Lynn v. Kearney County

• Decision Date: 21 April 1931
• Docket Number: 27642
• Citation: 236 N.W. 192,121 Neb. 122
• Parties: EDWIN LYNN, APPELLEE, v. KEARNEY COUNTY, APPELLANT
• Court: Nebraska Supreme Court

236 N.W. 192

121 Neb. 122

EDWIN LYNN, APPELLEE, v. KEARNEY COUNTY, APPELLANT

No. 27642

Supreme Court of Nebraska

April 21, 1931

APPEAL from the district court for Kearney county: LEWIS H BLACKLEDGE, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

Declaratory Judgments Act examined, and held to be applicable to actions wherein there is an actual controversy, and where only justiciable issues are presented by proper parties. So construed, the act does not confer on the courts nonjudicial powers.

Counties are without the power, express or implied, to contract with townships, whereby, for an agreed consideration, the county will construct and maintain township roads.

Appeal from District Court, Kearney County; Blackledge, Judge.

Action by Edwin Lynn against Kearney County. Judgment for plaintiff and defendant appeals.

Affirmed.

C. A. Sorensen, Attorney General, Clifford L. Rein and J. L. McPheely, for appellant.

King & Bracken, contra.

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

OPINION

GOOD, J.

This is an action praying for a declaratory judgment, wherein plaintiff seeks to have determined the power of defendant to make and execute contracts with the several townships of the defendant county, whereby the defendant, for an agreed consideration, will construct and maintain township roads within the borders of the several townships with which it has executed such contract, and with other townships with which it contemplates making similar contracts and performing similar work. The trial court found and determined that defendant had no such power, and entered judgment conformable to the prayer of plaintiff's petition. Defendant has appealed.

In the minds of some of the justices of this court, grave doubts have arisen as to the jurisdiction of the court to entertain an action for a purely declaratory judgment. The jurisdiction of the court to entertain such a proceeding and to enter such a judgment is not assigned as error, or discussed in the briefs. Since the validity of such a judgment depends on the court's jurisdiction, we feel impelled to examine into the question, notwithstanding it has not been raised by the parties to this proceeding.

From a somewhat extensive investigation, we find that the declaratory judgment was first authorized and used in the Roman law. Later it found its way into court procedure in Germany, Spain, France and Austria. Still later, and about 400 years ago, it found its way into the procedure adopted in Scotland, and more than 50 years ago it was adopted in the jurisprudence of England. It is now recognized and applied in Canada, Australia, New Zealand and in a number of the sister states of this country. Unavailing efforts have been made to induce the congress of the United States to enact a law authorizing the federal courts to render declaratory judgments. In 1922 the national conference of commissioners on uniform state laws prepared a model act which is known as the "Uniform Declaratory Judgments Act." This act has been adopted, substantially as drafted, in 12 or more of the states. Nebraska adopted the act in 1929, and it now appears as sections 20-21,140 to 20-21,155, Comp. St. 1929.

In a brief by Professor Borchard of Yale University, favoring the enactment by congress of a bill authorizing federal courts to render declaratory judgments, printed in 1919 for the use of the senate judiciary committee of the sixty-fifth congress, there is contained an extensive review of the history and use made by the courts of other countries of this procedural reform. The question of the desirability of such an act has been discussed by a number of eminent jurists and professors of law. Among the very interesting and instructive articles on this subject the following may be noted: "A Modern Evolution in Remedial Rights--the Declaratory Judgment," by Professor Sunderland of the University of Michigan, appearing in 16 Mich. Law Review, 69; notes by T. Munford Boyd in 15 Va. Law Review, 79; and articles by Professor Borchard appearing in 28 Yale Law Journal, 1, and 37 W.Va. Law Quarterly, 127.

In 1919 the legislature of Michigan passed an act purporting to authorize courts of record in that state to make binding declaration of rights. In Anway v. Grand Rapids R. Co., 211 Mich. 592, 179 N.W. 350, also reported in 12 A. L. R. 26, by a divided court the act was held unconstitutional upon the theory that it required performance by the court of acts nonjudicial in character and in conflict with the constitutional provision vesting judicial power in the courts. In that case, as in this, the question of the validity of the act was not raised by the parties. Appended to the opinion of that case reported in 12 A. L. R., at page 52, is an exhaustive note dealing with practically every phase of declaratory judgments acts, and wherein it is disclosed that the federal courts have generally refused to render eo nomine declaratory judgments, but it is also pointed out that, in effect, such judgments have been rendered by the federal courts. As shown in the note, many, if not all, of the states of the Union have, from time immemorial, rendered judgments that are, in their nature, merely declaratory of the rights of the parties, and wherein no consequential relief was afforded; that is, any relief which could be enforced by execution. An action to annul a void marriage, because of incapacity of one of the parties to enter into the marriage contract, action to quiet title, where plaintiff's possession or title has not been threatened by another, action for construction of a will, and an action by a trustee for instruction and direction in the performance of his duties are illustrative of the use of declaratory judgments.

In 1929 the legislature of Michigan enacted another law authorizing the courts to render declaratory judgments, and the validity of this act was before the supreme court of that state in Washington-Detroit Theatre Co. v. Moore, 249 Mich 673, 229 N.W. 618. In the opinion in that case it was held that the act was not unconstitutional and did not require the court to perform nonjudicial functions. It was held that declaratory judgments are self-enforcing to the extent of being final, and constitute res judicata. It appears that the later act of the Michigan legislature authorized the rendering of declaratory judgments only in cases of actual controversy. In a separate concurring opinion by Wiest, C. J., it was said: "I can see no legal objection to the statute if, in practical...