STATE EX REL IRVIN v ANDERSON

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No. 12762 I N T E SUPREME C U T O THE STATE O MONTANA H OR F F 1974 THE STATE OF M N A A ex rel. DICK I R V I N , OTN, I N C , , a Montana Corporation; K e l l e r Transport, Inc , a Montana Corporation e t a l . , . Relators, H. J. ANDERSON, a s D i r e c t o r of Highways of t h e S t a t e of Montana; and GEORGE VUCANOVICH, WILLIAM M. KESSNER e t a l . , Respondents. ORIGINAL PROCEEDING: Counsel of Record : For R e l a t o r : S c r i b n e r and Huss, Helena, Montana William A. S c r i b n e r argued, Helena, Montana Robert L. Stephens appeared, B i l l i n g s , Montana For Respondents : N. A . Rotering, Helena, Montana Harry Alley argued, Helena, Montana Amicus Curiae Risken and O ' ~ e a r y , Helena, Montana John Risken argued, Helena, Montana Submitted: Decided : Filed: SUN2 6 1 B 9 May 21, 1974 A#f2m'r4 M. J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. r This is an original proceeding brought by c e r t a i n trucking corpor- a t i o n s , 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 t h e i r r i g h t s a s holders of r e s t r i c t e d route permits issued by the S t a t e Highway Commission authorizing transportation w i t h i n the weight 1 imitations s e t f o r t h i n section 32-1123(5)(c), R.C.M. 1947, upon Montana's i n t e r s t a t e highway system. The s p e c i f i c legal issues sought t o be determined are: 1. Can t h i s Court adjudge and declare under the laws of the s t a t e of Montana i n existence on July 1 , 1956, t h a t the S t a t e Highway Comnission, i t s o f f i c e r s and agents a r e empowered, in appropriate cases, t o issue r e s t r i c t e d route permits authorizing the movement of vehicles over the s t a t e highways w i t h i n the weight l i m i t a t i o n s s e t f o r t h i n section 32-1123(5)(c), R.C.M. without regard t o the l i m i t a t i o n s imposed by section 32-1127, R.C.M. 2. 1947, 1947. That t h e action proposed t o be taken by the Highway Commission on t h e basis of any other or contrary i n t e r p r e t a t i o n of law a s i t existed on July 1 , 1956, i s a r b i t r a r y , capricious and i 1legal . Relators herein a r e truckers who presently hold r e s t r i c t e d route per- mits issued by the S t a t e Highway Commission and this action i s brought t o prevent t h e Highway Commission from canceling these permits, a s t o t h e i r use on t h e i n t e r s t a t e highways a f t e r midnight June 30, 1974. On December 11, 1973, t h e Highway Commission amended i t s regulations t o a1 1ow r e s t r i c t e d route-load permits t o use the i n t e r s t a t e highway w i t h i n t h e s t a t e . See Montana Admin- i s t r a t i v e Code 18-2.10(14)-S10140. Re1 a t o r s argue t h a t t h e r e a f t e r various individual re1 a t o r s applied f o r and received from the Highway Commission r e s t r i c t e d route permits pursuant t o t h e new regulation, authorizing travel w i t h i n such increased weight l i m i t a t i o n s , paid the l i c e n s e f e e f o r such permits, and i n r e l i a n c e thereon invested substantial amounts of c a p i t a l f o r additional and heavier equipment t o accomodate such loads. On April 1 , 1974, respondent Highway Commission reversed i t s action of December 11, 1973, declaring t h a t such permits a s issued would not be recognized a f t e r June 30, 1974. W note t h e reasons given by the Commission: e "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 M XM M AI U WIDTH OF 96 INCHES, JULY 1 , 1956. "THE MONTANA HG W Y COMMISSION RESCINDED THEIR ACTION IH A OF DECEMBER 11, 1973 ON APRIL 1 , 1974 IN ORDER TO PROTECT THE ALLOCATION OF FEDERAL HG W Y FUNDS TO MONTANA FOR IH A FUTURE CONSTRUCTION FROM CANCELLATION. THE MONTANA HG W Y IH A COMMISSION, BY THEIR ACTION, HAVE STOPPED THE ISSUANCE OF RESTRICTED ROUTE-LOAD PERMITS FOR U E ON THE INTERSTATE S HG W Y SYSTEM ( I .15, I 90, & 1 94) EFFECTIVE APRIL 1 , 1974. IH A "RESTRICTED ROUTE-LOAD PERMITS ISSUED PRIOR TO APRIL 1 , 1974 WILL BE RECOGNIZED FOR INTERSTATE HG W Y SYSTEM IH A TRAVEL UNTIL FURTHER NOTICE, BUT UNDER NO CIRCUMSTANCES AFTER MIDNIGHT JUNE 30, 1974. I' (Emphasis supplied. ) A underlined above, the Highway Comnission gives two reasons f o r s t h e proposed r e t r a c t i o n of t h e permits ( 1 ) i t i s contrary t o an i n t e r p r e t a t i o n of Montana law by employees of a federal bureau (FHWA), and ( 2 ) Montana might lose federal highway construction funds i f i t does not comply with the federal directive. Yet the Court was informed by