Recall Bennett Committee v. Bennett

• Decision Date: 08 October 1952
• Parties: RECALL BENNETT COMMITTEE et al. v. BENNETT et al.
• Court: Oregon Supreme Court

Page 479

249 P.2d 479

196 Or. 299

RECALL BENNETT COMMITTEE et al. v. BENNETT et al.

Supreme Court of Oregon.

Argued and Submitted Oct. 6, 1952.

Decided Oct. 8, 1952.

Leo Levenson and Arthur M. Dibble, of Portland, argued the cause and filed a brief for appellant.

Duane Vergeer, of Portland, argued the cause for respondents. On the brief were Vergeer & Samuels and Charles S. Crookham, of Portland.

Before BRAND, C. J., and ROSSMAN, LUSK, LATOURETTE, WARNER and TOOZE, JJ.

BRAND, Chief Justice.

This is a suit for a declaratory judgment commenced by the 'Recall Bennett Committee' by and through Dave Goldman, and by Dave Goldman individually, as plaintiffs. The defendants are J. E. Bennett and the following public officers: Will Gibson, City Auditor of the city of Portland; James Gleason, Registrar of Elections of Multnomah county; and Guy H. Pace, County Clerk of Clackamas county. Plaintiffs seek a declaration that the name of the defendant Bennett should not be placed upon the ballot for the purpose of seeking re-election on November 4 and that he is not qualified to serve the balance of the unexpired term of the office from which he was ousted by recall 'and/or resignation followed by said recall.' The complaint also seeks injunctions against the defendants in their official capacity to restrain them from placing the name of the defendant Bennett on the ballot for the November 4 election. The facts relating to the merits of the controversy are not in dispute. The defendant Bennett was elected to and held Position No. 2 as a commissioner of the city of Portland, his term of office extending from January 1951 to January 1955. On 16 May 1952 an election was duly called and held within the city of Portland to determine whether the voters would recall the defendant Bennett from said office held by him. At said election the majority of the votes were in favor of the recall. On the day following the election the defendant Bennett tendered his resignation to the city council, which resignation was accepted on 20 May 1952. On 23 May the results of the recall election were formally declared and certified. On 28 May 1952 the council appointed Nathan A. Boody to fill the vacancy created by the resignation and recall of the defendant Bennett. On 26 August petitions were filed with the defendant Gibson for the purpose of procuring the placement of the name of the defendant Bennett upon the ballot for the election to be held on 4 November 1952 as a candidate for election to fill the vacancy in Position No. 2 on the city council for the balance of the term formerly held by the defendant Bennett, that is to say, until January 1955. It is the contention of the plaintiffs that the defendant Bennett is, by virtue of his recall from office, barred from seeking re-election to the identical position rendered vacant by his recall and that he is disqualified as a matter of law from holding said position for the balance of the term from which he was removed. The nominating petitions are such as would require the defendant public officials to place the name of the defendant Bennett upon the ballot unless by reason of the recall he is disqualified from becoming a candidate for, or being elected to, said position. Defendant Gibson, as city auditor, has certified the name of the defendant Bennett to the county clerk of Multnomah county and to the county clerk of Clackamas county on 28 August 1952. The defendant Gibson prays for a decree dismissing plaintiffs' complaint. The defendant Gleason, as Registrar of Elections, received the name of the defendant Bennett as that of a candidate entitled to have his name appear on the ballot for election to Position No. 2 and states that unless restrained by the court he will cause the name of the defendant Bennett to be placed upon the ballot and submitted to the voters. He declares himself uncertain as to the rights and status of the defendant Bennett and prays for a declaratory judgment concerning his duty under the law. The defendant Pace, who is county clerk of Clackamas county wherein a portion of the city of Portland is located, admits the allegations of fact in the plaintiffs' complaint and joins in a prayer for a declaratory judgment. The defendant Bennett, on the basis of admitted facts, prays for a declaratory judgment to the effect that he is entitled to be a candidate for the office of commissioner in Position No. 2 for said unexpired term and that he is eligible for election. The trial court allowed a motion for dismissal as to the defendant Will Gibson upon the ground that as to him the controversy is moot. All of the other parties to the controversy moved for judgment on the pleadings. The decree declares that the defendant Bennett 'is disqualified from seeking reelection to the position vacancy resulting from, and created by, said recall', and that such disqualification continues for the duration of the term of office for which he was elected and which terminates on 1 January 1955. The other defendants were enjoined from placing the name of the defendant Bennett upon the ballot for the November election and the defendant Bennett was enjoined from seeking re-election to the office for the term from which he was recalled.

Before entering upon the merits of the controversy we must consider certain procedural issues raised by the defendant. In his brief the defendant Bennett makes two contentions; first, that a declaration of rights cannot be had prior to election; and second, that the complaint does not contain sufficient facts showing a present justiciable controversy and that the court therefore did not have jurisdiction. Upon the first issue the defendant cites one case only, Dietz v. Zimmer, 231 Ky. 546, 21 S.W.2d 999, 1000. As will later appear, that case is distinguishable. The action was brought by residents, taxpayers and electors, seeking a declaration that certain candidates for election were disqualified by reason of violations of the Corrupt Practices Act. The defendants were nominees at a previous primary election. The circuit court sustained a demurrer to the complaint and entered judgment. On appeal, the judgment for defendants was affirmed. The court refused to consider the guilt or innocence of the defendants, which would have raised issues of alleged criminality. It cited the provisions of the Declaratory Judgments Act which are the same as those appearing in the Oregon statute and which read as follows:

'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. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree.' O.C.L.A., § 6-601.

'Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a constitution, statute, municipal charter, ordinance, contract or franchise may have determined any question of construction or validity arising under any such instrument, constitution, statute, municipal charter, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.' O.C.L.A., § 6-602.

'The enumeration in sections 6-601-6-604 does not limit or restrict the exercise of the general powers conferred in section 6-601, in any proceedings where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.' O.C.L.A., § 6-605.

The court said:

'The appellants are not interested or concerned in anything embraced within those provisions of the statute. Their rights are not affected by any ordinance, regulation, or statute. They are not concerned with the title to any property, office, status, or relation. They present no actual justiciable controversy with respect to any rights of theirs, nor have they any duties to perform respecting which the direction of the court is desired or required. The appellants seek merely a declaration of disqualification of the named defendants and have failed to bring the case within any of the terms of the statute upon which the case is predicated. In the absence of a justiciable controversy requiring a declaration of the rights of the plaintiffs, or a definition of their duties, in respect thereof, the court has no jurisdiction to enter a binding judgment. * * *' (Italics ours.)

It was held that the action would not lie. It will be observed that the court carefully guarded its decision by pointing out the absence of any duties on the part of the plaintiffs, the existence of which might place them within the confines of a controversy with the defendants. In other words, the plaintiffs were not public officers seeking a determination as to their duties relative to the election of the defendants.

We turn now to the defendant's second contention as above set forth, since his first point is embraced in the second. The general rule established by judicial decision is that a suit or action for a declaratory judgment will not lie unless there is an actual controversy existing between adverse parties. Oregon Creamery Manufacturers Association v. White, 159 Or. 99, 78 P.2d 572; Hickey v. City of Portland, 165 Or. 594, 109 P.2d 594. It remains to be determined whether there was such a controversy in the pending case. In Webb v. Clatsop County School District No. 3, 188 Or. 324, 215 P.2d 368, this court held that a justiciable controversy existed when voters sued members of a district boundary board to test the validity of a school election. It is argued that no justiciable controversy exists because the defendant Bennett may not be elected and will therefore have no duties to perform. It is...