Boerschinger v. Elkay Enterprises, Inc.

• Decision Date: 05 January 1965
• Citation: 26 Wis.2d 102,132 N.W.2d 258
• Parties: Wallace BOERSCHINGER and Christine Boerschinger, his wife, and Joseph B. Allen, Plaintiffs-Respondents-Appellants, v. ELKAY ENTERPRISES, INC., a Wisconsin Corporation, Packerland Packing Company, Inc., a Wisconsin Corporation, and Frank O. Zeise Construction Co., Inc., a Wisconsin Corporation, Defendants-Appellants, Ted J. Denissen, Ronald Tordeur, Clarence Vanden Heuvel, and Town of Bellevue, a municipal corporation, Defendants-Respondents, Ray Weber and Gerald Linssen, Defendants.
• Court: Wisconsin Supreme Court

Page 258

132 N.W.2d 258

26 Wis.2d 102

Wallace BOERSCHINGER and Christine Boerschinger, his wife and Joseph B. Allen, Plaintiffs-Respondents-Appellants, v. ELKAY ENTERPRISES, INC., a Wisconsin Corporation, Packerland Packing Company, Inc., a Wisconsin Corporation and Frank O. Zeise Construction Co Inc., a Wisconsin Corporation Defendants-Appellants, Ted J. Denissen, Ronald Tordeur, Clarence Vanden Heuvel, and Town of Bellevue, a municipal corporation, Defendants-Respondents, Ray Weber and Gerald Linssen, Defendants.

Supreme Court of Wisconsin.

Jan. 5, 1965.

Rehearing Denied March 2, 1965.

See 133 N.W.2d 333.

Berk & Pressentin, Green Bay, for appellants.

Kaftan, Kaftan & Kaftan, Robert P. Stebbins, Green Bay, for plaintiffs-respondents.

Cornelisen, Dennissen, Kranzush & Kuehn, Green Bay, for defendants-respondents; David J. Condon, Green Bay, of counsel.

BEILFUSS, Justice.

The principal reason stated by the trial judge in sustaining the demurred of the municipal defendants was his opinion that the title to public office could not be tried in a declaratory judgment action but must be by quo warranto by the attorney general in the name of the state.

Generally speaking, quo warranto is the proper and exclusive remedy to try title to office.

The plaintiffs, contend that questions of title to office in this action are only ancillary to the principal cause of declaring the authority to build and operate an additional slaughterhouse and rendering plant to be invalid and as such can be tried with the principal cause of action.

Our first question is whether an action to try title to office must be brought by the attorney general or in the name of the state in quo warranto.

The controlling statutory sections of our quo warranto statute are:

'294.04 When action may be brought. (1) An action may be brought by the attorney general in the name of the state, upon his own information or upon the complaint of any private party, against the parties offending in the following cases:

'(a) When any person shall usurp, intrude into or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation created by the authority of this state; or * * *.

'(2) Such action may be brought in the name of the state by a private person on his own complaint when the attorney-general refuses to act or when the office usurped pertains to a county, town, city, village or school district.'

The title to offices in question are those of town supervisor and building inspector of the town. The challenge to these offices in quo warranto is controlled by sub. (2) of the statute quoted. These being town offices, the action can be started by a private individual without the attorney general or his prior refusal to act. In quo warranto brought under the statute, however, the action must be in the name of the state.

The question still remains whether title to office can be determined by declaratory judgment where it is only ancillary to the principal cause of action in the complaint.

We have stated in several prior decisions that quo warranto was the exclusive remedy to try title to office. Some of the cases enunciating that principle are: State ex rel. Lochschmidt v. Raisler (1907), 133 Wis. 672, 114 N.W. 118; Ekern v. McGovern (1913), 154 Wis. 157, 142 N.W. 595, 46 L.R.A.,N.S., 796; McCarthy v. Hoan (1936), 221 Wis. 344, 266 N.W. 916, 918; Joint School Dist. v. Waupaca, etc., County S. Comm. (1955), 271 Wis. 100, 72 N.W.2d 909.

We deem it necessary to reconsider this rule as it applies to actions such as this where title to office is ancillary to the principal dispute.

