                                No. 14246
                 IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       1978



I
    THE STATE OF MONTANA, ON THE
    RELATION OF RICHARD L. TURK,

                            Relator,


    THE DISTRICT COURT OF THE EIGHTH
    JUDICIAL DISTRICT OF THE STATE OF
    MONTANA, IN AND FOR THE COUNTY OF
    CASCADE, and the HONORABLE TRUMAN G.
    BRADFORD, presiding District Judge et al.,
                                 Respondents.


    ORIGINAL PROCEEDING:
    Counsel of Record:
         For Relator:
              Joseph C. Engel, I11 argued, Butte, Montana
         For Respondents:
              Hon. Mike Greely, Attorney General, Helena, Montana
              Sheri K.Sprigg, Assistant Attorney General, argued,
               Helena, Montana
              J. Fred Bourdeau, County Attorney, Great Falls, Montana
              Dennis Lopach, Helena, Montana


                                         Submitted:       May 4, 1978
                                              Decided:   JUL I 0 1978
    Filed:   JUL 1 0 19?@
Mr. Justice John C. Sheehy delivered the Opinion of the Court.


          his is an application by relator, Richard L. Turk, for a

writ of supervisory control to be issued against respondent courts,
arising from the prosecution of the relator for two alleged viola-
tions of the Motor Carrier Act, sections 8-101 through 8-132, R.C.M.
1947.
        Turk is the owner of a certain Peterbilt motor tractor
and semi-trailer.        On June 22, 1976, Turk, as lessor, entered into
a written lease agreement for the use of the tractor and trailer
with Montana Pole    &   Treating Plant of Butte, Montana.   The written
lease provides in essence that the lessor leases the tractor and
trailer to the lessee for a period beginning in Butte, Montana and
ending in Great Falls, Montana.       The lessee is to hire and have
exclusive direction of all drivers of said equipment and to pay the
driver's wages and expenses and other incidental payments, including
unemployment payments and social security payments.       The lessee is
to furnish oil, fuel, and other items necessary to operate the motor
vehicle equipment during the term of the lease with the lessor to
bear the cost of any repairs due to mechanical failure or expenses
necessary to keep the motor vehicle in operating condition.       The
lessee agrees to pay for insurance during the term of the lease,
and to carry public liability cargo and property damage insurance
and to assume the risk for liability to any persons arising during
the trailer lease.       Exclusive possession and control of the equip-
ment is vested in the lessee.       The amount of rental to be paid by
the lessee, however, is left blank.
        There is no provision in the lease that the lessee assumes
full responsiblity for all regulatory fees nor does it appear that
the lease was certified by the Public Service omm mission.
            he   public Service Commission of the State of Montana is

charged with the duty of enforcing the Motor Carrier ~ c t ,
                                                           section
8-103, R.C.M. 1947.        On June 23, 1976, its enforcement officer,
~lbertCalkins, inspected the tractor and trailer in Cascade County
while it was enroute from Butte to Great Falls during the term of
the written lease, carrying a load.          As a result of the inspection,
he issued a complaint and summons in the Justice of the Peace Court
in Cascade County against the driver of the motor vehicle equipment,
Turk, charging that Turk did unlawfully operate a motor vehicle
for the transportation of property for hire without having a certi-
ficate of public convenience and necessity as required by section
8-102 (b), R. C.M. 1947.
           It is admitted by the State that this charge grew from the
determination by Officer Calkins that the terms of the lease under
which Montana Pole     &   Treating Plant was operating the vehicle,
through the driver Turk, did not comply with the requirements of
the Montana Motor Carrier Act.
           On August 24, 1976, trial was had in Justice Court before
a jury on the charge against Turk, with Turk defending himself -
                                                               pro

- The State called Albert Calkins as its witness, and through him
se.
introduced two written exhibits, a truck check list, and the lease
agreement with Montana Pole.          Defendant Turk appeared as his own

witness.     After closing arguments and instructions to the jury, a
verdict was returned finding defendant "not guilty" of the charge
against defendant as we have quoted it above.
        On October 3, 1977, Turk again entered into a written lease
agreement with Montana Pole       &   Treating Plant for the same motor
equipment, identical in terms and conditions to the written lease
of June 22, 1976, except for the date.         Again, the vehicle was in-
spected on October 3 by Officer Albert Calkins, acting on behalf of
the Public Service c om mission and again, on October 20, 1977, a
"~otice Appear and Complaint" was issued to defendant, charging
       to
him with violation of the Motor Carrier Act in the same language
used in the first summons and complaint.     This time Turk, appearing
through counsel, filed a motion to dismiss, which the Justice Court
denied.      hereafter, Turk filed with the District Court of the
Eighth Judicial District, Cascade County, application for a writ
of supervisory control to be issued out of the District Court to
the Justice     of the Peace Court for dismissal of the latest charge
against Turk.    That application was denied by the District Court
on December 22, 1977.
          The Justice Court then set the second cause against Turk
for trial on April 20, 1978; however, Turk filed his application
for a writ in this Court on April 6, 1978.
          This Court set the application for adversary hearing, and
oral arguments have now been heard and considered by this Court.
          Turk raises these issues in support of his application:
(1) His remedy by appeal is inadequate; (2) the Justice Court is
wrongfully disregarding the applicable law with respect to the
second charge against Turk; (3) Turk is being subjected to extended
and needless litigation; and (4) the second charge against Turk is
barred by the doctrine of collateral estoppel.
          Respondents counter that:   (1) Appeal is the proper remedy
and the only remedy in a criminal cause; (2) Turk has also available
to him post-conviction relief if convicted, and habeas corpus; ( 3 )

