No. 83-430 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

JIM FORD, 

Plaintiff and Appellant, 

MONTANA DEPARTMENT OF FISH, WILDLIFE 

AT3D PARKS, and its Director, JAMES W. 

FLYNN , 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas G. Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Boone, Karlberg & Haddon, Missoula, Montana 

For Respondents: 

Stan Bradshaw, Dept. of Fish, wildlife and Parks, 

Helena, Montana 

Submitted on Briefs: December 8, 1983 

Decided: February 2, 1984 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

On Ju3.y 15, 1983, the District Court for the Fourth 

lTudicial District, Missoula County, filed a memorandum and 

order granting the Department of Fish, Wildlife and Park's 

motion for change of venue. The Department also filed a 

motion to quash the writ of mandate filed April 26, 1983; the 

parties stipulated that the venue issue be resolved first. 

We reverse the District Court's order. 

Ford, a long-time employee of the Department, was a 

regional- supervisor in Missoula at the time this action 

arose. The Department's Director Jim Flynn, by letter dated 

April 21, 1983, notified Ford that he was to be demoted as of 

April 28, 1983 to the position of land resource supervisor in 

Missoula. 

On April 26, 1983, Ford filed an application for writ of 

mandamus or other appropriate writ alleging, inter alia that 

he did not have an adequate remedy at law. He asked the 

court to issue an appropriate writ requiring the Department 

to allow Ford to remain regional supervisor at least pending 

determination of the application for the writ. 

An order for issuance of writ was signed on April 26, 

1983 and an alternative writ of mandate was filed April 28, 

1983, setting a show cause hearing and ordering that during 

the interim Ford was to maintain the position of regional. 

supervisor. A consolidated motion for change of venue and to 

quash the alternative writ was filed by the Department, 

whereafter the parties stipulated that the venue question be 

decided first. 
The issue raised is whether the venue was properly 

changed to Lewis and Clark County by the District Court. We 

find Missoula County to be the proper venue. 

The Department contends that the proper venue for this 

case is in Lewis and Clark County, as dictated by the general 

rule that venue in a mandamus action is proper "in the county 

where the public official, whose act the petitioner seeks to 

compel, resides," as found in Cabinet Resource Group v. 

Montana Department of State Lands (Mont 1980), 616 P.2d 310, 

313, 37 St.Rep. 1493, 1496 and McGrath v. Dore (1978), 177 

Mont. 178, 180, 580 P.2d 1385, 1386. 

Ford contends that an absolute rule of venue in mandamu-s 

actions should not be applied by this Court. He argues that 

the proper county here is Missoula County, as that is where 

the cause of action arose. The alleged misconduct (stated as 

the basis for the demotion) took place in Missoula and that 

is where the Director's acts will be felt. He calls for 

development and application of a liberal venue rule which is 

applied according to the circumstances of a case, rather than 

according to classifications such as mandamus, prohibition, 

or injunction. 

In its order, the District Court in this case granted 

the change of venue to Lewis and Clark County, relying on the 

cases of Lunt v. Division of Workers' Compensation (1975), 

167 Mont. 251, 537 P.2d 1080, and Cabinet Resource Group v. 

Montana Department of State Lands, supra. 

Lunt involved an alleged failure by the Montana Workers' 

Compensation Division to set a hearing on the plaintiff's 

claim for compensation. This Court found that, because the 

alleged failure involved the function of the Division's 
offices in Lewis and Clark County, that is where the cause 

arose and must be tried. 167 Mont. at 253. 

This Court in Cabinet found Lewis and Clark County to be 

the proper place for trial where the plaintiffs were alleging 

violation of state Law by the Montana Department of State 

Lands and the Montana Department of Health and Environmental 

Sciences, both located in Lewis and Clark County. 616 P. 2d 

Although a general rule in mandamus actions was 

enunciated and applied in McGrath v. Dore, supra and Cabinet, 

it is not an absolute rule and should not be used to 

circumvent the goal of providing a forum which is practical 

and convenient for the plaintiff. This Court in Guthrie v. 

