                               No. 83-83
               IN   THE SUPREME COURT OF THE STATE OF MONTANA

                                     1983



BURTON HUTCHINSON,
                Plaintiff and Respondent,


DUANE MORAN, HAROLD R. DeP4ERS and
JEFFERSON COUNTY,
                Defendants and Appellants.




APPEAL FROM:    District Court of the Second Judicial District,
                In and for the County of Silver Bow,
                The Ilonorable Mark P. Sullivan, Judge presiding,


COUNSEL OF ,WCORD:
         For Appellant:
                Richard E. Gillespie; Keller, Reynolds, Drake,
                Sternhagen & Johnson, Helena, Montana


         For Respondent :
                James P. Harrington, Butte, Montana



                                Submitted on Briefs:   October 7, 1983

                                             Decided: December 29, 1983


Filed:    3%&: 3 \983
             2



                                Clerk
Mr. Justice John. C.      Sheehy delivered the Opinion of the
Court.

      This case comes on appeal from an order of the District
Court, Second Judicial District, Silver Bow County, denying
defendant's motion for a change of venue.        We affirm.
      Sometime during     1981, Si lver Row County erroneously
reissued the registration number of plaintiff's vehicle, a
1973 Torino, to an automobile belonging to one Paul Miller.
Miller's car, a Toyota, was subsequently stolen and Miller
reported that fact to the Butte-Silver Bow County Sheriff.
The   vehicle was     later   recovered, but     Silver Bow County
officials failed to reflect that fact on their records.
      Later, on May      31, 1981, codefendant Duane Moran, a
Jefferson County deputy          sheriff, was patrolling the main
street     in   Basin, Jefferson County, Montana.         Moran    saw
plaintiff's parked vehicle with the same 1-icense number as
that registered to Miller's Toyota.         Moran requested status
information from the Jefferson County Sheriff's Office which
later confirmed, after inquiry to Silver Bow County, that the
license number matched the car registration number reported
stolen.     Plaintiff was arrested because he could not produce
his   vehicle     registration    certificate.    Later   that    day,
plaintiff was released when the Jefferson County authorities
discovered the error.
      Plaintiff brought suit against Silver Bow County and
Jefferson County and their agents in Silver Row District
Court seeking damages for several constitutional vi olations,
negl-igence, false arrest, false imprisonment and invasion of
privacy.
      On August 31r 1982, defendant Jefferson County moved for
a change of venue to Jefferson County as to all the claims
against it and its agents.              The District Court denied the
motion and this appeal followed.
       This Court has decided venue in earlier cases in which
counties have been            named as defendants.       In Good   Roads
Machinery     Co.   v.    Broadwater County     (1933), 94 Mont.       68,
70-71, 20 P.2d 834, 835, we held that the "may" provision in
section      9095, R.C.M.        1921   (now section    25-2-106, MCA),
constituted a statutory grant of permission to sue a county,
and that a plaint-iff was limited to bringing the suit in the
defendant county.            In State ex rel. Montana Deaconess Hosp.
v. Park County (1963), 1.42 EIont. 26, 381 P.2d 297, we found
an exception to the rule where two counties were necessary
parties to the action and the suit had been brought in the
District Court of one of the counti-es.                In State ex rel.
Kesterson v. District Court (Mont. l980), 614 P.2d 1050, 37
St.Rep. 1278, we held where the complaint did not show that
each of the two counties sued was a necessary party to the
action, the counties should he sued where they are located.
       The holdings in those cases must he re-examined in the
light of Art. 11,        §   18, 1972 Mont. Const., which makes state
and political subdivisions subject to suit for injury to
person or property except as may be specifically provided by
two-thirds vote of each house of the legislature, and the
further provisions for venue of county defendants contained
in section 2-9-312, MCA, first adopted in 1973.               Good Roads
Machinery Co., above, was decided before the adoption of the
constitutional provision here referred to and so its holding
that   the    venue      statute, section    25-2-106, MCA     (formerly
section      93-2903,     R.C.M.         ,
                                    1-947)   consti-tuted a    grant   of
permission to sue a county no longer holds.             The right to sue
  county now exists by virtue of constitutional authority,
supplemented by legislati~re action.                 The venue of actions
against counties is now governed by the provisions of section
2-9-312 (2), I ' C , as fo3 lows:
              lIA
     " (2) Actions against a political subdivision shall
     he brought in the county i n which the cause of
     action arose or in any county where the political
     subdivision is located."
     In section 2-9-101(l) (e), MCA, a county is included in
the definition of a "political subdivision."
     Section 2-9-102, MCA, makes every governmental entity
subject to liability for its torts and those of its employees
except as specifically provided otherwise by the legislature
under Art. 11,   §   18, 1972 Mont. Const.