the application was not timely filed; and (4) collateral estoppel
is not a bar to the prosecution of a second charge.
          We turn first to the issue of the application of the doc-
trine of collateral estoppel.    This doctrine is discussed in ~essell

v. Jones, (1967), 149 Mont. 418, 421, 427 ~ . 2 d295:
         " * * *'Collateral estoppel' as raised by this
        case may be considered as a branch of the doc-
        trine of res judicata but is distinguishable
        from the bar to litigation normally called res
        judicata. The distinction is that res judicata
        bars the same parties from relitigating the same
        cause of action while collateral estoppel bars
        the same parties from relitigating issues which
        were decided with respect to a different cause
        of action. See Cromwell v. County of Sac, 94
        U.S. 351, 24 L.Ed. 195, for a frequently cited
        discussion of this distinction. The bar that
        arises from collateral estoppel extends to all
        questions essential to the judgment and actually
        determined by a prior valid judgment. Nadeau
        v. Texas Co., 104 Mont. 558, 69 P.2d 586, 593,
        111 A.L.R. 874; Restatement of Judgments, 568."
        Thus, if the identical issues were litigated in the first
charge against Turk, it appears the doctrine of collateral estoppel
should apply.   Respondents argue, however, that the record is insuf-
ficient here to establish collateral estoppel because the first
charge against Turk was tried in Justice Court, which is not a
court of record.   Thus, respondents argue that other issues may
have determined the verdict of not guilty under the first charge;
for example, whether or not Turk was in fact operating the vehicle,
whether it was in fact a "motor vehicle" within the meaning of the
Motor Carrier Act, whether he was actually operating the vehicle
for the transportation of property, whether he was operating the
vehicle for hire, or whether he did in fact have a certificate of
public convenience and necessity.
        It is the duty of the party asserting collateral estoppel
to present to the court evidence of the prior judgment or sufficient
portions of the record to enable the court to reach the conclusion
that collateral estoppel does apply.   State Farm Fire   &   Casualty
Co. v. Century Home Components, Inc., (1976), 275 Or. 97, 550 P.2d
1185, 1188.   However, in this case, that is impossible for Turk
because of a lack of record in a Justice of the Peace Court, other
than the stenographer's notes as to the introduction of exhibits, to
which we have already adverted.   Nor are we aided by the language
of the charges brought against Turk in each of the complaints
filed against him, because in each instance he is 'charged with
violating the provisions of section 8-102(b), R.C.M. 1947.   This

code provision is simply a blanket section, making it unlawful to
violate any portion of or to fail to comply with the provisions of
the Motor Carrier Act.
        while we agree with counsel for respondents that the record
ought to reflect identity of issues in order toestablisheollateral
estoppel, we are disinclined to do so here, and thus dismiss Turk's
application, on two grounds:
        (1) Under the peculiar circumstances of this case it is
impossible for Turk to supply a full record;
        (2) In following that route, we would be regarding form
rather than substance, and there can be no doubt that the real issue
in each of the charges filed against Turk is whether the operation
of the motor vehicle equipment under the lease arrangements comes
within the provisions of the Motor Carrier Act.
        A strong argument presented by counsel for the State is
that in a criminal case, the only review available is by appeal or
by post-conviction relief.   In State ex rel. LaFlesch v. District
Court, (1974), 165 Mont. 302, 304, 529 P.2d 1403, we pointed out
that section 95-2401, R.C.M. 1947, provides that Chapter 24 of
the Montana Code of Criminal Procedure governs appellate review in

all criminal cases and all other existing methods of review in such
cases are abolished.   Moreover, it is provided in section 95-2601,
R.C.M. 1947, that any person adjudged guilty of an offense in a
court of record who has no adequate remedy by appeal and who claims
a violation of the Constitution, or lack of jurisdiction, may obtain
a hearing in the post-conviction remedy provided by Chapter 26 of
the Montana Code of Criminal Procedure.   Yet those provisions do

not quite touch this case for if Turk is convicted in the ~ustice
Court, on appeal his case will be tried - -
                                        de novo in the District
Court.    Section 95-2009, R.C.M. 1947.   Moreover, his post-conviction

rights would not accrue until he had been adjudged guilty in a
court of record which means after his case has been tried and he
has been found guilty in the District Court.     Section 95-2601, R.C.M.
1947.

