*1 al., et G. BROWMAN rel. LUDWIG ex State Montana WOOD, DENNIS Justice Appellants, Petitioners v. County, Montana, Defendant of the Peace of Missoula Respondent. TOWNSHIP, HELLGATE on Behalf State of Montana DEPARTMENT COURT COUNTY MISSOULA JUSTICE presiding, WOOD, P., DENNIS J. NO. HONORABLE 2, BOARD v. MISSOULA COUNTY Respondent, Plaintiff al., et OF COMMISSIONERS Defendants COUNTY Appellants. 12984. No. Sept. 9, 1975.
Submitted 24, 1975. Nov. Decided 184. 543 P.2d .342
343- Deputy Dye, County Atty., H. V. III, Deschamps, Robert L. petitioners-appellants. Missoula, County Atty. (argued), Skjelset (argued),, (argued), Douglas G. K. Morales Julio defendant-respondent. Missoula, for Opinion of the
MR. delivered JUSTICE HASWELL Court. appeal from County auditor
The commissioners and Missoula writ of mandate. judgment granting a a district court payroll justice court writ ordered them to allow temporary The dis- unbudgeted clerical assistance. claim for matter of law Justice trict court concluded as a the claim as had incurred Peace Dennis Wood expense office. of his and reasonable *3 Peace, 8, 1974, Wood, Hell-
On October Dennis Justice of the a gate Township, County, Dept. No. 2 submitted Missoula request County that he be to the Missoula temporary Baumgartner as a clerical to hire Linda allowed days. Extra clerical maximum of 5 assistance assistant for a budget. Judge Wood’s provided for his annual had not been during September 1974 over load, however, had doubled case large 55 previous number of mile an hour the month due to by highway patrol speed written the daytime limit violations regular had the work load caused that month. The increased Thurman, processing in her work of clerk, to fall behind Joan Thurman maintaining court’s records. Mrs. had worked and the keep up to pay but was unable the without overtime developed. backlog work and a disapproved request apparently
The the Commission on two help grounds: (1) unnecessary. Judge The additional was Baumgartner anyway following Mrs. hired and the Wood work, payroll her completion of submitted claim in her be- at $64.12, covering 28 hours work in the amount of half the Judge received notice that per hour. Wood When $2.29 county attorney on paid not he notified the would be claim if the claim was file suit thereon 28 that would he October attorney copy fees. A of this letter was paid and seek not 29 he October issued county commissioners. On to the sent jointly to ordering the commissioners parte order, an ex 31,1974, October pay for rendered severally the services wages, part-time or show cause payment for day scheduled contempt of court. be held they should not why applied 31, 1974, for the commissioners On October restraining Judge prohibition writ of received an alternative next, day Judge parte The enforcing from his ex order. Wood man- writ of applied an and and received alternative 'Wood wage or pay claim compelling the commissioners to date for their refusal. show cause together before were and heard
The cases consolidated presiding. McKinnon, judge L. The dis- LeRoy district Hon. ordering judgment that a a consolidated trict court entered requiring issue the commissioners peremptory writ of mandate pay payroll together claim with costs and to allow prohibition attorney temporary writ of $1,500 in fees. The proceeding contempt with the restraining from Wood permanent. made The commissioners auditor was action judgment. Judge appeal from the Wood does consolidated prohibition. appeal from writ of not controlling appeal are: issues 1. a writ of mandate compel Whether lies to board county commissionersto reasonable and help operate clerical courts. standing justice of 2. The of a bring a writ *4 compel payment. mandate to such of may The district court issue a writ of mandate com county pelling perform commissioners to an act which the
345 93- specifically requires duty law of their office. Section as they not have 9102, contend did R.C.M.1947. commissioners payroll duty, approve reject but rather discretion to or n claimsubmitted by Judge They rely 16- on section Wood. 1906(1), R.C.M.1947, county budget provides of the law which county making expendi- that shall be in the of officials limited incurring budgeted of tures of liabilities to their estimates n expenditures, budgetary county unless the make general transfers within the classifications of salaries and wages. legally urged It is that Wood could not incur approval expense, the extra clerical without the of the com- missioners, budget. he no allowance for it in his because made argument 16-1906(1)
The commissioner’s that section gives them approve disapprove discretion to changes or in the budget once it recognize has been submitted fails to the con stitutional statutory provisions justice that courts enable to incur necessary the actual properly to function as provisions a court duty of law. part These create a on the approve necessary expenses commissionersto actual n ofa justice court. VII, Article 5(1), Section Constitution, Montana states justices peace that provided “shall be such facilities they may perform dignified their in duties surroundings.” provision This is a new that did not exist under the 1889 Montana Constitution.
