City of Jackson v. Heritage Sav. & Loan Ass'n, s. 44337

• Decision Date: 20 July 1982
• Docket Number: 44287,Nos. 44337,s. 44337
• Citation: 639 S.W.2d 142
• Parties: CITY OF JACKSON, Missouri, Plaintiff-Respondent, v. HERITAGE SAVINGS AND LOAN ASSOCIATION and First Federal Savings and Loan Association, Defendants-Respondents, and Cape County Bank and Jackson Exchange Bank and Trust Company, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 142

639 S.W.2d 142

CITY OF JACKSON, Missouri, Plaintiff-Respondent, v. HERITAGE SAVINGS AND LOAN ASSOCIATION and First Federal Savings and Loan Association, Defendants-Respondents and Cape County Bank and Jackson Exchange Bank and Trust Company, Defendants-Appellants.

Nos. 44337, 44287.

Missouri Court of Appeals,

Eastern District,

Division Four.

July 20, 1982.

Motion for Rehearing and/or Transfer

Denied Sept. 17, 1982.

Application to Transfer Denied

Oct. 18, 1982.

David G. Beeson, Buerkle, Lowes, Beeson & Ludwig, Jackson, J. Michael Payne, Limbaugh, Limbaugh, Russell & Syler, Cape Girardeau, for defendants-appellants.

Kenneth L. Waldron, Waldron & Turnbow, Jackson, for plaintiff-respondent.

Richard G. Steele, Cape Girardeau, for First Fed. Sav. & Loan Ass'n.

SMITH, Presiding Judge.

The City of Jackson filed a petition for declaratory judgment to seek resolution of certain questions involving the deposit of city monies. Joined as defendants were two banks (Jackson Exchange and Cape County) and two savings and loan associations (Heritage and First Federal). The City specifically asked the trial court (1) whether it could deposit funds in more than one institution at the same time, (2) whether it could deposit funds in savings and loan associations, and (3) whether its ordinance providing for deposit of funds in "banking institutions in the City of Jackson, Missouri, in such amounts so that the City funds in such banking institutions shall be of as nearly equal amounts as possible" was valid. The trial court gave an affirmative answer to the first two questions, a negative answer to the third question, and both banks appealed. Those appeals were consolidated. The financial institutions have been respectively joined in briefing before this court by the Missouri Bankers Association and Missouri Savings and Loan League as amici curiae.

Before us, the parties and amici have devoted much of their efforts to an exposition of whether Sec. 369.194, ¹ authorizing investment by political subdivisions or instrumentalities of the state in savings and loan associations, is constitutional in view of Mo.Const. Art. VI, § 23, precluding such subdivisions from owning stock in "any ... association." If such an issue must be resolved on this appeal, Mo.Const. Art. V, § 3, does not provide jurisdiction for us to make such a resolution. We do not find such resolution necessary because the trial court lacked jurisdiction to enter a judgment in the absence of a justiciable controversy.

Sec. 527.020 provides, "Any person ... 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." See also, Rule 87.02(a). A municipal corporation is a "person" under the statute. Sec. 527.130, Rule 87.05. The statute further provides that the listing is not exclusive and the Rule provides that anyone may maintain a declaratory judgment action "in any instance in which it will terminate a controversy or remove an uncertainty." Sec. 527.050, Rule 87.02(d). We are admonished that the law is remedial and is to be liberally construed and administered. Sec. 527.120; Pollard v. Swenson, 411 S.W.2d 837 (Mo.App.1967) [3-10].

However, despite the broad language of the statute and rule, courts are limited in the circumstances in which they may properly issue a judgment. For the court to have jurisdiction, even in a declaratory judgment case, it must have before it a "justiciable controversy." City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411 (1942) [2-4]; Pollard v. Swenson, supra, [3-10]. The petition ² must present a real, substantial, presently existing controversy admitting of specific relief as distinguished from an advisory decree upon a hypothetical situation. The question is not whether the petition shows that plaintiff is entitled to a declaration in accordance with the theory he states, but whether he is entitled to a declaration at all. Pollard v. Swenson, supra. Plaintiffs must show that they have a legally protectible interest at stake and that the question they present is appropriate and ripe for judicial decision. The facts on which the decision is demanded must have accrued so that the judgment declares the existing law on an existing state of facts. Higday v. Nickolaus, 469 S.W.2d 859 (Mo.App.1971) [1-3]. A mere difference of opinion or disagreement or argument on a legal question does not afford adequate ground for invoking the judicial power. Tietjens v. City of St. Louis, 359 Mo. 439, 222 S.W.2d 70 (banc 1949) [1-4]. "No justiciable controversy exists ... unless an actual controversy exists between persons whose interest are adverse in fact .... Actions are merely advisory when there is an insufficient interest in either plaintiff or defendant to justify judicial determination, i.e., where the judgment sought would not constitute a specific relief to one party or the other. Such actions are merely advisory when the judgment would not settle actual rights. If actual rights cannot be settled the decree would be a pronouncement of only academic interest." State ex rel. Chilcutt v. Thatch, 359 Mo. 122, 221 S.W.2d 172 (banc 1949) [5-7]. To qualify as "any person" under the statute, a party seeking a declaratory judgment must have a legally protectible interest at stake and the declaration sought must be of a question appropriate and ready for judicial resolution. "A legally protectible interest contemplates a pecuniary or personal interest directly in issue or jeopardy which is subject to some consequential relief, immediate or prospective." Absher v. Cooper, 495 S.W.2d 696 (Mo.App.1973) [1-4].

Having set forth these oft-recited principles we turn to the specifics of the case before us. Plaintiff's petition alleged that it is a city of the fourth class and set forth the nature and location of the defendants. It stated that each of the banks are depositories for plaintiff's funds. The banks desire to remain so to the exclusion of the savings and loan associations, although Heritage in fact has funds of plaintiff on deposit. Plaintiff's current ordinance provides that city funds "shall be deposited in all banking institutions in the City ... in such amounts so that the City funds in such banking institutions shall be of as nearly equal amounts as possible." The petition then sets forth the provisions of Secs. 95.355, 110.010, and 110.020, and alleges that 369.325(3) [sic] states that accounts of savings and loan associations are legal investments for funds of municipalities in Missouri. The petition then alleges that the City has "received numerous requests" from the savings and loan defendants for deposit of city funds and this has created a "perplexing problem of where a Fourth Class City in Missouri can or cannot deposit its funds." The petition then cites two opinions of the Attorney General which are alleged to be inconsistent, one of which would appear to preclude the city from depositing funds in more than one depository. It is alleged that there are no reported decisions on the subject.

Plaintiff's remaining allegations deal with intensification of questions...