State v. City of Billings

• Decision Date: 06 April 1927
• Docket Number: 6059. [a1]
• Citation: 255 P. 11,79 Mont. 25
• Parties: STATE ex rel. v. CITY OF BILLINGS et al. ALTOP
• Court: Montana Supreme Court

255 P. 11

79 Mont. 25

STATE ex rel. ALTOP v. CITY OF BILLINGS et al.

No. 6059. ^[a1]

Supreme Court of Montana

April 6, 1927

Rehearing Denied.

Appeal from District Court, Yellowstone County; W. H. Poorman Presiding Judge.

Proceeding by the State, on the relation of Violet Altop, against the City of Billings and others, for an injunction restraining enforcement of ordinance and for writ of mandate to compel defendants to issue a rooming house license. From a judgment for relatrix, defendants appeal. Reversed and remanded, with directions.

Galen J., dissenting.

M. J Lamb, of Billings, for appellants.

H. C Crippen and F. G. Huntington, both of Billings, for respondent.

STARK J.

The complaint in this action, after setting out in paragraph 1 existence of the defendant city and that the individual defendants are officers thereof, alleges that the plaintiff is, and for many years last has been, conducting a rooming house in the city of Billings called the "Owl Rooming House" under a license issued by the city; that on November 5, 1924, the city council of the city of Billings enacted Ordinance No. 995, which made it unlawful for any person to conduct a hotel or rooming house in said city without having first obtained a license therefor, on application approved by the city council. Section 2 of this ordinance is as follows:

"Any person, firm, or corporation desiring a license to conduct a rooming house or hotel shall make application therefor to the city clerk on forms to be provided, which application, if made by a firm or corporation, shall state the name of such firm or corporation, the date of its organization, its address or proposed location, the names and addresses of all persons interested in said firm, the name and addresses of all officers and trustees or directors, the name of the rooming house or hotel and the number of rooms therein, and such other and further pertinent information as the city council may require. On receipt of such application, the city clerk shall submit the same to the council at its next regular session, and thereupon said application shall be referred by the city council to the license and bond committee of the city council and to the chief of police for investigation. The chief of police and the license and bond committee shall investigate the facts stated in the application, the qualifications and character of the applicant and of the individuals, officers, or trustees of the firm or corporation, and report their recommendations. The city council may demand such other and further investigation that it may deem advisable. If the city council shall determine that the applicant for such license or that the persons interested in the ownership of such rooming house or hotel are not proper persons or that such rooming house or hotel may be operated in such manner as to be a menace to the public health, peace, morals, or general welfare of the city, such application shall be denied."

The next paragraph of the complaint is as follows:

"That heretofore, to wit, on or about the 15th day of September, 1925, this relator made due application to the city council of the city of Billings, on a form provided by the city clerk, for a license to conduct the said Owl Rooming House, at No. 16 1/2 North Twenty-Seventh street, in the said city of Billings, for the year 1925, and at said time offered to pay the amount of the license fee which would be required of her, and also at said time stated that she was willing and able to furnish a good and sufficient surety bond, in the sum of five hundred dollars ($500), as provided in section 6 of said ordinance, and thereafter her application, so made, was denied and rejected by the city council of the city of Billings, and she was notified to desist from conducting said rooming house, and further notified and warned that, if she persisted in conducting said rooming house, she would be arrested, as provided in said ordinance."

It is then set out that for many years the relator had made a livelihood out of conducting said rooming house and had invested in the furnishing thereof approximately the sum of $4,000; that she has no other property; that the action of the city council in denying her a license to conduct her rooming house will, if upheld, subject her to a loss of her property and her means of livelihood; that, by virtue of sections 2485 to 2502, Revised Codes 1921, providing for the licensing regulation and inspection of hotels and rooming houses by the state board of health, cities of the state of Montana are relieved of any duty or responsibility for the inspection and regulation of such places.

The prayer is (1) for an injunction restraining the defendants from enforcing said Ordinance No. 995 as to the relatrix, and from interfering with her in connection with conducting her said rooming house; (2) that, if said Ordinance No. 995 be upheld as a valid exercise of delegated power to the city council, in so far as its terms enable the city to exact a license fee from persons conducting hotels or rooming houses in said city, defendants be required by a peremptory writ of mandate to cause to be issued to the relatrix a license to conduct her rooming house, upon her paying the amount of license fee required thereunder.

As originally filed, this complaint contained numerous allegations to the effect that Ordinance No. 995 was wholly void and invalid, but, on motion of defendants, all such allegations were stricken therefrom.

On filing the complaint, an order was issued, dated October 19, 1925, restraining the defendants from interfering with the relatrix in the conduct of her rooming house during the pendency of the action. The court also issued an alternative writ of mandate commanding the city, its mayor and city council, to issue to relatrix a license to conduct her rooming house upon her paying the required fee therefor and furnishing a bond as prescribed in the ordinance, or that they show cause why they had not done so.

The defendants filed a return to this alternative writ, admitting the allegations of paragraph 1 of the complaint, also the passage of Ordinance No. 995 as alleged, and that relatrix had for a number of years conducted a rooming house in the city of Billings under a license issued to her; but denied that she had held any such license since January 1, 1924, and alleged that such former license was revoked by action of the city council on or about April 1, 1924, "after notice of charges were made and served, * * * duly notifying her to appear before said council and show cause why her said license theretofore issued should not be revoked," and that relatrix had never been granted a license to operate or conduct a rooming house in the city of Billings since that date; alleged that on the 3d day of March, 1925, the relatrix made application to the city council of the city of Billings for a license to conduct her said rooming house, and that said application was, after inspection and investigation by the said city council and the chief of police, refused by said city council, and that on or about the 15th day of September, 1925, the relatrix again made application to the city council for a license to operate her said rooming house, and that said application was refused by the city council. All of the other allegations of the complaint were denied. For a further defense, the answer set forth numerous matters tending to show that relatrix was not a proper person to operate or conduct a rooming house in the city of Billings.

To this answer, the relatrix filed a reply, denying each and every allegation thereof "save and except such * * * as admit the allegations of plaintiff's complaint."

The cause finally came on for trial on March 27, 1926, whereupon counsel for the relatrix said to the court:

"Under the admissions contained in the return of the defendants that the relatrix made application to the city council of the city of Billings on the 3d day of March, 1925, for a license to conduct the Owl Rooming House, and that such application was denied, and that a license was refused by the city council, and such return admitting that on the 15th day of September, 1925, this relatrix made application to the city council of the city of Billings for a license to operate the same rooming house, that the application was denied and the license refused, the relatrix will not offer any evidence, and will object to any evidence that may be offered to sustain the affirmative allegations of the separate defense of the defendants, for the reason * * * that a rooming house is a legitimate and ordinary business, * * * that the relatrix or anybody else has a right to conduct a legitimate business, and that it was not within the power of the city council to deny a license to the relatrix, * * * but, even if they have the power, we maintain it is a power that they cannot exercise arbitrarily; that, even if the statute and the ordinance passed under the statute contain provisions by which they could refuse, then that their act could not be arbitrary. * * * We rest and offer no evidence."

Whereupon counsel for the defendants said:

"The defendants move that this action be dismissed, that the court find in favor of the defendants and give judgment in favor of the defendants on the ground that the complaint * * * does not set forth facts sufficient to constitute a cause of action. The complaint is fatally defective, for the reason that it does not set forth any facts showing that the city council acted in abuse of discretion, arbitrarily or capriciously, nor does it allege any such facts by way of conclusion."

After a somewhat extended discussion between the court and counsel concerning the issues presented by the pleadings and the...