                                     No.        90-357

                     IN THE SUPREME COURT OF THE STATE OF MONTANA
                                            1990



STATE OF MONTANA, ex rel., FALLON COUNTY,
a body politic and corporate, DELANE BEACH,
GARY LANG and ART KOENIG,
                                           Relator


DISTRICT COURT OF THE SIXTEENTH JUDICIAL
DISTRICT, Fallon County, Montana
                                           Respondent.



ORIGINAL PROCEEDING: Writ of Certiorari

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           -J   I        Denzil R. Young; Fallon County Attorney; Baker,
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                *        Gene Huntley, Baker, Montana
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                                                     Submitted:     October 1 2 , 1 9 9 0
                                                     _   Decided:   November 29, 1990
Filed:


                                           4'
                                           Clerk
Justice Fred J. Weber delivered the Opinion of the Court.

     Relators Fallon County and Delane Beach, Gary Lang and Art
Koenig (County Commissioners of that county), herein collectively
referred to as Fallon County, have filed an application for writ
of certiorari requesting that this Court review the order dated
December 29, 1988 of the District Court of the Sixteenth Judicial
District, Fallon County, finding the relators in contempt.      We
grant the writ of certiorari without notice and conclude that the
December 29, 1988 order of the District Court should be annulled.
     The underlying case is cause No. 4852, Fallon County District
Court, in which H. J. Halmans is plaintiff and the relators named
herein are defendants.   The District Court order of contempt was
dated December 29, 1988 and was filed on January 4, 1989.       The
District Court file shows that the last filing or appearance prior
to the December 29, 1988 order was the filing of a brief dated
August 9, 1983, resulting in a delay of more than five years.    In
its order the District Court pointed out that the matter had been
deemed submitted, that it was lost in chambers and the court
apologized for the delay. We conclude that it is necessary to set
forth facts in some detail.
    The underlying action was commenced by the filing of a
complaint on October 17, 1980. The complaint referred to a gravel
road in Fallon County, the east end of which terminated at its
intersection with state highway No. 7, about seven miles north of
Baker, Montana.    The plaintiff alleged that the defendants
undertook to change the road by closing and abandoning the east
                                2
one-quarter mile of the road and curving it back to the east to
reenter state highway No. 7 approximately one-quarter mile south
of the previous intersection.        The complaint alleged that the
change in the road and the abandonment of the previous portion was
done by the defendants without regard to the controlling laws and
requested a permanent injunction restraining the defendants from
utilizing the altered road.       After various motions, filings and
other procedures, the District Court made and entered findings of
fact and conclusions of law dated December 29, 1981.         The court
found that the defendants undertook to change the road by closing
and abandoning the easterly one-fourth mile and causing it to turn
south to intersect with       highway No. 7, which was approximately
one-quarter mile south of the previous intersection.         The court
found that there had been no prior petition from the freeholders
for a change in the roadway and also found that the defendants
altered the road without prior notice to the public as required by
statute.   The court did find that the defendants believed the
change would be in the interest of the traveling public.           In its
conclusions of law, the District Court referred to             5    7-14-
2101 (1)(a) (i), MCA (1981), which provided that the general power
of the county commissioners relating to roads is to lay out,
maintain, control and manage roads as provided in that section.
The court quoted the portion of the section which provided that
each board shall survey, view, lay out, record, open, work and
maintain county roads which are petitioned for by freeholders. In
addition it referred to   §   7-14-2601 (1), MCA (1981), which provided
that any ten or a majority of the freeholders of a road district
may petition the board in writing to open, establish, construct,
change, abandon or discontinue any county road. The District Court
then concluded that the defendants were without authority to alter
the county road without having received a petition or holding the
public hearing required by law.    The District Court executed its
undated Judgment which was filed on January 12, 1982 which decreed
that the defendants had no authority to change the road by closing
and abandoning and causing it to turn in the manner set forth.      In
addition, the judgment stated as follows:
      (2) Absent the utilization by defendants of the
      appropriate procedure in the future defendants are
      permanently enjoined from abandoning the road as it was
      before the indicated change and are permanently enjoined
      from using the road as changed. Defendants are directed
      to restore the road in question to its original
      configuration.
The court adjudged that the defendants had no authority to attempt
to abandon the road and any attempted abandonment was void.       In a
specific indication that it expected that the defendants would take
the appropriate steps under the statute to abandon and approve the
road changes, the court noted the inclement weather at that time
of year and ruled that the changes required by the judgment should
be done as soon as weather reasonably permitted.
      The attorney for the defendants filed a motion for stay of
execution on April 22, 1982. Attached to the motion was a copy of
a Petition to Alter a Roadway which was signed by more than ten of
the   freeholders residing   in   the   road   district whereby   the
petitioners requested the county commissioners of Fallon County not
to restore the roadway to its original right angle but to leave the
roadway in the present rebuilt location. The petition pointed out
that there had been no additional cost and that the disadvantage
of the old approach was that it was located immediately south of
the crest of a hill and     created a snow problem and a traffic
hazard.   It pointed out that the new approach was situated at the
school bus stop alleviating a traffic hazard created by vehicles
coming out of the old approach and stacking up at the school bus
stop. The freeholders further petitioned the county commissioners
to abandon the old right angle approach to the highway.        The
substance of the Motion for Stay of Execution was that a hearing
had been conducted by the Board of County Commissioners even though
not required by statute and that twelve people testified in favor
of the change and the only opposition were Bert Halmans and John
Halmans and their counsel. The motion pointed out that the county
commissioners stand ready to restore the roadway as required by the
order of the District Court but that the freeholders desire the
present roadway pattern. The motion therefore requested a stay of
