141 P. 146 | Mont. | 1914
delivered the opinion of the court.
By an order of the board of county commissioners of Mussel-shell county, entered over the formal protest of Henry Thien and others, a license to engage in the retail liquor business at Ryegate was authorized to be issued to the respondent, Manuel Wiltse. Thereupon the protestants filed their notice of appeal to the district court, but gave no undertaking, and for want of an undertaking the district court, holding itself to be without jurisdiction, dismissed the appeal, and entered judgment accordingly.
The question presented is whether the filing of an undertaking
Such was the state of the law when Chapter 92, Session Laws of 1911, was enacted, and for many years prior thereto. When, therefore, the legislature provided for appeals like the one in question, and said, not that they should be taken, perfected and heard, but merely “taken and heard,” as appeals from justices’ courts, it must be presumed that the language was advisedly used, and that no undertaking should be required. In other instances for which an appeal from the board of county commissioners or similar boards is provided, the legislature experienced no difficulty in prescribing an undertaking where the circumstances seemed to require one; as, for instance, an appeal from the allowance or disallowance of a claim against the county (Rev. Codes, see. 2947), an appeal from the action of the state board of medical examiners' in refusing a license to practice medicine (Rev. Codes, sec. 1588), or an appeal from the refusal of school authorities to excuse a child from attendance in certain cases (Laws 1913, p. 256, sec. 1100). It is a well-established rule that appeals are statutory, and the appellant must proceed as the statute requires (State ex rel. Hall v. District Court, 34 Mont. 112, 115 Am. St. Rep. 522, 9 Ann. Cas. 728, 85 Pac. 872); this is especially true with regard to appeals from bodies, such as a board of county commissioners (In re Searles, 46 Mont. 322, 127 Pac. 902); and a corollary to it is that the appellant is not obliged to do more than the statute prescribes.
We are confirmed in the conclusion that no bond is required upon appeals of this character to the district court by the further consideration that the legislature cannot be presumed to have intended an impossibility; and strict compliance with Chapter 92, Session Laws of 1911, is impossible, if an undertaking must be given as in appeals from justices’ courts. We noted above that such appeals are always from judgments in actions at law; but the present proceeding is not an action at law, and presents no judgment. Undertakings on appeal from
It follows that the construction of Chapter 92, Session Laws of 1911, adopted by the court below, cannot be upheld. The appeal was taken in conformity with the justice practice when the notice was filed; it remains to be heard in accordance with the same statutory provisions.
The judgment appealed from is therefore reversed, and the proceeding remanded to the district court of Musselshell county, with directions to revoke its order of dismissal, and to proceed to the hearing and determination of the appeal.
Reversed and remanded.