                                 NO. 83-315
                 IN THE SUPFU3ME COURT OF THE STATE OF MONTANA

                                  1984



DOUGLAS ALLEN, et al.,

                               Respondents and Petitioners,

          v.

THE MADISON COUNTY COMMISSION, et al.,

                               Appellants and Respondents,

          v.

DANIEL M. SEGOTA, et al.,

                               Appellants and Intervenors.



Appeal from:       District Court of the Fifth Judicial District,
                   In and for the County of Madison
                   Honorable Arnold Olson, Judge presidinq.

Counsel of Record:

     For Appellants:

               Loren Tucker, County Attorney, Virqinia City, Montana

     For Intervenors:

               Chester Jones, Virginia City, Montana

     For Respondents:

               Meloy & Llewellyn, Helena, Montana
               Peter Michael Meloy, Helena, Montana



                                    Submitted on briefs:    December 29, 1983

                                                Decided : J u n e 28 , 1 9 8 4

Filed :
                      -   \
Mr. Justice Fred 2. Weber delivered the Opinion of the Court.
      This is an appeal from a writ of prohibition issued by
the   Fifth      Judicial          District       Court,    Madison      County,
prohibiting the Madison County Commission                      (Commission) and
the Madison County Recorder                (Recorder) from placing on an
election ballot the question of retaining the charter form of
county government rejected by county voters in a previous
election.     We affirm.
      The sole issue on appeal is whether the District Court
erred in granting the writ of prohibition.
      This    case     is    the    third    of    three actions aimed          at
resolving a longstanding dispute over the form of government
in Madison County.            A brief history of the dispute and the

