Gildroy v. Anderson ( 1972 )

No. 12208
IN THE SUPREME COURT OF THE STATE OF MONTANA
RALPH GILDROY, an individual citizen
and the SOUTH CENTRAL MONTANA DEVELOPMENT
FEDERATION, et al.,
Plaintiff and Respondent,
VS.
FORREST H. ANDERSON, Governor of the
State of Montana,
Defendant and Appellant.
Appeal from: District Court of the Fourteenth Judicial District,
Honorable Nat Allen, Judge presiding.
Counsel of Record:
For Appellant:
Honorable Robert L. Woodahl, Attorney General, Helena
Montana,
Charles H. Dickman, Assistant Attorney General, argued,
Helena, Montana.
For Respondent:
Hickman and Moore, Harlowton, Montana
Perry J. Moore argued, Harlowton, Montana.
Charles Maris, Roundup, Montana.
Submitted: April 21, 1972
Decided :
8 rgp;
Filed :
Hon. Charles Luedke, District Judge, sitting in place of Mr.
Justice Wesley Castles, delivered the Opinion of the Court.
This is an appeal from an order of the district court of
the fourteenth judicial district, Musselshell County, denying a
motion made by the defendant for a change of venue.
Plaintiffs, Ralph Gildroy as an individual citizen, and
the South Central Montana Development Federation as an unincor-
porated association of counties, filed a complaint in Musselshell
County praying that Forrest H. Anderson, Governor of the State of
Montana, be permanently enjoined from implementing Executive
Order 2-71. The order, issued August 24, 1971, established multi-
county districts for planning and administration whereby all fifty-
six counties were placed in one of twelve designated districts.
At the time of filing of the complaint, the South Central Montana
Development Federation consisted of eight counties, including
Musselshell, and the effect of Executive Order 2-71 was to divide
these counties among two separate districts.
The basis of plaintiffs' objection to this executive order
is that the Forty-second Legislative Assembly passed Senate Joint
Resolution No. 13, which the Governor approved on March 3, 1971,
expressing the wish of both legislative bodies that the then existing
composition of the South Central Montana Development Federation be
continued and not be divided. To permit the implementation of
Executive Order 2-71, plaintiffs contend, is to allow the executive
to exceed its power and authority in a manner which infringes upon
the constitutional fixed authority of the legislature. The gravamen
of the complaint for venue purposes, then, is an asserted clash
between a legislative resolution and an executive order by virtue
of which, it is contended, any action taken for executive order
purposes, including the expenditure of state funds, will be unlawful.
There is nothing before the Court showing the expenditure of public
funds in any particular county.
On September 3, 1971, the district court of Musselshell County
issued a temporary restraining order enjoining implementation of
Executive Order 2-71, throughout the state, which restraining
order was amended on January 3, 1972, to restrict its effect only
to the area of the South Central Montana Development Federation.
Defendant, Governor Anderson, appeared in the action through
consolidated motions to dismiss and to change venue to the county
of Lewis and Clark, The district court, after hearing, denied the
motion for change of venue and defendant has appealed such ruling
under Rule 1 of the Montana Rules of Appellate Civil Procedure.
The sole issue presented is whether the district court erred
in not granting the requested change of venue from Musselshell County
to Lewis and Clark County.
The applicable statute involved is section 93-2902, RoC.M. 1947,
which in pertinent part reads:
"Actions for the following causes must be tried
in the county where the cause, or some part thereof,
arose, subject to the like power of the court to
change the place of trial:
"2. Against a public officer, or person specially
appointed to execute his duties, for an act done by
him in virtue of his office; or against a person who,
by his command or in his aid, does anything touching
the duties of such officer."
Both parties agree that the pivotal question involves a
determination of "the county where the cause, or some part thereof,
arose,I t
Defendant views this matter as coming within the generally
stated rule set forth in 48 ALR2d Anno. 423, 457, that:
'*
I * * in the case of a state officer whose office
is located at the seat of the state government, at
which all of his duties are performed, a cause of
action based on his official conduct necessarilx
arises in the county of his official residence.
Plaintiffs consider the case of Montana-Dakota Utilities Co.
v, Public Service Commission of Montana, 111 Mont, 78, 80, 107 P.2d
533, to be controlling on the basis of the following expression
of the Court:
"On behalf of plaintiff it is contended that since
the order complained of was made in Lewis and Clark
county, where the office of the commission is located,
at least a part of the cause arose in that county.
We think this contention loses sight of the real cause
of the action, The cause of the action is the threatened
enforcement or operation of the order in Valley and Phillips
counties. It is not the mere making of the order, but
the place where it is put in operation, that determines
where the cause of action arose. Operation of the order
is what is alleged will injure plaintiff, * * * The opera-
tion of the order will be accomplished, if at all, in
Valley and Phillips counties where the order is made
applicable, It is our view that the cause of action arose
in Valley and Phillips counties and not in Lewis and Clark
county,l r
Defendant answers plaintiffs' contention by drawing a dis-
tinction between a state officer whose acts are performed at the
seat of state government and an officer or officers whose duties
are performable throughout the state, the latter being amenable
to an action in a county other than that of his official residence,
based upon acts done or performable therein. 48 ALR2d Anno. 423,
457.
plaintiffs' complaint does not challenge the merits of the
operation of the executive order in redistricting the affected
counties as the cause of their injury. Rather, the claim is that
an injury arises from an official act of the Governor which exceeds
his powers and authority by reason of its alleged unlawful contra-
vention of express legislative action, The question is one of
the respective powers and authority of two branches of government,
not the merits of the operation of the executive order. The ulti-
mate objective of the plaintiffs may well be to prevent disturbance
of the original composition of the South Central Montana Develop-
ment Federation, but that is a consequence sought, not the basis
of their cause of action.
By reason of the novelty of the subject matter of this suit,
being a test of the powers and authority of two branches of govern-
ment, it is clearly distinguishable from the facts found controlling
in the Montana-Dakota Utilities Co. case heretofore cited. The
circumstances of this case bring it within the rule that a cause
of action based upon official conduct of a state officer performable
at the seat of the state government arises in the county of his
official residence.
It follows that the order of the district court denying
defendant's motion for change of venue should be vacated and an
order entered transferring this cause to the district court of
the first judicial district of the State of Montana, in and for
the county of Lewis and Clark.
Hon. Charles Luedke, district judge,
sitting for Mr. Justice Wesley Castles
Me Cpncur: ,
.
# .t"
Chief Justice
f\
J l
Associate Justices.