No. 86-114 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN THE MATTER OF LAKE COUNTY'S 

OBLIGATION FOR OPERATING COSTS OF 

THE FOURTH JUDICIAL DISTRICT, 

MISSOULA, COUNTY, 

Plaintiff and Respondent, 

MICHAEL HUTCHIN, HAROLD FITZNER, 

and DON PETERSON, in their official 

capacities as Lake County Commissioners, 

and LAKE COUNTY, a political subdivision 

of the State of Montana, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Frederick, County Attorney, Polson, Montana 

For Respondent: 

Robert L. Deschamps, 111, County Attorney, Missoula, 

Montana 

Submitted on Briefs: May 30, 1986 

Decided: August 25, 1986 

AUG 2 t. 1986 

Filed: 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

The Lake County Commissioners and Lake County appeal an 

order from the Missoula County District Court denying their 

motion for a change of venue. We reverse and remand with an 

instruction to the District Court to change the place of 

trial to the First Judicial District, Lewis and Clark County. 

On August 9, 1985, the Missoula County District Court 

issued an order commanding the Lake County Commissioners 

within thirty days to pay Missoula County for court expenses 

Lake County had incurred in Missoula County or to appear and 

show cause why the payment had not been made. 

Lake County responded on September 12, 1985, by 

petitioning this Court for a writ of supervisory control or 

other appropriate order halting any further action in 

Missoula County District Court until Missoula County "files a 

proper pleading in a correct court and commences lawful 

process." This Court denied the writ as inappropriate at the 

time . 

Missoula County's motion to intervene as plaintiff was 

granted by the District Court on September 20, 1985, after 

Lake County failed to appear at the hearing scheduled on the 

motion. The complaint attached to that motion alleges two 

claims for relief. The first claim requests a writ of 

mandamus ordering the Lake County Commissioners to reimburse 

Missoula County for certain court expenses. The second claim 

requests damages against Lake County and the Commissioners 

for breach of an implied contract. 
Lake County and the Commissioners then moved for a 

change of venue which the District Court denied on December 

11, 1985. They appeal from the denial of their motion for a 

change of venue. 

Lake County first argues that B 25-2-126 (2), MCA, 

excludes Missoula County as a proper place for trial. That 

section states: 

The proper place of trial for an action against a 

county is that county unless such action is brought 

by a county, in which case any county not a party 

thereto is also a proper place of trial. 

This language excludes a county which is a plaintiff in the 

action from being a proper place for trial. Here, Missoula 

County intervened as a plaintiff in the action and, 

therefore, is not a proper place for trial. 

Missoula County argues that under B 25-2-125, MCA, it is 

a proper place of trial for the claims against the Lake 

County Commissioners and therefore Lake County cannot change 

venue. Section 25-2-125, MCA, states that " [t] he proper 

place of trial for an action against a public officer . . . 

is the county where the cause or some part thereof arose." 

In McGrath v. Dore (1978), 177 Mont. 178, 180, 580 P.2d 1385, 

1386, this Court held that a mandamus action based on an 

official's failure to pay wages allegedly due arises in the 

county "where the public official, whose act the petitioner 

seeks to compel, resides. " Citing Guthrie v. Mont. Dept. of 

H. and E. Sciences (1977), 172 Mont. 142, 148, 561 P.2d 913, 

916, this Court further noted the public official's residence 

"is at that place where he officially refuses to act or 

neglects to act." McGrath, 580 P.2d at 1386. Although the 
statute has been amended, along with the other statutes on 

venue, since interpreted in McGrath, the revisions have not 

changed its meaning. Here, the Lake County Commissioners 

reside in, and refused or neglected to act in, Lake County. 

Section 25-2-125, MCA, supports Lake County, rather than 

Missoula County, as the proper place for trial. 

