Banning v. Marsh

• Decision Date: 09 December 1932
• Docket Number: No. 28518.,28518.
• Citation: 124 Neb. 207,245 N.W. 775
• Parties: BANNING ET AL. v. MARSH, SECRETARY OF STATE (NEBRASKA MOTOR TRANSPORT ASS'N, INC., ET AL., INTERVENERS).
• Court: Nebraska Supreme Court

124 Neb. 207

245 N.W. 775

BANNING ET AL.

v.MARSH, SECRETARY OF STATE (NEBRASKA MOTOR TRANSPORT ASS'N, INC., ET AL., INTERVENERS).

No. 28518.

Supreme Court of Nebraska.

Dec. 9, 1932.

Syllabus by the Court.

1. It is not within the province of this court to determine abstract, hypothetical, and moot questions.

2. Declaratory Judgments Act applies only to actions where there is an actual controversy and where only justiciable issues are presented by proper parties.

3. Constitutionality of statute will not be determined unless necessary to proper disposition of pending case.

Appeal from District Court, Lancaster County; Shepherd, Judge.

Suit by William B. Banning and others against Frank Marsh, as Secretary of State, in which Nebraska Motor Transport Association, Incorporated, and William D. Heflin intervened. From an adverse decree, the last-named intervener appeals.

Appeal dismissed.Harold W. Felton and Arthur F. Mullen, both of Omaha, for appellant.

Hall, Cline & Williams, of Lincoln, for plaintiffs-appellees.

Sterling F. Mutz, of Lincoln, for appellee Marsh, Secretary of State.

Harold W. Felton, of Omaha, for appellee Nebraska Motor Transport Ass'n, Inc.

Heard before GOSS, C. J., and ROSE, DEAN, GOOD, EBERLY, DAY, and PAINE, JJ.

DAY, J.

This suit was brought to enjoin the secretary of state from placing on the ballot a referendum on chapter 107, Laws 1931. The validity of the signatures to the referendum petition was questioned. The appellant intervened as a taxpayer and alleged that the law was unconstitutional for that it violated the Fourteenth Amendment of the federal Constitution and section 3, art. 1 of the Nebraska Constitution. The trial court entered a decree finding that the referendum petition did not contain a sufficient number of valid signatures, distributed as required by law, to subject the legislative enactment to a vote. There is no appeal from this part of the decree. The trial court also found that the enactment was a constitutional exercise of the legislative power, although properly holding that its constitutionality was not involved in this case.

[1][2] The appellant prosecutes this appeal to secure a determination by this court of the constitutionality of the law. The right of the intervener to challenge the constitutionality of this act is grounded upon his interest as a taxpayer to prevent additional tax burdens by a referendum upon an unconstitutional statute. It is the appellant's contention, to quote from his brief, “that taxpayers of the state should not be required to pay the expense incident to having a referendum of an unconstitutional statute.” However, since the decision of the trial court from which no appeal was taken, the appellant was not threatened with this expense for that the trial court, finding that the referendum petition was insufficient, enjoined the secretary of state from placing the referendum ballot title on the official ballot. The constitutional question then became a moot question. It is not within the province of this court to determine abstract, hypothetical and moot questions. Kerr v. Gering & Co., 88 Neb. 192, 129 N. W. 430;Ververka v. Fullmers, 83 Neb. 6, 118 N. W. 1097;Heesch v. Snyder, 85 Neb. 778, 124 N. W. 466;State v. Armstrong, 94 Neb. 592, 143 N. W. 931.

[3] This court cannot determine the question presented by the briefs under what is known as the Declaratory Judgments Act, for sections 20-21,140 to 20-21,155, Comp. St. 1929, apply only to actions where there is an actual controversy and where only justiciable issues are presented by proper parties. Lynn v. Kearney County, 121 Neb. 122, 236 N. W. 192;Washington-Detroit Theatre Co. v. Moore, 249 Mich. 673, 229 N. W. 618, 68 A. L. R. 105;Lyman v. Lyman, 293 Pa. 490, 143 A. 200;Post v. Metropolitan Casualty Ins. Co., 227 App. Div. 156, 237 N. Y. S. 64;Garden City News v. Hurst, 129 Kan. 365, 282 P. 720. In the case at bar, there is no controversy between the parties and no justiciable issues presented. There can be no actual controversy between the secretary of state and the appellant in this matter. The only duty devolving upon said officer relative to this law was, if the referendum petition was sufficient, to place the question on the ballots at the general election. The secretary of state is not a law-enforcing officer, and the appellant does not allege in his petition of intervention that the defendant will or threatens to enforce said law to his prejudice....