Brindley v. Meara

• Decision Date: 18 November 1935
• Docket Number: 26189
• Citation: 198 N.E. 301,209 Ind. 144
• Parties: BRINDLEY et al. v. MEARA et al
• Court: Indiana Supreme Court

198 N.E. 301

209 Ind. 144

BRINDLEY et al. v. MEARA et al

No. 26189

Supreme Court of Indiana

November 18, 1935

Declaratory judgment action by Minnie K. Brindley and others against Myrtle G. Meara, etc., and others. From an order striking the petition from the files, the plaintiffs appeal.

Affirmed.

Appeal from Lake Circuit Court; E. Miles Norton, Judge.

George Panea and Martin J. Downey, both of Hammond, for appellants.

Joseph H. Conroy, of Hammond, for appellees.

OPINION

FANSLER, Judge.

Appellants members of the advisory board of North township, Lake county, brought an action for and procured a declaratory judgment construing chapter 74 of the Acts of 1931 as conferring power upon the advisory board, and not upon the trustee, to select the persons that shall be employed by the trustee as investigators or assistants in discharging the duties of trustee concerning the relief of the poor. The appellees here appealed from that judgment, and the judgment was affirmed. Meara, as Trustee, etc., et al. v. Brindley et al. (Ind. Sup. 1935) 194 N.E. 351.

After the declaratory judgment was entered, and pending the appeal in this court, appellants filed a verified petition for further relief under section 8 of the Declaratory Judgments Act. Burns' Ann. St. Supp. 1929, § 680.8, Acts 1927, c. 81, p. 209. The petition alleges that, after the declaratory judgment construing the statute as conferring power upon the petitioners to select the persons to be employed by the trustee was entered, the advisory board made and adopted a resolution whereby they selected the persons to be employed by the trustee, and fixed their salaries; that thereafter the trustee published certain articles in the form of news in certain newspapers containing false statements to the effect that the advisory board had repeatedly discharged investigators employed by the trustee and replaced them with employees of their own choice, and other news items in which the advisory board 'were represented as staging a mere battle for the control of the township payroll for the purpose of making out of it a family affair, thereby tending to attract public ridicule upon your petitioners in connection with their attempt to perform properly their duties prescribed by said section Two (2) of chapter 74, Acts 1931, p. 190, and to frighten your petitioners away from doing their duties as aforesaid, for fear of attracting public opprobrium upon themselves'; that after the publication of the articles in question the trustee presented a claim for the allowance of salaries to certain investigators selected by her, in total disregard of the statute, and the judgment declaring its effect, and the resolution of the advisory board appointing employees; that by reason of the facts alleged the advisory board 'are threatened to be continually hampered, harassed, annoyed, either directly or indirectly * * * in the performance of the duties of their public office.' As further relief, an order is prayed directing the trustee to comply with the statute as interpreted and construed by the declaratory judgment, and enjoining the trustee from 'interfering, harassing and annoying, either directly or indirectly, your petitioners, as the Advisory Board of North Township, Lake County, Indiana, in the performance of the duties of their public office,' as prescribed by the statute and construed and declared by the court; and that defendants (appellees) be ruled to show cause way such further relief should not be granted forthwith.

It does not appear that any summons or other notice issued or was served upon appellees. Appellees are shown to have appeared specially to the petition for further relief and orally moved that it be stricken from the files of the court for want of jurisdiction. This motion was sustained by the court, and the petition was stricken from the files. It is this order striking the petition from the files that is assigned as error.

It may well be doubted whether a court of equity has jurisdiction to enjoin the doing of the things set out in the petition and concerning which injunctive relief is prayed, and it may be doubted also whether sufficient facts are stated to constitute a cause of action for mandate against the trustee. It is clear that appellants did not consider that they were instituting an ordinary action for injunction or mandate under the regular rules of procedure governing such actions. They assert in the briefs that they were seeking 'further relief based upon a declaratory judgment,' under section 8 of the Declaratory Judgments Act, and it is apparent that they relied upon that section as providing the procedure to be followed in procuring executory or coercive relief under any statute or instrument in respect to which there had been a declaratory judgment. The trial court seems to have refused to consider the petition upon the theory that there was no jurisdiction to grant executory or coercive relief based upon the declaratory judgment in a supplemental proceeding; and the correctness of the court's position in this respect is the only question presented by the briefs.

Our Declaratory Judgments Act seems to have been taken in its entirety from some foreign jurisdiction, and to have been drafted without consideration of our Code of which it was to become a part, and without effort to conform to our rules of procedure. As adopted by our Legislature, it is entitled, 'An Act concerning declaratory judgments and decrees and to make uniform the law relating thereto.' To avoid unconstitutionality it is required that the body of the act be not broader than the title, and, therefore, its provisions must, if possible, be construed as concerning only declaratory judgments and decrees. Borchard, well-known American writer upon the subject, says that the action for declaratory judgment is distinguished from other actions in that it does not seek execution or performance from the defendant or opposing party. The judgment does not involve executory or coercive relief. This would seem to be the general understanding of the meaning of the words 'declaratory judgments and decrees.' Since the act in its title is limited to such judgments and decrees, the terms and provisions of the body of the act must be construed as referring also to that particular type of judgments and decrees. Nowhere in the act is there an express provision for an executory or coercive judgment in connection with a declaration of rights, status, or legal relations, and there is but little from which an intention that such judgments might be entered may be implied. The first sentence of section one (Burns' Ann. St. Supp. 1929, § 680.1) provides that: '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.' Section 3 (Burns' Ann. St. Supp. 1929, § 680.3) provides that: 'A contract may be construed either before or after there has been a breach thereof.' Section 12 (Burns' Ann. St. Supp. 1929, § 680.12) provides: 'This act 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.' There is nothing in section 12 indicating an intention to modify, change, or supplant the remedies or the procedure by which executory or coercive judgments are obtained. The word 'remedial' is applied to those statutes which give a new remedy or which are intended 'to supply some defects or abridge some superfluities of the common law.' Bouvier's Law Dictionary (3d Rev.) 2870.

Sections 1 and 3, construed in the light of section 12 as intended to supply some defects or deficiencies in our Code, and construed within the terms of the title of the act which concerns only declaratory judgments and decrees, would authorize courts to enter decrees declaring the rights and relations of parties when no other relief is or could be claimed, or where other relief is claimed. Where the rights of the parties are affected by statute, contract, status, or legal relations, it is always necessary in actions seeking executory or coercive judgment that the court determine the rights and relations of the parties, and the determination of the court in such actions is conclusive upon the parties in other controversies thereafter, if their rights as determined by the court in the first action are clearly apparent from the judgment. But they may not always be clearly apparent. If the rights of the parties thus necessarily determined are declared by express decree in the judgment, there can be no future difficulty respecting them. And so, a declaration of rights in connection with an executory judgment is to that extent remedial, and would seem to be within the purposes of the act when the relationship of the parties is not, or may not be, terminated by the executory judgment. And there may be cases in which, notwithstanding executory or coercive relief could be claimed, it is made to appear that a declaratory judgment or decree will terminate the controversy between the parties without coercive relief. Such a case would seem to be within the purposes of the act, although it is clear from section 6 (Burns' Ann. St. Supp. 1929 § 680.6) that it was not intended that courts should take jurisdiction in such a case where a declaratory judgment will not terminate the...