          IN THE SUPREME COURT OF THE STATE OF MONTANA




THE STATE OF MONTANA ex rel.
THE DISTRICT COURT OF THE
EIGHTH JUDICIAL DISTR.ICTOF
THE STATE OF MONTANA, IN AND
FOR THE COUNTY OF CASCADE, THE
HONOFABLE JOHN M. McCARVEL, CHIEF
JUDGE, and THOMAS M. McKITTRICK and
JOEL G. ROTH, District Judges,
           Petitioners,
           vs.
JACK F. WHITAKER, RICHARD G.
GASVODA and PATRICK L. RYAN,
individually and as the duly
elected, qualified and acting
Board of County Commissioners of
Cascade County, Montana, a political
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subdivision and body politic of the                                      ,,P/J
State of Montana.                                         \$k,f!j        E j ~ 4 - k .




           Respondents.


                   ORDER AND DECLARATORY JUDGMENT


     Petitioners., the district judges duly sitting in the
Eighth    Judicial    District,   seek   a    writ   of        mandate                   or
alternative      order   to   require    the     Board              of   County
Commissioners of Cascade County, Montana., to authorize the
issuance of county warrants to pay for claims for expenses
incurred in the operation of the d.istrict court in Cascade
County.
     The Board has notified the petitioners that the 1983-84
fiscal year county budget for district court operations has
been exceeded, and that the Board will not authorize county
warrants to be issued out of budget.         The Boa"rd relies on the
provisions    of   section 7-6-2323, MCA, that liabilities in
excess     of    the    detailed     budget   appropriations are          not    a
liabil-ity of          the   County, but would        become      the   personal
liabilities of the members of the Board if they authorized
the issuance of such warrants.
      Petitioners contend that the operation of the district
court is mandated by constitutional and statutory 1-awl and
that unless provision is made by the Commissioners to pay
reasonable       and     necessary       expenses   of    operation     of   the
district court in the county, trials must be                        postponed,
jurors and witnesses cannot be paid, and court salaries for
judges     and       personnel   will     not be    honored.       Petitioners
contend that the interruption of the ordinary business of the
court creates an emergency, for which the Board has failed to
make suitable provision under the Board's statutory emergency
powers.
      Upon receipt of the petition, we required a written
response from the Board, and set hearing on the petition on
Monday, June 4, 1-984.            Upon such hearing, and having been
duly advised, the Court finds and concludes:
      1.   The budget overrun for fiscal 1983-84 has stopped or
threatened to stop the efficient and orderly administration
of justice and court business in Cascade County, and because
thereof an emergency exists in said county.
      2.    The District Court of the Eighth Judicial District
of the State of Montana in and for Cascade County is a court
of   competent jurisdiction              for the purposes of        this case
within the meaning of section 7-6-2323 (2)(a), PICA.
      3.        As    such   court   of    competent      jurisdiction, said
district        court    may     issue     orders   for     the    payment      of
out-of-budget reasonable and necessary court expenditures.
     4.   Compliance by the members of the Board acting as a
Board, or of any other county officer whose official action
is necessary, with any order of said district court requiring
payment of its reasonable and necessary court expenditures is
wit-hin the exception to personal liability of such officers
provided in section 7-6-2323(2) (a), MCA.
     5.    Nothing   herein   provided   shall be   construed   to
deprive the Board, its members, or any other county officer
from exercising their official duties in passing upon the
propriety of such claims, except that such claims may not be
denied on the basis that they are out of budget when the
district court has duly ordered the payment of the same.
     6.   This order, without more, shall be and constitute a
declaratory judgment defining the power of the district court
to provide for its continued operation for the efficient
administration of iustice in cases of budgeta.ry emergency.
     7.   Each party shall hear its or his own costs.
     DATED this   l a y of June, 1984.

                                            ChieF Justice
Mr.   J u s t i c e Daniel J. Shea, d i s s e n t i n g :



       I   a g r e e w i t h t h e C o u r t t h a t mandamus         i.s   not a proper

remedy,     and t h a t , i f a n y t h i n g ,   t h e c a s e should be handled a s

a p e t i t i o n f o r a d e c l a r a t o r y judgment.       However, I a d h e r e t o

my    original      position       that      we    shoul-d n o t      decide     the     case

unless     and     until     the    County        Commissj.oners       have      failed     to

comply      with     an     order      of      the    District        Court      that     the

Commission       make      the     necessary         expenditures           to   fund     the

operations of         the court.            The D i s t r i c t C o u r t h a s f a i l e d t o

make s u c h a n o r d e r ,    a n d , a b s e n t t h a t o r d e r and a r e f u s a l t o

comply, I would n o t g r a n t a n y r e l i e f .
