No. 13002
I N T E SUPREME C U T O T E STATE O MONTANA
H OR F H F
1975
T E STATE O M N A A ex r e l .
H F OTN,
CHESTER L. JONES, County Attorney
of Madison County, Montana,
P l a i n t i f f and A p p e l l a n t ,
JOHN M. GILES and L N GILES,
YN
Defendants and Respondents.
Appeal from: D i s t r i c t Court of t h e F i f t h J u d i c i a l D i s t r i c t ,
Honorable Frank E. B l a i r , Judge p r e s i d i n g
Counsel of Record :
For Appellant :
Chester L. Jones, County Attorney, argued, V i r g i n i a
C i t y , Montana
For Respondents :
Goldman, McChesney and Eck, Missoula, Montana
H. L. McChesney argued, Missoula, Montana
For Amicus Curiae :
Donald A. Douglas argued, Helena, Montana
Submitted: September 11, 1975
Decided : n cfii . ,
..
Filed :
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
The Madison County attorney appeals from a district
court judgment dismissing his action to abate as a public
nuisance, pursuant to the Montana Outdoor Advertising Act, a
commercial sign along a primary state highway.
The facts are undisputed. Defendants, John M. and
Lynn Giles, own the King's Motel in Twin Bridges, Montana,
which has on its premises, and within 660 feet of the primary
highway, a small flashing sign, containing a forty watt light
bulb on each side. Flashing signs are prohibited within 660
feet of a primary highway unless they provide "public service
information such as time, date, temperature, weather or similar
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information." Sectiors 32-474.7and 32-4719 (j), R.C.M. 1947.
All outdoor advertising which does not conform to the
requirements of the Outdoor Advertising Act is denominated a
public nuisance. Section 32-4728, R.C.M. 1947.
The controlling issue on appeal is whether section 32-
4722, R.C.M. 1947, provides an administrative remedy for the
removal of noncomplying signs that must be exhausted before
resorting to the judicial system.
Appellant contends the statement in section 32-4728,
R.C.M. 1947, declaring nonconforming advertising to be a public
nuisance grants him authority to enjoin and abate the King's
Motel sign as a public nuisance. It is asserted that the remedy
of abatement of public nuisances provided in section 57-108(3),
R.C.M. 1947, is a basis for judicial action in the instant case.
It is contended that sections 57-111 and 16-3101(1),
R.C.M. 1947, require county attorneys to abate nonconforming
signs as public nuisances. In our view, the fact that non-
conforming signs are defined as public nuisances does not per
se authorize circumvention of administrative remedies within
fie Department of Highways. Section 32-4722, R.C.M. 1947,
provides an administrative remedy for removal of nonconform-
ing signs and judicial relief may not be sought until adminis-
trative remedies have first been exhausted. It is a general
principle that if an administrative remedy is provided by
statute, that relief must be sought from the administrative
body and the statutory remedy exhausted before relief can be
obtained by judicial review. State ex rel. Sletten Const. Co.
v. Great Falls, 163 Mont. 307, 516 P.2d 1149; Ralph's Chrysler-
Plymouth v. New Car Deal. P. & A. Bd., 106 Cal.Rptr. 169, 8 Cal.3d
792, 505 P.2d 1009; Top Hat Liquors, Inc. v. Department of Alco.
Bev. Con., 118 Cal.Rptr. 10, 13 Cal.3d 107, 529 P.2d 42.
Section 32-4722 establishes a specific administrative
remedy for the removal of nonconforming outdoor advertising.
Advertising erected after June 24, 1971, contrary to the Outdoor
Advertising Act is unlawful. The Department of Highways is grant-
ed authority to enter upon private lands to determine whether
outdoor advertising complies with the Act. If it is determined
that the advertising is unlawful, the Department is instructed
to notify the owner of the land and advertising structure of its
intention to remove the illegal advertising. The owner then has
forty-five days to request a hearing before the Highway Commis-
sion to show cause why the structure should not be removed. If
no hearing is requested, or if there is no appeal from the com-
mission's decision at the hearing, or if the Commission's decision
is affirmed on appeal, the Department has authority to remove
the objectionable advertising.
In determining legislative intent, an express mention
of a certain power or authority implies the exclusion of non-
described powers. Reed v. Reed, 130 Mont. 409, 304 P.2d 590;
Helena Valley Irrigation Dist. v. St. Hwy. Comm'n, 150 Mont.