          The situation confronting us here is novel.     Turk, on the
one hand, is convinced of the validity of his lease arrangements;
yet he has not wade out a case for supervisory control by us of the

lower court so as to dismiss the second charge against him.      Yet if
we do not act, he may be subject to charge after charge, with each
operation by him under the lease, until such time as his conviction

is achieved, and only then will his remedy by appeal become effec-

tive.    The Public Service Commission on the other hand is charged

by law to enforce the provisions of the Motor Carrier Act.      It has

a duty to prevent the transportation of property for hire by non-
certified carriers, if Turk fits in that category.      The principal
bone of contention, the validity of the lease agreement, requires
a speedy determination by a court of record, yet a speedy determina-

tion is far in the offing as matters now sit.     It does appear that
there will be extended and needless litigation between the con-
tending parties unless it is forestalled in some way.
         The Public Service Commission has other avenues of action

open to it.     Mandamus and injunction are available to compel com-
pliance with valid regulations affecting the public.      13 Am Jur 2d,

Carriers S32.     Turk himself has an available remedy.   He could pro-
ceed under the Uniform Declaratory Judgment Act and procure in a
court of record a declaration of the legal status of the lease
agreements.     Section 93-8901, R.C.M. 1947.
          If we regard this matter as coming to us from the ~istrict
Court, we have the power under section 95-2402, R.C.M. 1947, to
suspend all rules relating to review in criminal cases, and to
order such proceedings as may be necessary; even if section 95-2402
does not apply, our constitutionally-granted power of general super-
visory control over all other courts (Article VII, Section 2, 1972
Montana Constitution) is sufficient for us to act.
        Accordingly, we hold an order should issue out of this
Court directed to the Justice Court of the Eighth Judicial District,
State of Montana, in and for the County of Cascade, and to its pre-
siding Justice of the Peace, directing and ordering said court and
justice to grant a stay of proceedings with respect to the second
charge filed against Turk, conditioned upon the filing by either
of the contending parties, in a court of record and of competent
jurisdiction, of an action to determine the validity of the lease
agreements under which Turk is transporting property without certi-
fication, and the prompt prosecution of such action to a reasonably
speedy termination.



                                    Justice
We Concur:



     Chief Justice
               I N THE SUPREME COURT OF THE STATE OF MONTANA



                                          No.     14246



THE STATE O F MONTANA, ON THE
RELATION O F RICHARD L . TURK,

                                  Relator,



THE D I S T R I C T COURT O F THE EIGHTH
J U D I C I A L D I S T R I C T O F THE STATE O F
MONTANA, I N AND FOR THE COUNTY O F
CASCADE, and t h e HONORABLE TRUMAN G .
BRADFORD, p r e s i d i n g D i s t r i c t J u d g e ,
and THE J U S T I C E COURT O F THE EIGHTH
                                                                       FILED  JULIO 1978
J U D I C I A L D I S T R I C T OF THE STATE O F
MONTANA, I N AND FOR THE COUNTY O F
CASCADE, and t h e HONOROABLE J. VAUGHN
                                                                     .3Lmad        2.   Nearno#
BARRON, p r e s i d i n g J u s t i c e of t h e P e a c e ,          CLERK  OF SUPREME COURje
                                                                          STATE OF B    m
                                  Respondents.


                                         --           -




                                         O R D E R




        P u r s u a n t t o t h e order and o p i n i o n f i l e d i n t h i s C o u r t
i n t h e above e n t i t l e d cause,
        I T I S HEREBY ORDERED:

         ( 1 ) T h a t t h e J u s t i c e C o u r t of t h e E i g h t h J u d i c i a l D i s -

t r i c t of t h e S t a t e of M o n t a n a , i n and f o r t h e C o u n t y of C a s c a d e ,
and t h e H o n o r a b l e J. V a u g h n B a r r o n , i t s p r e s i d i n g J u s t i c e of

t h e Peace, be and a r e each hereby ordered t o s t a y proceedings

i n t h a t c e r t a i n c r i m i n a l cause pending i n i t s c o u r t i n w h i c h

d e f e n d a n t R i c h a r d L . T u r k i s charged w i t h a v i o l a t i o n of sec-
tion 8-102(b),           R.C.M.     1 9 4 7 , on t h e c o m p l a i n t of A l b e r t C a l k i n s ,

r e p r e s e n t i n g t h e M o n t a n a P u b l i c Service C o m m i s s i o n , f i l e d

O c t o b e r 3 , 1 9 7 7 , c o n d i t i o n e d upon t h e f i l i n g by e i t h e r of t h e

c o n t e n d i n g p a r t i e s , i n a c o u r t of record and of c o m p e t e n t
jurisdiction, of an action to determine the validity of the
lease agreements under which Turk is transporting property
without certification, and the prompt prosecution of such
action to a reasonably speedy termination.
     (2) That notice of this order, and of the opinion and
order of the Court herein referred to be served by mail by
the Clerk of this Court to each of the respondents above
named and respective counsel of record.
     DATED this /&a
                 &dy    of July, 1978.


                                 b- -
                                  eQ$         @du&Q,
                                ? Chief 'Justice




                                   Justices
