Chovanak v. Matthews, 8742.

• Docket Nº: 8742.
• Citation: 188 P.2d 582, 120 Mont. 520
• Case Date: January 14, 1948
• Court: United States State Supreme Court of Montana

188 P.2d 582

120 Mont. 520

CHOVANAK
v.
MATTHEWS et al.

No. 8742.

Supreme Court of Montana

January 14, 1948

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.

[120 Mont. 521] 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, [188 P.2d 583]

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 [120 Mont. 522] 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 [120 Mont. 523] 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 [188 P.2d 584] under the provisions of sections 11125-11129, Revised Codes of 1935.

The attorney general, in his brief herein in behalf of respondents, [120 Mont. 524] 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...