State ex rel. Stewart v. District Court of First Judicial Dist. in and for Lewis and Clark County

• Decision Date: 15 December 1936
• Docket Number: 7648.
• Citation: 63 P.2d 141,103 Mont. 487
• Parties: STATE ex rel. STEWART et al. v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY et al.
• Court: Montana Supreme Court

63 P.2d 141

103 Mont. 487

STATE ex rel. STEWART et al. v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY et al.

No. 7648.

Supreme Court of Montana

December 15, 1936

Original proceeding by the State, on the relation of James H. Stewart and others, as members of the State Board of Equalization, to annul a writ of prohibition issued against relators by the District Court of the First Judicial District of the State in and for the County of Lewis and Clark, and the Honorable George W. Padbury, Jr., a Judge thereof.

Peremptory writ of prohibition ordered to issue, with directions.

W. D Rankin and Arthur P. Acher, both of Helena, for respondents.

S. C Ford and C. A. Spaulding, both of Helena, amici curiae.

PER CURIAM.

This is an original proceeding in this court brought by the relator board to annul a writ of prohibition issued by the respondent court against relator.

The relator, the State Board of Equalization, is empowered by statute to administer the provisions of the Montana Beer Act sections 2815.10 to 2815.59, inclusive, Revised Codes. This board, on October 15 of the current year, issued an order to show cause directed to certain persons holding retail beer licenses issued by it, all of whom were operating under their licenses in the city of Helena, wherein it stated that the board was informed that these licensees had sold intoxicating liquor in violation of their applications filed with, and the regulations of, the board. They were directed to show cause on October 21st following. On that date the board convened as such, and its chairman stated that certain information was in possession of the board to the effect that the vendors cited had violated the beer law in the consumption of intoxicating liquors in their places of business. The licensees were all represented by counsel, with certain exceptions, who made statements, but in none of these was there any denial of the charge that intoxicating liquors had been sold in their several places of business. One counselor who represented several licensees informed the board that he did not know whether his clients had sold intoxicating liquors or not. However, one of the licensees, Mr. Endress, denied that any intoxicating liquor had been sold in his place.

The various licensees, as a part of their appearance before the board, filed a motion to quash the order to show cause upon the grounds that the licensees had not been convicted of a violation of any of the provisions of the Beer Act, and that they had violated none of its provisions. No attempt was made by any of the licensees to offer any testimony denying the charge mentioned in the order to show cause.

At the conclusion of the hearing the board took the matter under consideration, and on October 26th entered an order suspending the license of the Higgins Cigar Store, one of the licensees before the board, for a period of five days.

Prior to the service of the order of suspension the Higgins Cigar Store, as relator, applied to the respondent court, together with a number of other licensees similarly situated, and secured what was denominated an "alternative writ of prohibition," which directed the relator board to show cause why it should not be absolutely restrained from any further proceedings in the matter, and why the order suspending the licenses should not be annulled. In addition it was further ordered that the board and the members thereof be restrained from any further proceedings in the matter, and from serving or seeking to enforce the order of suspension until the further order of the court. The sole ground alleged in the application for this writ was that no evidence was introduced either on behalf of the board or the relators therein at the time of the hearing. The relator board thereupon applied to this court for a writ of supervisory control, or other appropriate writ. The respondent court has appeared by motion to strike, motion to quash, and answer.

It is argued on behalf of the respondent court that supervisory control is appropriate only where the lower court has committed errors within jurisdiction. Such is the established law of this state. State ex rel. Finley v. District Court, 99 Mont. 200, 43 P.2d 682; State ex rel. State Bank v. District Court, 94 Mont. 551, 25 P.2d 396; In re Weston, 28 Mont. 207, 72 P. 512. When the facts before the court are sufficient to warrant any appropriate relief, the proper writ to accomplish the same may be granted where, as here, the application was for a writ of supervisory control or other appropriate relief. State ex rel. United States F. & G. Co. v. District Court, 77 Mont. 214, 250 P. 609; State ex rel. Peel v. District Court, 59 Mont. 505, 197 P. 741.

The writ of prohibition arrests the proceedings of any tribunal when such proceedings are without or in excess of the jurisdiction of such tribunal. Section 9861, Rev.Codes; State ex rel. Mueller v. District Court, 87 Mont. 108, 285 P. 928, 931. The relator should have applied for a writ of prohibition in this proceeding, as the question presented is whether the respondent court is acting in excess or without its jurisdiction. In view of the foregoing authorities we will give consideration to the application as though it were an application for such writ.

It is sought by the motion to strike to eliminate from relator's application any and all facts which appear therefrom and which were not before the district court as a part of the application there filed. The writ of prohibition is not strictly speaking a proceeding to review a proceeding in a lower court in its entirety. It is not a continuation of the proceeding in the lower court in the higher court. It is a new proceeding in the higher court to determine whether the lower court has exceeded or acted without its jurisdiction. In the case of State ex rel. Mueller v. District Court, supra, it will be observed upon a careful study of the case, that many facts were brought to the attention of this court there and were considered by it, which were not before the district court. Accordingly, the motion to strike is denied.

It is argued that this court should not issue a writ while the matter as to which it is alleged the lower court is exceeding its jurisdiction is there pending and undetermined, and not until the relators have exhausted their remedies in that court. Any such contention is foreclosed by what was said by this court in the case of State ex rel. Mueller v. District Court, supra, reading as follows: "Respondents make the point that under the authorities this court should not issue a writ while the matter as to which it is alleged the lower court will exceed its jurisdiction is there pending and undetermined, and not until the relators here have exhausted their remedies in the lower court, citing State ex rel. Heinze v. District Court, 32 Mont. 394, 80 P. 673; State ex rel. Mackel v. District Court, 44 Mont. 178, 119 P. 476; and State ex rel. Scollard v. District Court, 47 Mont. 284, 132 P. 21. But the situation presented in those cases bears little, if any, analogy to that presented here. In the present case the district court already has exceeded its jurisdiction. It did so in entertaining the application and in issuing a restraining order, which is still in effect and which, unless annulled by this court, may remain in effect for an indefinite time."

Some of the powers conferred by the Beer Act are enumerated in subdivisions a and b of section 2815.12, and read as follows "(a) To do all such things as are deemed necessary or advisable for the purpose of carrying into effect the provisions of this act and regulations made thereunder. (b) Without in any way...