r e l a t o r s during oral argument, and not denied by respondents, t h a t the U . S. Department of Transportation i s sponsoring 1egi s l a t i on before Congress a1 1owing what was done here by the Highway Comnission in December 1973. Some 4,000 t o 5,000 permits were issued on the basis of the action taken i n December. I t i s alleged t h a t the reason f o r t h e change i n December, permitting the use of the i n t e r s t a t e , came about due t o the e x i s t i n g energy shortage and a request by the Governor of Montana t o federal a u t h o r i t i e s who on the basis of emergency conservation approved the request t o make the change. I t i s conceded there i s no practical reason why the i n t e r s t a t e highway system should be the subject of weight limitations which a r e l e s s than those authorized upon the other highways of the s t a t e . The real crux of the matter here, as noted by counsel f o r respondents, i s t h a t the respondent Comnission has since 1956 operated on e i t h e r i t s own i n t e r p r e t a t i o n of Montana s t a t u t e s sections 32-1123 and 32-1 127, R.C.M. 1947, o r t h a t made by federal employees. The Highway Commission has never had o r requested i n any case before t h i s Court a d e f i n i t i v e opinion t o guide i t . The question of whether o r not this Court can take original jurisd i c t i o n of t h i s matter and enter a declaratory judgment has long been decided i n Montana. Under the circumstances t h e Court c l e a r l y has power t o accept original j u r i s d i c t i o n and t o e n t e r a declaratory judgment. W quote from 42nd Legise l a t i v e Assembly v. Lennon, 156 Mont. 416, 421, 481 P.2d 330: " * * * Montana case law i s r e p l e t e with authority sustaining the original j u r i s d i c t i o n of the Supreme Court i n declaratory judgment actions in a variety of s i t u a t i o n s . S t a t e ex re1 Schul tz-Lindsay v . Board of Equalization, 145 Mont. 380, 403 P.2d 635; Carey, S t a t e 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 j u r i s d i c t i o n of the Supreme Court in a declaratory judgment action where legal questions of an emergency nature a r e presented and ordinary legal procedures will not afford timely or adequate relief." . Although the question involved in this case can be simply s t a t e d , much background information is needed before i t s significance can be appreciated. W must first go back t o t h e federal law establishing t h e i n t e r s t a t e highway e system f o r an understanding of why the dispute hasarisen. On August 27, 1958, t h e Congress of the United S t a t e s enacted public law 85-767, which a s amended i s codified a s T i t l e 23, Section 127 of t h e United S t a t e s Code. The section reads a s follows: "No funds authorized t o be appropriated f o r any f i s c a l year under section 108(b) of the Federal-Aid Highway Act of 1956 shall be apportioned t o any S t a t e w i t h i n the bounda r i e s of which the I n t e r s t a t e System may lawfully be used by vehicles w i t h weight i n excess of eighteen thousand pounds carried on any one axle, o r w i t h a tandem-axle weight in excess of t h i rty-two thousand pounds, or w i t h an over-all gross weight i n excess of seventy-three thousand two hundred and eighty pounds, o r w i t h a width in excess of ninety-six inches, or t h e corresponding maximum weights o r maximum w i d t h s permitted f o r vehicles u s i n g the public highways of such S t a t e under laws o r regulations established by appropriate S t a t e authority in e f f e c t on July 1 , 1956, whichever i s the greater. Any amount which i s withheld from apportionment t o any S t a t e pursuant t o the foregoing provisions shall lapse. T h i s section shall not be construed t o deny apportionment t o any S t a t e allowing the operation w i t h i n such S t a t e of any vehicles or combinations thereof t h a t could be lawfully operated w i t h i n such S t a t e on July 1 , 1956. With respect t o t h e S t a t e of Hawaii, laws or regulations i n e f f e c t on February 1 , 1960, shall be applicable f o r the purposes of t h i s section, i n 1ieu of those i n e f f e c t on July 1 , 1956. Ii The foregoing section prescribes the l i m i t a t i o n s which must be observed by the s t a t e s i n order f o r them t o qualify f o r t h e i r annual apportionment of federal funds f o r highway purposes. The section reveals the following c r i t e r i a f o r determining permitted s i z e s and weights on the i n t e r s t a t e system: a. The s t a t e laws in e f f e c