                                 No. 86-114
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1986




IN THE MATTER OF LAKE COUNTY'S
OBLIGATION FOR OPERATING COSTS OF
THE FOURTH JUDICIAL DISTRICT,
MISSOULA, COUNTY,
                  Plaintiff and Respondent,


MICHAEL HUTCHIN, HAROLD FITZNER,
and DON PETERSON, in their official
capacities as Lake County Commissioners,
and LAKE COUNTY, a political subdivision
of the State of Montana,
                  Defendants and Appellants.




APPEAL FROM:      District Court of the Fourth Judicial District,
                  In and for the County of Missoula,
                  The Honorable James B. Wheelis, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                  John Frederick, County Attorney, Polson, Montana

         For Respondent:
                  Robert L. Deschamps, 111, County Attorney, Missoula,
                  Montana




                                    Submitted on Briefs: May 30, 1986
                                      Decided: August 25, 1986


         AUG 2 t. 1986
Filed:
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

     The Lake County Commissioners and Lake County appeal an
order from the Missoula County District Court denying their
motion for a change of venue.       We reverse and remand with an
instruction to the District Court to change the place of
trial to the First Judicial District, Lewis and Clark County.
     On August 9, 1985, the Missoula County District Court
issued an order commanding the Lake County Commissioners
within thirty days to pay Missoula County for court expenses
Lake County had incurred in Missoula County or to appear and
show cause why the payment had not been made.
     Lake     County    responded   on    September    12,   1985,    by
petitioning this Court for a writ of supervisory control or
other     appropriate   order   halting    any   further     action   in
Missoula County District Court until Missoula County "files a
proper pleading in a correct court and commences lawful
process."    This Court denied the writ as inappropriate at the
time .
     Missoula County's motion to intervene as plaintiff was
granted by the District Court on September 20, 1985, after
Lake County failed to appear at the hearing scheduled on the
motion.     The complaint attached to that motion alleges two
claims for relief.         The first claim requests a writ of
mandamus ordering the Lake County Commissioners to reimburse
Missoula County for certain court expenses.           The second claim
requests damages against Lake County and the Commissioners
for breach of an implied contract.
        Lake     County      and      the     Commissioners            then     moved        for    a

change o f venue which t h e D i s t r i c t C o u r t d e n i e d on December

11, 1985.         They a p p e a l from t h e d e n i a l o f t h e i r motion f o r a

change o f venue.

        Lake      County        first        argues       that    B 25-2-126 ( 2 ) ,          MCA,

e x c l u d e s Missoula County a s a p r o p e r p l a c e f o r t r i a l .                 That

section states:


        The p r o p e r p l a c e o f t r i a l f o r a n a c t i o n a g a i n s t a
        county i s t h a t county u n l e s s such a c t i o n i s brought
        by a c o u n t y , i n which c a s e any c o u n t y n o t a p a r t y
        t h e r e t o i s a l s o a proper place of t r i a l .

T h i s language e x c l u d e s a c o u n t y which i s a p l a i n t i f f i n t h e

a c t i o n from b e i n g a p r o p e r p l a c e f o r t r i a l .          Here, M i s s o u l a

County       intervened          as     a     plaintiff          in    the       action       and,

t h e r e f o r e , i s not a proper place f o r t r i a l .

        Missoula County a r g u e s t h a t under B 25-2-125,                       MCA,     it i s

a    proper     place      of    trial       for    the    claims       against        the    Lake

County Commissioners and t h e r e f o r e Lake County c a n n o t change

venue.         Section       25-2-125,         MCA,     states        that     " [ t ]h e   proper

place of t r i a l f o r an a c t i o n a g a i n s t a p u b l i c o f f i c e r            . . .
i s t h e county where t h e c a u s e o r some p a r t t h e r e o f a r o s e . "
I n McGrath v. Dore ( 1 9 7 8 ) , 177 Mont. 178, 180, 580 P.2d 1385,

1386,     t h i s Court h e l d       that        a mandamus a c t i o n b a s e d           on an

o f f i c i a l ' s f a i l u r e t o pay wages a l l e g e d l y due a r i s e s i n t h e

c o u n t y "where t h e p u b l i c o f f i c i a l , whose a c t t h e p e t i t i o n e r

s e e k s t o compel, r e s i d e s .    "     C i t i n g G u t h r i e v . Mont. Dept. of

H.    and E.    S c i e n c e s ( 1 9 7 7 ) , 172 Mont.      1 4 2 , 148, 561 P.2d 913,

916, t h i s Court f u r t h e r n o t e d t h e p u b l i c o f f i c i a l ' s r e s i d e n c e

"is    at    that     place     where        he    officially         refuses       to      act    or

neglects t o act."              McGrath, 580 P.2d            a t 1386.           Although t h e
statute has been amended, along with the other statutes on
venue, since interpreted in McGrath, the revisions have not
changed its meaning.        Here, the Lake County Commissioners
reside in, and refused or neglected to act in, Lake County.
Section 25-2-125, MCA, supports Lake County, rather than
Missoula County, as the proper place for trial.
     Ford v. Mont. Dept. of Fish, Wildlife (Mont. 1984), 676
P.2d 207, 209, 41 St.Rep. 220, 222, stated that the general
rule enunciated in McGrath and other cases was not absolute
and "should not be used to circumvent the goal of providing a
forum which is practical and convenient for the plaintiff .I
                                                          '
This Court's intent in Ford was to allow the private citizen
a forum which was not so expensive and remote as to render
access impractical.   Missoula County is not a private citizen
and Lake County is neither so remote nor expensive as to be
an   impractical   forum.      Contrary     to   Missoula   County's
contention, Ford does not require that venue remain with that
county.
     Missoula   County's    reliance   on   5    25-2-121, MCA,   as
establishing that county as a proper place of trial is
misplaced.   That statute covers the venue rule for actions on
a contract and states that the proper place of trial is
either the defendant's residence or the county where the
contract was to be performed.      Where no place of performance
is specified, the proper place of trial is the county in
which the principal activity was to take place, considering
the parties' obligations and what is necessarily implied from
the contract terms.         Subsection 2 establishes venue        for
specific types of contracts.        In this case the action is
based on an implied contract, for which the terms and the
obligations of the parties are not established.              There are no
facts     from   which   to    determine     the    principal      place    of
performance of the alleged contract.              Section 25-2-121, MCA,
offers no assistance in determining the proper place of
trial.
        Section 25-2-201, MCA, requires the court, on motion, to
change the place of trial;

        (1) when the county designated in the complaint is
        not the proper county;
        (2) when there is reason to believe                  that    an
        impartial trial cannot be had therein;
        ( 3 ) when the convenience of witnesses and the ends
        of justice would be promoted by the change.
As   explained     above, there        are   no    grounds   for    allowing
Missoula County, designated in the complaint, to be the place
of trial.        The question now is where the trial should be
held.
     Although Lake County and its Commissioners argue that
Lake County is a proper place of trial, there are grounds for
a reasonable person to believe that an impartial trial cannot
be had there any more than in Missoula County.               The Missoula
County    District    Court    initiated     the    action   against       its
neighbor, Lake County.          The mandamus and contract actions
brought     by   Missoula     County    allege     that   district    court
expenses were paid by Missoula County for transcripts and
judicial decisions in cases filed in Lake County.                    At the
times these expenses are claimed to have occurred, Lake
County and Missoula County were part of the same judicial
district.    Considering the nature of this controversy and the
parties involved, neither county is a proper place of trial.
     Therefore, to permit both parties an impartial trial,
the District Court's order is reversed and that court is
directed to enter an order changing the place of trial to the
First Judicial District, Lewis and Clark County.




We concur:       /




Justices
Mr. Justice Frank B. Morrison, Jr., dissenting:
        I dissent.
        This dissent first addresses the question of whether the
Lake County Commissioners can properly be sued in Missoula
County.        If they can then cS 25-2-117, MCA, (1985) provides
for the joinder of Lake County in such an action.
        This     is   a     mandamus     action     against    the      county
commissioners.        Such an action cannot be brought against the
county.        Therefore, the applicable statute is S               25-2-125,
MCA, (1985), which provides:

      The proper place of trial for an action against a
      public officer.        . .
                           is the county where the cause
      or some part thereof arose.
        Parts of this cause of action arose in both counties.
The failure to pay arose in Lake County.                 On the other hand
the     services      rendered     by    Missoula    County,     for    which
compensation is sought, were all rendered in Missoula County.
The District Court could properly have found venue in either
county.    The statute specifically provides that any county is
the proper place of trial where a part of the cause of action
arose.     Under such language the trial judge, Honorable James
B. Wheelis, was entitled to place the venue in either county
and chose Missoula County.
      We have here a "King Solomon" decision.                  The statutes
are ignored.          The majority apparently feels that justice
demands        that   neither    Missoula    County      nor   Lake    County
entertain this action and that the citizens of Lewis and
Clark     County      are   better      equipped    to   dispense      justice
impartially.
      Venue is provided for by the statutes.                   The statutes
clearly provide that venue for an action involving public
officials is in any county where part of the cause of action
arose.      Judge     Wheelis,    in   conformity     with    applicable
statutes,   set     venue   in   Missoula   County.      No    abuse   of
discretion has been shown.         The trial) court's ruling should
he affirmed.
