DeLong v. Downes
| Decision Date | 22 December 1977 |
| Docket Number | No. 13629,13629 |
| Parties | Joe A. DeLONG et al., Plaintiffs and Respondents, v. Alex L. DOWNES et al., Defendants and Appellants. |
| Court | Montana Supreme Court |
Moore, Lympus & Doran, James D. Moore (argued), Kalispell, for defendants and appellants.
Patrick M. Springer, County Atty. (argued), Norbert F. Donahue (argued), City Atty., Kalispell, for plaintiffs and respondents.
This is an action for a declaratory judgment initiated in the District Court, Flathead County, by the Board of County Commissioners of that county. Defendants are ten individuals whose signatures appear on a Petition for Initiative requesting that the Board place before the general electorate for vote a resolution limiting gambling within Flathead County to bingo, raffles and gift enterprises to be conducted by religious and charitable organizations.
The Board, in its complaint and petition for declaratory judgment filed September 16, 1976, sought judgment that the subject matter of the Petition for Initiative was outside the powers and jurisdiction of any board of county commissioners and that it be enjoined and restrained from placing a resolution pursuant to the petition on the ballot for submission to the general electorate.
The City of Kalispell received a similar petition and moved the District Court to intervene as a plaintiff. Supported by stipulation of the parties, an order authorizing intervention was issued by the court on September 22, 1976. The cause was submitted upon the pleadings of the respective parties.
The District Court, the Hon. Robert C. Sykes presiding, in its order containing findings of fact and conclusions of law, dated September 30, 1976, concluded the Board and City were without jurisdiction to prohibit certain gambling activities, and without power to limit issuance of gambling licenses to nonprofit religious and charitable organizations. The court therefore restrained the Board and City from placing the proposed resolutions on the ballot. Defendants, individual signators of the petition, appeal the order of the District Court.
On September 3, 1976, the described petitions for initiatives on gambling, prepared in accordance with sections 37-301 and 11-1104, R.C.M.1947, were presented to the Board and the City Council. The petitions requested that those bodies submit to the qualified electorate measures to enact a resolution and an ordinance, respectively, that such bodies:
There is no question as to the validity of the petitions or the manner in which they were prepared or certified.
The City and County refused to honor the petitions, on the ground the requested measures were outside the powers and jurisdiction of the respective bodies to enact and were, therefore, improper subjects for initiative. The instant action ensued.
The issue to be resolved on this appeal is: Does a resolution which specifies the types of gambling to be licensed and limits the nature of organizations or individuals to be licensed for gambling constitute a proper subject for public initiative within the legislative jurisdiction and powers of the City of Kalispell and County of Flathead?
The thrust of appellants' argument is that local units of government have the power and jurisdiction, pursuant to the Montana gambling statutes, section 62-701 et seq., R.C.M.1947, to limit and control, as well as authorize, gambling and the various forms thereof. Such limitation, it is argued may be accomplished by way of initiative or referendum, submitted to the qualified voters in such jurisdictions. We cannot sustain this position.
A county possesses and can exercise only such powers as are conferred on it by the Constitution and statutes of the state, or such powers as arise by necessary implication from those expressly granted, or such as are required for performance of duties imposed on it by law. Hersey v. Neilson, 47 Mont. 132, 131 P. 30 (1913); Roosevelt County v. State Board of Equalization, 118 Mont. 31, 162 P.2d 887 (1945); Helena Gun Club v. Lewis and Clark County, 141 Mont. 490, 379 P.2d 436 (1963). Therefore, beyond the express powers delegated counties by virtue of section 16-801 et seq., R.C.M.1947, and those necessarily implied therefrom, counties are without powers. Any reasonable doubt concerning the existence of a power should be resolved against a county's exercise of that power. Sullivan v. Big Horn County, 66 Mont. 45, 212 P. 1105 (1923); Bignell v. Cummins, 69 Mont. 294, 222 P. 797 (1923).
Cities and towns are similarly limited in their exercise of legislative powers. Sharkey v. City of Butte, 52 Mont. 16, 155 P. 266 (1916); Penland v. City of Missoula, 132 Mont. 591, 318 P.2d 1089 (1957); Leischner v. City of Billings, 135 Mont. 109, 337 P.2d 359 (1959).
The Montana Card Games Act and the Bingo and Raffles Law, section 62-701 et seq., R.C.M.1947, by their express terms authorize various forms of gambling. Sections 62-703, 62-717. The gambling acts contain a delegation of authority to cities, towns and counties, by this language in sections 62-708 and 62-720:
"The governing body authorized to issue gambling licenses pursuant to this act may establish by ordinance or resolution regulations governing the qualifications for and the issuing, suppression, and revocation of such gambling licenses. * * * "
The above statutes make plain, the sole power delegated to the local governing bodies is a discretionary power to regulate the licensing of gambling. The statutes reveal no language...
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