No. 13590
I N THE SUPREME COURT O THE STATE OF M N A A
F OTN
1977
BILLINGS ASSOCIATED PLUMBING e t a l . ,
P l a i n t i f f s and Respondents,
DAVID M. EMERSON e t a l . , BOARD OF
PLUMBERS, STATE O MONTANA,
F
D e f e n d a n t s and A p p e l l a n t s .
Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
H o n o r a b l e C. B. Sande, J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellants:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Dennis Moreen a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l ,
H e l e n a , Montana
For Respondents:
C a l t o n a n d S t e p h e n s , B i l l i n g s , Montana
C a l v i n A. C a l t o n a r g u e d , B i l l i n g s , Montana
Submitted: March 2 1 , 1977
Decided : -&Y 2
Filed:
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the
Court.
This appeal stems from an action filed in Yellowstone
County by respondents, pursuant to the Uniform Declaratory
Judgment Act, section 93-8901, et seq., R.C.M. 1947, question-
ing the constitutionality of section 66-2427, R.C.M. 1947, as
applied to them. Respondents are master plumbers, licensed
by appellant, Board of Plumbers, and engaged in contracting
for plumbing services within the jurisdictional limits of the
City of Billings, Montana. Section 66-2427 requires a permit,
accompanied by a fee, for the installation, removal, alteration
or repair of plumbing and drainage systems in a building or
structure, with certain exceptions.
Respondents alleged in their complaint that a permit
and permit fee is also required by the City of Billings Municipal
Building Code which was adopted in accordance with section 69-2112,
R.C.M. 1947, and is as strict or stricter than the Montana Plumb-
ing Code. It is further alleged that respondents must pay two
fees, but receive only one inspection which is performed by the
city inspector. Therefore, respondents conclude that the permit
fee required by section 66-2427 is an invalid exercise of police
power, and as such violates the due process and equal protection
clauses of the Montana Constitution and the Constitution of the
United States.
Appellant then filed a consolidated motion to dismiss
and a motion for change of venue to Lewis and Clark County which
was denied. The denial of the motion for change of venue was
then appealed, and is the only matter presented for our consid-
eration.
Since the Uniform Declaratory Judgment Act does not fix
venue of a declaratory judgment action, the general venue statutes
apply. The two statutes specifically applicable to the situation
at hand are sectiors93-2902(2), R.C.M. 1947, and 93-2906(1),
R.C.M. 1947. Section 93-2902(2) provides:
"Actions for the following causes must be tried
in the county where the cause, or some part thereof,
arose, subject to the like power of the court to
change the place of trial:
"2. Against a public officer, or person specially
appointed to execute his duties, for an act done
by him in virtue of his office; or a,gainst a person
who, by his command or in his aid, does anything
touching the duties of such officer."
Section 93-2906 (1) provides:
"The court.or judge must, on motion, change the
place of trial in the following cases:
"1. When the county designated in the complaint
is not the proper county."
These statutes were recently discussed at length in
Guthrie v. Montana Dept. of Health and Environmental Sciences,
Mont .
-
1 -P.2d , 34 St.Rep. 155, 160, (1977).
Guthrie also involved a state agency and private litigants,
however there the private parties sought an injunction. As
stated in Guthrie, in deciding which is the proper county under
section 93-2902(2), the determinative factors are the nature
of the cause of action and where it arose.
Appellant argues that this cause of action arose in
Lewis and Clark County, the official residence of appellant.
Relying on Gildroy v. Anderson, 159 Mont. 325, 497 P.2d 688,
and Lunt v. Div. of Workmen's Compensation, 167 Mont. 251, 253,
537 P.2d 1080, appellant contends that its official action and
conduct which transpired in Lewis and Clark County gave rise to
the present action.
Respondents, on the other hand, assert that it is the
implementation of the administrative regulations and the actual
effect in Yellowstone County of the operation of section 66-2427
which is at issue here. Respondents rely upon Montana-Dakota U.
Co. v. Public Ser. Comm., 111 Mont. 78, 107 P.2d 533, and submit
that the Montana-Dakota U. Co. case was not overruled by the
decision in Lunt with respect to the factual situation at hand.
We agree.
In Lunt it states:
" * * * Any portions of Montana-Dakota Utilities
Co. v. Public Service Commission, 111 Mont. 78,
107 P.2d 533, inconsistent with this opinion are
hereby expressly overruled."
The effect of this statement was discussed in Guthrie, at 160:
"Both cases were properly decided, the difference
in result is based on the fundamental difference
between the nature of the causes of action involved."
Such is the case here. Respondents' complaint does not
challenge the statewide application of section 66-2427, R.C.M.
1947. What is questioned is its application to those master
plumbers engaged in contracting for plumbing services within the
jurisdictional limits of the City of Billings. As stated in
Guthrie, venue provisions relating to actions against state
agencies should be liberally construed in favor of private liti-
gants. This especially applies when the operation or effect of
state agency action is at issue, as in this case, as compared to
those causes of action questioning the official conduct itself.
For these reasons, the district court's denial of the
motion for change of venue to Lewis rk County is affirmed.
Chief Justice 1
We concur:
Justices [
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