192, 433 P.2d 791, 82 C.J.S. Statutes § 333. Therefore,
section 32-4722 sets forth the specific administrative procedure
to be used by the Department in removing nonconforming adver-
tising.
The legislative history of the Act is helpful in deter-
mining legislative intent. In 1967 the legislature enacted
sections 32-4701 to 32-4714, R.C.M. 1947, regarding zoning and
advertising regulation along highways. Section 32-4711, provided:
"The State Highway Commission shall enforce the
provisions of this act through the remedy of in-
junction or other appropriate legal proceedings,
and shall not act except through such proceed-
ings. "
In 1971 sections 32-4701 to 32-4714, R.C.M. 1947, were repealed
by Sec. 17, Ch. 2, 2nd Ex. Laws 1971 and sections 32-4715 to
32-4728, R.C.M. 1947, (Outdoor Advertising Act) were enacted.
The remedy of "injunction and other appropriate legal proceed-
ings" was replaced by the administrative remedy set forth in
section 32-4722.
An established rule of statutory construction is that
there is a presumption the legislature, by repealing an old law
and adopting a new statute, intended to make some change and
that the courts will endeavor to give some effect to this change.
State ex rel. Dick Irvin Inc. v. Anderson, 164 Mont. 513, 525
31 St.Rep. 482;
P.2d 564,fian Tighem v. Linnane, 136 Mont. 547, 349 P.2d 569;
State v. Swanberg, 130 Mont. 202, 299 P.2d 466. In light of
this rule it is evident that the legislature intended to eliminate
the judicial remedy prescribed by section 32-4711 until adminis-
trative remedies are first exhausted.
Section 32-4715, a legislative policy statement, re-
veals the intent of the legislature as follows:
" * * * it shall be the policy of this state
that the erection and maintenance of outdoor
advertising in areas adjacent to the right of
way of the interstate and primary systems
within this state shall be regulated in accord-
ance with the terms of this act and the rules
and regulations promulgated by the commission
[Highway Commission], pursuant thereto. It is
the intention of the legislature in this act
to provide a statutory basis for regulation of
outdoor advertising * * *."
This section clearly and expressly states that it is
the intention of the legislature that the Department of High-
ways administer the Act, promulgate administrative rules and
regulations and that the Act itself is to provide the remedy
for enforcement of its provisions.
Undue importance cannot be attached to the statement
that nonconforming signs are public nuisances. Section 32-4728,
R.C.M. 1947, must not be construed in a vacuum. It is a general
rule of statutory interpretation that legislative intent cannot
be determined from the wording of any particular section or sen-
tence, but rather from a consideration of the Act as a whole.
Home Bldg. & Loan v. Bd. of Equalization, 141 Mont. 113, 375 P.2d
312; Aleksich v. Industrial Acc. Fund, 116 Mont. 127, 151 P. 1016.
Applying this rule to the following sections of the Act establishes
that the legislature intended section 32-4722 to be the exclusive
remedy for removal of nonconforming advertising.
Throughout the Act repeated delegation of authority for
its administration and enforcement is made to the Department of
Highways. Sections 32-4715 and 32-4718 expressly provide that
the erection and maintenance of outdoor advertising shall be reg-
ulated in accordance with the terms of the Act and the rules
and regulations promulgated by the Highway Commission.
A permit system for certain outdoor signs is established
by sections 32-4720 and 32-4717, R.C.M. 1947. This permit system
is to be administered by the Department of Highways. The Depart-
ment has authority to take remedial action when it determines
that a false or misleading statement has been made in a permit
application or that a sign is unsafe or in an unreasonable
state of repair. Under these circumstances section 32-4721
directs that the Department notify the permit holder "of the
violation and specify that remedial action shall be taken within
sixty (60) days or the permit will be revoked and action for re-
moval of the sign commenced as provided in section 32-4722. * * *"
Here again, the legislature is expressly stating that section
32-4722 provides an exclusive administrative remedy.
In section 32-4723, R.C.M. 1947, the Department is em-
powered to acquire by gift, purchase, agreement, exchange or
eminent domain nonconforming outdoor advertising rights which
were in lawful existence on the effective date of the Act.
Section 32-4724, R.C.M. 1947, gives the Department
authority to enter into an agreement with the Secretary of the
United States Department of Transportation establishing permissible
specifications for outdoor advertising.
All of these sections viewed as a whole, logically point
to the conclusion that section 32-4722 was intended to be the
exclusive remedy for removal of nonconforming signs.
The judgment of the district court is affirmed.
Justice
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, Justices