Montana Department of Health and Environmental Sciences 

(1977), 172 Mont. 142, 146, 561 P.2d 913, 915, cited with 

approval Regents of University of California v. Superior 

Court, 91 Cal. Rptr. 57, 476 P.2d 457, 461, where the 

Calfornia Supreme Court said: 

"The underlying purpose of statutory provisions as 

to venue for actions against state agencies is to 

afford to the citizen a forum that is not so 

distant and remote that access to it is impractical 

and. expensive. To that end, such provisions should 

be liberally construed in favor of the private 

litigant. " 

A plaintiff may initially choose the forum for a case. 

If the county chosen is improper, a court must, on motion, 

change the place of trial. Section 25-2-201, MCA: Guthrie, 

supra. But i.f venue properly lies in the county designated 

in the complaint a motion for change must not be granted. 

Shields v. Shields (1943), 115 Mont. 146, 139 P.2d 528. 
We are urged by the Department that this cause should be 

tried in Lewis and Clark County, according to the following 

statute: 

"Actions 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 must 

be tried in the county where the cause or some part 

thereof arose, subject to the power of the court to 

change the place of trial." Section 25-2-105, MCA. 

But also applicable is Section 2-9-31.2, MCA (enacted in 

"(1) Actions against the state shall be brought in 

the county in which the cause of action arose or in 

Lewis and Clark County. In addition, a resident of 

the state may bring an action in the county of his 

residence." 

Section 2-9-312, MCA provides for venue when the state is 

sued; Section 25-2-105 applies when a public official is 

sued. In this case both the Department of Fish, Wildlife and 

Parks - and its Director, James W. Flynn were named in the 

application for a writ.. 

When two statutes are a.pplicable, the more specific 

controls to the extent of any inconsistency between it and 

the more general. State v. Montana Department of Publ-ic 

Service Regulation (1979), 181 Mont 225, 593 P.2d 34. But 

here, neither statute is the more specific and there are no 

inconsistencies, so the two must be harmonized. Both set 

proper venue where the cause of action (or some part thereof) 

arose. A cause of action Ifa.rises when it springs up, 

originates, comes into being, becomes operative, presents 

itself." Bergin v. Temple (1944), 111 Mont. 539, 546, 111 

P. 2d 286, 289. Here, the position held by Ford, to which he 

claims he is entitled and from which he was to be demoted, is 
located in Missoula. He was to be demoted to a position in 

Missoula. Therefore, at least a part of the cause of action 

arose in Missoula, and Missou1.a County is a proper place for 

trial. 

By basing our decision on these criteria we are giving 

effect to the rule previously stated by this Court that in 

determining the proper venue of a case, a court must consider 

the nature of the action and the place where it arose. 

Cabinet Resource Group v. Montana Department of State Lands 

(Mont 1980), 616 P.2d 310, 37 St.Rep. 1493; Roundup National 

Bank v. Department of Revenue (19771, 175 Mont. 133, 572 P.2d 

910; Guthrie v. Montana Department of Health and 

Environmental Sciences (1977), 172 Mont. 142, 561 P.2d 913. 

It is not the ma.ndamus aspect of the case, but the fact that 

the challenged state action concerns and will affect a person 

and a position in Missoula that controls here. "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." Montana-Dakota Utilities Company v. Public Service 

Commission (1940), 111 Mont. 78, 80, 107 P.2d 533, 534. 

We are also giving effect to both section 25-2-105 and 

section 2-9-312, MCA. Although Lewis and Clark County may be 

a proper venue, according to the above-stated rules, Missoula 

County is also. We determine that Missoula County is a 

proper county of venue in this case. 

The District Court erred in granting the cha-nge of 

venue. The order so stating is reversed, and the cause 

remanded for further proceedings. 

.?4% 4 . gw * A 

,, ui 

i Justice 
We Concur: