127 P. 902 | Mont. | 1912
Lead Opinion
delivered the opinion of the court.
On February 26, 1912, Charles Searles, the appellant,, presented to the board of county commissioners of Ravalli county a petition signed by fifty freeholders residing at Florence, an unincorporated town in that county, requesting that the board grant an order to the treasurer of the county to issue to Searles a license to sell intoxicating liquors at retail at Florence. The clerk gave notice of the application in conformity with the requirements of the statute. (Laws 1911, p. 160, Chap. 92, sec. 3.) No protest was filed by anyone against the issuance of the license. The board nevertheless denied the application and refused to order the treasurer to issue the license. Searles then tendered to the treasurer the license fee fixed by the statute and demanded the license, but the demand was refused by this officer, for the reason that he had not been authorized by the board to issue the license. Thereupon Searles appealed to the district court of Ravalli county from the order of the board. A hearing had in that court on June 14, 1912, upon an agreed statement of facts embodying substantially the foregoing recital, resulted in a judgment affirming the action of the board and awarding it costs. The matter is before this court on appeal from the judgment.
No reference is made in the brief of counsel on either side to the question whether an appeal lies to the district court from an order made by a board of county commissioners under the circumstances disclosed by the record. Of course, if the statute does not authorize the appeal, the judgment of the district
The statute does not authorize such an appeal. The only
No proposition is more firmly settled than that an appeal lies
Since the district court did not acquire jurisdiction to determine the controversy on the merits, this court has no jurisdiction to do so. We shall therefore not essay a discussion and
The judgment is affirmed.
Affirmed.
Concurrence Opinion
I concur in the result reached and in all that is said if the language of the statute is given the meaning which I think was intended by the legislature. In my opinion the statute contemplates a formal trial before the board, but only in case a protest is presented, and it is only from a decision upon such trial that an appeal lies to the district court. This language in the majority opinion: “This provision contemplates a hearing only when a protest is presented as therein provided, and authorizes an appeal from the decision upon the merits of the protest. It does not provide for a hearing in the absence of protest” — is, however, susceptible of a different construction, and if it is intended to convey the idea that, in the absence of a protest the board cannot make any investigation but must order the license issued as of course, then I most emphatically dissent from such view.