successive legal actions is necessary to an understanding of
the issue.
      In 1976 the electors of Madison County adopted a charter
form of government.           In early 1980, after four years of the
charter government, a number of dissatisfied citizens formed
an organization known as the "Tobacco Root Rebellion,"                          to
place before the electorate the question of returning to a
commission form of government.               On two separate occasions, a
member of this group proposed to the Commission (so called
under the charter government)                 a resolution calling for a
vote by the electorate on the question of returning to the
commission      form    of     government.           The   majority     of     the
commissioners rejected the resolution in both cases.
      Thereafter, two petition drives were initiated among the
Madison      County    electorate.            Both      petitions    asked     the
Commission     to     place    before       the   voters    the     question    of
abandoning      the    charter       and     returning      to    the   previous
commission     form    of     government.          On   both     occasions, the
Commission       refused       to     place     the       question       before    the
electorate.         Instead,        in   1980    and      again     in    1982,    the
Commission proposed modifications to the existing charter
form of government and placed its proposals on the ballot.
The first proposal involved modification of the duties of the
commissioners.           This       amendment was         adopted.       The     second
proposal involved changing the position of chief executive
from an elective office to an appointive office.                         This change
was rejected by the voters.
        In August 1982, proponents of the commission form of
government again petitioned the Madison County Commission for
an election on the question of returning to the previous
commission       form    of    government.           In    September      1982, the
Commission rejected this petition and again refused to submit
the question to the electorate.                   The Commission based its
refusal upon section 7-3-155, MCA, which provides that the
electors of a unit of local government which has voted upon
the   question of        changing or amending the                   form of       local
government may          not vote on the question again for three
years.     The Commission apparently took the view that since
the     commissioners         had    proposed        modifications         and    held
elections    on    those       proposals,       no    other    change could         be
considered       for three years following the election on the
Commission's latest proposal.
        In response to the the Commission's refusal to place the
question on the ballot, certain members of the electorate
petitioned the District Court for a writ of mandate directing
the Commission to place the matter on the ballot.                          The court
ruled     that    section       7-3-155,        MCA       is   an    impermissible
legislative restriction upon the power of initiative reserved
to the electorate by the Montana Constitution.                            The court
concluded that as applied in the factual context of that
case, section 7-3-155 had prevented Madison County voters
from exercising their reserved power of initiative to change
the form of county government for more than eight years after
adoption of the Madison County charter.                  The court issued a
writ of mandate ordering the Commission to place the proposal
for change of form of government before the electorate at an
election to be held on November 2, 1982.              No appeal was taken
from the judgment.
       The proposal contained in the petition was accordingly
placed. upon the ballot, the election was held, and a majority
of    the    electors     voted    to    abandon   the    charter   form    of
government and return to the commission form of government.
The Commission, as required by law, then adopted a schedule
for executing the transition from charter to commission form.
This transition schedule called for election of officers for
the new commission government to be held on April 28, 1983.
The new officers were to take office on June 28, 1983, when
the    new    form   of    government would        come    into   existence.
Meanwhile,     pursuant      to    the   transition      schedule   and    the
applicable statutes, the charter form of government remained
in existence and the Commission and its individual members
continued as the county's governing body under the existing
charter government.
       In late December 1982, Russell K. Hudson, one of the
intervenors in this action, and others brought                      a    second
action, to set aside the November 2, 1982 election and to
enjoin the holding of election of officers for the new
commission government.            The District Court found there were
no statutory violations in the holding of the election and
that    the     petition      substantially        complied       with     the
requirements       of     law.       None       of     the    parties       sought
post-judgment relief.
     In late February 1983, certain pro-charter electors of
Madison     County       certified       and     circulated         a     petition
essentially proposing a re-vote on the form-of-government
question.     This petition called for an election "for the
purpose of altering the existing form of government from the
existing Commission form of government to the Charter form of
government in form as under the Charter of Madison County
1976 as     amended."       The petition provided              that should a
majority of electors vote            in favor of the proposal, the
charter government would take effect on June 27, 1983 and the
present charter officers, including the Commission and its
individual members, would continue in office until the end of
their terms held under the 1976 charter.
     These electors, essentially the same individuals who had
unsuccessfully challenged the previous election, submitted
their petition to the Commission pursuant to section 7-3-125,
MCA, which authorizes submission of a petition proposing "the
alteration of an existing form of local government."                         After
