In re Searles

• Citation: 46 Mont. 322
• Parties: IN RE SEARLES.
• Decision Date: 11 November 1912
• Court: United States State Supreme Court of Montana

46 Mont. 322

IN RE SEARLES.

Supreme Court of Montana.

Nov. 11, 1912.

Appeal from District Court, Ravalli County; R. Lee McCulloch, Judge.

Petition by Charles Searles for a retail liquor dealer's license at Florence, Stevens Township, Ravalli County. From a judgment affirming the action of the board of county commissioners in denying such license, the petitioner appeals. Affirmed.

Holloway, J., dissenting in part.

Harry H. Parsons, of Missoula, for appellant.

H. C. Packer, of Hamilton, for respondents.

BRANTLY, C. J.

On February 26, 1912, Charles Searles, the appellant, presented to the board of county commissioners of Ravalli county a petition signed by 50 freeholders residing at Florence, an unincorporated town in that county, requesting that the board grant an order to the treasurer of the county to issue to Searles a license to sell intoxicating liquors at retail at Florence. The clerk gave notice of the application in conformity with the requirements of the statute. Laws 1911, p. 160, c. 92, § 3. No protest was filed by any one against the issuance of the license. The board nevertheless denied the application and refused to order the treasurer to issue the license. Searles then tendered to the treasurer the license fee fixed by the statute and demanded the license, but the demand was refused by this officer for the reason that he had not been authorized by the board to issue the license. Thereupon Searles appealed to the district court of Ravalli county from the order of the board. A hearing had in that court on June 14, 1912, upon an agreed statement of facts embodying substantially the foregoing recital, resulted in a judgment affirming the action of the board and awarding it costs. The matter is before this court on appeal from the judgment. No reference is made in the brief of counsel on either side to the question whether an appeal lies to the district court from an order made by a board of county commissioners under the circumstances disclosed by the record.

Of course, if the statute does not authorize the appeal, the judgment of the district court must be affirmed, for though that court assumed to determine the controversy upon the merits, if the statute does not provide for an appeal, the court did not acquire jurisdiction of the subject-matter of the controversy and could not determine the merits. Hence, upon the assumption that an appeal is not provided for, the judgment is correct in result, though the court decided upon the merits instead of dismissing the appeal.

The statute does not authorize such an appeal. The only provision on the subject is found in section 3 and is the following: “Before the board of county commissioners may act on any such petition, five days' notice of such application shall be given by the county clerk and recorder by posting notices in at least three public places in the village, camp, or township within which the applicant wishes to locate, and and if a protest is filed against the issuance of such license by at least twenty freeholders residing within the particular village, camp, or township, the county commissioners...