No. 12984 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, ex re1 LUDWIG G. BROWMAN, RICHARD He 

OSTERGREN, H.W. STOUTENBERG, individually and as the 

County Commissioners of Missoula County, Montana, 

Petitioners and Appellants, 

VS . DENNIS WOOD, Justice of the Peace of Missoula County, Montana, 

Defendant and Respondent. ...................... 

STATE OF MONTANA ON BEHALF OF HELLGATE TOIJNSHIP, MISSOULA 

COUNTY JUSTICE COURT DEPARTMENT NO. 2, HONORABLE DENNIS 

WOOD, J.P., PRESIDING, 

Plaintiff and Respondent, 

vs . 

MISSOULA COUNTY BOARD OF COUNTY COMMISSIONERS, He W. 

STOUTENBERG, RICHARD H. OSTERGREN, and LUDWIG G. 

BROWMAN, COMMISSIONERS , and GENEVIEVE F . SPAULDING , 

COUNTY AUDITOR, 

Defendants and Appellants. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable LeRoy L. McKinnon, Judge presiding. 

Counsel of ~ecord: 

For Appellants : 

Robert L. Deschamps 111, County Attorney, Missoula, 

Montana 

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

Montana 

For ~espondent : 

Julio K. Morales argued, Missoula, Montana 

Douglas G. Skjelset argued, Missoula, Montana 

Submitted : September 9, 1975 

Decided: NOV241915 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

The Missoula County commissioners and auditor appeal 

from a district court judgment granting a writ of mandate. The 

writ ordered them to allow and pay a justice court payroll claim 

for unbudgeted temporary clerical assistance. The district 

court concluded as a matter of law that Justice of the Peace 

Dennis Wood had incurred the claim as a necessary and reasonable 

expense of his office. 

On October 8, 1974 Dennis Wood, 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 

a maximum of 5 days. Extra clerical assistance had not been 

provided for in his annual budget. Judge Wood's case load, however, had doubled during September 1974 over the previous month 

due to a large number of 55 mile an hour daytime speed limit 

violations written by the highway patrol that month. 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 item was unbudgeted. (2) The additional help 

was unnecessary. Judge Wood 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 Judge Wood received notice that the 

claim would not be paid he notified the county attorney on October 28 that he would file suit thereon if the claim was not paid 

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 severally pay for 

the services rendered by October 31, 1974, the day scheduled 

for payment of part-time wages, or show cause why 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 of mandate 

compelling the commissioners to pay the wage claim or show 

cause for their refusal. 

The cases were consolidated and heard together before 

the Hon. LeRoy L. McKinnon, district judge presiding. The district court entered a consolidated judgment ordering that a peremptory writ of mandate issue requiring the commissioners to 

allow and pay the payroll claim together with costs and $1,500 

in attorney fees. The temporary writ of prohibition restraining Judge Wood from proceeding with the contempt action was made 

permanent. The commissioners and auditor appeal from the consolidated judgment. Judge Wood 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 of mandate to compel such payment. 

The district court may issue a writ of mandate compelling the county commissioners to perform an act which 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 payroll 
claim submitted by Judge Wood. They rely on section 16-1906(1), 

R.C.M. 1947, of the county budget law which 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 classifications of salaries and wages. It is 

urged that Judge Wood 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), 1972 Montana Constitution, 

states that justices of the peace "shall be 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 commissioners of the 

county in which 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 supplies necessary 

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 statute by its express and mandatory language, requires payment 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 is directed specifically to the financial needs of justices of the peace. Where 

a specific statute conflicts with 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 commissioners to disallow a claim for actual 

and necessary expenses, its unbudgeted character notwithstanding. 

The district court found, in its findings of fact, that 

the work of the justice court had greatly increased with the 

imposition of the 55 mph speed limit in Montana; that due to 

this increased work load the justice court's clerk fell behind 

in her work; that she worked some evenings and lunch hours without pay, 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 Judge Wood 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 conclusions amounted to a determination 

that the expense was actual and necessary and was a legal charge 

against the county within the meaning of section 93-412 and the 

commissioners had no discretion to disapprove it. 

A writ of mandate 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 of mandate is inappropriate because other adequate 

remedies at law exist. They suggest that a declaratory judgment 

action or an appeal of the commissioners1 decision pursuant to 

section 16-1808, R.C.M. 1947, of the budget law provide 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 it would not get the claim paid. In Mahan v. Hardland, 

147 Mont. 78, 410 P.2d 156, this Court stated that declaratory 

judgment is an inept procedure for recovery of a fee for services 
performed. 

Section 16-1808 provides that when a claim against the 

county is disallowed by the commissioners, the claimant may 

appeal the decision to the district court. This statute does 

not provide Judge Wood 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, from pursuing Linda 

Baumgartner's wage claim. This argument misses the essential 

point of this case. Judge Wood 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 Judge Wood had standing to bring a writ of mandate. 

Granting a writ of mandate 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, 154 Mont. 150, 

461 P.2d 207; State ex rel. McCarten v. Corwin, 119 Mont. 520, 

177 P.2d 189. 

We have reviewed the evidence presented to the district 

court and find that it did not abuse its discretion. 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 

commissioners and 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 of 
cooperation between the commissioners and the justice of the 

peace in determining what is necessary in an individual case is 

essential. Nonetheless conflicts may 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). 1972 Montana Constitution by adoption of this rule: 

"In any case of actual or potential conflict between 

the board of county commissioners and 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 in which 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 submission of 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 certify within the ten (10) day period, 

such nonaction shall be 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 the performance of his official duties. Such certification or refusal to certify such claim by the 

senior district judge as provided herein shall be a 

condition precedent to any legal action on the claim 
in any court of this state." 

This rule shall become effective fifteen days 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 commissioners and county attorneys in this state. 

The judgment of the district court is affirmed. 

.................................... Justice 

We concur: 

Chief Justice 

Justice 
Mr. Justice John Conway Harrison dissenting: 

I dissent. 

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 it was not a responsible act and one tending to create 

courthouse friction. The board of county commissioners by law 

are the business managers of county government charged with the 

daily operations of county government within strict budgetary 

requirements. Each county office, including the judicial offices, 

are required to submit and 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 

was made here. I find that the petitioner failed to exhaust all 

administrative remedies before pursuing his mandamus action and 

I would not have granted same. To me his actions did not exactly 

outdo Cicero in statesmanship--the true trouble was ineptitude, 

creating an unnecessary $64.12 question. 

h 

Mr. Justice Wesley Castles dissentkng: 

-.--.-- 

I concur in the above dissent of Justice John Conway 

Harrison. 

................................ Justice