No. 12984 INTHE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, ex 

### re1LUDWIG G. BROWMAN, RICHARD He OSTERGREN, H.W. STOUTENBERG, individually and asthe County Commissioners of Missoula County, Montana, Petitioners and Appellants, VS

# . DENNIS WOOD, Justiceof the Peace of Missoula County, Montana, Defendant and Respondent.



# ...................... STATE OF MONTANA ON BEHALF OF HELLGATE TOIJNSHIP, MISSOULA COUNTY JUSTICE COURT DEPARTMENTNO. 

### 2, HONORABLE DENNIS WOOD, J.P., PRESIDING, Plaintiff and Respondent, vs

# . MISSOULA COUNTY BOARD OF COUNTY COMMISSIONERS, 

### HeW. STOUTENBERG, RICHARD H. OSTERGREN, and LUDWIG G. BROWMAN, COMMISSIONERS

## ,and GENEVIEVEF

# .SPAULDING

## , COUNTY AUDITOR, Defendants and Appellants.

Appeal from: District Court of theFourth JudicialDistrict, Honorable LeRoy L. McKinnon, Judge presiding. Counsel of ~ecord: ForAppellants: Robert L. Deschamps 111, CountyAttorney, Missoula,

Montana H. V. Dye, Deputy County Attorney, argued', Missoula,

Montana For ~espondent : JulioK. Morales argued, Missoula, Montana Douglas G. Skjelsetargued, Missoula, Montana

Submitted: September 9, 1975 Decided: 

### NOV241915Mr. Justice Frank I. Haswell delivered the Opinion of the Court. TheMissoula County commissionersand auditor appeal from a district court judgment granting a writ of mandate. The writ ordered them to allow and pay a justice courtpayroll claim for unbudgeted temporary clerical assistance. The district court concluded as a matter of law that Justice of the Peace DennisWood had incurred the claim as a necessary and reasonable expense of his office. On October 8, 1974 DennisWood, Justice of the Peace, Hellgate Township,Missoula County,Dept. No. 2 submitted a request to the Missoula County commissioners that he be allowed to hire Linda Baumgartner as a temporary clerical assistant for

amaximum of 5days. Extra clerical assistancehad not been provided for in his annual budget. JudgeWood's case load,however, had doubled during September 1974 over the previous month due to a largenumber of 55mile an hour daytime speed limit violations written by the highway patrol thatmonth. The increased work load had caused the regular clerk, Joan Thurman, to fall behind in her work of processing and maintaining the court's records. Mrs. Thurman had worked overtime without pay but was unable to keep up with the work and a backlog developed. The Commission disapproved the request apparently on two grounds: (1)The itemwas unbudgeted. (2)The additionalhelp

was unnecessary. JudgeWood hired Mrs. Baumgartner anyway and following the completion of her work, submitted a payroll claim in her behalf in the amount of $64.12, covering 28 hours of work at $2.29 per hour. When JudgeWood received notice that the claimwould not be paid he notified the county attorney on October 28 that he would file suit thereon if the claimwas notpaid and seek attorney fees. A copy of this letter was sent to the county commissioners. On October 29 he issued an ex parte order,ordering the commissioners to jointly and severallypay for the servicesrendered by October 31, 1974, the day scheduled for payment of part-time wages, or show causewhy they should not be held in contempt of court. On October 31, 1974, the commissioners applied for and received an alternative writ of prohibition restraining Judge Wood from enforcing his ex parte order. The next day Judge Wood applied for and received an alternative writ ofmandate compelling the commissioners to pay the wage claim or show

cause for their refusal. The caseswere consolidated and heard together before the Hon. LeRoy L. McKinnon, district judge presiding. The district court entered a consolidated judgment ordering that a peremptorywrit ofmandate issue requiring the commissioners to allow and pay the payroll claim together with costs and $1,500 in attorney fees. The temporarywrit of prohibition restraining JudgeWood from proceeding with the contempt actionwas made permanent. The commissionersand auditor appeal from the consolidated judgment. JudgeWood does not appeal from the writ of prohibition. The controlling issues on appeal are: 1. Whether a writ of mandate lies to compel the board of county commissioners to pay reasonable and necessary expenses for clerical help to operate the justice courts. 2. The standing of a justice of the peace to bring a writ ofmandate to compel suchpayment. The district courtmay issue a writ ofmandate compelling the county commissioners to perform an actwhich the law specifically requires as a duty of their office. Section 93- 9102,R.C.M. 1947. The commissioners contend they did not have

