No. 14531
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
STATE OF MONTANA, MONTANA CONSUMER COUNSEL,
Petitioner and Respondent,
-vs-
MONTANA DEPARTMENT OF PUBLIC SERVICE
REGULATION et al.,
Respondents and Respondents,
and
CITY OF BILLINGS,
Respondent and Appellant.
Appeal from: District Court of the First Judicial District,
Honorable Peter G. Meloy, Judge presiding.
Counsel of Record:
For Appellant:
Calvin A. Calton, Billings, Montana
For Respondents:
Geoffrey Brazier, Helena, Montana
James Paine, Helena, Montana
Thomas N. Kelley, Billings, Montana
David McCullough, Billings, Montana
Submitted on briefs: January 29, 1979
Decided : c-. :' - 6 1n
9
Filed: .-
'
-. i
- s
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
This appeal is from an order of the District Court, First
Judicial District, Lewis and Clark County, denying a motion
to change the place of trial to the District Court of the
Thirteenth Judicial District, Yellowstone County.
This cause is decided on briefs without oral argument.
Appellant, City of Billings, Montana (Billings) operates
a water department providing water services to customers, all
residing in Yellowstone County, Montana, but principally
within the city limits of Billings.
On October 17, 1977, Billings petitioned the Montana
Department of Public Service Regulation and Montana Public
Service Commission (PSC), for authority to increase the
rates charged by Billings to its customers. On July 17,
1978, PSC entered an order authorizing Billings to increase
its rates by the amount of $1,636,000 per year. Billings,
dissatisfied with the PSC water rate order, filed an action
for review in the District Court in Yellowstone County.
The Montana Consumer Counsel had also participated in
the proceedings before the PSC on the water rate application
by Billings. The Consumer Counsel, also dissatisfied with
the PSC order of July 17, 1978, filed for judicial review of
the same water rate order in the District Court of Lewis and
Clark County.
Billings was named, properly, as a respondent in the
Lewis and Clark County District Court action brought by
the Consumer Counsel. On August 25, 1978, Billings filed
its motion in the Lewis and Clark County District Court
action for a change of venue from that county to the
District Court of Yellowstone County. After objections were
filed by the Consumer Counsel, the Lewis and Clark County
District Court denied the motion on September 7, 1978.
Billings moved for a reconsideration of that denial
which was not granted. Appeal to this Court by Billings
followed.
The action in Yellowstone County District Court brought
by Billings is still pending.
The Montana Consumer Counsel is an "office" under 1972
Mont. Const., Art. XIII, S2. It has the constitutional duty
to represent consumers in hearings before the Public Service
Commission among others. Under ststutes implementing the
Constitutional provision, the Consumer Counsel "may institute,
intervene in, or otherwise participate in appropriate
proceedings in the state and federal courts . . . in the
name of and on behalf of the utility and transportation
consuming public of the State of Montana or substantial
elements thereof including review of decisions rendered by
[the PSC]." Section 70-707(5), R.C.M. 1947, now section 69-
2-202 (2) MCA.
Under this statutory grant of power, the Consumer
Counsel represented before the PSC the water consumers in
Yellowstone County affected by the Billings application for
water rate increase, and still represents their interest.
Any party in interest dissatisfied with an order of
the PSC fixing utility rates may bring an action to set
aside those rates. Section 70-128, R.C.M. 1947, now
section 69-3-402(1) MCA. The place of trial is not
specifically fixed in that section, except to say:
". . . [Mlay within thirty days commence
an action in the district court - -
of the
proper county against the commission
and other interested parties as defendants
to vacate and set aside . . . such . . .
rates . . ."
(Emphasis added.)
Billings contends that the "proper county", contemplated
in the foregoing statute is to be determined under the
provisions of section 93-2902, R.C.M. 1947, now sections
25-2-103 and 25-2-105 MCA, which provided in pertinent part:
"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
persons specially appointed to
execute his duties, for an act
done by him in virtue of his office
. . . 11
Billings further contends that under our decision of
Montana-Dakota Utilities v. Public Service Commission of
Montana (1940), 111 Mont. 78, 107 P.2d 533, Yellowstone
County is the place where the order of the PSC will be put
into operation, and therefore the District Court of that
county is the place where the action must be tried.