examining    the     petition      for     sufficiency        and       number   of
signatures    and       consulting   with       counsel,      the       Commission
directed the question to be placed on the ballot at a special
election to be held April 28, 1983.
     Petitioners        then     brought       this,    the    third       action,
petitioning the District Court for a writ of prohibition
enjoining the holding of another election on the question of
returning to the charter form of government.                        Petitioners
alleged that the Commission had no authority to order an
election, except as authorized by the provisions of Title 7,
Chapter 3, MCA. They argued that because the commission form
of government was not yet an "existing form" of government,
the statute did not authorize the proposed election and the
Commission had no jurisdiction to order an election.                         The
individuals who sought the new election intervened in the
action and participated in its resolution.
       After hearing, the District Court issued a writ of
prohibition      enjoining    the    proposed    election.        The       writ
expressly stated it would remain i.n effect "until June 27,
1983,     at   which   time    the    modified       commission      form     of
government shall be in existence."                   In its findings and
conclusions dated April 26, 1983, the court concluded:
       "The actions of the Respondent Commission in
       placing the question before the electors is an act
       which is in excess of its jurisdiction, and
       Petitioners have no plain, speedy, or other
       adequate remedy by which to pursue this unlawful
       act of the Respondents."
       The court also awarded to petitioners their expenses
including attorneys' fees and costs.                 The Commission, the
Recorder and individual intervenors appeal from the writ of
prohibition and award of attorneys' fees granted by                          the
District Court.
       A writ of prohibition is a proper remedy to arrest the
proceedings of any tribunal, corporation, board or person
when    the    proceedings    are    without    or     in   excess    of     the
jurisdiction of such tribunal, corporation, board or person.
Section    27-27-101, MCA;      State ex        rel.    Shea v.      Judicial
Standards Commission         (Mont. 1982), 643 P.2d          210, 216, 39
St.Rep. 521, 528.      The writ may issue in all cases in which
there is not a plain, speedy and adequate remedy in the
ordinary course of law.         Section 27-27-102, MCA; Shea, 643
P.2d at 216, 39 St.Rep. at 528.
      Appellants    argue   that     the   District    Court   erred   in
concluding that placing the change-of-government.question on
the ballot was beyond the jurisdiction of the Commission.
They argue the Comission was mandated by the language of
sections 7-3-125 and -149, MCA and by the court's judgment in
the mandamus action to place the question on the ballot
because it had received a petition proposing alteration of
the "existing" commission form of county government.                   We
disagree.
      Section 7-3-123, MCA provides:
      "An alteration of an existing form of local
      government may be proposed by a petition of the
      electors." (emphasis added)
Section 7-3-125, MCA further provides in part:
      " (1) A, petition for the alteration of an existing
      form of local government may be presented to the
      governing body of the local government.         The
      petition must meet the requirements of 7-3-142
      through 7-3-145.
      "(2) The petition must be signed by a least 15% of
      the electors of the local government registered at
      the last general election, and upon receipt of the
      petition the governing body shall call an election,
      as provided for in 7-3-149 through 7-3-151, on the
      proposed alteration      . . ..
                                " (emphasis added)
See also section 7-3-149 (I), MCA.
      The new commission government was not to take effect
until June 28, 1983, after election of new county officers.
See section 7-3-156, MCA.        During the transition period, the
existing charter government remained in power with statutory
authority to continue to govern, so long as consistent with
the   plan   of   transition    to   the   new    form of government.
Section 7-3-157 through 7-3-159, MCA.            When a second election
was proposed in February 1983 to change from the commission
to the charter form of government, the commission form of
government was not yet an "existing form" of local government
and   neither    the   petition   nor the proposed      election was
authorized.
      Appellants contend it is ill-ogi-cal
                                         and inconsistent that
county officers were previously mandated to call an election
because it was deemed a "clear legal duty," and yet were
prohibited in this case from calling an election because to
do so was beyond their jurisdiction.          However, this argument
ignores the clear distinction between the two cases.            In the
mandamus action, the petition proposed alteration of the
existing charter form of government, and insofar as other
statutory prerequisites were        satisfied, the election was
required.     In this case, the petition proposed alteration of
a form of government not yet in existence.           The conclusions
in the previous case and this case were based upon different
facts and were not inconsistent.         Further, none of appellants
additional arguments suggesting the Commission had authority
to call the disputed election merit discussion.
      We hold that the District Court properly concluded that
placing on the ballot the question of changing from the
commission      form   of   government   to   the   charter   form   of
government was in excess of the Commission's jurisdiction.
      Appellants contend that even if the Commission's act is
in excess of its jurisdiction, the writ of prohibition will
not lie if the act is ministerial in nature, citing State ex
rel. Lee v. Montana Livestock Sanitary Board             11959), 135
Mont. 202, 208-09, 339 P.2d 487, 490-91.            Thus, they argue
that the District Court erred in failing to address whether
this act was ministerial or quasi-judicial in nature.            They
