Dorgan v. Mercil, 9323-A

• Decision Date: 26 July 1978
• Docket Number: No. 9323-A,9323-A
• Citation: 269 N.W.2d 99
• Parties: Byron L. DORGAN, Tax Commissioner, Office of State Tax Commissioner, State of North Dakota, Petitioner and Appellee, v. LeRoy J. MERCIL and Mary Mercil, Respondents and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 99

269 N.W.2d 99

Byron L. DORGAN, Tax Commissioner, Office of State Tax Commissioner, State of North Dakota, Petitioner and Appellee, v. LeRoy J. MERCIL and Mary Mercil, Respondents and Appellants.

Civ. No. 9323-A.

Supreme Court of North Dakota.

July 26, 1978.

Robert W. Wirtz, Sp. Asst. Atty. Gen., for petitioner and appellee.

LeRoy J. Mercil and Mary Mercil, pro se.

SAND, Justice.

LeRoy and Mary Mercil of Grand Forks, North Dakota, pro se, appealed from a Burleigh County district court judgment (order for writ of mandamus) commanding LeRoy Mercil to file a true and complete income tax return for the taxable year 1975 pursuant to the provisions of Chapter 57-38, North Dakota Century Code, and dismissing the proceedings against Mary Mercil. The Mercils also appealed from a Burleigh County district court order denying their motion for a change of venue.

This is Chapter II of Dorgan v. Mercil, 256 N.W.2d 114 (N.D.1977). In Chapter I we set aside a contempt order arising out of the Mercils' failure to comply with a writ of mandamus directing them to file individual income tax returns and remanded the matter to the district court to determine the fundamental question whether or not the Mercils were legally obligated to file a North Dakota individual income tax return for the year 1975.

On remand, the district court denied Mercils' motion for change of venue and, after a hearing, issued a writ of mandamus. The Mercils appealed pro se.

We do not believe that any rule or statute should be modified, altered, or applied differently merely because a party not learned in the law was or is proceeding pro se in a special proceeding, action at law or equity, or in an appeal.

Our review indicates that the principal issue on appeal is the denial of Mercils' motion for change of venue. The resolution of this issue may have a bearing on the other issues and therefore we will consider it first.

The Mercils, on appeal, contended and argued that they were entitled to a change of venue as a matter of law and because the district court denied their motion for change of venue from Burleigh County to Grand Forks County, their place of residence, the Burleigh County district court was without jurisdiction and consequently the writ of mandamus issued by the district court was invalid.

The Tax Commissioner of the State of North Dakota argued and contended that the question of venue was not properly before this Court and that, in any event, the proceedings were properly venued in Burleigh County district court. The Tax Commissioner argued that § 57-38-47, NDCC, authorizes the Commissioner to petition "any judge of the district court" for a writ of mandamus, and in support thereof cited Johnson v. Davis, 140 N.W.2d 703 (N.D.1966), which had under consideration § 14-08-01, NDCC, which authorizes a married woman to bring an action in the district court for the county in which she resides. The married woman brought an action in the county in which she resided and on appeal the husband contended that the proceedings were not proper because § 28-04-05, NDCC, provided that actions shall be tried in the county in which the defendant resides.

The Court, in Davis, supra, determined that § 14-08-01, NDCC, gave the court jurisdiction and that the proceedings were proper. However, from a careful analysis of the case it becomes evident that it does not constitute authority for the argument presented by the Tax Commissioner because in the Davis case there was no motion made for a change of venue, as we have in this instance. While we are satisfied that § 57-38-47, NDCC, was designed to enable the Tax Commissioner to cope with situations as they may arise and that it confers jurisdiction upon any district court to entertain and grant a petition for a writ of mandamus on behalf of the Tax Commissioner to compel an individual to file an income tax return, if his income required it, it does not contain any direction for determining or establishing the venue if a motion for change of venue is made.

Significantly, Chapter 32-34, NDCC, entitled Writ of Mandamus, does not provide the venue in which the action is to be brought except as provided for in § 32-34-06, NDCC, under limited circumstances. This section sets up the procedure to be followed if an essential issue of fact is involved. It provides in part that if an essential issue of fact must be reviewed

". . . the court in its discretion may order the question to be tried before a jury, and may postpone the argument until such trial can be had and the verdict certified to the court. The question to be tried must be stated distinctly in the order for trial, and the county must be designated in which the same shall be had. . . ."