On the other hand, the Consumer Counsel contends, and
its original petition in the District Court recites, that he
brings his action in Lewis and Clark County District Court
under the provisions of the Montana Administrative Procedure
Act, and particularly under section 82-4216, R.C.M. 1947,
now section 2-4-702 MCA, which provides in subdivision
(2)(a) thereof:
"Proceedings for review shall be instituted
by filing a petition in district court
within thirty days after service of the
final decision of the aaencv . . . Exce~t
J .' &
as otherwise provided & statute, the
-
petition shall be filed in the district
court for the county where the petitioner
resides or has his principal place of business
or where the agency maintains its principal
office." (Emphasis added.)
The Consumer Counsel further contends, and the District
Court agreed, that the decision in Montana-Dakota, was
overruled in Lunt v. Division of Workmen's Compensation
(1975), 167 Mont. 251, 537 P.2d 1080.
Section 82-4216, R.C.M. 1947, is a general statute
providing for judicial review of the actions of any admini-
strative agency of the state. Section 70-128, R.C.M. 1947,
on the other hand is specifically directed to judicial
review of rate orders of the PSC. Moreover, the language of
section 82-4216, "except as otherwise provided by statute"
seems to indicate the legislative intent that in specific
instances, other statutes be looked to in order to determine
venue. The general rule is that where two statutes, one of
which deals with a subject in general terms and another in
more minute terms, the special statute controls the general
statute to the extent of any inconsistency. State v. Holt
(1948), 121 Mont. 459, 194 P.2d 651; In Re Wilson's Estate
(1936), 102 Mont. 178, 56 P.2d 733. But the statutes are to
be harmonized if possible. We hold therefore that it is
permissible for the Consumer Counsel to bring actions for
judicial review of PSC-fixed utility rates under the pro-
visions of section 82-4216, but where the venue chosen is
challenged by a proper party, then the provisions of section
70-128, R.C.M. 1947, now section 69-3-402(1) MCA, control in
determining venue.
In examining section 70-128, now section 69-3-402(1)
MCA, we see that the action may be brought in the District
Court of the "proper county". In the case of an action
against a governmental agency or public officer, the
- 5-
proper county is determined by section 93-2902, now sections
25-2-103 and 25-2-105 MCA. As we have shown, the proper
county under section 93-2902 is that "where the cause, or
some part thereof, arose".
The cause of action here is the threatened enforcement
and collection in Yellowstone County of water rates esta-
blished by the order of PSC. The PSC order is operative
only in Yellowstone County. The order may have been
deliberated upon and issued out of the offices of PSC in
Helena, but the attack upon the order is upon its operative
effect, which takes place wholly in Yellowstone County. The
operative effect of the order is to set rates for water
supplied and used in Yellowstone County. Billings is
contending that the water rates set by the PSC are not
sufficient. The Consumer Counsel is contending that the
water rates are excessive. The result in either case can
affect consumers only in Yellowstone County. The cause of
action therefore arises in that county.
In our decisicn in Montana-Dakota, we determined that
under section 93-2902, it is not the mere making of the
order but the place where it is put into operation, that
determines where the cause of action arose. 111 Mont. at
80, 107 P.2d at 535. When this Court said in Lunt, that
the holding in Montana-Dakota was overruled, it was only to
the extent that Lunt was inconsistent with the earlier case.
Lunt and Montana-Dakota were each properly decided within
their respective spheres. We said so in Guthrie v. Montana
Department of Health and Environmental Sciences (19771,
Mont . , 561 P.2d 913, 34 St.Rep. 155, 160.
Similarly in Billings Associated Plumbing v. Emerson
(1977) Mont . , 563 P.2d 1123, 34 St.Rep. 309,
we agreed that the Montana-Dakota case was not overruled by
the decision in Lunt with respect to the factual situation
presented in Billings Associated Plumbing. Here, it is the
operation of the PSC order that is alleged to injure either
Billings or the persons represented by the Consumer Counsel.
Under that factual situation, the decision of Montana-
Dakota is very much alive for this case and controls our
determination here.
The order of the District Court denying change of
venue is reversed. The cause is remanded to the District
Court with instructions to enter an order to transfer the
cause from the District Court of the First Judicial District,
Lewis and Clark County, to the District Court of the
Thirteenth Judicial District, Yellowstone County.
We Concur:
Zfl% ief Just c
..............................
Justices