No. 12443 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

-- 

JOSEPH WHEELER, JR., 

Plaintiff and Appellant, 

JOHN MOE et al., 

Defendants and Respondents. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellant : 

Marvin Ping argued, Missoula , Montana 

For Respondents: 

Garlington, Lohn and Robinson, Missoula, Montana 

Gregory L. Hanson argued, Missoula, Montana 

Filed : 

Submitted: September 13, 1973 

Decided : 8 - 1913 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

Plaintiff instituted this action for damages against 

the Missoula County sheriff and four deputies; the Missoula 

county attorney and two deputies; the insurance company and 

seven John Does. The district court of the fourth judicial 

district, Missoula County, dismissed plaintiff's complaint 

with prejudice. It is from the order dismissing the complaint 

that plaintiff appeals. 

Plaintiff filed his complaint on October 20, 1972. On 

November 3, 1972, defendants appeared by way of a motion to dismiss, supported by a brief, alleging failure of plaintiff's 

complaint to state a claim against defendants upon which relief 

could be granted. 

By order of the district court dated November 13, 1972, 

plaintiff was given until November 20 to file a brief in opposition to the motion to dismiss. Plaintiff's counsel in plaintiff's 

brief on appeal and at oral argument stated that when he appeared 

at the office of the clerk of the district court on the morning 

of November 20 to file plaintiff's brief in opposition to the 

motion to dismiss, he learned that the matter had been set for 

oral argument that morning. Pursuant to the district court's 

minute entry of November 20 the hearing on the motion to dismiss 

was continued to November 27, 1972. 

On November 24, 1972, plaintiff filed an affidavit disqualifying Judge Jack L. Green and moved for the substitution of 

another judge. No judge was called in to assume jurisdiction of 

the matter. 

On November 27, 1972, Judge E. Gardner Brownlee, presiding 

in Judge Green's stead, entered the following order: 

"Gregory L. Hansen, attorney for defendants, 

came into Court, this being the time set for 
hearing defendants' Motion to Dismiss. No 

appearance was made on behalf of the plaintiff. Thereafter, good cause appearing to 

the Court, Defendants' Motion is granted, and 

IT IS ORDERED that plaintiff's Complaint be and 

the same is hereby dismissed with prejudice." 

In his appeal from this order, plaintiff presents three 

issues for review. 

Did the district court commit error under the procedures to be followed under Rule 4, Rules of Practice of the 

District Court of the fourth judicial district? 

(2) Was the dismissal of plaintiff's complaint with 

prejudice void for want of jurisdiction by virtue of the court ' s 

failure to transfer jurisdiction to another judge upon the timely 

filing by plaintiff of an affidavit of disqualification? 

(3) Did the district court err in granting defendant's 

motion to dismiss pursuant to Rule 12 (b) (6) , M.R.Civ.P., and in 

dismissing plaintiff's complaint with prejudice? 

In light of the second issue presented by plaintiff and 

our discussion thereof which follows, it is not necessary to 

address ourselves to the first issue at this time. Whether or 

not there was error under Rule 4, Rules of Practice of the District Court of the fourth judicial district, need not be resolved 

in view of our conclusion hereinafter. 

Section 93-901, R.C.M. 1947, provides in part: 

"Any justice, judge, or justice of the peace must 

not sit or act as such in any action or proceeding: 

"4. When either party makes and files an affidavit as hereinafter provided, that he has reason 

to believe, and does believe, he cannot have a fair 

and impartial hearing or trial before a district 

judge by reason of the bias or prejudice of such 

judge. Such affidavit may be made by any party 

to an action, motion, or proceeding, personally, 

or by his attorney or agent, and shall be filed 

with the clerk of the district court in which the 

same may be pending. * * * In all other cases the 

affidavit must be filed at least fifteen (15) days 

before the day appointed or fixed for the hearing 
prior 

or trial of any such action, motion, or proceeding (provided such party'shall have had notice 

of the hearing of such action, motion, or proceeding for at least the period of fifteen (15) days 

and in case he shall not have had notice for such 

length of time, he shall file such affidavit immediately upon receiving such notice). Upon the 

filing of the affidavit, the judge as to whom said 

disqualification is averred shall be without 

authority to act further in the action, motion, or 

proceeding, but the provisions of this section do 

not apply to the arrangement of the calendar, the 

regulation of the order of business, the power of 

transferring the action or proceeding to some 

other court, nor to the power of calling in another 

district judge to sit and act in such action or 

proceeding, providing that no judge shall so 

arrange the calendar as to defeat the purposes of 

this section. * * * If there be more than one judge 

in any judicial district in which said affidavit 

is made and filed, upon the first disqualification 

of a judge in the cause, another judge, residing 

in the judicial district wherein the affidavit is 

made and filed, must be called in to preside in 

such action, motion or proceeding * * * when another judge has assumed jurisdiction of an action, 

motion, or proceeding, the clerk of the district 

court in which the same was pending, shall at once 

notify the parties or their attorneys of record in 

the same, either personally or by registered mail, 

of the name of the judge called in, or to whom such 

action, motion, or proceeding was transferred. * * *" 

