No. 83-430 INTHE SUPREME COURT OF THE STATE OF MONTANA 1984

JIM FORD, Plaintiff andAppellant,

MONTANA DEPARTMENTOF FISH,WILDLIFE AT3D PARKS,and its Director, JAMESW. FLYNN

### , Defendantsand Respondents.

APPEAL FROM: District Court of the Fourth Judicial District, Inand for the County of Missoula, The Honorable DouglasG. Harkin,Judgepresiding.
COUNSELOF RECORD:

ForAppellant: 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

ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court.
On Ju3.y 15, 1983, the District Court for the Fourth lTudicialDistrict, 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 thewrit of mandate filedApril 26, 1983; the parties stipulated that the venue issue be resolved first. We reverse the DistrictCourt'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 thathewas tobe demoted as of April 28, 1983 to theposition of land resource supervisor in Missoula. On April 26, 1983,Ford filed an application for writ of mandamus or other appropriatewrit 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 thewrit. 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 consolidatedmotion for change ofvenue 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 DistrictCourt. 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 dictatedby the general rule thatvenue in amandamus 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 (Mont1980), 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 ofvenue inmandamu-s actions should not be applied by this Court. He argues that the proper county here is Missoula County, as that is where the causeof action arose. The allegedmisconduct (statedas 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 ofvenue 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 Departmentof State Lands, supra. Lunt involved an alleged failureby theMontana 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'soffices in Lewis and Clark County, that is where the cause
arose andmust be tried. 167Mont. at 253. This Court in Cabinet foundLewis and Clark County to be the proper place for trial where theplaintiffs 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 inMcGrath 

### v. Dore, supraand 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: "Theunderlying 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, suchprovisions 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.fvenue properly lies in the county designated in the complaint a motion for change must not be granted. Shieldsv. Shields (1943),115 Mont. 146, 139 P.2d 528.We are urged by the Departmentthat 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 causeor 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 shallbe brought in the county inwhich 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 caseboth 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 venuewhere the cause of action (orsome part thereof)
arose. A cause of action Ifa.riseswhen 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 claimshe is entitled and fromwhich he was tobe demoted, islocated 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.aCounty 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 thema.ndamusaspect of the case,but the fact that the challenged state action concernsandwill affect aperson 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),111Mont. 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. 

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,, ui i JusticeWe Concur: