Chovanak v. Matthews

Citation188 P.2d 582,120 Mont. 520
Decision Date14 January 1948
Docket Number8742.
PartiesCHOVANAK v. MATTHEWS et al.
CourtUnited States State Supreme Court of Montana

Appeal from District Court, First District, Lewis and Clark County A. J. Horsky, Judge.

Action by John Chovanak against John A. Matthews, Sam D. Goza, and F. B. Purdy, as members of and constituting the State Board of Equalization of the State of Montana, to have statute providing for licensing of slot machines owned and operated by specified organizations declared unconstitutional. From judgment dismissing the action, plaintiff appeals.

Judgment affirmed.

H. C. Hall and Edward C. Alexander, both of Great Falls, for appellant.

R. V Bottomly, Atty. Gen., Clarence Hanley, Asst. Atty. Gen., and H. O. Vralsted,

p>Page Atty. State Bd. of Equalization, of Helena, for respondent.

Paul T Keller and Loble & Loble, both of Helena, Cedor B. Aronow, of Shelby, T. H. Burke and R. F. Hibbs, both of Billings, Robert T. Merrill, of Great Falls, Walchli & Korn of Kalispell, Louis P. Donovan, of Shelby, J. H. McAlear, of Red Lodge, David R. Domke, of Great Falls, Jess L. Angstman, of Havre, Ed P. Conwell, of Red Lodge, and T. B. Weir and Myles J. Thomas, both of Helena, amici curiae.

GIBSON Justice.

This action was brought by the appellant in the district court of Lewis and Clark county for the purpose of obtaining the judgment of that court declaring Chapter 142 of the Montana Session Laws of 1945 unconstitutional and void. The respondents, as members of the state board of equalization, were made defendants in the action.

Said Chapter 142 is the law enacted by the legislative assembly of Montana in 1945 providing for the licensing by the state of slot machines owned and operated by 'religious organizations, fraternal organizations, charitable, or nonprofit organizations,' and for the optional imposition by cities, towns and counties of the state, of licenses for the operation of slot machines by the said named organizations within the limits of the counties and municipalities exercising the option or privilege, granted to them by the Act, of making such levies.

The respondents, asserting that the appellant does not have the legal capacity to bring the action, in that the statute does not affect him in any of his legal rights, challenged the amended complaint by general demurrer. The court held that the complaint did not state facts sufficient to constitute a cause of action, sustained the demurrer and dismissed the action. From this judgment the appeal is taken.

It appears that the only question argued in the district court, and the only question by that court decided, was whether appellant had legal capacity to bring the action, in other words, whether, under the facts set forth, any legal right of appellant was denied to him or threatened by any action of the respondents constituting the state board of equalization.

But it is the question whether said Act, Chapter 142, is constitutional or not that appellant asks to have determined. He seeks this by action under the Uniform Declaratory Judgments Act, Chapter 90, § 9835.1 et seq., Revised Codes of Montana 1935. May the court decide that question in this action? To answer this question of jurisdiction we epitomize appellant's amended complaint. Therein his grievances are set forth.

He is a resident, citizen, taxpayer and elector of Lewis and Clark county, Montana; he conceives, and accordingly states, that slot machines are lotteries, and that as the Montana Constitution provides that 'the legislative assembly shall have no power to authorize lotteries, or gift enterprises for any purpose, and shall pass laws to prohibit the sale of lottery or gift enterprise tickets in the state,' sec. 2, Art. XIX, Mont.Const., the Act of 1945, Chapter 142, providing for licensing the operation of slot machines when owned and operated by the organizations named in the Act, is therefore violative of that provision and void. He also avers that the Act is discriminatory, that it is class legislation, that it denies the equal protection of the law and that it violates the provision of the Montana state Constitution, section 23, Article V, that 'no bill * * * shall be passed containing more than one subject, which shall be clearly expressed in its title * * *.'

He also alleges that he is informed and believes that the attorney general of Montana and the county attorney of Lewis and Clark county are of the opinion that the provisions of said Chapter 142 are constitutional, and that neither of said officers has filed any proceedings to determine the constitutionality of the Act, and that therefore unless he may maintain this action, merely as a resident, citizen, elector and taxpayer, the only other method through which the constitutionality, validity, and proper application of the licensing Act may be determined is by an abatement proceeding brought by himself or some other citizen under the provisions of sections 11125-11129, Revised Codes of 1935.

The attorney general, in his brief herein in behalf of respondents, asserts that the Act is a valid and constitutional enactment, and its validity is defended, not only in his brief and argument, but by the counsel appearing herein as amici curiae.

It is true that in an action brought by a citizen, under the express authority of section 11125, if therein the constitutionality of Chapter 142 should be properly raised, it could be and would be determined by the court having jurisdiction of the cause, if necessary to decision therein. Such action would invoke the judicial power. In such a case the constitutional issue could be brought before the court. It is not before the court in the instant action.

Section 11125 is the statute that provides that an action in equity may be brought in the name of the state of Montana upon the relation of the county attorney or any citizen of the county, 'whenever there is a reason to believe' that certain nuisances are kept or exist, to abate and prevent the same. The general rule in equity, crystallized in our Code section 8651, is that a private person may maintain an action to abate a public nuisance, 'if it is specially injurious to himself, but not otherwise,' but the sections referred to in appellant's complaint grant a private citizen the right and privilege of suing to abate the four particular nuisances described in section 11124, and one of these four nuisances is, 'any building wherein gambling is carried on or occurs, contrary to any of the laws of the state of Montana.' (Emphasis supplied.)

Appellant says: 'Such proceedings are, however, the only course left open to private citizens, if the present action fails, and in such case abatement proceedings will be filed and prosecuted.' But he avers that such an action would not be binding upon the respondents, and would cause undue and unnecessary hardship upon the defendant in such abatement action, and if the court should hold adversely to the appellant, or such other citizen who might bring such action, he would be mulcted in costs, and that therefore the court should determine whether the rights granted to him by section 11125, Revised Codes 1935, have been taken from him by said Chapter 142.

Neither the fact that such contemplated suit would cause hardship upon the defendant sued, nor the fact that if the citizen bringing such action should be defeated therein he would have costs to pay, is sufficient to give the court jurisdiction to decide the question posed by appellant. It is but the usual consequence of litigation that the loser pays costs and suffers some loss, and even possible hardship. Such potential issue of the contemplated action adds not to the power of the court in the instant action. Unless the action now before us is a real controversy wherein some legal, personal right of appellant is denied or imperiled by the enforcement of Chapter 142, the rule so long and so uniformly followed that the constitutionality of a statute must not be determined 'except in an action or proceeding in behalf of a person whose special, peculiar personal rights are affected thereby,' is applicable here. Schieffelin v. Komfort, 212 N.Y. 520, 106 N.E. 675, 678, L.R.A.1915D, 485.

It is by reason of the fact that it is only judicial power that the courts possess, that they are not permitted to decide mere differences of opinion between citizens, or between citizens and the state, or the administrative officials of the state, as to the validity of statutes. Particularly is it true where a statute, regularly enacted by the law making branch of the government, is attacked by the citizen as being in violation of some provision or provisions of the Constitution.

The judicial power of the United States is vested in 'one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.' Sec. 1, Art. III, of the United States Constitution. The judicial power vested in the district courts and the Supreme Court of Montana, by the provisions of the Montana Constitution extend to such 'cases at law and in equity' as are within the judicial cognizance of the state sovereignty. Article 8, §§ 3, 11. By 'cases' and 'controversies' within the judicial power to determine, is meant real controversies and not abstract differences of opinion or moot questions. Neither federal nor state Constitution has granted such power.

The United States Supreme Court has in many cases held that a 'controversy,' in the constitutional sense, must be 'one that is appropriate for...

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8 cases
  • Larson v. State
    • United States
    • United States State Supreme Court of Montana
    • 30 January 2019
    ...of Revenue , 223 Mont. 464, 469, 726 P.2d 1162, 1166 (1986) (quoting Baker , 369 U.S. at 204, 82 S.Ct. at 703 ); Chovanak v. Matthews , 120 Mont. 520, 525-28, 188 P.2d 582, 584-86 (1948).20 See also Schlesinger v. Reservists Comm. to Stop the War , 418 U.S. 208, 215-27, 94 S.Ct. 2925, 2929-......
  • Brackman v. Kruse
    • United States
    • United States State Supreme Court of Montana
    • 8 November 1948
    ...... . .          Intervenors. urge that plaintiff lacked the legal capacity to maintain. this action and rely upon the case of Chovanak v. Matthews et al., Mont., 188 P.2d 582. That case is not. in point. Here the plaintiff is a merchant operating two. grocery stores. His ......
  • Meyer v. Jacobsen
    • United States
    • United States State Supreme Court of Montana
    • 17 May 2022
    ...... advising what the law would be upon a hypothetical state of. facts, or upon abstract proposition." Chovanak v. Matthews , 120 Mont. 520, 525-26, 188 P.2d 582, 584-85. (1948) (quoting an array of opinions issued by the United. States Supreme Court). In ......
  • McDonald v. Jacobsen
    • United States
    • United States State Supreme Court of Montana
    • 12 August 2022
    ...... advising what the law would be upon a hypothetical state of. facts, or upon an abstract proposition." Chovanak v. Matthews , 120 Mont. 520, 526, 188 P.2d 582, 585 (1948). (emphasis omitted). The constitutional component of the. justiciability limitation ......
  • Request a trial to view additional results

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