contend that calling an election is a ministerial act which
cannot be restrained by a writ of prohibition.
        However,     we     need    not     decide       whether       a   writ    of
prohibition will lie to restrain a ministerial act in excess
of the Commission's jurisdiction, because we conclude that
the act involved here is not ministerial.                      The calling of an
election by        the Commission under these facts is an act
involving discretionary determinations and is therefore a
quasi-judicial rather than ministerial act.                           State Bar of
Montana v. Krivec (Mont. 1981), 632 P.2d 707, 711, 38 St.Rep.
1322, 1326; State ex rel. Lee v. State Livestock Sanitary
Board (1960), 138 Mont. 536, 357 P.2d 685.                       In addition to
determining whether the petition requesting an election met
the technical requirements as to number and validity of
signatures, the Commission was required to determine whether
the petition proposed alteration of an "existing form" of
local     government        and     whether        the     express         statutory
limitations on elections applied.              As clearly demonstrated by
the history of this case, these determinations involved the
exercise     of     discretion      based     upon       the    existing      facts.
Because the calling of an election here is a quasi-judicial
function,     we     need     not    address       the    parties'         arguments
regarding whether prohibition lies to restrain a ministerial
act.
        Appellants further contend that prohibition will not lie
because     other    plain,        speedy    and     adequate      remedies       are
available     to    petitioners.            They   argue       that    injunction,
declaratory       judgment and       judicial review are each plain,
speedy and adequate remedies available to petitioners in this
case.    We conclude that the District Court properly exercised
its discretion in concluding that petitioners had no plain,
speedy and adequate remedy in the ordinary course of law.
     Section 27-27-1-02, PICA authorizes issuance of the writ
of prohibition "in all cases where there is not a plain,
speedy, and adequate remedy in the ordinary course of law."
A remedy is speedy when, having in mind the subject matter
involved, it can be pursued with          expedition and without
essential detriment to the party aggrieved; and it is neither
speedy nor adequate if its slowness is likely to produce
immediate injury or mischief.      Bradbook v. City of Billings
(1977), 174 Mont. 27, 30, 568 P.2d 527, 529; State ex rel.
Taylor v. District Court,(1957), 131 Mont. 397, 402, 310 P.2d
779, 781.
     The    judicial   review procedure      set    forth   in   section
7-3-154, MCA does not meet the standard set forth in Bradbook
and Taylor.     This procedure provides for challenge to the
validity of procedures whereby an alternative plan of local
government has been adopted, but the statute does not appear
to provide for challenging the holding of the election.              To
invoke this remedy, petitioners would be required to await
the outcome of the election and then challenge the election
in the face of a presumption of procedural validity.                The
expense of placing the question on the ballot would be wasted
if the election were later deemed to have been unauthorized.
This remedy could not be pursued without essential detriment
to petitioners.     Further, its slowness would result in the
immediate injury of unnecessary public expense and further
uncertainty    as   to   the   status   of    the     new   commission
government.   This is clearly an inadequate remedy.
    Appellants next contend that petitioners have a plain,
speedy and adequate remedy in the injunction procedures set
forth in section 27-19-101, et seq., MCA.          Even if injunction
would lie in this case, which we do not decide, it would not
preclude a writ of prohibition.                State ex rel. Department of
Health v.       Lincoln County        (1978), 178 Mont. 410, 584 P.2d
1293.     In Department - Health, we found that there was no
                        of
plain, speedy and adequate remedy in the ordinary course of
law and that prohibition w3.s a proper remedy, even though we
also found that injunction was available as an alternative
remedy.    178 Mont. at 416-17, 584 P.2d at 1296-97.
       Appellants        finally    contend       that declara.tory judgment
under section 27-8-101, et seq., MCA, is a plain, speedy and
adequate        remedy     available      to       petitioners.          However,
declaratory judgment is inadequate because it merely declares
rights     or     duties,     but     does     not      compel    nor    restrain
performance.        State ex rel. Konen v. City of Butte (1964),
144 Mont. 95, 102, 394 P.2d 753, 757.                    Declaratory judgment
would not prohibit the holding of an election, but would
merely determine whether the election was properly called.
Declaratory judgment is therefore an inadequate remedy in
this case.
       We hold that the District Court properly concluded that
petitioners had no plain, speedy and adequate remedy in the
ordinary course of law and the court properly issued the writ
of prohibition.
       Appellants suggest that the writ of prohibition should
be vacated because it is inappropriate to grant petitioners
attorney     fees    against       the   county      government.        However,
attorney     fees    are     allowable       as    an   item     of   damages    in
prohibition       cases     if     pleaded.         Sections     27-27-104      and
27-26-402 (1), MCA; Kadillak v. The Anaconda Company (1979),
184 Mont. 127, 144, 602 P.2d 147, 157; State ex rel. Taylor
v. District Court (1957), 131 Mont. 397, 403, 310 P.2d 779,
782.     Further, an award of attorney fees is allowable in a
prohibition action against a local governmental body, so long
as government officers appear and defend the proceedii~g in
good faith.   Section 27-26-403, MCA; State ex rel. Morales v.
City Commission (1977), 174 Mont. 237, 342, 570 P.2d      887,
890; State ex rel. Willumsen v. City of Butte (1959), 135
Mont. 350, 355-56, 340 P.2d 535, 538.   The District Court did
not err in awarding attorney fees to petitioners to be set by
the District Court in a reasonable amount.
     The judgment is affirmed.




We concur:
