandamus directing the defendant to grant 

plaintiffs' petition to partially abandon the County's claim 

of right-of-way easement to the outer twenty feet on each 

side of McHugh Lane, thus reducing the easement from one 

hundred feet to sixty feet. 

The county commissioners present the following 

issues: 

1. Whether a writ of mandamus is the proper remedy 

in this case. 

a. Which statute controls the abandonment of county 

roads? 

b. Is the controlling statute mandatory or discretionary? 

2. Whether any rights of the plaintiffs to the portion of roadway they seek to have abandoned were adversely 

affected by the actions of the board of county commissioners. 

In addition, the plaintiffs include this issue: 

1. Did the defendant properly deny the petition to 

partially abandon McHugh Lane? 

We reverse the District Court. 

McHugh Lane (or Drive) is a county road running 

north-south through the Helena Valley. In 1890, Lewis and 

Clark County was granted a 100-foot right-of-way to establish the road. 

On June 6, 1980, plaintiffs presented the board of 
county commissioners with a petition signed by every 

landowner owning property adjacent to McHugh Lane. The 

petition requested that the County abandon forty feet of the 

McHugh Lane right-of-way (twenty feet on each side). The 

petition was discussed at a regularly scheduled and noticed 

hearing of the Lewis and Clark County Commissioners on July 

22, 1980. At this time, the commissioners found the 

petition to be in proper form required under section 7-14- 

2602, MCA, a finding reiterated in defendant's brief. The 

commissioners denied the petition. 

On August 22, 1980, plaintiffs filed suit, seeking a 

peremptory writ of mandamus against Lewis and Clark County, 

the board of county commissioners and the three county 

commissioners. Oral argument as to the applicable law was 

heard on September 3, 1980. Briefs were submitted at the 

District Court judge's request. On October 20, 1980, the 

District Court issued its order and opinion, granting 

plaintiffs' writ of mandate and directing the board of 

county commissioners to forthwith grant the petition to 

partially abandon McHugh Lane. The District Court awarded 

attorney fees and costs to plaintiffs. The County appeals. 

Through their briefs, the parties agree that the 

following principles should be applied: 

(1) The District Court may issue a writ of mandate 

compelling the county commissioners to perform an act which 

the law specifically requires as a duty of their office. 

State ex rel. Browman v. Wood (1975), 168 Mont. 341, 344- 

345, 543 P.2d 184, 187. 

(2) If the act to be performed is discretionary 

rather than mandatory, ordinarily mandamus will not lie. 
Cain v. Department of Health, etc. (1978), 177 Mont. 448, 

451, 582 P.2d 332, 334. 

(3) If there has been such an abuse of discretion as 

to amount to no exercise of discretion at all, mandamus will 

lie to compel the proper exericse of powers granted. Cain 

v. Department of Health, etc. (1978), 177 Mont, 448, 451, 

582 P.2d 332, 334. 

(4) When specific statutory language conflicts or is 

inconsistent with general statutory language, the specific 

statutory language will prevail to the extent of any 

repugnancy. 1"lnt. Health Systems v. Mont. Bd. of Health 

(1980)t - Mont. - , 612 P.2d 1275, 1276, 37 St.Rep. 664, 

666. 

I 

The parties disagree as to which statutes are 

specific and which are general, and therefore disagree as to 

which statute or statutes control. Section 7-14-2103(3), 

MCA, appears to be mandatory in wording, while section 

7-14-2601 et seq., MCA, appear to be discretionary. The 

District Court found that section 7-14-2103(3), MCA, was the 

specific statute governing the action and was mandatory, and 

therefore granted mandamus. 

The relevant statutes follow. 

Under the heading "General Provisions Related to 

County Roads," section 7-14-2103, MCA, provides: 

Abando 

"Duties of county commissioners~ncerninq 

county roads. . . . (3) Each board shall 

discontinue or abandon county roads when ....................... - 

freeholders properly - petition ---------------- therefor." 

(Emphasis supplied.) 

Under the heading "Establishment, Alterati 

nment of County Roads", section 7-14-260 

and 

MCA, 
provides in pertinent part: 

"7-14-2601. Petition to establish, alter, or 

abandon a county road. (1) Any 10, or a 

majority, of the freeholders of a road district taxable therein for road purposes may 

petition the board in writing to open, establish, construct, change, abandon, or discontinue any county road in the district." 

Section 7-14-2602, MCA, establishes what information 

must be set forth in the petition. Section 7-14-2603, MCA, 

provides for an investigation to determine the merits of the 

petition and allow the board to reach a decision. Section 

7-14-2604, MCA, requires the board to notify adjoining 

landowners within ten days of its decision. 