     Jurisdiction      of        actions    brought      against   a    state
governmental entity         is    given    to    the d-istrict courts      in
section 2-9-311, MCA, and in that section it is also provided
that such actions shall be governed by the Montana Rules of
Civil Procedure insofar as they are consistent with                      the
statutes relating to suits against political subdivisions.
     Since by statute the Montana Rules of Civil Procedure
apply, we find in Rule 19(a), that a "person [which includes
in this case a county1 who is subject to service of process
shall be joined as a pa.rty in the action if                     (1) in his
absence   complete     relief      cannot       be   accorded   among   those
a1rea.d~parties      . . ."       However, Rule 19 (a), also provides
that " [i]f the joined party objects to venue and his joinder
would render the venue of the action improper, he shall be
dismissed from the action."
     It thus a.ppea.rsthat if we applied the provisions of the
venue section, section 2-9-312 (2), supra, and Rule 19 (a3 ,
strictly, our holding should. be that where two counties are
sued in one action, and both are necessa-ry parties to the
action, nevertheless, one of t.hem must be dismissed from the
action if it raises an objection as to venue.                   That is what
has occurred here.         Such a result, however, would appear to
us to be obnoxious and not within. the contemplation of the
framers of     either      the    statutes permitting          suits against
governmental     subdivisions or        the Montana         Rules    of Civil
Procedure.
     In this case, for example, if Jefferson County were to
be   dismissed      from    the     Silver    Row     County    action,   the
provisions of Rule 19 (b), Montana Rules of Civil Procedure
could very well come into play.               Under Rule 19(b), if the
court determined that in equity and good conscience the
action should not proceed with the remai-ning county before
it, that action would be dismissed because the absent county
would be regarded a.s indispensable.                On the other hand, if
the plaintiff commenced an action against and in Jefferson
County   and     named     Silver    Bow     County    as      an   additional
defendant, the same resu1.t would eventually obtain.                 Thus the
plaintiff i s placed in an impossible situa.tion where there
are two indispensable parties either of which mav object to
venue and on strict a.pplication of the rules and statutes,
each would     be   entitled      to either a change of venue or
dismissal.
     In this situation, we advert to and adopt the reasoning
of this Court in State ex rel. Monta.na Deaconess Hosp. v.
Park County    (1963),     1.42   Mont. 26, 28, 381 P.2d            297, 298,
wherein we said:
     "In the Good Roads Machinery Co. case, this Court
     held that the provisions of this statute should he
     strictly construed and that if an action against a
     county brought in a county other than the one sued,
     the District Court would be without jurisdiction to
     try it. This interpretation is correct where only
     a single county is involved, but here we have a
       s i t u a t i o n where two c o u n t i e s a r e n e c e s s a r y p a r t i e s
       defendant.          I n our opinion, reason d i c t a t e s t h a t i n
       such a s i t u a t i o n e i t h e r c o u n t y would be a p r o p e r
       c o u n t y i n which t o commence and p r o s e c u t e t h e
       a c t i o n and t h a t r e l a t o r may choose e i t h e r o f s a i d
       c o u n t i e s i n which t o f i l e i t s a c t i o n and such
       c o u n t y w i l l t h e n become t h e p r o p e r c o u n t y f o r t h e
       t r i a l thereof a g a i n s t both defendant counties."

       Because b o t h c o u n t i e s i n t h i s c a s e a r e n e c e s s a r y p a r t i e s

t o the action,          and b e c a u s e    S i l v e r BOW County i s a p r o p e r

venue f o r a t l e a s t one o f t h e d e f e n d a n t c o u n t i e s , we a f f i r m

t h e ord.er o f t h e D i s t r i c t Court i n r e f u s i n g t o g r a n t change

of venue a s t o J e f f e r s o n County and

                                                                 Justice             (1
                                                   i


W e Concur:




             Justices
Mr. Justice L.C. Gulbrandson dissenting.

       I respectfully dissent.
       The plaintiff's allegations against Silver Bow County
state a claim based upon negligence while the allegations
against   Jefferson      County   charge       false    arrest,   false
imprisonment, assault and battery and several constitutional
violations.
       This Court in State ex          rel.    Kesterson v.   District
Court (Mont. 1980), 614 P.2d 1050, lQ52, 37 St.Rep.               1278,
1280, stated:
               "In Deaconess Hospital, two counties
               disclaimed liability for one hospital
               payment for a welfare patient.    Because
               it was necessary to determine which of
               the counties was the residence of the
               patient, and thus liable, both counties
               had to be joined as party defendants.
               This Court found that either county would
               be a proper one in which to prosecute the
               action.   Deaconess Hospital, supra, 142
               Mont. at 27-28, 381 P.2d at 298.
               "In this case, the complaint does not
               allege that either Missoula County or
               Lake County was the exclusive cause of
               one injury.      Rather, the pleadings
               indicate that the plaintiffs could have
               been damaged by the actions of either or
               both counties acting separately. In such
               a situation both counties are not
               necessary parties to one action, and the
               counties should be sued where they are
               located." (emphasis supplied)
       Here, it appears that each county, for its separate
acts   under    the   pleading, could     be    found   liable to   the
plaintiff.
       I would     reverse and order      that the action against
Jefferson County and its officials be tried in Jefferson
County.



                                   I

                                  Justice