As stated previously, this statute does not establish the venue for the initial application for a writ of mandamus nor does it contain any provision which would control where the issue of venue is raised. This section has limited application and comes into operation only if an issue of fact has been raised in a mandamus proceeding which needs to be determined.

A writ of mandamus, whether designated as a legal action or a special proceeding, involves a judicial determination in which due process must be met, including, among other things, proper notice as to time, place, and an opportunity to be heard, which, out of necessity, involves venue.

This presents the question: What law applies to the venue for writs of mandamus? More specifically, does Chapter 28-04, NDCC, pertaining to venue generally, apply to writs of mandamus when a motion for change of venue is made by the defendant?

The Mercils contended in the district court and on appeal that general venue statutes, particularly § 28-04-05, NDCC, applied.

The venue statutes under Chapter 28-04, NDCC, consistently refer to "an action" and not to a special proceeding. This, however, is not dispositive of the question. We believe that the denomination of a mandamus proceeding as a special proceeding rather than "an action" is important primarily in describing the scope and nature of the remedy provided by the writ of mandamus but not for the purpose of determining venue. (McDonald v. State, 86 S.D. 570, 199 N.W.2d 583 (1972).) South Dakota has substantially the same language in its venue statutes and, therefore, the reasoning of the South Dakota Supreme Court is persuasive.

Our research does not disclose any law expressing an exception or a clear implication that the general venue statutes do not apply, nor has any been brought to our attention.

We have, however, found substantial authority that the general venue statutes apply to proceedings in mandamus. The Annotation in 102 A.L.R. 397, at page 398, states that:

"Proceedings in mandamus have been uniformly held to come within the terms of statutes relating to change of venue. McBane v. People (1869) 50 Ill. 503 ('civil cause'); Woodworth v. Old Second Nat. Bank (1906) 144 Mich. 338, 107 N.W. 905, 8 Ann.Cas. 310 ('civil action'); State ex rel. Sharp v. Knight (1930) 224 Mo.App. 761, 26 S.W.2d 1011 ('civil suit'); Williamsport v. Com. (1879) 90 Pa. 498 ('civil cause')."

See also, McDonald v. State, supra; State ex rel. Starkey v. District Court of St. Louis County, 206 Minn. 54, 287 N.W. 601 (1939), which involved a mandamus proceeding against public officials in which the court held that the general venue statutes in an action against public officers applied, which is substantially the same as the North Dakota provision found in § 28-04-03, NDCC. The same result was reached in State ex rel. Hawley v. Industrial Commission, 137 Ohio St. 332, 30 N.E.2d 332 (1940).

We found a case contra to the annotations. This is Wagner v. People, 101 Colo. 225, 72 P.2d 268 (1937). The Colorado court, in construing a statute similar or identical to § 32-34-06, NDCC, concluded that any court had jurisdiction of the subject matter to determine the question whether or not a writ of mandamus should be issued. But the Colorado court overlooked that this provision of law did not provide for the venue of the basic application for the writ of mandamus. This provision, as mentioned earlier in this opinion, applies only after an issue of fact has been raised. For this reason we do not believe that the Colorado case is persuasive.

Significantly, this Court in Huber v. Wanner, 62 N.D. 303, 243 N.W. 661 (1932), said that the right of a public officer to be tried in the county where the cause of action arose is absolute under § 28-04-03, NDCC, and that mere joinder of other parties does not deprive the public officer of that right.

The question of proper venue in a mandamus action pertaining to the Public Service Commission was presented to and considered by this Court in Eckre v. Public Service Commission, 247 N.W.2d 656 (N.D.1976). This Court concluded that the mandamus action was properly venued in Burleigh County because the hearing on the application for a certificate of public convenience was held in Burleigh County and because any appeal from the administrative agency's decision pursuant to § 28-32-15, NDCC, would be to the district court of the county where the hearing or part thereof was held. The Court specifically held that the mandamus proceeding in Burleigh County was proper even though related eminent domain proceedings were instituted in Ransom and Richland Counties prior to the commencement of the mandamus action in Burleigh County. The result of this case is compatible with the provisions of § 28-04-03(2), NDCC.

Venue is an important, if not a necessary, factor in due process and applies equally to the institution of legal action as well as to proceedings, and in the absence of any other specific provision we conclude that Chapter 28-04, NDCC, applies to mandamus proceedings where a motion for change of venue has been made. This conclusion...