107 P.2d 533 | Mont. | 1940
Defendants have appealed from an order denying their motion for change of venue. The action is to enjoin the enforcement of an order made by the defendants reducing gas rates. The facts are briefly these:
Plaintiff is engaged in furnishing natural gas to consumers in and about Glasgow, Valley county, and in and about Malta, in Phillips county. The defendant board ordered a hearing to be held at Malta, and another to be held at Glasgow. By agreement of the parties both hearings were held at Glasgow. After the hearing the defendants made an order reducing the rates in all the places involved at the hearing. Plaintiff, deeming the order unlawful and unreasonable, brought this action in Lewis and Clark county to enjoin its enforcement. Defendants in proper time moved the court for an order changing the place of trial to Valley county on the principal ground that the cause, or some part of it, arose in Valley county and no part thereof arose in Lewis and Clark county. Solution of the question before us makes it necessary to consider section 3906, Revised Codes, as amended by Chapter 56, Laws of 1937. *80
By Chapter 56 an action questioning the reasonableness of[1, 2] rates filed by the Public Service Commission may be commenced "in the district court of the proper county." When originally enacted, section 3906 in this respect contained the same language. It is contended by defendants that this language alone is sufficient to indicate that the action must be brought in either Valley or Phillips county. We do not so construe that language. In our opinion resort must be had to our venue statutes to determine what is "the proper county," exactly as we must under subdivision 1 of section 9098, Revised Codes, where the same language appears.
Both parties contend that section 9094 supports their contention. Plaintiff contends that under it the action was properly brought in Lewis and Clark county. Defendants argue that under that section it must be transferred to either Valley or Phillips county. That section, so far as material, reads:
"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 against a person who, by his command or in his aid, does anything touching the duties of such officer."
Under this section our province is to determine in what county or counties the cause of action or some part thereof arose. On behalf of plaintiff it is contended that since the order complained of was made in Lewis and Clark county, where the office of the commission is located, at least a part of the cause arose in that county. We think this contention loses sight of the real cause of the action. The cause of the action is the threatened enforcement or operation of the order in Valley and Phillips counties. It is not the mere making of the order, but the place where it is put in operation, that determines where the cause of action arose. Operation of the order is what is alleged will injure plaintiff. Section 3906, as amended by Chapter 56, Laws of 1937, provides that the orders "shall become operative" within twenty days after their filing. It is the *81 operation of the order that the action seeks to enjoin. True, the complaint also seeks to set aside the order, but only because its operation allegedly would injure plaintiff by confiscating its property. The operation of the order will be accomplished, if at all, in Valley and Phillips counties where the order is made applicable. It is our view that the cause of action arose in Valley and Phillips counties and not in Lewis and Clark county.
We derive but little aid from adjudicated cases, but there are those which by analogy at least support this conclusion. InKansas City v. Public Utilities Com.,
The case of State Appeal Board v. District Court ofPottawattamie County,
In State ex rel. Florida Dry Cleaning and Laundry Board v.Atkinson,
Contention is made by plaintiff that the action was properly commenced in Lewis and Clark county under the provisions of section 9096, Revised Codes. That section in part provides: "In all other cases the action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action." The acts complained of here are being done by defendants in virtue of their offices within the meaning of section 9094, and that section governs this action. That being so, section 9096 cannot apply because it only applies to "all other cases" not already covered by the preceding sections of the statute.
It is our conclusion that in the instant action the court erred in denying the motion for change of venue. The cause is remanded, with directions to enter an order setting aside the order denying the motion and to enter an order sustaining it.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES MORRIS, ERICKSON and ARNOLD concur.
Rehearing denied November 23, 1940. *83