The record does not show that a hearing date was set 

to the continuance of the hearing to November 

Written notice of the November 27, 1972, hearing date was sent 

to counsel for both sides by the clerk of the district court 

on November 20, 1972. Counsel had less than fifteen days notice of the hearing date scheduled on defendants' motion. Pursuant to the statute plaintiff had to file his affidavit of 

disqualification immediately upon receiving such notice. 

Even though it is not presented as an issue here, we 

note that the filing of the affidavit of disqualification on 

November 24, 1972, was timely within the provisions of the statute. Counsel for plaintiff received notice of the hearing on 

or about November 21, 1972. Plaintiff resided in Lake County 

necessitating a trip to Missoula to sign the affidavit. Court 

was closed on Thursday, November 23, 1972, in observance of the 
Thanksgiving Holiday. 

After the affidavit was filed, Judge Green was without 

jurisdiction to act further in the matter except in those 

limited instances outlined in the statute. The record does not 

disclose that another judge, including Judge Brownlee, was 

called in as provided for in the statute. No notice was given 

to the parties or their attorneys that another judge had been 

called in or that the action had been transferred to another 

judge. Judge Green was without authority to act, and Judge 

Brownlee, presiding in Judge Green's stead and not having been 

called to assume jurisdiction, was also without authority to act 

in the matter. 

Despite this holding we feel it necessary to address ourselves to plaintiff's third issue for the reason that the district 

judge, while without jurisdiction to do so, achieved the only possible result. The complaint should properly be dismissed with 

prejudice. 

Rule 12(b) (6), M.R.Civ.P. provides: 

"Every defense, in law or fact, to a claim for 

relief in any pleading, whether a claim, counterclaim, crossclaim, or third-party claim, shall be 

asserted in the responsive pleading thereto if 

one is required, except that the following defenses may at the option of the pleader be made 

by motior,. * * * (6) failure to state a claim upon 

which relief can be granted * * * A motion making 

any of these defenses shall be made before pleading if a further pleading is permitted." 

In his complaint plaintiff alleged that he was a member 

and resident of the Confederate Salish and Kootenai Tribes of 

the Flathead Indian Reservation, Montana, and that pursuant to 

a license granted by the Tribes, he was operating a retail store 

on lands of the Tribeheld in trust by the United States under a 

lease thereof approved by the Bureau of Indian Affairs. 

The complaint alleged three claims for relief. The substance of plaintiff's complaint, including all three claims, can 
be summarized as follows: Plaintiff alleged that he was arrested, 

that his store was searched, that cigarettes and fireworks found 

in the store were seized, and that he was publicly tried. Plaintiff then alleged that these acts by defendants were malicious, 

wrongful, unlawful, oppressive, arrogant and without legal authority of any kind. It is further alleged that as a direct consequence and result of defendants' acts that plaintiff was deprived of his liberty, suffered interruption of his business, 

and destruction and loss of his property and profits from his 

business, that his personal reputation was impaired and that his 

business was defamed and damaged. For each claim plaintiff 

prayed for actual and exemplary damages. 

According to the allegations of the complaint, the defendants were a11 duly elected or appointed public officers; that 

search warrants were obtained prior to any searches of plaintiff's 

store; that searches were carried out pursuant to search warrants; 

that plaintiff's arrests were made pursuant to warrants for his 

arrest or as a result of searches pursuant to search warrants; 

and that cigarettes and fireworks were found in the store and 

seized. 

Defendants contend that the allegations of the complaint 

clearly show that the defendants were acting within the scope of 

their official duties and for that reason the complaint fails to 

state a claim upon which relief could be granted. Further, defendants argue that they are immune from civil liability for 

their official acts, and this reason, by itself, sustains the 

district court's dismissal. Plaintiff concedes that public officers are immune from civil liability when acting within the 

scope of their authority. It is plaintiff's contention, however, 

that defendants were acting outside the scope of their duty or 

authority. 
In his argument plaintiff cites numerous authoriti-es *supporting the general proposition that a trial court should rarely grant 

a motion to dismiss for failure to state a claim upon which relief 

can be granted. The issue of the propriety of dismissing a complaint pursuant to the federal counterpart to Rule 12(b)(6), M.R. 