a duty,but rather discretion to approve or reject the payrollclaim submitted by JudgeWood. They rely on section 16-1906(1), R.C.M. 1947,of the county budget lawwhich provides that county officials shall be limited in the making of expenditures or incurring of liabilities to their budgeted estimates of expenditures, unless the county commissioners make budgetary transfers within the general classificationsof salariesand wages. It is urged that JudgeWood could not legally incur the extra clerical expense,without the approval of the commissioners,because he made no allowance for it in his budget. The commissioner's argument that section 16-1906(1) gives them discretion to approve or disapprove changes in the budget

once it has been submitted fails to recognize the constitutional and statutory provisions that enable justice courts to incur the actual expenses necessary to function properly as a court of law. These provisions create a duty on the part of the commissioners to approve the actual and necessary expenses of a justice court. Article VII, Section 5(1), 1972Montana Constitution, states that justices of the peace "shallbe provided such facilities that they may perform their duties in dignified surroundings." This is a new provision that did not exist under the 1889 Montana Constitution. Implementing this constitutional provision, the legislature adopted section 93-412,R.C.M. 1947 in 1973: "(1) The board of county commissionersof the county inwhich the justice of the peace has been elected or appointed shall provide for the justices of the peace: "(a) the office,courtroom and clerical assistance necessary to enable him to perform his duties in dianified surroundinas: "(b) the books, records, forms,papers, stationery, postage, office equipment and suppliesnecessary in the proper keeping of the records and files of the judicial office and the transaction of the business:"(2) All actual and necessary expenses incurred by the justice of the peace in the performance of his official duties is a legal charge against the county." (Emphasis supplied) This statuteby its express and mandatory language, requirespayment by the county of actual and necessary expenses of the justice court. Further, the budget statute relied on by the commissioners is general in nature while section 93-412 isdirected specifically to the financial needs of justices of the peace. Where a specific statute conflictswith a general statute, the specific controls over the general to the extent of any repugnancy. Montana Ass'n of Tobacco & C. Dist. v. State Bd. of Eq., 156 Mont. 108, 476 P.2d 775; In re Stevenson, 87 Mont. 486, 289 P. 566. Applying this rule to the instant case, it is apparent that insofar as the budgets of justice courts are concerned section 93-412 prevails over section 16-1906 and removes any discretion in the commissionersto disallow a claim for actual and necessary expenses, its unbudgeted characternotwithstanding. The district court found, in its findingsof fact, that the work of the justice courthad greatly increasedwith the imposition of the 55 mph speed limit in Montana; that due to this increasedwork load the justice court's clerk fell behind in her work; that sheworked some evenings and lunch hours withoutpay, but was unable to catch up with the backlog. Judge Wood requested permission from the county commissioners to hire temporary extra clerical help, but his request was refused. Judge Wood then hired Linda Baumgartner at an expense of $64.12 to help the regular clerk until the work was caught up. From these facts the district judge concluded as a matter of law:"2. That the extra temporary help employed was reasonable and necessary under the conditions existing. "3. That the Commissioners should be ordered to allow and pay the wage claim in the amount of $64.12.

