NO. 95-264
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
CITY OF FORSYTH,
Plaintiff and Respondent,
V.
RONALD ALLISON,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Rosebud,
The Honorable Joe L. Hegel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ronald Allison, Forsyth, Montana (pro se)
For Respondent:
Lee R. Kerr, Rosebud county Attorney, Forsyth,
Montana
Submitted on Briefs: November 2, 1995
DEC 12 199 Decided: December 12, 1995
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Appellant, Ronald Allison (Allison), was convicted by a jury
in the Sixteenth Judicial District Court, Rosebud County, of a
misdemeanor for failing to obtain a city business license. He
appeals his conviction.
We affirm.
Appellant raises three issues, which we restate as follows:
1. Did the District Court err in finding that Allison's
business was located within the Forsyth city limits?
2. IS the City of Forsyth's business licensing scheme
unconstitutional or discriminatory?
3. Did the District Court rely on perjured testimony by the
city clerk in obtaining a conviction?
FACTS
Appellant, Allison, owns and operates "King's Muffler,"
located in Forsyth, Montana. The land upon which Allison operates
his business was reserved on an original plat of the City of
Forsyth by the Northern Pacific Railroad Company. On the plat, the
land is designated as "reserved for railroad purposes."
In May 1994, the City of Forsyth filed a complaint in City
Court against Allison for failure to obtain a business license in
violation of § 5-l-2 of the City of Forsyth Codes. In September
1994, a jury found Allison guilty of this misdemeanor offense.
Allison then filed an appeal in the District Court.
Prior to trial, Allison contested the City of Forsyth's
jurisdiction over his business and filed a motion to dismiss. In
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response, the District Court issued an order allowing Allison
access to all relevant public records, and asked both Allison and
the City of Forsyth to submit briefs on the issue of whether the
property is within the legal boundaries of the City of Forsyth.
After the parties submitted their briefs, the District Court
denied Allison's motion to dismiss and found the reserved land to
be within the city limits for all purposes except the platting of
streets, alleys and lots. Allison filed a notice of appeal to this
Court, and refused to attend the District Court trial held on March
31, 1995. Trial was held without him, and the jury returned a
guilty verdict.
ISSUE 1
Did the District Court err in finding that Allison's business
was located within the Forsyth city limits?
Allison filed a pretrial motion to dismiss alleging that his
muffler shop was not within the jurisdiction of the City of
Forsyth. The District Court denied the motion and in doing so
found that Allison's shop was within the city limits and therefore
subject to the city's licensing requirements. The standard of
review for findings by a district court is whether the court's
findings are clearly erroneous. Bradshaw v. Bradshaw (1995), 270
Mont. 222, 229, 891 P.2d 506, 510.
When reviewing a motion to dismiss, the court construes the
complaint in the light most favorable to the plaintiff and
considers the allegations of the complaint as true. Rule 12(b) (6),
M.R.Civ.P.; Kelman v. Losleben (1995), 271Mont. 156, 894 P.2d 955.
Allison argues that because the city ordinance only applies to
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businesses operating within the city limits of Forsyth, he cannot
be charged with failure to obtain a license. Allison contends his
business is not within the city limits. Allison bases his claim on
the original plat of the City of Forsyth, in which the proprietor,
Northern Pacific Railroad Company, reserved certain property for
"railroad purposes." The muffler shop is located upon such a
reservation. Allison claims that the City of Forsyth has never
taken action to include this property within its boundaries, and
therefore, the business is located outside the city limits, citing
Gregory v. City of Forsyth (1980), 187 Mont. 132, 609 P.2d 248. In
that case, this Court found discrepancies existed in the City of
Forsyth's boundaries. Allison argues that the Greqorv case "casts
doubt on the remainder of the city property." Allison further
contends that the Greqorv case "mandates" that when there is
ambiguity as to whether property is within the city's jurisdiction,
the city must go through certain annexation procedures; and since
the area upon which his shop is located has never been annexed it
is outside the domain of the City of Forsyth.
In response to Allison's motion to dismiss, the City of
Forsyth contends the reservation does not exclude the reserved
property from the city limits. Rather, the reservation only
excepted the property from being platted into blocks, lots,
streets, and alleys. Furthermore, the City of Forsyth argued that
the Grecrorv case dealt with property located outside of the city
that had not been annexed. In this case, the property is within
the boundaries of the city, and has been zoned as industrial
property.
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In support of its argument, the City of Forsyth submitted an
affidavit from an appraiser from the Department of Revenue. The
appraiser stated that he had considered the question of whether the
railroad property was within city limits on "numerous occasions."
In order to answer the question he had mapped out the described
boundaries of the City of Forsyth using the original legal
description. After doing so, the appraiser concluded the property
in question was within the city boundaries. At the time the
original plat was drawn, the railroad company was the sole owner of
Forsyth and the company reserved the railroad right-of-way for its
own use; it did not exclude the reservation from the boundaries of
the city.
In its order denying the motion to dismiss, the District Court
agreed with the City of Forsyth. The court found that the areas
marked "reserved for railroad uses" merely kept the reserved
property from being platted, and therefore Allison was subject to
the City of Forsyth's business licensing ordinance.
The District Court's determination is not clearly erroneous
and we therefore affirm its conclusion that Allison's muffler shop
is located within the City of Forsyth for the purposes of city
licensing, and subsequent denial of Allison's motion to dismiss.
ISSUE 2
Is the City of Forsyth's business licensing scheme
unconstitutional or discriminatory in nature?
On appeal, we review the verdict or decision and any alleged
error objected to which involves the merits or necessarily affects
the judgment. Section 46-20-701(2), MCA; State v. Courchene
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(1992), 256 Mont. 381, 385, 847 P.2d 271, 273. Section 46-20-104,
MCA, provides that if the defendant fails to make a timely
objection during the trial, the objection is waived, except as
provided in 5 46-20-701(2), MCA, which reads in part as follows:
46-20-701. Elements of record court considers on review
-- errors noticed.
. .
(2) Any error, defect, irregularity, or variance
which does not affect substantial rights shall be
disregarded. No claim alleging an error affecting
jurisdictional or constitutional rights maybe noticed on
appeal, if the alleged error was not objected to as
provided in 46-20-104, unless the defendant [convicted
person] establishes that the error was prejudicial as to
his guilt or punishment and that:
(a) the right asserted in the claim did not exist
at the time of the trial and has been determined to be
retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement
agency suppressed evidence from the defendant [convicted
person] or his attorney that prevented the claim from
being raised and disposed of; or
(c) material and controlling facts upon which the
claim is predicated were not known to the defendant
[convicted person] or his attorney and could not have
been ascertained by the exercise of reasonable diligence.
(Emphasis added.)
Allison's claim that the licensing requirement is unconstitutional
may create prejudicial error, but his claim does not meet any of
the three requirements listed in the statute. See State v. Cain
(1986), 220 Mont. 509, 514, 717 P.2d 15, 18. If Allison wished to
raise the issue of the constitutionality of the licensing
requirement, he should have raised it at trial. Instead Allison
chose not to participate in the trial. His appeal rests solely on
the District Court's pretrial denial of a motion to dismiss based
on a factual finding that his business is within the city limits.
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The constitutionality of the City of Forsyth's licensing
requirements was never properly before the trial court for
adjudication. Because we do not consider issues raised for the
first time on appeal we decline to review the question of whether
the licensing requirement is unconstitutional.
ISSUE 3
Did the District Court rely on perjured testimony by the city
clerk in obtaining a conviction?
On appeal, Allison objects to the testimony of the city clerk
stating that Allison had obtained a business license prior to 1994.
Allison asserts that he has never obtained a business license, and
that the testimony was therefore untrue.
Again, the issue was not preserved at the District Court
level. Allison failed to object to the testimony at trial. Going
through the same analysis as provided in Issue 2, Allison fails to
establish the threshold requirement of prejudicial error under 5
46-20-701, MCA. Even if the testimony of the city clerk was
incorrect, whether Allison purchased a business license prior to
1994 bears little if any relevance to his conviction. Allison's
subsequent assumption that the rest of the city's testimony is
"tainted" and that he did not receive a fair trial is a mere
allegation which has not been substantiated on appeal.
We affirm the District Court.
Chief Justice