t on July 1 , 1956, must be examined f o r t h e purpose of determining whether t h e maximums prescribed in the federal code o r the maximums prescribed by s t a t e law apply. I f the s t a t e law per- mitted greater maximums a s of July 1 , 1956, these a r e controlling, otherwise, t h e federal maximum prevails. b. I f the s t a t e law in e f f e c t on July 1 , 1956, authorized variations from the maximums, by special permit or otherwise, such variations a r e a l s o permitted by the federal s t a t u t e s t o be authorized over the i n t e r s t a t e system. Furthermore, a s t a t e s t a t u t e passed a f t e r July 1 , 1956, s e t t i n g f o r t h procedures o r limitations w i t h respect t o such variations may a l s o apply t o t h e i n t e r s t a t e system, i f the s t a t e s t a t u t e s in e f f e c t on July 1 , 1956, were broad enough t o allow such operations. This is made c l e a r by the following provision of T i t l e 23, Section 127, U.S.C.: "This section s h a l l not be construed t o deny apportionment t o any S t a t e allowing the operation within such S t a t e of any vehicles o r combinations thereof t h a t could be lawf u l l y operated within such S t a t e on July 1 , 1956.'' I t thus becomes necessary f o r us t o examine the Montana laws i n e f f e c t on July 1 , 1956 t o determine, f i r s t , the weight limitations having general a p p l i c a b i l i t y a t t h a t time, and second, t h e extent t o which variations from these weight limitations were authorized by special permit a t t h a t time. It i s a l s o important f o r us t o examine the amendments t o these provisions enacted by the l e g i s l a t u r e a f t e r July 1 , 1956, f o r the purpose of determining whether the operation of vehicles o r combinations thereof in accordance w i t h such amendments was permitted by the Montana law i n existence on July 1 , 1956. On July 1 , 1956, section 32-1123, R.C.M. 1947, contained tables of maximum weights which varied i n accordance w i t h the distance between axles of the vehicle o r combination, up t o a maximum of 76,800 pounds f o r 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 o r weights in excess of t h e maxi m u m l i m i t s herein recomnended shall be permitted only i f and when authorized by special permit issued by the s t a t e highway commission or i t s o f f i c e r s , supervisors or agents acting pursuant t o duly delegated authority from said commission, including the s t a t e highway patrol ." The aforementioned s t a t u t o r y provi sions , considered without r e f erence t o other s t a t u t e s , lead us t o the conclusion t h a t not only a r e t h e general weight limitations s e t f o r t h i n the s t a t u t e greater than those prescribed by federal law, and therefore applicable, but also t h a t on t h e controlling date the S t a t e Highway Comnission and i t s agents had authority t o issue special permits f o r weights i n excess of those granted, without limitation except as contained i n the above quotation. From t h i s i t would follow t h a t the Comnission and i t s agents have the same authority t o issue special permits f o r operation over the i n t e r s t a t e system. However, another s t a t u t e in e f f e c t on July 1 , 1956, must a l s o be considered. On t h a t date section 32-1127, R.C.M. 1947, provided in part as fol 1ows : "The s t a t e highway commission, and local a u t h o r i t i e s in t h e i r respective j u r i s d i c t i o n , may, i n t h e i r d i s c r e t i o n , upon application i n writing and good cause being shown therefor, issue a special permit i n writing, authorizing the applicant t o operate or move a vehicle of a s i z e o r weight exceeding the maximum specified i n t h i s a c t upon any highway under t h e j u r i s d i c t i o n of and f o r t h e maintenance of which the body granting t h e permit i s responsible; provided, however, t h a t no permits a r e t o be issued f o r movement of vehicles carrying built-up or reducible loads i n excess of nine (9) f e e t i n width o r exceeding the length, height, or weight specified in t h i s a c t ; provided, however, t h a t no permits a r e t o be issued f o r the moving of loads f o r any considerable distances over such highways when the loads i n question a r e of such excess w i d t h t h a t a l l t r a f f i c lanes upon the highway concerned would be blocked t o the serious inconvenience of normal t r a f f i c ; and f u r t h e r provided t h a t no permits a r e t o be granted f o r t h e moving of loads of such excess width t h a t a hazard t o t r a f f i c would be involved f o r any considerable distances over t h e highways concerned except t o those applicants who carry public l i a b i l i t y and property damage insurance f o r the protection of the traveling public a s a whole. N permit shall be o issued f o r a period of more than nine (9) months." From t h i s i t will be observed t h a t as of July 1 , 1956, there were two separate s t a t u t o r y provisions authorizing the issuance of special permits f o r weights i n excess of the maximums prescribed by law. Sub-paragraph 5 ( f ) of 32-1123, applicable only t o the S t a t e Highway Commission and i t s agents, contained no s i g n i f i c a n t limitations upon the authority therein granted. Section 32-1127 appears t o be applicable t o the S t a t e Highway Commission and t o local a u t h o r i t i e s within t h e i r respective j u r i s d i c t i o n s , and c a r r i e s the limitation t h a t no such permits may be granted f o r vehicles carrying b u i l t up o r reducible loads. I t should be noted a t t h i s point t h a t each of these s t a t u t o r y provisions is s t i l l on t h e books. Sub-paragraph (5) ( f ) of section 32-1 123 has been reenacted with identical language in amendments t o the section in t h e years 1959, 1961, 1967, and 1973. i n 1961, 1965, 1969, and 1971. Section 32-1 127 was amended The 1961 amendment t o section 32-1127 revised the language regarding built-up o r reducible loads t o read as follows: " * * * provided, however, t h a t only the s t a t e highway commission shall have t h e discretion t o issue permits f o r movement of vehicles carrying built-up o r reducible loads i n excess of nine (9) f e e t in width or exceeding the length, height or weight specified i n this a c t * * *." More about t h i s amendment l a t e r . In 1967, t h e l e g i s l a t u r e amended section 32-1123 by adding a provision which authorized the S t a t e Highway Commission t o issue special permits f o r weights in excess of the t a b l e of maximums therein prescribed, in accordance w i t h an increased t a b l e of weights, commonly referred t o as "Table B" up t o a maximum of 105,500 pounds. ment This added provision contained the following s t a t e . " T h i s subdivision shall have no appl i cation t o highways which a r e a p a r t of t h e National System of I n t e r s t a t e and Defense Highways (as referred t o i n section 127 of t i t l e 23, United S t a t e s Codes) when such application would prevent t h i s s t a t e from receiving any federal funds f o r highway purposes. " A t the time of this amendment and the other amendments t o this (5) s t a t u t e , the l e g i s l a t u r e reenacted into law sub-paragraph /(f) giving t h e S t a t e Highway Commission exclusive authority t o issue permits f o r excess weights. Prior t o i t s reconsideration of t h i s question in December 1973, the S t a t e Highway Commission recognized i t s r i g h t t o grant r e s t r i c t e d route permits f o r excess weights on the i n t e r s t a t e system, b u t only w i t h respect t o nonreducible loads. R.C.M. Shortly a f t e r the l e g i s l a t u r e amended section 32-1127, 1947, t o remove the reducible load f e a t u r e , comnunications were ex- changed between the bureau of public roads and the Highway Commission regarding the e f f e c t this amendment would have on the s t a t e ' s e l i g i b i l i t y f o r federal highway funds. B l e t t e r dated March 28, 1961 , the bureau quoted y a ruling from i t s legal division concluding t h a t the amendments t o the law would enlarge the exemptions in e f f e c t on July 1 , 1956, and would t h u s place Montana i n a position of jeopardy. The Highway Commission replied s t a t i n g t h a t i t would adhere t o a policy of not allowing permits f o r movement of reducible loads exceeding the s t a t u t o r y weight s p e c i f i c a t i o n s , and t h e r e a f t e r , on June 21, 1962, i t c e r t i f i e d t o the bureau t h a t by reason of i t s pol icy statement no changes had been effected by the s t a t e w i t h respect t o t h e Apparently, neither the bureau of public roads nor the (5) Highway Commission considered t h e provisions of sub-paragraph/ ( f ) of section granting of permits. 32-1123 when these conclusions were reached. When t h e energy c r i s i s was announced by the President l a s t f a l l , and when the extent of the fuel shortage became known, the Montana Highway Commission reconsidered i t s position and directed i t s legal department t o review t h e applicable law t o determine whether the Commission did in f a c t have authority t o issue r e s t r i c t e d route permits within the Table B maximums on July 1 , 1956. Similar movements were under way in other western s t a t e s . In Montana, i t was concluded the power t o issue such permits was always vested i n the Highway Comission, by v i r t u e of t h e provisions of sub-paragraph (5) ( f ) , section 32-1123, R.C.M. 1947. In arriving a t t h i s conclusion, t h e Commission considered a l s o the provisions of section 32-1127, but concluded the only harmonious construction of the two sections was t h a t the nonreducible load r e s t r i c t i o n i n the l a t t e r section was applicable only t o the local authori t i e s therein referred to. W find the i n t e r p r e t a t i o n s placed upon these Montana s t a t u t e s by e t h e federal highway administration, and since acquiesced i n by respondents, i f concurred i n by t h i s Court, would c o n s t i t u t e a repeal of the provisions of sub-paragraph (5) ( f ) of section 32-1 123, R.C.M. 1947. This sub-paragraph, which was i n e f f e c t July 1 , 1956, and which has been repeatedly reenacted i n t o law each time other provisions of the section were changed, c l e a r l y provides t h e authority which i s now denied by the Commission and f u r t h e r grants such authority exclusively t o the S t a t e Highway Commission and i t s agents. W find the only reasonable resolution of the c o n f l i c t between e t h i s sub-paragraph and section 32-1127, R.C.M. 1947, i s by a construction of these s t a t u t e s together, t o the e f f e c t t h a t sub-paragraph ( 5 ) ( f ) of section 32-1123 i s an expansion of the powers granted i n section 32-1127. A contrary interpretation would necessarily lead t o the following conclusions: t h a t sub-paragraph ( 5 ) ( f ) is a n u l l i t y ; t h a t the l e g i s l a t u r e did not mean what i t said when i t granted exclusive powers t o the S t a t e Highway Commission; and, t h a t each time the sub-paragraph was reenacted the l e g i s l a t u r e was performing an i d l e a c t . T h i s strained i n t e r p r e t a t i o n would a l s o v i o l a t e established principles of s t a t u t o r y construction. Some of these principles a r e as follows: The court will presume t h a t the l e g i s l a t u r e would not pass useless o r meaningless l e g i s l a t i o n . S t . Paul Fire & Marine Ins. Co. v . Thompson, 150 Mont. 182, 433 P.2d 795. In the construction of a s t a t u t o r y provision i t will be presumed t h a t the l e g i s l a t u r e , i n adopting i t , intended t o make some change i n t h e e x i s t i n g law, and the courts will endeavor t o give some e f f e c t t o t h e enactment. Nichols v . School D i s t r i c t No. 3, 87 Mont. 181, 287 P. 624; S t a t e v. Swanberg, 130 Mont. 202, 299 P.2d 446; Van Tighem v. Linnane, 136 Mont. 547, 349 P.2d 569; S t a t e ex re1 . Special Road Dist. v. M i l l i s , 81 Mont. 86, 261 P. 885; In r e McLurels Estate, 68 Mont. 556, 220 P. 527; 73 Am J u r 2d, S t a t u t e s , 5 253, p * 424. The court must harmonize s t a t u t e s r e l a t i n g t o the same s u b j e c t , i f possible, and give e f f e c t t o each. S t a t e ex r e l . Riley v. D i s t r i c t Court, 103 Mont. 576, 64 P.2d 115; S t a t e ex r e l . Patterson v . Lentz, 50 Mont. 322, 146 P . 932; 82 C.J.S. Statutes $ 366, p. 810. In conclusion, w observe t h a t no useful purpose i s served by the e Highway Comnission's cancel l a t i o n of these r e s t r i c t e d route permits. Fuel costs have skyrocketed since l a s t f a l l when the r e s t r i c t e d route permits were authorized, and the energy shortage i s s t i l l c r i t i c a l . N responsible o authority would contend t h a t our system of i n t e r s t a t e highways will not w i t h stand t h e Table B weights, which have been u t i l i z e d since 1967 on the primary highways i n the s t a t e , and which the department of transportation has recommended f o r adoption on a l l i n t e r s t a t e highways. W hold the S t a t e Highway Commission had t h e authority t o issue such e permi t s on July 1 , 1956, f o r e i t h e r nonreduci ble or reducible loads and, accordingly, i t has the power t o do so now, without jeopardizing the r i g h t of the S t a t e of Montana t o receive federal funds f o r highway purposes. This opinion shall c o n s t i t u t e a declaratory judgment and i s hereby entered i n accordance w i t h the foregoing opinion. W concur: e ---------- Justices

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