No. 12900 INTHE SUPREME COURT OF THE STATE OF MONTANA

GENE D. LUNT, Plaintiff and Respondent,

DIVISION OF WORKMEN'SCOMPENSATION, DEPARTMENT OF LABOR AND INDUSTRY OF THE STATE OF MONTANA, Defendant and Appellant.
Appeal from: District Court of the ThirteenthJudicial Districe, Honorable C. B. Sande, Judge presiding. Counsel of Record: ForAppellant: 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

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### 19'75Mr. Justice Frank I. Haswell delivered the Opinion of the Court. This appeal by theDivision of workmen's Compensation isbrought from the denial of a motion for change of venue from Yellowstone County toLewis and Clark County. Plaintiff Gene D. Lunt filed a petition for a 

### writ of mandate tocompel 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 forwrit of mandamus
arebefore this Court on this appeal. In fact, those considerations have been rendered moot by the settlement of the claimbetween plaintiff and his employer's insurer. However, since the settlement occurred after the filing of themandamus action, the issue of attorney fees remains preserving the venue question for this court's consideration. The proper forum to bring an action for

### writof mandate 

### is governed by section 93-2902, R.C.M. 1947, which provides in pertinent part:
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## ' Actions for the following causes must be tried in the county where the cause, or some part thereof, arose

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# "** fr "2. Against 

### a public officer, or person specially appointed to execute his duties, for an act done by him invirtue 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 

### isnot controlling here since the defendant named in the mandamus action is the
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Division of Workmen's Compensation, Department of Labor and Industry of the Stateof Montana1'without mention of any of the "public officers1' individually associatedwith the Division. However, the Division can act only through itspublic officers and employees, and no meaningful distinction can be drawn between the sum of the parts and the whole for purposes of thisvenue statute. We hold the Division is a "public officer" within the meaning of section 93-2902. See: Ebenezer Society v. Minnesota StateBoard 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 togrant a motion for change of venue when the county designated in the complaint 

### isnot the proper county. Section 93-2906, R.C.M. 1947; Johnson v. Clark, 131Mont. 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. II The petition for the

### writasserts that it 

### is the ~ivision's responsibility to set a hearing asrequired by section 92-821, R.C.14. 1947. The Division 

### isheadquartered inLewis and Clark County, as evidenced by the affidavit of the ~ivision'sadministrator and by the exhibits showing that notice of hearings 

### is sent from Lewis and Clark County. It 

### isapparent that the alleged failureto set a hearing involves only the function of the Division's offices inLewis and Clark County. Accordingly, the cause arose inLewis and Clark County and, pursuant to section 93-2902 must be tried there. This holding 

### is consistentwith Gildroy v. Anderson, 159Mont. 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 tobe controllinghere. Any portions of Montana-Dakota Utilities Co. v. Public Service Commission, 111Mont. 78, 107 P.2d 533, inconsistentwith this opinion are hereby expressly overruled. Operating under similarvenue statutes, the Supreme Court of Oklahoma expressed it well when itheld in State ex rel. StateDry cleanersrBoard v. District Court, (Okla.1959), 

### 340 P.2d 939, 

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# * Since the cause of action ariseswhere 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 inNowata County where theBoard failed tohold the hearing. However, we are of theopinion that inan action formandamus the cause of action arises in the county where the public official officially resides. It is atthat place where he officially refuses toact orneglects toact. 11 See also: Stateex rel. Department of Corrections v. Brock,
Accordingly, the denial of the motion forchange of
venue toLewis and Clark County is reversed.

Justice

We Concur:

Chief Justice