Civ.P., is discussed in detail at Section 1357 of Wright and 

Miller's Federal Practice and Procedure. Beginning at page 598 

it is said: 

"The motion to dismiss for failure to state a 

claim is viewed with disfavor and is rarely 

granted. * * * 

"The test most often applied to determine the 

sufficiency of the complaint was set out in the 

leading case of Conley v. Gibson, in which the 

Supreme Court stated that 

"in appraising the sufficiency of the complaint we follow, of course, the accepted 

rule that a complaint should not be dismissed for failure to state a claim unless 

it appears beyond doubt that the plaintiff 

can prove no set of facts in support of his 

claim which would entitle him to relief. 

"As a practical matter, a dismissal under Rule 

12(b) (6) is likely to be granted only in the 

unusual case in which plaintiff includes allegations that show on the face of the complaint 

that there is some insuperable bar to relief. 

In other words, dismissal is justified only 

when the allegations of the complaint itself 

clearly demonstrate that plaintiff does not have 

a claim. * * * 

"The complaint also is subject to dismissal under 

Rule 12(b)(6) when its allegations indicate the 

existence of an affirmative defense, but the defense must clearly appear on the face of the 

pleading * * * In a situation involving an affirmative defense, the claim is adequately stated, 

but in addition to the claim the complaint includes matters of avoidance that effectively 

vitiate the pleader's ability to recover on the 

claim. * * * l1 

This Court in Kielmann v. Mogan, 156 Mont. 230, 233, 478 

P.2d 275, said: 

"It is well settled that a complaint should not be 

dismissed for insufficiency unless it appears for 

certain that plaintiff is entitled to no relief 
under any state of facts which could be proved 

in support of the claim. Hamman v. United 

States, 267 F.Supp. 411 [Mont. 1967) .I1 

In this case it is apparent that the complaint should 

be dismissed with prejudice for failure to state a claim upon 

which relief could be granted, for the complaint itself contains allegations setting forth a bar to relief. In other words, 

there are no state of facts which could be proved in support of 

the claim. 

The defendants in this case are all public officers. As 

conceded by both parties and as we have previously held, public 

officers are immune from civil liability for their official acts. 

Meinecke v. McFarland, 122 Mont. 515, 206 P.2d 1012. With respect to defendant insurance company, the liability of the surety 

cannot exceed that of his principal. Meinecke at 522. 

We find no allegation in plaintiff's complaint that defendants were acting in any capacity other than as public officers, 

that any of the warrants were improperly issued or were not based 

on probable cause or that any of the searches exceed the scope of 

the search warrants. To the contrary, the complaint specifically 

details how warrants were issued and acted upon and cigarettes 

and fireworks seized pursuant to said warrants, clearly showing 

that defendants were acting within the scope of their official 

duties and proceeding in strict compliance with due process requirements. 

In his reply brief and upon oral argument plaintiff 

has argued that there is an "Indian Question" at issue here and 

that it is the "Indian Question" which is determinative of the 

scope of defendants' authority. It is plaintiff's position that 

Tribal Ordinance 40-A (Revised) of the Confederated Salish and 

Kootenai Tribes of the Flathead Reservation does not constitute 

a grant of jurisdiction to the State of Montana to tax the sale 
of cigarettes nor to regulate the sale of fireworks on the 

Flathead Reservation. Plaintiff then reasons, based upon the 

foregoing position, that the State of Montana does not have the 

jurisdiction to enforce the cigarette tax under section 84-5606, 

R.C.M. 1947, and fireworks regulation under section 69-2701, R. 

C.M. 1947. It is plaintiff's conclusion that without this jurisdiction defendants were without authority to do those acts 

alleged in plaintiff's complaint. 

We find no merit in plaintiff's argument. Whether the 

state of Montana has the jurisdiction to tax cigarettes and to 

regulate the sale of fireworks on the Flathead Reservation is 

not an issue to be determined by us at this time. Furthermore, 

a resolution of that issue as urged by plaintiff would have no 

bearing on our holding in this case. 

It is the duty of defendants to enforce the laws of the 

State of Montana. Defendants cannot be held accountable in civil 

liability for carrying out this official duty within the authority 

and means prescribed by law. Plaintiff's complaint alleges nothing more than that defendants acted within their duties and authority and pursuant to the law. For this reason, the complaint 

fails to state a claim upon which relief can be granted. In addition, defendants are immune from civil liability for their official acts, and because the allegations of plaintiff's complaint 

clearly demonstrate that defendants were acting within their 

authority, the complaint itself alleges a bar to relief and is 

insufficient to support a claim. 

For the foregoing reasons, the order of the district court 

dismissing plaintiff's complaint with prejudice is hereby annulled 

and set aside and the cause is remanded to the district court 

and presiding Judge Jack L. Green with instructions to call in 

another judge in accordance with section 93-901, R.C.M. 1947, 
and such called-in judge shall proceed in this action not 

inconsistent with this opinion. 

IT IS SO ORDERED 

I Chief Justice