Ford v. Mont. Dept. of Fish, Wildlife (Mont. 1984), 676 

P.2d 207, 209, 41 St.Rep. 220, 222, stated that the general 

rule enunciated in McGrath and other cases was not absolute 

and "should not be used to circumvent the goal of providing a 

forum which is practical and convenient for the plaintiff .'I 

This Court's intent in Ford was to allow the private citizen 

a forum which was not so expensive and remote as to render 

access impractical. Missoula County is not a private citizen 

and Lake County is neither so remote nor expensive as to be 

an impractical forum. Contrary to Missoula County's 

contention, Ford does not require that venue remain with that 

county. 

Missoula County's reliance on 5 25-2-121, MCA, as 

establishing that county as a proper place of trial is 

misplaced. That statute covers the venue rule for actions on 

a contract and states that the proper place of trial is 

either the defendant's residence or the county where the 

contract was to be performed. Where no place of performance 

is specified, the proper place of trial is the county in 

which the principal activity was to take place, considering 

the parties' obligations and what is necessarily implied from 

the contract terms. Subsection 2 establishes venue for 

specific types of contracts. In this case the action is 
based on an implied contract, for which the terms and the 

obligations of the parties are not established. There are no 

facts from which to determine the principal place of 

performance of the alleged contract. Section 25-2-121, MCA, 

offers no assistance in determining the proper place of 

trial. 

Section 25-2-201, MCA, requires the court, on motion, to 

change the place of trial; 

(1) when the county designated in the complaint is 

not the proper county; 

(2) when there is reason to believe that an 

impartial trial cannot be had therein; 

(3) when the convenience of witnesses and the ends 

of justice would be promoted by the change. 

As explained above, there are no grounds for allowing 

Missoula County, designated in the complaint, to be the place 

of trial. The question now is where the trial should be 

held. 

Although Lake County and its Commissioners argue that 

Lake County is a proper place of trial, there are grounds for 

a reasonable person to believe that an impartial trial cannot 

be had there any more than in Missoula County. The Missoula 

County District Court initiated the action against its 

neighbor, Lake County. The mandamus and contract actions 

brought by Missoula County allege that district court 

expenses were paid by Missoula County for transcripts and 

judicial decisions in cases filed in Lake County. At the 

times these expenses are claimed to have occurred, Lake 

County and Missoula County were part of the same judicial 
district. Considering the nature of this controversy and the 

parties involved, neither county is a proper place of trial. 

Therefore, to permit both parties an impartial trial, 

the District Court's order is reversed and that court is 

directed to enter an order changing the place of trial to the 

First Judicial District, Lewis and Clark County. 

We concur: / 

Justices 
Mr. Justice Frank B. Morrison, Jr., dissenting: 

I dissent. 

This dissent first addresses the question of whether the 

Lake County Commissioners can properly be sued in Missoula 

County. If they can then cS 25-2-117, MCA, (1985) provides 

for the joinder of Lake County in such an action. 

This is a mandamus action against the county 

commissioners. Such an action cannot be brought against the 

county. Therefore, the applicable statute is S 25-2-125, 

MCA, (1985), which provides: 

The proper place of trial for an action against a 

public officer. . . is the county where the cause 

or some part thereof arose. 

Parts of this cause of action arose in both counties. 

The failure to pay arose in Lake County. On the other hand 

the services rendered by Missoula County, for which 

compensation is sought, were all rendered in Missoula County. 

The District Court could properly have found venue in either 

county. The statute specifically provides that any county is 

the proper place of trial where a part of the cause of action 

arose. Under such language the trial judge, Honorable James 

B. Wheelis, was entitled to place the venue in either county 

and chose Missoula County. 

We have here a "King Solomon" decision. The statutes 

are ignored. The majority apparently feels that justice 

demands that neither Missoula County nor Lake County 

entertain this action and that the citizens of Lewis and 

Clark County are better equipped to dispense justice 

impartially. 

Venue is provided for by the statutes. The statutes 

clearly provide that venue for an action involving public 

officials is in any county where part of the cause of action 
arose. Judge Wheelis, in conformity with applicable 

statutes, set venue in Missoula County. No abuse of 

discretion has been shown. The trial) court's ruling should 

he affirmed.