Clearly, section 7-14-2103(3), MCA, is mandatory in 

wording, stating that the county commissioners "shall. . . 

abandon county roads" when properly petitioned. Section 7- 

14-2601 et seq., MCA, require the exercise of discretion by 

the board; they provide for a study of the "feasibility, 

desirability and cost of granting the prayer," and refer 

several times to the "decision" of the board. That decision 

is to be based upon the "merits or demerits of the 

petition," and can only mean a decision to grant the 

petition or deny it. 

Defendant argues that the provisions governing the 

procedure for abandoning county roads, section 7-14-2601 et 

seq., MCA, are specific and must prevail over section 7-14- 

2103 (3 ) , MCA, which appears under the heading "General Provisions . . ." Defendant emphasizes that (1) all the 

procedural requirements, including notice and hearing and an 

investigation of the feasibility of the petition, have been 

complied with; (2) the decision to deny the petition to 

abandon was discretionary, and mandamus will not lie. 
Plaintiffs contend that section 7-14-2103(3), MCA, is 

mandatory and is the specific provision and must prevail. 

plaintiffs further contend that the county commissioners 

failed to partially abandon when properly petitioned by all 

adjoining landowners and thus, because they refused to 

perform a duty legally required of them, mandamus is the 

proper remedy. 

This Court is aware that a District Court's decision 

to grant or deny a writ of mandate is a matter of discretion 

and will be sustained on appeal in the absence of a showing 

oi abuse of discretion. Cain v. Department of Health, etc. 

(1978), 177 Mont. 448, 451, 582 P.2d 332, 334. The District 

Court judge here, attempting to reconcile section 7-14- 

2103(3), MCA, with section 7-14-2601 et seq., MCA, concluded 

that the latter provisions apply only when the petition to 

abandon is disputed, and that, under the circumstances of 

this case, section 7-14-2103(3), MCA, is the specific 

statute which governs and mandates abandonment when it is 

sought by all adjoining landowners by a proper petition. 

We must disagree. There is no language in section 

7-14-2103(3), MCA, which indicates that it applies only to a 

unanimous petition to abandon. Nor is there language in 

section 7-14-2601 et seq., MCA, which indicates that the 

procedural requirements therein apply only to disputed 

petitions. Indeed, for a determination whether a petition 

to abandon is proper within the meaning of section 7-14- 

2103(3), MCA, it is necessary to look to the provisions of 

section 7-14-2601 and -2602, MCA, which specify who should 

bring the petition and what information the petition must 

contain. 
In Chennault v. Sager (1980), -- Mon t . , 610 

P.2d 173, 175, 37 St.Rep. 857, 859-860, this Court stated: 

"The statutory scheme for the abandonment of 

county roads is found in sections 7-14-2601 

through 7-14-2621, MCA. To initiate proceedings, any ten or a majority of freeholders of a road district petition the board 

of county commissioners for the abandonment 

of a particular road. Section 7-14-2601, 

MCA, Within thirty days after the filing of 

the petition, the commissioners cause an 

investigation to be conducted regarding the 

merits of the petition. Section 7-14-2603, 

MCA. A public hearing is then scheduled and 

notice of the hearing is given. Section 7- 

14-2615(2), MCA. The results of the investigation and the hearing are considered by the 

commissioners, and a decision is entered 

whether to abandon the road. Within ten days 

after the decision, the commissioners cause 

notice of their decision to be sent to all 

owners of land abutting the road for which 

abandonment was sought. Section 7-14-2604, 

MCA . " 

There is no reference in Chennault, supra, to section 

7-14-2103(3), MCA, as governing the abandonment of county 

roads. Nor is there any distinction drawn between petitions 

brought by a few adjoining landowners and those brought by 

all adjoining landowners, as long as the guidelines set in 

section 7-14-2601, MCA, are met. 

In Dept. of Revenue v. Puget Sound Power & Light 

(19781, - Mont. - , 587 P.2d 1282, 1287, 35 St.Rep. 1368, 

1373, we stated: 

"Although a cardinal rule of statutory 

construction is that the intent of the 

legislature must first be determined from the 

plain meaning of the words used [citation 

omitted], in determining the legislative 

intent in enacting a statute, a court can 

resort to the history of the statute. 

