                                       No. 12443

          I N THE SUPREME COURT O THE STATE O M N A A
                                 F           F OTN

                                           1973

                                                               --




JOSEPH WHEELER, J R . ,

                               P l a i n t i f f and A p p e l l a n t ,



JOHN MOE e t a l . ,

                               Defendants and Respondents.



Appeal from:         D i s t r i c t Court of t h e F o u r t h J u d i c i a l D i s t r i c t ,
                     Honorable J a c k L. Green, Judge p r e s i d i n g .

Counsel o f Record:

     For A p p e l l a n t :

            Marvin Ping a r g u e d , Missoula , Montana

    F o r Respondents:

            G a r l i n g t o n , Lohn and Robinson, Missoula, Montana
            Gregory L . Hanson a r g u e d , Missoula, Montana



                                                      Submitted:           September 1 3 , 1973

                                                          Decided :            -
                                                                             8 1913
Filed :
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 dis-
miss, 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 opposi-
tion 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 dis-
qualifying 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 plain-
        tiff. 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 pro-
cedures 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 Dis-
trict 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 affi-
        davit 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
        or trial of any such action, motion, or proceed-
        ing (provided such party'shall have had notice
        of the hearing of such action, motion, or proceed-
        ing 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 im-
        mediately 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 an-
        other 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
prior 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 no-
tice of the hearing date scheduled on defendants' motion.   Pur-
suant 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 stat-
ute.   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.

             A f t e r t h e a f f i d a v i t was f i l e d , Judge Green was w i t h o u t
j u r i s d i c t i o n t o a c t f u r t h e r i n t h e matter except i n those

limited instances outlined i n the statute.                                The r e c o r d d o e s n o t

d i s c l o s e t h a t a n o t h e r judge, i n c l u d i n g Judge Brownlee, was

c a l l e d i n as p r o v i d e d f o r i n t h e s t a t u t e .       No n o t i c e was g i v e n

t o t h e p a r t i e s o r t h e i r a t t o r n e y s t h a t a n o t h e r judge had been

c a l l e d i n o r t h a t t h e a c t i o n had been t r a n s f e r r e d t o a n o t h e r

judge.       Judge Green was w i t h o u t a u t h o r i t y t o a c t , and Judge

Brownlee, p r e s i d i n g i n Judge G r e e n ' s s t e a d and n o t having been

c a l l e d t o assume j u r i s d i c t i o n , was a l s o w i t h o u t a u t h o r i t y t o a c t

i n t h e matter.

             Despite t h i s holding w e f e e l it necessary t o a d d r e s s our-
selves t o p l a i n t i f f ' s t h i r d i s s u e f o r t h e reason t h a t t h e d i s t r i c t

judge, w h i l e w i t h o u t j u r i s d i c t i o n t o do s o , a c h i e v e d t h e o n l y pos-
sible result.            The c o m p l a i n t s h o u l d p r o p e r l y be d i s m i s s e d w i t h

prejudice.

             Rule 1 2 ( b ) (6), M.R.Civ.P.               provides:

             "Every d e f e n s e , i n law o r f a c t , t o a c l a i m f o r
             r e l i e f i n any p l e a d i n g , whether a c l a i m , c o u n t e r -
             c l a i m , c r o s s c l a i m , o r t h i r d - p a r t y c l a i m , s h a l l be
             a s s e r t e d i n t h e responsive pleading t h e r e t o i f
             o n e i s r e q u i r e d , e x c e p t t h a t t h e f o l l o w i n g de-
             f e n s e s may a t t h e o p t i o n of t h e p l e a d e r be made
             by motior,. * * * ( 6 ) f a i l u r e t o s t a t e a c l a i m upon
             which r e l i e f c a n be g r a n t e d * * * A motion making
             any of t h e s e d e f e n s e s s h a l l be made b e f o r e p l e a d -
             i n g i f a f u r t h e r pleading i s permitted."

             I n h i s c o m p l a i n t p l a i n t i f f a l l e g e d t h a t h e was a member

and r e s i d e n t of t h e C o n f e d e r a t e S a l i s h and Kootenai T r i b e s of
t h e F l a t h e a d I n d i a n R e s e r v a t i o n , Montana, and t h a t p u r s u a n t t o
a    l i c e n s e g r a n t e d by t h e T r i b e s , he was o p e r a t i n g a r e t a i l s t o r e
on l a n d s of t h e T r i b e h e l d i n t r u s t by t h e U n i t e d S t a t e s under a
lease t h e r e o f approved by t h e Bureau of I n d i a n A f f a i r s .

             The c o m p l a i n t a l l e g e d t h r e e c l a i m s f o r r e l i e f .      The sub-

s t a n c e of p l a i n t i f f ' s c o m p l a i n t , i n c l u d i n g a l l t h r e e c l a i m s , c a n
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.    Plain-
tiff then alleged that these acts by defendants were malicious,
wrongful, unlawful, oppressive, arrogant and without legal auth-
ority of any kind.    It is further alleged that as a direct con-
sequence and result of defendants' acts that plaintiff was de-
prived 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 defend-
ants 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, de-
fendants 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 of-
ficers 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 *support-
ing 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 com-
plaint 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 com-
          plaint we follow, of course, the accepted
          rule that a complaint should not be dis-
          missed 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 alle-
        gations 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 de-
       fense must clearly appear on the face of the
       pleading * * * In a situation involving an affirm-
       ative defense, the claim is adequately stated,
       but in addition to the claim the complaint in-
       cludes 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) . I 1
        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 con-
tains 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 res-
pect 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 de-
fendants 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 re-
quirements.
             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 juris-
diction 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 noth-
ing more than that defendants acted within their duties and auth-
ority and pursuant to the law.   For this reason, the complaint
fails to state a claim upon which relief can be granted.   In ad-
dition, defendants are immune from civil liability for their of-
ficial 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.
        I T I S S O ORDERED




                              I     Chief Justice
