                                                 No.    14875

             I N THE SUPREME COURT O F THE STATE O F F4ONTANA

                                                        1979




MERCHANTS A S S O C I A T I O N ,

                                   P l a i n t i f f and R e s p o n d e n t ,

                  -vs-


GENEVIEVE CONGER

                                   D e f e n d a n t and A p p e l l a n t .




Appeal from:            D i s t r i c t C o u r t of t h e T h i r t e e n t h J u d i c i a l
                        D i s t r i c t , H o n o r a b l e C h a r l e s L u e d k e , Judge
                        presiding.

C o u n s e l of R e c o r d :

             For A p p e l l a n t :

                   D.    Michael Eakin,            Hardin,      Montana


             For Respondent:

                   Terrence Swift, Billings,                    Montana




                                                 S u b m i t t e d on B r i e f s :     O c t o b e r 30,   1979

                                                                  Decided :           DEC 2 7 1979


           DEC 2 7 1979
Filed :
Mr. Justice John C. Sheehy delivered the Opinion of the Court.


     Genevieve Conger appeals from an order entered by the
District Court, Thirteenth Judicial District, Big Horn County,
denying Genevieve's motion to appeal to the District Court
without the undertaking required by section 25-33-201(1) MCA.

     In February 1977, Merchants Association initiated a
cause in Justice Court, Big Horn County, seeking to collect
$855.77 for merchandise allegedly purchased by Genevieve from
Montgomery Wards, Inc.   Montgomery Wards had assigned the debt
to Merchants Association, a collection agency.
     The trial of this cause was held in July 1978.     The
Justice Court entered judgment in favor of Merchants Association
for the total sum of $1,067.62, including costs and interest.
     In August 1978, Genevieve filed with the Justice Court a
notice of appeal to the District Court.     Genevieve also filed

an affidavit of her inability to provide the undertaking required
by section 25-33-201(1) MCA.   In October    1978, the Justice
Court ordered all pleadings to be transmitted to the District
Court.   The Justice Court specifically refrained from ruling
on the undertaking.
     On February 27, 1979, Genevieve moved the District Court
for permission to proceed without the required undertaking.
Genevieve's motion was denied on March 27, 1979.    Genevieve next
filed a notice of appeal to this Court.     Genevieve also moved

the District Court for permission to appeal without prepayment
of costs.   The District Court denied Genevieve's motion.
     On September 13, 1979, we granted Genevieve permission to
appeal - -
       in forma pauperis.   Pursuant to Rule 38, Mont.R.App.Civ.P.,

the attorney general was notified that the constitutionality of
a legislative act was drawn into question upon this appeal.
The attorney general decided not to intervene.    Merchants
Association    also did not submit a brief.
     Genevieve raises three issues upon appeal.
     1.   Does section 25-33-201(1) MCA, as applied to Genevieve
violate the equal protection clause of the Fourteenth Amend-
ment to the United States Constitution by barring an indigent
defendant access to the District Court?
     2.   Does section 25-33-201(1) MCA, as applied to Genevieve
violate Art. 11, S16 of the new Montana Constitution by barring an
indigent defendant access to the District Court?
     3.   Does section 3-10-202 MCA, violate the due process
clauses of the new Montana Constitution and the Fourteenth-
Amendment to the United States Constitution by denying litigants
a hearing before a lawyer-judge?
    We will not reach the second and third issues raised by
Genevieve.    We hold that section 25-33-201(1) MCA, as applied
to Genevieve violates her Fourteenth Amendment equal protection
rights.
     Genevieve asserts that access to the District Court upon
appeal from the Justice Court is a fundamental right and cannot
be denied absent a compelling state interest.    We will not
apply the compelling state interest standard here.   As applied
to Genevieve, section 25-33-201(1) MCA, violates even the
lower traditional equal protection test.
     The Fourteenth Amendment to the United States Constitution
permits Montana a wide scope of discretion in enacting laws
which affect some groups of citizens differently from others.
Under the traditional equal protection standard, such enactments
offend the Fourteenth Amendment only if the classification is
arbitrary and rests on grounds wholly irrelevant to the achieve-
ment of the State's objective.   Habron v. Epstein (D. Md. 1976),
                                -3-
412 F.Supp. 256, 262.     We find such a situation here.
     Section 25-33-201(1) MCA, provides as follows:
     ". ..  An appeal from a justice's or city
     court is not effectual for any purpose unless an
     undertaking be filed, with two or more sureties,
     in a sum equal to twice the amount of the judg-
     ment, including costs, when the judgment is for
     the payment of money. The undertaking must be
     conditioned, when the action is for the recovery of
     money, that the appellant will pay the amount of
     the judgment appealed from and all costs if the
     appeal be withdrawn or dismissed or the amount of
     any judgment and all costs that may be recovered
     against him in the action in the district court."
     We have searched the legislative history of section
25-33-201 MCA, without success for its objective.    The
legislative records concerning this statute are, to say the
least, incomplete.     The statute seems to originate in the
Bannack statutes of Montana.
     Our research has, however, suggested three possible
objectives of the statute.     These objectives are to guard the
already awarded judgment of the Justice Court, to secure
any possible judgment by the District Court and to prevent
frivolous appeals.
    All are legitimate purposes, but none are effectuated
by the double undertaking required by the statute.    The required
undertaking is completely unrelated to any judgment actually
recoverable in either the Justice Court or the District Court.
Similarly, while the undertaking may prevent some frivolous
appeals, it also prevents meritorious appeals by the poor and
does not prevent frivolous appeals by the rich.    Lindsey v.
Normet (1972), 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36.       Under
any of the proposed objectives, the statute as applied to
Genevieve must fall.
     It is true that under the Lindsey statute the appellant
automatically forfeited the entire double bond upon losing
on the merits in the appellate court; whereas, under section
25-33-201 MCA, Genevieve would forfeit only the amount of
the judgment plus costs upon losing on the merits in the
District Court.    This distinction is not controlling.   Under
our statute, Genevieve must still post an undertaking that
is completely unrelated to any possible judgment before she
can even get her foot in the door.
     We note in passing that our decision today should not
affect those statutes providing double or treble damages for
conduct regarded by the Montana legislature as particularly
reprehensible.    Such statutes present different considerations
than those before us now.
     The order of the District Court is reversed.   The cause
is remanded for further proceedings in accordance with this
opinion.




                                         Justice
We Concur:



       Chief Justice




w            Justices
