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. 

Filed : 

Submitted: April 21, 1972 

Decided : 8 rgp; 
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 unincorporated 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 multicounty districts for planning and administration whereby all fiftysix 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, It 

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 operation 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 distinction 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 contravention 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 ultimate objective of the plaintiffs may well be to prevent disturbance 

of the original composition of the South Central Montana Development 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 government, 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 Associate Justices. l