Spencer v. Village of DeKalb, 51948

• Decision Date: 14 November 1966
• Docket Number: No. 2,No. 51948,51948,2
• Citation: 408 S.W.2d 78
• Parties: Elbert F. SPENCER, Respondent, v. VILLAGE OF DeKALB, Missouri, a Muncipal Corporation, Appellant
• Court: Missouri Supreme Court

Page 78

408 S.W.2d 78

Elbert F. SPENCER, Respondent, v. VILLAGE OF DeKALB, Missouri, a Muncipal Corporation, Appellant.

No. 51948.

Supreme Court of Missouri, Division No. 2.

Nov. 14, 1966.

R. A. Brown, St. Joseph, Brown, Douglas & Brown, St. Joseph, of counsel, for respondent.

Clem W. Fairchild, Herbert M. Kohn, Kansas City, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, of counsel, for appellant.

DONNELLY, Judge.

This is a suit under the Declaratory Judgments Act, §§ 527.010 to 527.140 RSMo 1959, V.A.M.S. plaintiff Spencer, in his petition, alleges that he is a resident, property owner, and taxpayer in the Village of KeKalb, Missouri. Defendant is the Village of DeKalb.

In 1962, the Village of DeKalb suffered a disastrous fire which could not be controlled because the Village did not have a water system. After the fire, two men, Lamb and Audsley, contacted the Village officials about a water system. Feasibility studies were entered into and, as a result, a proposal was made to obtain water from the Missouri River Bottoms west of DeKalb and to serve DeKalb and various other communities and users in the area. The estimated cost of the system was $505,000. In due time an election was held in the Village of DeKalb, pursuant to ordinance, and a revenue bond issue was carried. Revenue bonds in a total amount of $505,000 were sold. A check for $505,000 was delivered to the Village officials and was deposited in a Kansas City bank. Construction of the water system began. At the time of trial, the pboject was seventy percent completed and approximately $425,000 had been expended.

The trial court entered judgment for plaintiff and made the following order: 'IT IS THEREFORE considered, adjudged and declared by the Court that the ordinance of the Board of Trustes of the Village of DeKalb authorizing the election held April 2, 1963, in the Village of DeKalb was and is illegal, null and void and of no force and effect; that the issuance and sale of the bonds was and is illegal, null and void and of no force and effect; that the contract between the Village of DeKalb and the engineers for the drawing of plans and specifications was and is illegal, null and void and of no force and effect; and that the contract with the Mohawk Construction Company was and is illegal, null and void and of no force and effect.

'It is by the Court ordered that the Village of DeKalb be and is hereby enjoined and restrained from proceeding with the construction and erection of the water works system for which said bonds were voted; from paying any sums to the Mohawk Construction Company or the engineers employed to prepare plans and specifications, and from paying any sums whatsoever on the bonds.'

We do not reach the merits for we are of the opinion that the case must be reversed and remanded for new trial on all issues, because under the evidence plaintiff is not shown to have a legally protectible interest sufficient to allow him to maintain this suit.

In State ex rel. Chilcutt v. Thatch, 359 Mo. 122, at 129 and 130, 221 S.W.2d 172, at 176, this Court en Banc stated: 'No justiciable controversy exists and no justiciable question is presented unless an actual controversy exists between persons whose interests are adverse in fact. Plaintiff must have a legally protectible interest at stake and the question presented must be appropriate and ready for judicial decision. Borchard, Declaratory Judgments, p. 40; City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411; Odom v. Langston, 355 Mo. 115, 195 S.W.2d 466. Plaintiff's petition must present a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from a decree which is merely advisory as to the state of the law upon purely hypothetical facts. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000; Anderson. Declaratory Judgments, p. 27, 16 Am.Juris., Sec. 46. 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. They are merely advisory when the judgment would not settle actual rights. If actual rights cannot be settled the decreee would be a pronouncement of only academic interest. Plaintiff must have a legal interest in the relief he seeks. The question is justiciable only where the judgment will declare a fixed legal right and accomplish a useful purpose. Plaintiff must present a state of facts from which he has present legal rights against those he names as defendants with respect to which he may be entitled to some consequential relief immediate or prospective. If it appears plaintiff can have no relief against defendant, defendant should not be forced into litigation which can have no possible final result in favor of plaintiff. 1 C.J.S. Actions § 18, page 1031. See cases collected in 23 Words and Phrases, Perm. Ed., page 473, and in 2 West's Missouri Digest, Action, k6.'

Plaintiff testified on direct examination as follows:

'Q Do you own real estate in DeKalb? A I do.

'Q How long have you owned it?

'A Bought it in 1958.

'Q Do you own personal property in DeKalb?

'A Well, what is in my home, yes.

'Q Do you pay taxes? A I do.

'Q To the Village of...