The action is brought under the Declaratory tory Judgments Act, sec. 269.56, Stats. Pertinent provisions of the statute are as follows:

'(1) Scope. Courts of record within their respective jurisdictions shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.

'(2) Power to construe, etc. Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder. No party shall be denied the right to have declared the validity of any statute or municipal ordinance by virtue of the fact that he holds a license or permit under such statutes of ordinances.

'* * *

'(5) Enumeration not exclusive. The enumeration in subsections (2), (3) and (4) does not limit or restrict the exercise of the general powers conferred in subsection (1) any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.

'* * *

'(12) Construction. This section is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.'

The plaintiffs, Boerschingers, seek to prevent the erection and use of a rendering plant and slaughterhouse. The corporate defendants have a building permit which authorizes the construction for that purpose. The major turning point of the entire controversy is the validity or lack of validity of the two town ordinances; one amending the zoning ordinance so as to permit the slaughterhouse and rendering plant, and the other to prohibit such building and use.

Certainly the right, status, and legal relations of the Boerschingers and the corporate defendants are affected by the conflicting ordinances. By virtue of sec. 269.56(2), Stats., quoted above, the plaintiffs may have the question of the validity of those ordinances determined by declaratory judgment. The Boerschingers' claim of invalidity of the ordinance permitting the building and use of the buildings is not based upon title to office but other alleged irregularities. The title to office of supervisor affects only the validity of the second ordinance prohibiting the building and use and the legality of the appointment of Mr. Tordeur, building inspector, who issued the building permit.

The title to the offices of town supervisor and town building inspector are only ancillary to the main controversy,--the validity of the ordinances and the building permit.

Sub. (15) of the Declaratory Judgments Act (sec. 269.56, Stats.), provides:

'Uniformity of interpretation. This section shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees.'

Professor Borchard, a well recognized text authority, states in Borchard on Declaratory Judgments (2d ed.), pages 362, 363:

'Since quo warranto is a traditional writ of ancient lineage, an occasional court will conclude that it is the indicated method of trying title to office or the validity of an election or other public act. But must courts have readily perceived that the declaratory judgment is a vehicle of relief of equal efficacy with quo warranto for the determination of the rights of the parties, while having the advantage of escaping some of the restrictions of quo warranto, * * *.'

1 Anderson, another recognized authority in Actions for Declaratory Judgments (2d ed.), page 396, sec. 195, concludes:

'The holdings that a declaratory judgment action may be entertained without regard to the existence of another remedy, are not only sustained by the better reasons, but are more in harmony with the true spirit and purpose of the declaratory procedure.'

In Recall Bennett Committee et al. v. Bennett et al. (1952), 196 Or. 299, 313, 314, 249 P.2d 479, 486, the court stated:

'* * * Neither quo warranto nor the statutory procedure authorized by O.C.L.A., § 81-1901 can be said to furnish a remedy as prompt and adequate as that afforded by the Declaratory Judgments Act, which act is remedial and must be liberally construed. * * *'

Counsel for the corporate defendants in their brief filed with the court 'agree with counsel for the plaintiffs that a liberal interpretation of the Uniform Declaratory Judgments Act permits a determination of an officer's status in such proceeding, and that such remedy may be selected in lieu of quo warranto. After all, the only real distinction is in the caption whether it is entitled in the individual's name or on relation of the State.'

All the necessary parties to a determination of the title to office are parties plaintiff or defendant,--the Boerschingers, the two persons claiming to be supervisor, the two persons claiming to be building inspector, the individual members of the town board, and the Town of Bellevue.

Without belaboring this opinion with additional citations of authority, we perceive no adequate reason why the ancillary question of title to office should not be tried in an action for declaratory judgment.

We, therefore, withdraw the language of any prior opinion that can be construed to hold that quo warranto is the exclusive remedy to try title to office where that issue is ancillary to the principal cause of action for declaratory judgment.

Both the corporate defendants and the municipal defendants contend there is a defect in parties plaintiff and defendant. We disagree. All the parties are either necessary or proper parties to the controversy. The...