No. 13693
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1977
ROBERT S. BRADBROOK,
P e t i t i o n e r and A p p e l l a n t ,
-vs-
THE CITY O BILLINGS e t a l . ,
F
Respondents and Respondents.
Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
Honorable C. B. Sande, J u d g e p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
Moses, T o l l i v e r and W r i g h t , B i l l i n g s , Montana
C h a r l e s F. Moses a r g u e d , B i l l i n g s , Montana
F o r Respondents :
Harold Hanser, County A t t o r n e y , B i l l i n g s , Montana
P e t e r s o n and Hunt, B i l l i n g s , Montana
Kenneth P e t e r s o n a r g u e d , B i l l i n g s , Montana
Submitted: May 27, 1977
Decided: ' -
Filed :
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
This is an appeal from the district court's denial of
appellant's application for the issuance of a writ of prohibition.
Proceedings were originally had before the Yellowstone County-Wide
Gambling Commission. The gambling commission ordered a temporary
suspension of appellant's license to conduct gambling activities.
Thereafter, appellant applied to the district court, Yellowstone
County, for the issuance of a writ of prohibition.
Appellant is part owner of the General Custer Hotel in
Billings, Montana, and the Royal Flush, a bar located therein.
The Royal Flush has been licensed by the Yellowstone County-Wide
Gambling Commission to conduct gambling activities on the premises.
Appellant participates in the management of the Royal Flush and in
the operation of the licensed games that take place in that bar.
During the evening of March 23, 1976, appellant partici-
pated in a game of poker in the Royal Flush. Poker is a gambling
game authorized by and within the contemplation of the state laws
and local ordinances regulating gambling.
Appellant was subsequently charged with violation of Section
5.70.66(a), Ordinances of City of Billings. It provides:
"Interest Holders Ineligible. No person who owns
any interest of any sort whatever in or to any
licensed gaming operation and who also actively
participates in the management or conduct of the
licensed games or establishment shall play or be
permitted to play either in person or through an
agent at any gaming table in such establishment
* * *."
Notice of hearing before the gambling commission, dated
April 6, 1976, was served upon appellant. At the hearing oral
argument was had and briefs were submitted. On June 18, the gambling
commission ordered the gambling license issued to the Royal Flush
and appellant be suspended for a period of seven days, as a result
of appellant's violation of Section 5.70.66(a), Ordinances of City
of ~illings. The order further provided the suspension of license
would be stayed in the event appellant appealed to the district
court.
Rather than appealing the decision of the gambling commis-
sion to the district court as provided in the gambling ordinances,
appellant filed an application for a writ of prohibition. This
application was heard by the district court and denied. Appellant
seeks reversal of the order denying the issuance of a writ of pro-
hibition and raisesfour issues for review on appeal:
1. Whether prohibition is an appropriate remedy;
2. Whether sections 62-707 and 62-708, R.C.M. 1947, which
grant local governing bodies the power to issue gambling licenses
are unconstitutional as violating Art. V, Section 12, 1972 Montana
Constitution;
3. Whether the Montana legislature has given local govern-
ing bodies power to control or regulate gambling as opposed to the
power to merely issue licenses to conduct gambling activities;
4. Whether a local governing body can validly delegate to
an appointed body (the gambling commission) the power to issue
licenses.
The writ of prohibition lies to arrest the proceedings of
any tribunal, corporation, board or person whether exercising func-
tions judicial or ministerial, when such proceedings are without
or in excess of the jurisdiction of such tribunal, corporation,
board or person. Section 93-9201, R.C.M. 1947. It may be issued
by the Supreme Court or a district court in cases where there is
no plain, speedy, and adequate remedy in the ordinary course of
law. Section 93-9202, R.C.M. 1947; State ex rel. Myersick v. is-
trict Court, 53 Mont. 450, 164 P. 546; State ex rel. Morales v.
The City Commission of the City of Helena, Mont . I
P.2d , 34 St.Rep. 697.
To determine whether a remedy is speedy this Court has
set forth the following test:
" * * * A remedy is speedy when, having in mind
the subject matter involved, it can be pursued
with expedition and without essential detriment
to the party aggrieved; and it is neither speedy
nor adequate if its slowness is likely to produce
immediate injury or mischief." State ex rel.
Marshall v. District Court, 50 Mont. 289, 292,
146 P. 743.
See also: State ex rel. Taylor v. District Court, 131 Mont. 397,
Upon examination of the instant case we find appellant had
a plain, speedy, and adequate remedy in the ordinary course of law.
Section 5.70.72, Ordinances of City of Billings, specifically pro-
vides for an appeal from a ruling of the gambling commission to
the district court.
In addition to having a specific remedy, it is clear appel-
lant's remedy was plain, speedy, and adequate. The gambling com-
mission's order stated the suspension would be stayed during the
pendency of appellant's appeal to the district court. Therefore,
the bringing of an appeal would not have required appellant to
suffer any injury during the pendency of such appeal. The district
court was correct in its denial of appellant's application for a
writ of prohibition as appellant had a plain, speedy, and adequate
remedy in the ordinary course of law.
Appellant's issue 2 is a challenge to the constitutionality
of sections 62-707 and 62-708, R.C.M. 1947. This issue is not
properly before this Court because of noncompliance with Rule 38,
M.R.App.Civ.P. This Court in Grant v. Grant, 166 Mont. 229, 232,
531 P.2d 1007, stated:
"Rule 38, M.R.App.Civ.P., requires that when
the state of Montana or its agencies or employees
are not parties to a suit, the appellant must, upon
filing the record, give immediate notice in writing
to the Supreme Court of the existence of constitu-
tional questions, specifying the section of the code
or chapter of the session law to be construed
so that the Court can notify the attorney general
of the state of Montana. Failure to comply with
this rule prevents the notice from being given
the attorney general and therefore he has no
opportunity to appear and defend the acts of the
Montana legislature. Under these circumstances
this Court will not proceed to answer the con-
stitutional questions as Rule 38, M.R.App.Civ.P.,
was not followed."
See also: Clontz v. Clontz, 166 Mont. 206, 531 P.2d 1003; Gilbert
v. Gilbert, 166 Mont. 312, 533 P.2d 1079.
We therefore decline to rule on the constitutional issues
here.
Resolution of appellant's issue 1 concerning the propriety
of the remedy of prohibition makes discussion of issues 3 and 4
unnecessary.
The judgment of the district court is affirmed.
Justice
We Concur:
I
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Justices , ,