Implementing this constitutional legislature provision, the adopted 93-412, in R.C.M.1947 1973:
“(1) The board commissioners of the appointed which the has been elected or justices peace: provide shall
“(a) office, courtroom and clerical necessary assistance perform him to his duties in dignified to enable surroundings; books, records, forms, “(b) papers, stationery, postage, n office supplies equipment the proper keeping
346 judicial transaction- and the the records and the
of office files of business; of * **
“(e) by incurred the- necessary expenses “(2) All and actual duties, official justice performance of his of the supplied) county.” (Emphasis charge against legal is mandatory language, re- express and by its This statute necessary ex- county of actual quires payment by the penses justice court. of the
Further,
budget
the com
statute relied
93-412
general in nature while section
is directed
missioners is
justices
peace.
specifically
of
to the financial needs
general statute, the
specific
with a
Where a
statute conflicts
any repug
specific
general
of
over the
to the extent
controls
Dist. v. State Bd.
nancy.
Ass’n
Tobacco & C.
Montana
of
of
Stevenson,
775;
87 Mont.
Eq.,
108,
156
476
In re
Mont.
P.2d
486,
Applying rule to the instant this are concerned budgets justice of courts that insofar as the any 16-1906 and removes prevails 93-412 over section claim for actual to disallow a discretion in the commissioners not with expenses, unbudgeted character its standing. found, findings fact,
The district court in its justice greatly work of the court im- had increased with the position mph speed 55 Montana; limit in that due to this increased work load the clerk fell court’s behind work; evenings in her that she worked some and lunch hours pay, up backlog. without but was unable to catch with the requested permission Judge Wood from the commis- temporary help, to hire extra clerical request sioners but his Judge Baumgartner was refused. Wood then hired Linda at help expense regular $64.12 an clerk until the work caught up. was a matter as judge concluded the district
From facts these of law:
«# [*] [*] help employed was reasonable temporary “2. That the extra existing. necessary under the conditions to allow be ordered should “3. That the Commissioners wage, $64.12. claim in the amount [*] # identity duty
“5. That Wood has a to maintain *6 integrity Hellgate Mis- and of the Justice Township, Court County, soula Montana. duty fix
“6. to The Commissioners as a Board have budget Judge duty a county; for has a to submit proposed budget for court, for his but allowance must be made necessary contingencies, are both unforseen and claims which paid. and reasonable should be allowed and “7. plain, That is no speedy adequate remedy there and law, at and the Writ of Mandate should issue.” findings
These and conclusions amounted to a deter expense mination that the necessary was actual and awas legal charge against county meaning within the of section 93-412 disapprove and the commissioners had no discretion to it. only
A writ of mandate can be in those cases where issued speedy ordinary plain, adequate remedy there is no in the 93-9103, of law. course Section R.C.M.1947. The commissioners finding court, argue, contrary to the of the district that a writ inappropriate adequate of mandate is because other remedies They suggest declaratory judgment at law that a action exist. pursuant appeal to or an of the commissioners’decision provide budget adequate law 16-1808, R.C.M.1947, remedies. find that a writ of appropriate
We mandate an is remedy declaratory judgment in this case. A is not an ade remedy get it quate because would not paid. the claim In 156, this Court Hardland, 78, 410 P.2d 147 Mont.
Mahan v. re- inept procedure declaratory judgment is an stated that performed. covery of a fee for services against claim when a provides that 16-1808 Section commissioners, the claimant- by the disallowed is This statute court. the district appeal to may the decision only Baum remedy, Mrs. Judge provide Wood does not gartner. prevents. 16-1801,R.C.M.1947, argued that section
It is also pursuing Linda Baum- Wood, officer, from Judge as a point argument misses the essential wage This gartner’s claim. right of seeking to enforce a Judge is not Wood of this case. right to litigating own his Baumgartner, but rather is Linda performance of in the incur actual and in conclud- court was correct The district official duties. his remedy adequate at law speedy plain, no ing there is that standing bring writ of man- had Wood date. a matter of discretion
Granting of mandate is a writ will be sustained district court and be determined showing district court abused is a appeal there unless Commission, Highway 154 Mont. v. Erie State its discretion. Corwin, 119 Mont. 207; McCarten v. State ex rel. 150, 461 P.2d *7 189. 520, 177 P.2d presented to the- reviewed the evidence
We have not abuse its discretion. it did district court and find by appellants without- arguments are raised The subordinate opinion. We to in this decline merit and will not be discussed appeal. attorney fees award additional Supreme The Montana recently Court has become increasingly developing concerned with conflicts between boards county justices peace relating of commissioners and of the facilities, supplies, assistance, clerical to claims and other by performance incurred the latter in the purview within the high. official duties of section 93-412. A of the (degree cooperation of between the commissioners justice necessary in an peace determining of in what is the may develop. individual is Nonetheless conflicts case essential. legal action, resolving In of the of such conflicts short interests powers VII, supervisory we exercise our under Article Section adop- :2, (2) by (3), subsections 1972Montana Constitution tion of rule: this
“In any potential case of actual or the conflict between county board of in justice peace commissioners the and a of :any county of this concerning any state claim of the latter within purview 93-412, R.C.M.1947, justice of section n ofthe peace must submit such claim to the senior district .judge, point in service, judicial of of the in which the district county is justice peace located in which the of the serves. Such senior judge certify certify district shall or refuse to that such necessary expense claim is an actual and incurred or by justice to be peace perform- incurred in days ance of his official (10) duties within ten of the sub- mission of such claim him to and transmit the same to copy county board of attor- to the ney. neglects If judge fails, the senior district or refuses certify certify (10) day to so or refuses within the ten certify period, such nonaction shall be deemed a refusal to necessary expense that such claim is an actual and incurred n orto be incurred by perform- official duties. certification or refusal ance his Such provided 'certify judge district as such claim the senior any legal precedent to action on shall be a condition herein any court of this state.” the claim days
This rule shall effective fifteen become after the date The clerk of -of this decision. this Court shall mail forthwith -copies justices rule peace, of this and decision to all county attorneys boards commissioners and in this state. judgment of court the district is affirmed. *8 MR. T. HARRISON
MR. CHIEF JUSTICE JAMES B. DALY concur. GENE JUSTICE (dissenting): HARRISON MR. C. JUSTICE JOHN I dissent.
Here, thought consequences, a new little in con- county commissioners cited the board of I see tempt questioned The act as for claim. failure responsible tending to create' court- it was not a act and one by law are commissioners house friction. The board charged county government with the managers of the business budgetary daily operations county government within strict including judicial of- requirements. county office, Each budgets tax fices, required justify their are to submit and required are purposes board of and the it expenditures each official. Where the fiscal oversee expenditures our stat- necessary to cover unforeseen becomes emergency ex- R.C.M.1947,provides for ute, 16-1907, I find that request was made here. penditures. No such remedies before all administrative petitioner failed to exhaust granted I would not have action and pursuing his mandamus exactly outdo Cicero states- not me his actions did same. To creating an unneces- ineptitude, manship true trouble was —the question. sary $64.12 (dissenting) :
MR. CASTLES JUSTICE Conway Har- I concur the above dissent Justice John rison.