Ahern v. Baker, 19503

• Decision Date: 20 November 1961
• Docket Number: No. 19503,19503
• Citation: 148 Colo. 408,366 P.2d 366
• Parties: Margaret B. AHERN et al., Plaintiffs in Error, v. George J. BAKER, individually and as Secretary of State of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 366

366 P.2d 366

148 Colo. 408

Margaret B. AHERN et al., Plaintiffs in Error, v. George J. BAKER, individually and as Secretary of State of

the State of Colorado, Defendant in Error.

No. 19503.

Supreme Court of Colorado, En Banc.

Nov. 20, 1961.

John D. Saviers, Louis F. Pell, Jr., Aurora, for plaintiffs in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Charles S. Thomas, Asst. Atty. Gen., for defendant in error.

DAY, Justice.

This writ of error is directed to a judgment of dismissal entered by the trial court after submission of the issues upon stipulation of the parties. We will refer to the parties as they appeared in the trial court, where plaintiffs in error were plaintiffs, and defendant in error Baker as Secretary of State was defendant.

Plaintiffs, severally either in their own names or through corporate entitles, hold licenses to sell liquor in Colorado by the package. Many of them are in the package liquor business exclusively. Others conduct such business in a licensed drugstore. Defendant Baker is the duly elected Secretary of State and as such is the liquor licensing authority for the State of Colorado.

Plaintiffs brought the action purportedly under Rule 57, R.C.P. (Declaratory Judgment) and under Rule 106, R.C.P. (Certiorari and Mandamus). After considering the stipulation and arguments of counsel, the court dismissed the action for a number of reasons, pertinent among which was the finding, 'That the declaratory judgment sought herein is not a proper remedy.'

The court also found that while this is a class action, there has been no service on all the members of the class, or, in fact, on necessary parties to it. The court stated in its conclusion:

'It is well settled that a court may refuse to render a declaratory judgment which, if rendered, would not terminate the uncertainty or determine the controversy giving rise to the proceeding.

'The necessary and indispensable parties to any declaratory judgment are those who have a legal interest in the controversy to be adjudicated, and whose rights will be affected thereby, and jurisdiction must be obtained on all such parties.' (Emphasis supplied.)

The court failed to note, upon which we will comment later, the fact that there was no controversy. The parties plaintiff did not establish by their stipulation that they were in any manner 'aggrieved'. Since a reading of the complaint indicates that the plaintiffs did not state any claim upon which relief could be granted, the court should not have entertained the action upon its merits. However, the judgment of dismissal was correct.

The questions before this court are:

1. Whether the plaintiffs, either in their complaint or in the stipulation, to which the defendants agreed, established that their rights status or other legal relations are affected by the liquor code.

2. Whether all persons were made parties 'who have or claim any interest which would be affected by the declaration.'

3. Whether the complaint states a claim under Rule 106, R.C.P. Colo.

The main allegation of plaintiffs' complaint--which defendant admitted--is that certain licensed package liquor dealers in the State of Colorado deliver malt, vinous and spirituous liquors to the customer's premises and receive cash for the same at the premises of the purchasers upon delivery of the goods. The complaint further alleged that plaintiffs have made demand in writing and in person upon the Secretary of State to prohibit such sales. They explain their action thus: 'That this action is brought pursuant to Rule 106 of the Colorado Rules of Civil Procedure to compel the Secretary of State of Colorado to perform the acts complained of and which the law specially enjoins as a duty resulting from the public office held by him.'

They contend by means of the doings and omissions of the defendant that plaintiffs have been greatly aggrieved and wronged. They state that they 'have no plain, speedy or adequate remedy in the ordinary course of law whereby their rights can be upheld or whereby the Secretary of State can be compelled to perform such acts as required by law.' They seek a declaration of the court 'regarding the lawfulness' of C.R.S. '53, 75-2-3(8) and (12).

1. The question whether the action is one for declaratory judgment.

'The general or primary purpose of a declaratory judgments statute is to provide a ready and speedy remedy, in cases of actual controversy, for determining issues and adjudicating the legal rights, duties, or status of the respective parties, before controversies with regard thereto lead to the repudiation of obligations, the invasion of rights, and the commission of wrongs. * * *' 1 C.J.S. Actions § 18(3), p. 1022. (Emphasis supplied.)

In this action the parties plaintiff sought to have the court declare C.R.S. '53, 75-2-3(8) and (12) to be 'constitutional and lawful'. From the record before us it does not appear that anyone is contending to the contrary. Certainly not the Secretary of State who in administering the statute has not in any manner interfered with the plaintiffs in the operation of their businesses. There was no showing by statement, stipulation or inference that plaintiffs have been 'aggrieved or wronged' nor have their rights under the statute been in any manner impaired.

It is to be noted that none of the licensees in the state--the number of whom was not disclosed--who make deliveries as a regular service to their customers were made parties to the action. The plaintiffs sought no relief for themselves but rather to 'compel' the Secretary of State to take punitive action against others not before the court. Plaintiffs seek a judicial declaration not as to their own rights and status but attempt to have others not named or served declared to be in some 'unlawful' status. No error was committed by the trial court in holding that declaratory judgment was not a proper remedy.

2. The question whether parties who would be affected are before the court.

In People ex rel. Inter-Church Temperance Movement v. Baker, 133 Colo. 398, 297 P.2d 273, the plaintiffs representing the Inter-Church Temperance Movement sought to have certain sections of the liquor code declared to be violative of Article XXII of the Constitution. A similarity between that and this case is that there the parties who held licenses under the authority of the Secretary of State and who would have been affected in the operation of their business by any action of the court, were not made parties. It was held that such licenses who had a stake in the outcome of the litigation were necessary parties and that a declaratory judgment would not operate to terminate the endless litigation that would be generated by each holder's license...