"5. That JudgeWood has a duty to maintain the identity and integrity of the Justice Court of Hellgate Township,Missoula County,Montana. "6. The Commissioners as a Board have the duty to fix the budget for the county; the Judge has a duty to submit a proposed budget for his court, but allowance must be made for unforseen contingencies,and claims which are both necessary and reasonable should be allowed and paid. "7. That there is no plain, speedy and adequate remedy at law,and the Writ of Mandate should issue." These findings and conclusionsamounted to a determination that the expensewas actual and necessary and was a legal charge against the countywithin the meaning of section 93-412and the commissionershad no discretion to disapprove it. A writ ofmandate can only be issued in those cases where there is no plain, speedy and adequate remedy in the ordinary course of law. Section 93-9103,R.C.M. 1947. The commissioners argue,contrary to the finding of the district court, that a writ ofmandate is inappropriate because other adequate remedies at law exist. They suggest that a declaratory judgment action or an appeal of the commissioners1decisionpursuant to section 16-1808,R.C.M. 1947, of the budget lawprovide adequate remedies. We find that a writ of mandate is an appropriate remedy in this case. A declaratory judgment is not an adequate remedy because itwould not get the claim paid. InMahan v. Hardland, 147Mont. 78, 410 P.2d 156, this Court stated that declaratory judgment is an inept procedure for recovery of a fee for servicesperformed. Section 16-1808provides that when a claim against the county is disallowed by the commissioners, the claimantmay appeal the decision to the district court. This statutedoes not provide JudgeWood with a remedy, only Mrs. Baumgartner. It is also argued that section 16-1801,R.C.M. 1947, prevents Judge Wood, as a county officer, frompursuing Linda Baumgartner's wage claim. This argumentmisses the essential point of this case. JudgeWood is not seeking to enforce a right of Linda Baumgartner,but rather is litigating his own right to incur actual and necessary expenses in the performance of his official duties. The district court was correct in concluding that there is no plain, speedy and adequate remedy at law and that JudgeWood had standing to bring a writ of mandate. Granting a writ ofmandate is a matter of discretion to be determined by the district court and will be sustained on appeal unless there is a showing the district court abused its discretion. Erie v. State Highway Commission, 154Mont. 150, 461 P.2d 207; State ex rel. McCarten v. Corwin, 119Mont. 520, 177 P.2d 189. We have reviewed the evidencepresented to the district court and find that itdid not abuse itsdiscretion. The subordinate arguments raised by appellants are without merit and will not be discussed in this opinion. We decline to award additional attorney fees on appeal. The Montana Supreme Court has recently become increasingly concerned with developing conflicts between boards of county commissionersand justices of the peace relating to claims for facilities, supplies, clerical assistance, and other necessary expenses incurred by the latter in the performance of official duties within the purview of section 93-412. A high degree ofcooperationbetween the commissionersand the justice of the peace in determiningwhat is necessary in an individual case is essential. Nonetheless conflictsmay develop. In the interests of resolving such conflicts short of legal action,we exercise

our supervisory powers under Article 

### VII, Section 2, subsections

(2)and (3). 1972Montana Constitution by adoption of this rule: "Inany case of actual or potential conflictbetween the board of county commissionersand a justice of the peace in any county of this state concerning any claim of the latter within the purview of section 93-412,R.C.M. 1947,the justice of the peace must submit such claim to the senior district judge, in point of service, of the judicial district in which the county is located inwhich the justice of the peace serves. Such senior district judge shall certify or refuse to certify that such claim is an actual and necessary expense incurred or to be incurred by the justice of the peace in the performance of his official duties within ten (10)days of the submissionof such claim to him and transmit the same to the board of county commissioners with copy to the county attorney. If the senior district judge fails, refuses or neglects to so certify or refuses to certifywithin the ten (10)day period, such nonaction shallbe deemed a refusal to certify that such claim is an actual and necessary expense incurred or to be incurred by the justice of the peace in theperformance of his official duties. Such certificationor refusal to certify such claim by the seniordistrict judge asprovided herein shallbe 

### a condition precedent to any legal action on the claimin any court of this state." This rule shall become effective fifteendays after the date of this decision. The clerk of this Court shall mail forthwith copies of this rule and decision to all justices of the peace, boards of county commissionersand county attorneys in this state. The judgment of the district court is affirmed.



## .................................... Justice We concur:

Chief Justice

JusticeMr. Justice John Conway Harrisondissenting: Idissent. Here, with little thought of the consequences, a new justice of the peace cited the board of county commissioners in contempt for failure to pay a questioned claim. The act as I see itwas not a responsible act and one tending to create courthouse friction. The board of county commissionersby law

are the businessmanagers of county government charged with the daily operationsof county government within strict budgetary requirements. Each county office, including the judicial offices,

are required to submitand justify their budgets for tax purposes and the board of county commissioners are required to oversee the fiscal expenditures by each official. Where it becomes necessary to cover unforseen expenditures our statute, section 16-1907, R.C.M. 1947,provides for emergency expenditures. No such request

wasmade here. I find that the petitioner failed to exhaust all administrative remediesbefore pursuing hismandamus action and Iwould not have granted same. To me his actionsdid not exactly outdo Cicero in statesmanship--the true trouble was ineptitude, creating an unnecessary $64.12 question. h

Mr. JusticeWesley Castlesdissentkng:

-.--.-- I concur in the above dissent of Justice John Conway Harrison.



## ................................ Justice