execution of the judgment, and a review of the proceedings of the
county commissioners to determine the adequacy of the petition and
the proceedings.   Notice of motion was given to opposing counsel.
The District Court file does not indicate that the motion was ever
considered or ruled upon by the District Court.
     On July 12, 1983, the plaintiff filed an affidavit for
contempt requesting that the court impose civil contempt sanctions
against the defendants until they comply with the order of January
12, 1982.   An order to show cause was issued and served upon the
defendants. Extensive briefs were filed by both sides. The matter
came on for hearing before the District Court on August 3, 1983.
A copy of a Resolution Granting Road Petition, dated May 17, 1982,
was filed by the Board of County Commissioners of Fallon County.
That Resolution set forth the details of the filing of the petition
by more than ten freeholders, the giving of notice as provided by
statute to the public, the holding of a hearing attended by twelve
of the freeholders of the road district, a notation that the
petition was signed by more than twenty-five residents of the road
district and also signed by twenty-one persons who are frequent
users though not freeholders. The Resolution pointed out that all
of the witnesses save and except H.J. Halmans and his son, John
Halmans, approved the present configuration. The Board stated that
it was totally familiar with the roadway and found that the
petition substantially complied with the requirements of law and
that no further investigation concerning the roadway was necessary.
The Board then resolved that the new roadway was desired by the
vast majority of freeholders, that the proceedings referred to
vested the Board with jurisdiction to alter the roadway and that
the petition to alter the roadway should be granted and that the
old roadway was deemed abandoned.   The Resolution further stated
that the resolution and granting of the petition was conditioned
upon review by the District Court in the civil action in which the
District Court found the Board lacked jurisdiction to alter the
roadway; and   if the District Court should decide that the
proceedings were inadequate, then the commissioners would restore
the roadway to its original condition.     Following the hearing,
briefs were submitted, the last of which was the brief previously
mentioned which was filed on August 9, 1983. Nothing further took
place in the cause for more than five years when the District Court
issued its order of December 29, 1988, finding the defendants in
contempt of court. The contempt order provided that the defendants
may purge themselves by the payment of attorney fees and costs,
payment of damages in the amount of $1,000, and abiding by the
original court order.   It is from that order of contempt that the
proceedings in certiorari are brought to this Court.   In that order
the District Court stated that after a prior hearing in this cause
the court enjoined the defendants from changing a county road from
its prior location without following the procedure provided by law
and that the defendants failed to abide by that court order.     No
reference was made in the Order to the proceedings on the part of
the defendants to comply with the statutory requirements for
abandonment and construction of a new road, and no reference to the
petition, notice, and resolution adopted by the defendants or the
notice of the 1983 hearing.
     This Court has now been     furnished with   a copy of the
transcript of the proceedings before the District Court on August
3, 1983.   We note in particular that the transcript was prepared
and certified on August 17, 1990 and filed with the Clerk of the
District Court on August 27, 1990. As a result it is apparent that
after a delay of more than five years the judge of the District
Court did not have available for his review the same transcript
which we have considered.
     After a careful review of the file, we are not able to
determine if the District Court had the opportunity of considering
the various motions and instruments which had been filed, including
the petition filed by the freeholders and the resolution adopted
by the Board of County Commissioners.     From the order of contempt
of the court, it appears likely that none of these matters came to
the District Court's attention.
     The transcript shows that the Chairman of the Board of County
Commissioners testified      in the August 3, 1983        hearing.   He
testified that he had relied upon a letter from the Highway
Department of the State of Montana which reviewed the safety
aspects of the former approach and pointed out that the desired
safe stopping distance was 1050 feet but that the old approach only
gave 700 feet.   The chairman testified as to the public hearing,
the matters presented and the conclusions reached on the part of
the Board of County Commissioners.     He testified that the county
attorney had asked the state to perform a survey on the corners and
angles as contained in the copy of the letter.             The chairman
further   testified   that    the   proceedings   which     the   county
commissioners had taken were conducted upon the advice of the
county attorney and that the county attorney had advised them that
the proceedings gave them jurisdiction to alter the roadway.
     In the plaintiff's opposition to the petition for certiorari,
he points out that the petition did not state the "owners affected"
and "whether the owners who can be found consent theretof1as
required    by    5   7-14-2602, MCA.    He    also   argues   that   the
commissioners did not cause an investigation to be made of the
feasibility, desirability and cost as required under       §   7-14-2603,
MCA, and did not make a finding as to the amount of damages
sustained by each owner.
       As mentioned, the proceedings suggest that the District Court
did not consider any of the matters presented at the hearing nor
the various papers filed with it, including the petition and
resolution.       The transcript also demonstrates that the Board of
County Commissioners had the benefit of the letter from the Montana
Highway Department and that the commissioners not only were
familiar with the road, but engineered it to determine whether the
road was safe.
       Our careful review of the transcript and the record has caused
US   to conclude there was not a basis for the issuance of the order
of contempt by the District Court.            We conclude the record
demonstrates that the defendants had          followed the procedure
originally suggested by the District Court in the abandonment of
the old road and approval of the changed road.
      We note that the Judgment filed in the District Court on
January 12, 1982 pointed out that the defendants are permanently
enjoined from abandoning the road as it was before the indicated
change, and were permanently enjoined from using the road as
changed "absent the utilization by defendants of the appropriate
procedure."      It may be that the parties will conclude that it is
appropriate   to   request   the   District   Court   to   dissolve    any
injunction.

     This opinion shall constitute a judgment under the statute
                                                                      /988
specifically annulling the contempt order dated December 29, l989,
which found the relators in contempt.
