                          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 2 0 18
                                                             91
Filed:   OCT 2 0 1981
Mr. Justice Fred J. Weber          delivered the Opinion of         the
Court.
          Defendant Lewis and Clark County Board of Commis-
sioners 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 discre-
tionary?
          2.    Whether any rights of the plaintiffs to the por-
tion of roadway they seek to have abandoned were adversely
affected by        the actions of the board      of county commis-
sioners.
          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 estab-
lish 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.        ( 1 9 7 8 ) , 177 Mont.      448,

4 5 1 , 582 P.2d 332, 334.

           ( 3 ) I f t h e r e h a s been such an abuse o f d i s c r e t i o n a s

t o amount t o no e x e r c i s e o f d i s c r e t i o n a t a l l , mandamus w i l l

l i e t o compel t h e p r o p e r e x e r i c s e o f p o w e r s g r a n t e d .                  Cain

v.   Department of            Health,           etc.       ( 1 9 7 8 ) , 1 7 7 Mont,      448,      451,

582 P.2d 3 3 2 , 334.

           ( 4 ) When s p e c i f i c s t a t u t o r y l a n g u a g e c o n f l i c t s o r i s

i n c o n s i s t e n t with g e n e r a l s t a t u t o r y language,               the specific

statutory         language            w i l l    prevail           to      the    extent       of    any

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

(1980)t      - Mont. -,                    612 P.2d 1 2 7 5 , 1 2 7 6 , 37 S t . R e p .            664,
666.

                                                       I
           The     parties            disagree             as     to     which      statutes         are

s p e c i f i c and which a r e g e n e r a l , and t h e r e f o r e d i s a g r e e a s t o

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      t o be        discretionary.             The

D i s t r i c t C o u rt found t h a t s e c t i o n 7-14-2103(3),                   MCA,      was t h e

s p e c i f i c s t a t u t e g o v e r n i n g t h e a c t i o n and was m a n d a t o r y , and

t h e r e f o r e g r a n t e d mandamus.

           The r e l e v a n t s t a t u t e s f o l l o w .

           Under      the       heading           "General         Provisions            Related      to

C o u n t y R o a d s , " s e c t i o n 7-14-2103,              MCA,     provides:

           "Duties of county c o m m i s s i o n e r s ~ n c e r n i n q
           county roads.                  . . .   ( 3 ) Each b o a r d s h a l l
           .......................
           d i s c o n t i n u e o r a b a n d o n c o u n t y r o a d s when -
           f r e e h o l d e r s p r o p e r l y -p ----------------. "
                                                    etition therefor
           (Emphasis s u p p l i e d . )

           Under      the       heading          "Establishment,                 Alterati            and

Abando nment          of     County          Roads",            section          7-14-260           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 dis-
          trict taxable therein for road purposes may
          petition the board in writing to open, estab-
          lish, construct, change, abandon, or discon-
          tinue 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 Pro-
visions    . . ."        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.
           I n Chennault v.             Sager        (1980),   --       Mon t   .            ,   610

P.2d 1 7 3 , 1 7 5 , 37 S t . R e p .      8 5 7 , 859-860,       t h i s Court s t a t e d :

           "The s t a t u t o r y scheme f o r t h e abandonment o f
           c o u n t y r o a d s i s f o u n d i n s e c t i o n s 7-14-2601
           t h r o u g h 7-14-2621,            MCA.      To i n i t i a t e p r o -
           c e e d i n g s , any t e n o r a m a j o r i t y of f r e e -
           h o l d e r s o f a road d i s t r i c t p e t i t i o n t h e board
           of c o u n t y c o m m i s s i o n e r s f o r t h e abandonment
           of a p a r t i c u l a r road.              S e c t i o n 7-14-2601,
           MCA,        Within t h i r t y days a f t e r t h e f i l i n g of
           t h e p e t i t i o n , t h e commissioners cause an
           i n v e s t i g a t i o n t o be c o n d u c t e d r e g a r d i n g t h e
           m e r i t s of t h e p e t i t i o n .      S e c t i o n 7-14-2603,
           MCA.        A p u b l i c h e a r i n g i s t h e n s c h e d u l e d and
           n o t i c e of t h e h e a r i n g is g i v e n .         S e c t i o n 7-
           1 4 - 2 6 1 5 ( 2 ) , MCA.    The r e s u l t s o f t h e i n v e s t i -
           g a t i o n and t h e h e a r i n g a r e c o n s i d e r e d by t h e
           commissioners, and a d e c i s i o n is e n t e r e d
           whether t o abandon t h e r o a d . W i t h i n t e n d a y s
           a f t e r t h e d e c i s i o n , t h e commissioners cause
           n o t i c e o f t h e i r d e c i s i o n t o be s e n t t o a l l
           o w n e r s o f l a n d a b u t t i n g t h e r o a d f o r which
           abandonment was s o u g h t .               S e c t i o n 7-14-2604,
           MCA   ."
           T h e r e i s no r e f e r e n c e i n C h e n n a u l t , s u p r a , t o s e c t i o n

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

roads.      Nor i s t h e r e any d i s t i n c t i o n drawn b e t w e e n p e t i t i o n s

b r o u g h t by a few a d j o i n i n g l a n d o w n e r s and t h o s e b r o u g h t by

a l l a d j o i n i n g landowners,         a s long a s the guidelines set i n

s e c t i o n 7-14-2601,        MCA,    a r e met.

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

(19781,     - Mont. -,                 587 P.2d 1 2 8 2 , 1 2 8 7 , 35 S t . R e p .          1368,
1373, w e s t a t e d :

           "Although a c a r d i n a l r u l e of                        statutory
           c o n s t r u c t i o n is t h a t t h e i n t e n t of t h e
           l e g i s l a t u r e m u s t f i r s t be d e t e r m i n e d from t h e
           p l a i n meaning o f t h e words u s e d [ c i t a t i o n
           omitted], i n determining the l e g i s l a t i v e
           i n t e n t i n e n a c t i n g a s t a t u t e , a c o u r t can
           r e s o r t t o t h e h i s t o r y of                the statute.
            [Citation omitted. 1 "

           The s t a t u t e s    i n q u e s t i o n h e r e were t h e r e s u l t o f           a

f i f t e e n - m o n t h r e c o d i f i c a t i o n s t u d y d o n e by t h e Montana S t a t e

U n i v e r s i t y (now U n i v e r s i t y o f Montana) S c h o o l o f Law f o r t h e
Montana       State       Highway        Commission           in    cooperation          with      the

United       States        Department           of       Commerce,        Bureau       of     Public

Roads.       The s t u d y c u l m i n a t e d i n t h e p u b l i c a t i o n i n 1964 o f a

booklet       entitled,         " R e s e a r c h R e p o r t on t h e Montana              Highway

C o d e , " which c o n t a i n e d t h e o l d c o d e , a p r o p o s e d new c o d e and

a commentary.              The p r o p o s e d code was i n t r o d u c e d d u r i n g t h e

1 9 6 5 l e g i s l a t i v e s e s s i o n by t h e Committee on Highways and

Transportation             as    Senate        B i l l    170      and    was     adopted        with

l i t t l e r e v i s i o n and no c h a n g e s p e r t i n e n t         to this          inquiry.

The    new      law     included         a    statement            of    legislative          intent

( C h a p t e r 1, s e c t i o n 2 ) c o n t a i n i n g t h e f o l l o w i n g s t a t e m e n t s :

           ". . .       [TI he l e g i s l a t i v e a s s e m b l y i n t e n d s :

           " ( 1 ) To p l a c e a h i g h d e g r e e o f t r u s t i n t h e
           h a n d s of t h o s e o f f i c i a l s whose d u t y i t i s ,
           within the l i m i t s of a v a i l a b l e funds, t o
           p l a n , d e v e l o p , o p e r a t e , m a i n t a i n and p r o t e c t
           t h e highway f a c i l i t i e s o f t h i s s t a t e f o r
           present a s w e l l a s for future use.

           " ( 2 ) To make t h e s t a t e highway c o m m i s s i o n
           c u s t o d i a n of       the federal-aid                 and s t a t e
           h i g h w a y s , and t o impose s i m i l a r r e s p o n s i -
           b i l i t i e s upon t h e b o a r d s of c o u n t y commis-
           s i o n e r s w i t h r e s p e c t t o c o u n t y r o a d s and upon
           municipal o f f i c i a l s with respect t o t h e
           s t r e e t s under t h e i r j u r i s d i c t i o n .

           " ( 3 ) T h a t t h e s t a t e of Montana s h a l l h a v e
           i n t e g r a t e d s y s t e m s o f h i g h w a y s , r o a d s , and
           s t r e e t s , and t h a t t h e s t a t e highway commis-
           s i o n , t h e c o u n t i e s and m u n i c i p a l i t i e s a s s i s t
           and c o o p e r a t e w i t h e a c h o t h e r t o t h a t e n d .

           " ( 4 ) To p r o v i d e s u f f i c i e n t l y b r o a d a u t h o r i t y
           t o e n a b l e t h e highway o f f i c i a l s a t a l l l e v e l s
           o f government t o f u n c t i o n a d e q u a t e l y and
           e f f i c i e n t l y i n a l l a r e a s of t h e i r r e s p e c t i v e
           responsibilities, subject t o the limitations
           of t h e c o n s t i t u t i o n and t h e l e g i s l a t i v e
           mandate h e r e i n a f t e r imposed."

Clearly,        the     legislature           intended        t o v e s t broad         authority

and d i s c r e t i o n i n c o u n t y o f f i c i a l s .

            In t h e Research Report a t pages                           45-46    and a g a i n a t

p a g e 1 3 7 , t h e commentary t o b o t h p r o p o s e d new c o d e s e c t i o n s
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-of-
way.     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.
        W e 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.




W e concur:
