No. 12984
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
STATE O MONTANA, ex re1 LUDWIG G. BROWMAN, RICHARD H e
F
OSTERGREN, H.W. STOUTENBERG, i n d i v i d u a l l y and a s t h e
County Commissioners of Missoula County, Montana,
P e t i t i o n e r s and A p p e l l a n t s ,
VS .
DENNIS WOOD, J u s t i c e o f t h e Peace o f Missoula County, Montana,
Defendant and Respondent.
......................
STATE O M N A A ON BEHALF O HELLGATE TOIJNSHIP, MISSOULA
F OTN F
C U T JUSTICE COURT DEPARTMENT NO. 2 , HONORABLE DENNIS
O NY
WOOD, J.P., PRESIDING,
P l a i n t i f f and Respondent,
vs .
MISSOULA COUNTY BOARD O COUNTY COMMISSIONERS, H e W.
F
STOUTENBERG, RICHARD H. OSTERGREN, and LUDWIG G.
BROWMAN, COMMISSIONERS , and GENEVIEVE F SPAULDING ,
COUNTY AUDITOR,
.
Defendants and A p p e l l a n t s .
Appeal from: District Court o f t h e Fourth J u d i c i a l D i s t r i c t ,
Honorable LeRoy L. McKinnon, Judge p r e s i d i n g .
Counsel o f ~ e c o r d :
For A p p e l l a n t s :
Robert L. Deschamps 111, County A t t o r n e y , Missoula,
Montana
H. V. Dye, Deputy County A t t o r n e y , argued', Missoula,
Montana
F o r ~ e s p o n d e n:
t
J u l i o K. Morales argued, Missoula, Montana
Douglas G. S k j e l s e t argued, Missoula, Montana
Submitted : September 9 , 1975
Decided: NOV241915
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
The Missoula County commissioners and auditor appeal
from a district court judgment granting a writ of mandate. The
writ ordered them to allow and pay a justice court payroll claim
for unbudgeted temporary clerical assistance. The district
court concluded as a matter of law that Justice of the Peace
Dennis Wood had incurred the claim as a necessary and reasonable
expense of his office.
On October 8, 1974 Dennis Wood, Justice of the Peace,
Hellgate Township, Missoula County, Dept. No. 2 submitted a
request to the Missoula County commissioners that he be allowed
to hire Linda Baumgartner as a temporary clerical assistant for
a maximum of 5 days. Extra clerical assistance had not been
provided for in his annual budget. Judge Wood's case load, how-
ever, had doubled during September 1974 over the previous month
due to a large number of 55 mile an hour daytime speed limit
violations written by the highway patrol that month. The increased
work load had caused the regular clerk, Joan Thurman, to fall be-
hind in her work of processing and maintaining the court's
records. Mrs. Thurman had worked overtime without pay but was
unable to keep up with the work and a backlog developed.
The Commission disapproved the request apparently on two
grounds: (1) The item was unbudgeted. (2) The additional help
was unnecessary. Judge Wood hired Mrs. Baumgartner anyway and
following the completion of her work, submitted a payroll claim
in her behalf in the amount of $64.12, covering 28 hours of work
at $2.29 per hour. When Judge Wood received notice that the
claim would not be paid he notified the county attorney on Octo-
ber 28 that he would file suit thereon if the claim was not paid
and seek attorney fees. A copy of this letter was sent to the
county commissioners. On October 29 he issued an ex parte order,
ordering the commissioners to jointly and severally pay for
the services rendered by October 31, 1974, the day scheduled
for payment of part-time wages, or show cause why they should
not be held in contempt of court.
On October 31, 1974, the commissioners applied for and
received an alternative writ of prohibition restraining Judge
Wood from enforcing his ex parte order. The next day Judge
Wood applied for and received an alternative writ of mandate
compelling the commissioners to pay the wage claim or show
cause for their refusal.
The cases were consolidated and heard together before
the Hon. LeRoy L. McKinnon, district judge presiding. The dis-
trict court entered a consolidated judgment ordering that a per-
emptory writ of mandate issue requiring the commissioners to
allow and pay the payroll claim together with costs and $1,500
in attorney fees. The temporary writ of prohibition restrain-
ing Judge Wood from proceeding with the contempt action was made
permanent. The commissioners and auditor appeal from the con-
solidated judgment. Judge Wood does not appeal from the writ
of prohibition.
The controlling issues on appeal are:
1. Whether a writ of mandate lies to compel the board
of county commissioners to pay reasonable and necessary expenses
for clerical help to operate the justice courts.
2. The standing of a justice of the peace to bring a
writ of mandate to compel such payment.
The district court may issue a writ of mandate compell-
ing the county commissioners to perform an act which the law
specifically requires as a duty of their office. Section 93-
9102, R.C.M. 1947. The commissioners contend they did not have
a duty, but rather discretion to approve or reject the payroll
claim submitted by Judge Wood. They rely on section 16-1906(1),
R.C.M. 1947, of the county budget law which provides that county
officials shall be limited in the making of expenditures or
incurring of liabilities to their budgeted estimates of expend-
itures, unless the county commissioners make budgetary transfers
within the general classifications of salaries and wages. It is
urged that Judge Wood could not legally incur the extra clerical
expense, without the approval of the commissioners, because he
made no allowance for it in his budget.
The commissioner's argument that section 16-1906(1) gives
them discretion to approve or disapprove changes in the budget
once it has been submitted fails to recognize the constitutional
and statutory provisions that enable justice courts to incur the
actual expenses necessary to function properly as a court of law.
These provisions create a duty on the part of the commissioners
to approve the actual and necessary expenses of a justice court.
Article VII, Section 5(1), 1972 Montana Constitution,
states that justices of the peace "shall be provided such facil-
ities that they may perform their duties in dignified surround-
ings." This is a new provision that did not exist under the 1889
Montana Constitution.
Implementing this constitutional provision, the legisla-
ture adopted section 93-412, R.C.M. 1947 in 1973:
"(1) The board of county commissioners of the
county in which the justice of the peace has
been elected or appointed shall provide for
the justices of the peace:
"(a) the office, courtroom and clerical assistance
necessary to enable him to perform his duties in
dianified surroundinas:
"(b) the books, records, forms, papers, stationery,
postage, office equipment and supplies necessary
in the proper keeping of the records and files of
the judicial office and the transaction of the
business:
"(2) All actual and necessary expenses incurred
by the justice of the peace in the performance
of his official duties is a legal charge against
the county." (Emphasis supplied)
This statute by its express and mandatory language, re-
quires payment by the county of actual and necessary expenses
of the justice court.
Further, the budget statute relied on by the commission-
ers is general in nature while section 93-412 is directed spec-
ifically to the financial needs of justices of the peace. Where
a specific statute conflicts with a general statute, the spec-
ific controls over the general to the extent of any repugnancy.
Montana Ass'n of Tobacco & C. Dist. v. State Bd. of Eq., 156
Mont. 108, 476 P.2d 775; In re Stevenson, 87 Mont. 486, 289 P.
566.
Applying this rule to the instant case, it is apparent
that insofar as the budgets of justice courts are concerned
section 93-412 prevails over section 16-1906 and removes any
discretion in the commissioners to disallow a claim for actual
and necessary expenses, its unbudgeted character notwithstanding.
The district court found, in its findings of fact, that
the work of the justice court had greatly increased with the
imposition of the 55 mph speed limit in Montana; that due to
this increased work load the justice court's clerk fell behind
in her work; that she worked some evenings and lunch hours with-
out pay, but was unable to catch up with the backlog. Judge
Wood requested permission from the county commissioners to hire
temporary extra clerical help, but his request was refused. Judge
Wood then hired Linda Baumgartner at an expense of $64.12 to
help the regular clerk until the work was caught up.
From these facts the district judge concluded as a matter
of law:
"2. That the extra temporary help employed was
reasonable and necessary under the conditions
existing.
"3. That the Commissioners should be ordered to
allow and pay the wage claim in the amount of
$64.12.
"5. That Judge Wood has a duty to maintain the
identity and integrity of the Justice Court of
Hellgate Township, Missoula County, Montana.
"6. The Commissioners as a Board have the duty
to fix the budget for the county; the Judge has
a duty to submit a proposed budget for his court,
but allowance must be made for unforseen con-
tingencies, and claims which are both necessary
and reasonable should be allowed and paid.
"7. That there is no plain, speedy and adequate
remedy at law, and the Writ of Mandate should issue."
These findings and conclusions amounted to a determination
that the expense was actual and necessary and was a legal charge
against the county within the meaning of section 93-412 and the
commissioners had no discretion to disapprove it.
A writ of mandate can only be issued in those cases
where there is no plain, speedy and adequate remedy in the ordi-
nary course of law. Section 93-9103, R.C.M. 1947. The commis-
sioners argue, contrary to the finding of the district court,
that a writ of mandate is inappropriate because other adequate
remedies at law exist. They suggest that a declaratory judgment
action or an appeal of the commissioners1 decision pursuant to
section 16-1808, R.C.M. 1947, of the budget law provide adequate
remedies.
We find that a writ of mandate is an appropriate remedy
in this case. A declaratory judgment is not an adequate remedy
because it would not get the claim paid. In Mahan v. Hardland,
147 Mont. 78, 410 P.2d 156, this Court stated that declaratory
judgment is an inept procedure for recovery of a fee for services
performed.
Section 16-1808 provides that when a claim against the
county is disallowed by the commissioners, the claimant may
appeal the decision to the district court. This statute does
not provide Judge Wood with a remedy, only Mrs. Baumgartner.
It is also argued that section 16-1801, R.C.M. 1947,
prevents Judge Wood, as a county officer, from pursuing Linda
Baumgartner's wage claim. This argument misses the essential
point of this case. Judge Wood is not seeking to enforce a
right of Linda Baumgartner, but rather is litigating his own
right to incur actual and necessary expenses in the performance
of his official duties. The district court was correct in con-
cluding that there is no plain, speedy and adequate remedy at
law and that Judge Wood had standing to bring a writ of mandate.
Granting a writ of mandate is a matter of discretion to
be determined by the district court and will be sustained on
appeal unless there is a showing the district court abused its
discretion. Erie v. State Highway Commission, 154 Mont. 150,
461 P.2d 207; State ex rel. McCarten v. Corwin, 119 Mont. 520,
177 P.2d 189.
We have reviewed the evidence presented to the district
court and find that it did not abuse its discretion. The sub-
ordinate arguments raised by appellants are without merit and
will not be discussed in this opinion. We decline to award ad-
ditional attorney fees on appeal.
The Montana Supreme Court has recently become increasingly
concerned with developing conflicts between boards of county
commissioners and justices of the peace relating to claims for
facilities, supplies, clerical assistance, and other necessary
expenses incurred by the latter in the performance of official
duties within the purview of section 93-412. A high degree of
cooperation between the commissioners and the justice of the
peace in determining what is necessary in an individual case is
essential. Nonetheless conflicts may develop. In the interests
of resolving such conflicts short of legal action, we exercise
our supervisory powers under Article VII, Section 2, subsections
(2) and (3). 1972 Montana Constitution by adoption of this rule:
"In any case of actual or potential conflict between
the board of county commissioners and a justice of
the peace in any county of this state concerning
any claim of the latter within the purview of sec-
tion 93-412, R.C.M. 1947, the justice of the peace
must submit such claim to the senior district judge,
in point of service, of the judicial district in
which the county is located in which the justice of
the peace serves. Such senior district judge shall
certify or refuse to certify that such claim is an
actual and necessary expense incurred or to be in-
curred by the justice of the peace in the perform-
ance of his official duties within ten (10) days
of the submission of such claim to him and transmit
the same to the board of county commissioners with
copy to the county attorney. If the senior district
judge fails, refuses or neglects to so certify or
refuses to certify within the ten (10) day period,
such nonaction shall be deemed a refusal to certify
that such claim is an actual and necessary expense
incurred or to be incurred by the justice of the peace
in the performance of his official duties. Such cer-
tification or refusal to certify such claim by the
senior district judge as provided herein shall be a
condition precedent to any legal action on the claim
in any court of this state."
This rule shall become effective fifteen days after
the date of this decision. The clerk of this Court shall mail
forthwith copies of this rule and decision to all justices
of the peace, boards of county commissioners and county attor-
neys in this state.
The judgment of the district court is affirmed.
....................................
Justice
We concur:
Chief Justice
Justice
Mr. Justice John Conway Harrison dissenting:
I dissent.
Here, with little thought of the consequences, a new
justice of the peace cited the board of county commissioners
in contempt for failure to pay a questioned claim. The act as
I see it was not a responsible act and one tending to create
courthouse friction. The board of county commissioners by law
are the business managers of county government charged with the
daily operations of county government within strict budgetary
requirements. Each county office, including the judicial offices,
are required to submit and justify their budgets for tax purposes
and the board of county commissioners are required to oversee
the fiscal expenditures by each official. Where it becomes neces-
sary to cover unforseen expenditures our statute, section 16-1907,
R.C.M. 1947, provides for emergency expenditures. No such request
was made here. I find that the petitioner failed to exhaust all
administrative remedies before pursuing his mandamus action and
I would not have granted same. To me his actions did not exactly
outdo Cicero in statesmanship--the true trouble was ineptitude,
creating an unnecessary $64.12 question.
h
Mr. Justice Wesley Castles dissentkng:
-.--.--
I concur in the above dissent of Justice John Conway
Harrison.
................................
Justice