138 P. 1100 | Mont. | 1914
delivered the opinion of the court.
Original applications for writs of prohibition. Prior to June 20, 1913, the relator Hackshaw applied by petition to the board of commissioners of Chouteau county, for a license to engage in business as a retail liquor dealer at the village of Flowerree, in Chouteau county. The application was made under the provisions of section 3 of the Act of the thirteenth legislative assembly, approved February 27, 1913 (Laws Thirteenth Session, Chap. 35). Within the time allowed for that purpose, certain freeholders, residents of Flowerree and the vicinity, filed their protest against the issuance of the license. On June 30th, after a hearing fixed by previous notice for that day,
“To the County Clerk of the County of Chouteau, State of Montana:
“Notice of appeal in the above-entitled action having been this day filed with the clerk of the- district court of the Twelfth judicial district in and for the county of Chouteau, you are hereby requested to certify to the said clerk of the district court any and all proceedings of the board of county commissioners of Chouteau county, in the above-entitled action.
“Dated this 23d day of July, A. D. 1913.
“Vernon E. Lewis,
“Attorney for Appellants.”
In the section of the statute referred to supra is found this provision: “From the decision of the board of county commissioners the applicant for license, or the protestants against the issuance thereof, may appeal to the district court of said county within thirty days after the decision of the board of county commissioners. The appeal shall be taken and heard in the same manner as appeals from justice courts to the district court, except that the appeal shall be heard, if possible, within thirty days from the time of filing in the district court, and the same shall be determined without delay.” The Constitution provides that appeals shall be allowed from justice courts to the district courts “in such manner and under such regulations as may be prescribed by law.” (Const., Art. VIII, sec. 23.) The rules prescribed by the legislature under which such appeals may be taken, so far as it is necessary to notice them here, are found in section 7121 of the Revised Codes, as amended by the Act of 1911 (Session Laws 1911, p. 8), and sections 7123 and 7124. Amended section 7121 provides that: “The appeal is taken by serving a copy of the notice of appeal on the adverse party or his attorney and by filing the original notice of appeal with the
In providing the method of appeal from the decision of the board, the legislature evidently did so with the intention that for the purpose to be served by it, the petitioner and the protestants are to be deemed to be the real adversary parties, and the board to bear the same relation to the decision made by it as does a justice of the peace to a judgment rendered by him. That this is so is made manifest by the fact that in providing for appeals from orders allowing or disallowing claims against counties, the legislature has regarded the claimant or the objecting -taxpayer, as the case may be, and the county as the real parties in interest, and prescribed a method of appeal apparently suited to that situation. (Rev. Codes, sec. 2947.) Its intention is also shown by the additional consideration that the real parties in interest are in fact the petitioner for the license, and the residents of the community in which the business of. retailing liquor is to be conducted, the theory of the statute
Counsel for defendants insists, however, that the course pursued by him in taking the appeal is authorized by the decision in State ex rel. Riddell v. District Court, 27 Mont. 103, 69 Pac. 710. Upon examination of the provisions of the statute (Rev. Codes, sec. 1588), prescribing the method of taking appeals from the determinations of the board of medical examiners in certain instances, which were examined somewhat in that case, it will be found that they are wholly different in their requirements. Besides, the only question there determined was whether the notice was sufficient in form and substance to convey to the board the information necessary to bring it before the court as the adversary party, which, under the provisions- of the statute, it becomes when an appeal is taken from its action.
Since the members of the board have no personal interest in