Miller v. Stolinski
| Decision Date | 07 May 1948 |
| Docket Number | 32437. |
| Citation | 32 N.W.2d 199,149 Neb. 679 |
| Parties | MILLER et al. v. STOLINSKI et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A demurrer was properly sustained to a petition for a declaratory judgment, seeking a decree holding unconstitutional the Nebraska Community Property Act, when the only defendants were two county officers who had no interest in upholding said law or having it declared invalid.
2. In an action for a declaratory judgment, the opposition to the plaintiff's demand must come from a source competent legally to jeopardize his rights.
3. The Declaratory Judgments Act is applicable only where there is a present actual controversy all interested persons are made parties, and justiciable issues are presented. It does not undertake to decide the legal effect of laws upon a state of facts which is future, contingent, or uncertain.
Thomas P. Leary, of Omaha, for appellants.
James J. Fitzgerald and Ephraim L. Marks, both of Omaha, for appellees.
Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL and WENKE, JJ.
This is a suit for a declaratory judgment to test the constitutionality of the Nebraska Community Property Act. The trial court sustained a demurrer to the amended petition and the plaintiffs appeal.
The Nebraska Community Property Act is found as Laws 1947, c. 156, p. 426 and as sections 42-601 to 42-616, R.S.Supp.1947. It became effective September 7, 1947.
The amended petition was filed December 9, 1947, by a husband and wife against the county assessor and the county treasurer of Douglas County. The plaintiffs alleged that the husband had on deposit in an Omaha bank the sum of $100 in his own name that $93.75 of this sum was earned by him after September 7 1947, and the remaining $6.25 of said deposit was received by him after September 7 as interest on bonds which are his separate property. Plaintiffs alleged that they must list this $100 of personal property for taxation as Class A intangible personal property before April 20, 1948; that by virtue of the Nebraska Community Property Act the plaintiff wife is vested with a one-half interest in this property acquired by her husband, and the plaintiff wife alleged that said Community Property Act is unconstitutional, void, and of no force and effect.
The plaintiff husband admitted his liability to taxation as to one-half of said $100 of said bank deposit, but was in great doubt and uncertainty as to his liability to pay the tax on the remaining half of said deposit. He alleged that if the community property law is constitutional he must pay the tax on his wife's share and retain a lien for such payment on the half of the $100 deposit in which he is deprived of a vested interest, in which case the wife's property will be subjected to a lien in favor of the husband; that if the community property law is unconstitutional the husband must pay the tax on the whole $100, it being his separate property, according to the laws of the State of Nebraska prior to September 7, 1947; that false listing of property for taxation is a misdemeanor and would subject him to a maximum fine of $2,000 and a possible prosecution for perjury in case he makes a false oath.
It was also alleged that all married persons in Nebraska owning property occupied a similar position and should not be required to list their property for taxation while there is a doubt remaining as to who is the owner of said property; that this action was brought under the Uniform Declaratory Judgments Act; that plaintiff had no remedy, at law or in equity, so adequate, speedy, complete, or serviceable as that afforded by a judgment which would remove all doubt and uncertainty, and prevent a multiplicity of suits; that said community property law was unconstitutional and void and violated the Constitution of the United States and the Constitution of the State of Nebraska, as it impaired the obligations of contracts, violated the due process clause, abridged the privileges and immunities of plaintiffs in their private separate property, amended the present laws of Nebraska without containing the section or sections as amended and repealing them, constituted an unlawful exercise of power by the Legislature in transferring a vested interest in property from one individual to another without a judicial hearing, and that its provisions were so indefinite, ambiguous, uncertain, incomplete, and inconsistent as to be incampable of rational interpretation or judicial enforcement. The plaintiffs prayed for a declaratory judgment as to the rights of the parties and a declaratory judgment declaring the community property law unconstitutional and void.
To this amended petition the defendants demurred on the ground that there was an improper joinder of parties plaintiff and an improper joinder of parties defendant, and that the amended petition did not state facts sufficient to constitute a cause of action against defendants and in favor of plaintiffs.
These pleadings having been submitted to the court, an order was entered January 24, 1948, sustaining said demurrer. The plaintiffs electing to stand on their amended petition, the court dismissed the cause of action at costs of plaintiffs.
Plaintiffs appealed from said order. Their one assignment of error alleged that the court erred in sustaining the defendants' demurrer and dismissing the action.
As this record presents to the court an attempt to test the constitutionality of the Community Property Act by a declaratory judgment of this court, we must examine whether allegations of the amended petition meet the requirements necessary to bring such an action before this court for determination.
The plaintiffs first rely on an opinion of this court in a case brought as an original action, leave being granted to bring the same against the State Tax Commissioner. We held that, if any taxpayer had an actual justiciable controversy, with justiciable issues between proper parties affecting his legal right under any...
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