No. 12900 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

GENE D. LUNT, 

Plaintiff and Respondent, 

DIVISION OF WORKMEN'S COMPENSATION, 

DEPARTMENT OF LABOR AND INDUSTRY OF 

THE STATE OF MONTANA, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial Dis trice, 

Honorable C. B. Sande, Judge presiding. 

Counsel of Record: 

For Appellant : 

Harris, Jackson and Utick, Helena, Montana 

Andrew J. Utick argued, Helena, Montana 

For Respondent: 

William T. Kelly argued, Billings, Montana 

Submitted: June 17, 1975 

Decided : .)?lh! 3 0 19'75 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This appeal by the Division of workmen's Compensation 

is brought from the denial of a motion for change of venue from 

Yellowstone County to Lewis and Clark County. 

Plaintiff Gene D. Lunt filed a petition for a writ of 

mandate to compel the Division to set a hearing on his claim 

for compensation benefits. Neither the merits of the claim for 

compensation nor the merits of the petition for writ of mandamus 

are before this Court on this appeal. In fact, those considerations have been rendered moot by the settlement of the claim between plaintiff and his employer's insurer. However, since the 

settlement occurred after the filing of the mandamus action, the 

issue of attorney fees remains preserving the venue question for 

this court's consideration. 

The proper forum to bring an action for writ of mandate 

is governed by section 93-2902, R.C.M. 1947, which provides in 

pertinent part: 

I ' Actions for the following causes must be 

tried in the county where the cause, or some 

part thereof, arose * * * 

"* * fr 

"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. 11 

The Division argues section 93-2902 is not controlling 

here since the defendant named in the mandamus action is the 

11 Division of Workmen's Compensation, Department of Labor and 

Industry of the State of Montana1' without mention of any of the 

"public officers1' individually associated with the Division. 

However, the Division can act only through its public officers 

and employees, and no meaningful distinction can be drawn between the sum of the parts and the whole for purposes of this 
venue statute. We hold the Division is a "public officer" within 

the meaning of section 93-2902. See: Ebenezer Society v. Minnesota State Board of Health, (Minn. 1974), 223 N.W.2d 385 and cases 

cited therein for similar holdings under parallel venue statutes. 

A district court is required to grant a motion for change 

of venue when the county designated in the complaint is not the 

proper county. Section 93-2906, R.C.M. 1947; Johnson v. Clark, 

131 Mont. 454, 311 P.2d 772. The language of section 93-2902 indicates that the proper county is the "county where the cause, or 

some part thereof, arose." The cause of this mandamus action, 

as set forth in the petition for the writ, is "the wrongful, wanton, 

arbitrary and discriminatory * * * neglecting and failing to set 

 lai in tiff's case down for hearing. I I 

The petition for the writ asserts that it is the ~ivision's 

responsibility to set a hearing as required by section 92-821, 

R.C.14. 1947. The Division is headquartered in Lewis and Clark 

County, as evidenced by the affidavit of the ~ivision's administrator and by the exhibits showing that notice of hearings is sent 

from Lewis and Clark County. 

It is apparent that the alleged failure to set a hearing 

involves only the function of the Division's offices in Lewis and 

Clark County. Accordingly, the cause arose in Lewis and Clark 

County and, pursuant to section 93-2902 must be tried there. This 

holding is consistent with Gildroy v. Anderson, 159 Mont. 325, 

497 P.2d 688, and State ex rel. Fulton v. District Court, 139 

Mont. 573, 366 P.2d 435, although neither is sufficiently analogous 

to be controlling here. Any portions of Montana-Dakota Utilities 

Co. v. Public Service Commission, 111 Mont. 78, 107 P.2d 533, 

inconsistent with this opinion are hereby expressly overruled. 

Operating under similar venue statutes, the Supreme Court 

of Oklahoma expressed it well when it held in State ex rel. State 
Dry cleanersr Board v. District Court, (Okla.1959), 340 P.2d 939, 

"* fc * Since the cause of action arises where 

the neglect or refusal on the part of the public 

official takes place, it might be argued that the 

alleged neglect in this case took place in Nowata 

County where the Board failed to hold the hearing. 

However, we are of the opinion that in an action 

for mandamus the cause of action arises in the 

county where the public official officially resides. It is at that place where he officially 

refuses to act or neglects to act. 11 

See also: State ex rel. Department of Corrections v. Brock, 

Accordingly, the denial of the motion for change of 

venue to Lewis and Clark County is reversed. 

Justice 

We Concur: 

Chief Justice