[Citation omitted. 1 " 

The statutes in question here were the result of a 

fifteen-month recodification study done by the Montana State 

University (now University of Montana) School of Law for the 
Montana State Highway Commission in cooperation with the 

United States Department of Commerce, Bureau of Public 

Roads. The study culminated in the publication in 1964 of a 

booklet entitled, "Research Report on the Montana Highway 

Code," which contained the old code, a proposed new code and 

a commentary. The proposed code was introduced during the 

1965 legislative session by the Committee on Highways and 

Transportation as Senate Bill 170 and was adopted with 

little revision and no changes pertinent to this inquiry. 

The new law included a statement of legislative intent 

(Chapter 1, section 2) containing the following statements: 

". . . [TI he legislative assembly intends: 

"(1) To place a high degree of trust in the 

hands of those officials whose duty it is, 

within the limits of available funds, to 

plan, develop, operate, maintain and protect 

the highway facilities of this state for 

present as well as for future use. 

" (2) To make the state highway commission 

custodian of the federal-aid and state 

highways, and to impose similar responsibilities upon the boards of county commissioners with respect to county roads and upon 

municipal officials with respect to the 

streets under their jurisdiction. 

" (3) That the state of Montana shall have 

integrated systems of highways, roads, and 

streets, and that the state highway commission, the counties and municipalities assist 

and cooperate with each other to that end. 

"(4) To provide sufficiently broad authority 

to enable the highway officials at all levels 

of government to function adequately and 

efficiently in all areas of their respective 

responsibilities, subject to the limitations 

of the constitution and the legislative 

mandate hereinafter imposed." 

Clearly, the legislature intended to vest broad authority 

and discretion in county officials. 

In the Research Report at pages 45-46 and again at 

page 137, the commentary to both proposed new code sections 
referring to the abandonment of county roads (now sections 

7-14-2103 and 7-14-2601, MCA) indicates that the purpose of 

the sections is to ensure that county commissioners can 

discontinue or abandon roads only when they are properly 

petitioned by interested landowners. There is no statement 

of intent to force county commissioners to abandon county 

roads at the landowners' request. 

We must keep in mind that the board of county 

commissioners is given the discretion to do whatever is 

necessary for the best interests of county roads. This 

discretion is contained in section 7-14-2102, MCA, which 

states: "Each board of county commissioners may in its 

discretion do whatever may be necessary for the best 

interest of the county roads and the road districts." 

After a consideration of all applicable statutes, we 

conclude that the specific statutes applicable to this 

action are section 7-14-2601 et seq., MCA. These statutes 

show that the county commissioners have the discretion to 

grant or deny a petition to abandon county roads. As above 

quoted, Chennault supports that conclusion. 

Such a conclusion does not render section 7-14- 

2103(3), MCA, meaningless or without effect, as suggested by 

plaintiffs. The section reasonably can be interpreted to 

mean that the county commissioners shall abandon county 

roads when a sufficient petition is filed, which, after the 

requisite investigation, is found to be feasible and 

desirable for the use and benefit of the public. In this 

case, the county commissioners concluded that: (1) Snow 

removal activity and drainage improvements would be hampered 

by the abandonment of a twenty-foot strip on either edge of 
the McHugh Lane right-of-way. (2) The county is considering 

constructing a bike/pedestrian way along McHugh Drive for 

the benefit of school children. (3) Finally, there is the 

possibility that the planning office of the State Highway 

Department is considering using McHugh Lane as a main 

roadway, as it is more centrally located than Montana 

Avenue. Each of the above conclusions supports the decision 

of the board of county commissioners not to grant the 

petition which would narrow the McHugh Lane right-of-way by 

40 percent. 

This Court finds that because the specific statutes 

governing abandonment of county roads are discretionary, and 

because the county commissioners have not manifestly abused 

their discretion in denying plaintiffs' petition, mandamus 

will not lie. 

It is unnecessary for this Court to address the 

second issue, since, even if plaintiffs' property interests 

are adversely affected by the denial of their petition to 

abandon, a writ of mandate may not be brought under the 

circumstances of this case. 

111 

Plaintiffs argue that the defendant improperly denied 

the petition to partially abandon the McHugh Lane right-ofway. But plaintiffs' argument is based entirely upon their 

position that defendant violated a mandatory duty as set 

forth in section 7-14-2103(3), MCA. We have held above that 

the discretionary statutes, section 7-14-2601 et seq., MCA, 

are the specific statutes which govern in this case and that 
the county commissioners did not abuse their discretion. 

Plaintiffs' argument is without merit. 

We therefore vacate the order of the District Court. 

The denial by the board of county commissioners of the 

petition to abandon remains in full force and effect. 

We concur: