State Ex Rel. Altop v. District Court

*52 HONORABLE FRANK P. LEIPER, District Judge, sitting in place of MR. JUSTICE GALEN, disqualified, delivered the opinion of the court. This is an original application for a writ of mandate directed to the district court of the thirteenth judicial district of the state of Montana, and to Robert 0. Stong, a Judge thereof. The alternative writ was issued and the respondents answered. The pleadings are quite voluminous and contain much which we deem immaterial. The facts necessary to an understanding of the issues involved are: That the relatrix is the proprietress of a hotel in the city of Billings, Montana, and in December, 1918, was granted a license to operate such hotel; that in the early part of 1924 proceedings were instituted before the city council of the city of Billings looking to the revocation of such license; that such *53 further proceedings were thereafter had in this matter before the city council that the city council on the first day of April, 1924, made an order revoking the license; that on the seventeenth day of June following the relatrix herein commenced an action in the district court of the thirteenth judicial district of the state of Montana, in and for the county of Yellowstone, against the city of Billings, the city council of such city, and the mayor thereof (which action is numbered 11835 in the records of the above-mentioned district court), by filing a petition in which it was prayed that a writ of review issue commanding the defendants therein- to certify to the district court all of the proceedings had before the city council of the city of Billings relating to the revocation of the license of the relatrix, and that, after a review of the proceedings of the city council, judgment be rendered annulling the order made by said city council revoking the license of relatrix; that on the seventeenth day of June, 1924, a writ of review was issued in accordance with the prayer of the petition; that thereafter a motion was filed by the defendants in such action No. 11835 to quash the writ of review, which motion was on the twenty-first day of July, 1924, denied; that on the last-mentioned date the defendants in action No. 11835 filed their return to the writ, and also on the same day filed a motion for judgment on the pleadings; that on the third day of October, 1924, counsel for plaintiff in cause No. 11835 filed a motion to strike certain portions of the return to the writ of review, which motion was denied; that the matter came on for hearing on October 3, 1924, upon the defendants’ motion for judgment on the pleadings, and, as alleged in the petition filed in this court and admitted in the answer thereto, “thereupon the cause was argmed and submitted upon the petition for a writ of review and the return thereto as made by the defendants”; that thereafter the respondent court made an order which was entered in the minutes of the court- dismissing the complaint in cause No. 11835. The order is as follows: *54 “This proceeding seeks to review the actions of the council of the city of Billings in their revocation of rooming house license 11011. This matter was also before the court in cause 11728, wherein plaintiff sought an injunction. I still adhere to my views as set forth in the order made by me in that case. However, the city treasurer informs me, and such is the fact, that license 11011, which is the subject of this controversy, expired on April 1, 1924. As such is the case, the question before the court is only a moot one; consequently the court refuses to decide the matter ^and dismisses this proceeding. “I will, however, venture this opinion: That if the license would not expire until after this date, I would sustain the writ and annul the order of the council in revoking the license, on the ground that, while the statutes of Montana empower a city council to prescribe the manner of revoking a license, the city is without an ordinance prescribing the manner or method. “Dated October 17, 1924. “Robert C. Stong, Judge.” The minute entry is: “No. 11835. Violet Altop, Plaintiff, v. City of Billings et al., Defendants. In review of the action of the council of the city of Billings in their revocation of rooming house license No. 11011, court, finding that the said license expired April 1, 1924, refuses to decide the matter, and dismisses proceedings, and order dismissing proceedings is signed in open court.” The relief prayed by the relatrix is that the respondents be directed (a) to cancel and annul the order made on October 17, 1924, in cause No. 11835; (b) to reinstate such action; and (c) to enter judgment in favor of the plaintiff therein and against the defendants on the merits. Section 9848, Revised Codes of 1921, provides: “It [writ of mandate] may be issued by the supreme- court or the district court, or any judge of the district court, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.” *55 What duty in relation to cause No. 11835 did the law enjoin upon the respondent court which it failed to perform? The answer to this inquiry must be found in the proceedings had in the respondent court in that cause. Looking thereto, we find that defendants in that action filed a return to the writ of review and on the same day filed a motion for judgment on the pleadings. Later and on the same day this motion for judgment on the pleadings came on for hearing. Plaintiff therein moved to strike certain parts of the return to the writ, which motion to strike was denied. Then the motion for judgment was argued, and, according to the admitted facts, the cause was submitted upon the writ of review and the return thereto; that is, both parties rested. There remained but one thing to be done by the'court in that cause, but one duty to be performed by it, namely, the rendition of judgment. Section 9844, Revised Codes of 1921, provides: “If the return of the writ [of certiorari] be defective, the court or judge may order a further return to be made. When a full return has been made, the court or judge must hear the parties, or such of them as may attend for that purpose, and may thereupon give judgment, either affirming or annulling, or modifying, the proceedings below.” The plain duty of the respondent court was to render judgment in cause No. 11835 in accordance with the provisions of. section 9844, supra, but by the order of October 17, 1924, supra, it refused to render judgment. The order of October 17 is not an appealable order. (Sec. 9731, Rev. Codes 1921.) Section 9849 provides: “The writ [mandamus] must be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law.” By its refusal to render judgment the respondent court failed to perform an act which the law specially enjoins as a duty resulting from the office of district judge, and, the order of October 17, supra, not being an appealable one, the relatrix has no plain, speedy and adequate remedy in the ordinary *56 course of law. In this situation the writ of mandate is the proper remedy. (State ex rel. Robinson v. Desonia, 67 Mont. 201, 215 Pac. 220; State ex rel. Duggan v. District Court, 65 Mont. 197, 210 Pac. 1062; State ex rel. Peel v. District Court, 59 Mont. 505, 197 Pac. 741; State ex rel. Stuewe v. Hindson, 44 Mont. 429, 120 Pac. 485; State ex rel. Happel v. District Court, 38 Mont. 166, 129 Am. St. Rep. 636, 35 L. R. A. (n. s.) 1098, 99 Pac. 291; State ex rel. Montana Central Ry. Co. v. District Court, 32 Mont. 37, 79 Pac. 546.) The writ will issue, directing the respondent court to reinstate cause No. 11835, and to render judgment therein in accordance with the law. Writ issued. Mr. Chief Justice Callaway and Associate Justices Ban-kin, Holloway and Stark concur.