Marshall v. Hill
| Decision Date | 03 December 1952 |
| Citation | 8 Terry 478,47 Del. 478,93 A.2d 524 |
| Parties | , 47 Del. 478 MARSHALL v. HILL et al. |
| Court | Delaware Superior Court |
Samuel R. Russell, of Tunnell & Tunnell, of Georgetown, for plaintiff.
Herbert L. Cobin, of Wilmington, for defendants.
The plaintiff brings this action for declaratory judgment as a citizen-taxpayer and as a member of the Board of Education of the Lewes Special School District. In his complaint, the plaintiff asserts that each of the defendants is usurping the office of member of the said Board of Education and that each of them is exercising such office without legal right. The defendants deny the assertion and, by counterclaim filed by them as citizens-taxpayers and members of the said Board of Education, they in turn charge the plaintiff with usurpation and unlawful exercise of office on the Board. Each side seeks a declaratory judgment which would have the effect of ouster as to the other. None of the parties claims the office which he or she alleges to be usurped.
The Board of Education of the Lewes Special School District is composed of four members. A vacancy was created when one of the four members of the Board moved out of the District. The controlling Statute provides that such vacancy 'shall be filled by the remaining members of the Board of Education for the unexpired term.' 45 Delaware Laws, Chapter 195. The plaintiff and the defendants Hill and Joseph were the three remaining members of the Board and they were unable to agree upon a replacement to fill the vacancy. Hill and Joseph nominated and voted for the defendant Karl and, over the plaintiff's objections, Karl was declared elected to fill the vacancy and he assumed office.
The plaintiff alleges that Karl holds the office without right because, under a proper construction of the Statute, the affirmative vote of all the remaining members of the Board was required to fill the vacancy and Karl did not have that vote. The plaintiff asserts that the defendants Hill and Joseph hold office without right because they did not take the oath of office required by Article XIV of the Delaware Constitution. By their counterclaim, the defendants maintain that the plaintiff holds office without right for the same reason.
The Court, upon its own motion, raises the issue of jurisdiction and the standing of the parties to seek a declaratory judgment.
An 'actual controversy' is a jurisdictional prerequisite in any action brought under our Declaratory Judgments Act 1 and, therefore, the Court is obliged to ascertain the existence of such controversy before it may properly proceed. Jurisdiction may not be conferred upon the Court by the agreement or consent of the parties if the cause does not involve an 'actual controversy' within the meaning of that term as it is used in the Statute. The Declaratory Judgments Act may not be invoked merely to seek legal advice. Stabler v. Ramsay, Del., 88 A.2d 546.
I think that the prerequisites of a controversy, such as will warrant consideration of a declaratory judgment action under our Statute, may be summarized as follows: (1) It must be a controversy involving the rights or other legal relations of the party seeking declaratory relief; (2) it must be a controversy in which the claim of right or other legal interest is asserted against one who has an interest in contesting the claim; (3) the controversy must be between parties whose interests are real and adverse; (4) the issue involved in the controversy must be ripe for judicial determination. See Stabler v. Ramsay, supra; 16 Am.Jur., pp. 284, 298; Borchard, Declaratory Judgments, pp. 26-57; Anderson, Declaratory Judgments, pp. 27-42; State ex rel. LaFollette v. Dammann, 220 Wis. 17, 264 N.W. 627, 103 A.L.R. 1089. Applying those prerequisites, it would follow that a mere difference of opinion between public officers, not involving the assertion of adverse interests, is not sufficient to support an action for a declaratory judgment. 16 Am.Jur. p. 319.
No case directly in point has come to my attention. I have found helpful, however, the case of McGee v. Dunnigan, 138 Conn. 263, 83 A.2d 491. There, the plaintiffs sought a declaratory judgment which would authorize a Board of Education to expend certain funds. The plaintiffs brought the action as citizens-taxpayers and as the three minority members of the Board of Education. The defendants were the four majority members of the Board of Education and other officials who were opposed to the expenditure of the funds. As in the instant case, the Court was requested to construe a statute. The Supreme Court of Errors of Connecticut held that the plaintiffs had no standing to raise the question because their personal rights would not be affected and, therefore, there was no justiciable issue as to them.
In this State, when public office is usurped and ouster is sought, the controversy always has been deemed to be between the public and the usurper. In such case, the proceeding for determination of right to office has always been instituted and prosecuted by the Attorney General, on behalf of the State, by way of the common-law remedy of information in the nature of a writ of...
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...and that the proceeding for ousting the offender must be brought by the Attorney General on behalf of the State." Marshall v. Hill, 93 A.2d 524, 526 (Del.Super.Ct.1952); see also, e.g., Brush v. City of Mount Vernon, 20 N.Y.S.2d 455, 456 (N.Y.Sup.Ct.1940) ("In providing for declaratory judg......
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...in their official capacity, to question the validity of the appointment of another member who has assumed office. Marshall v. Hill, 8 Terry 478, 47 Del. 478, 93 A.2d 524 (1952). See, also, Manlove v. Johnson, Let us suppose, for instance, the Pulaski Circuit Court ultimately finds that the ......
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