Tobin v. Pursel
| Citation | 539 P.2d 361 |
| Decision Date | 21 August 1975 |
| Docket Number | No. 4466,4466 |
| Parties | John J. TOBIN, County Clerk of Natrona County, Wyoming, Appellant (Defendant below), v. H. M. PURSEL and Margaret L. Pursel, husband and wife, Appellees (Plaintiffs below). |
| Court | United States State Supreme Court of Wyoming |
Daniel Burke, County Atty., Casper, for appellant.
B. J. Baker, of Brown, Drew, Apostolos, Barton & Massey, Casper, for appellees.
Before McCLINTOCK, RAPER and ROSE, JJ.
The Pursels are the owners of a sizeable amount of property adjacent to Casper along the Alcova Highway. They have been selling lots to the general public for residential purposes, conveying the lands by metes and bounds. They were requested by the county clerk, the defendant-appellant herein, to file a plat and dedication under § 34-123, W.S.1957, 1 which they declined to do and in lieu thereof brought this suit for declaratory judgment seeking a determination of the construction and the validity of the afore-cited section of the statutes.
The issues presented to the trial court may be defined as set out in the appellees' brief:
'1. Did the actions of appellees in selling tracts of their land constitute the subdividing of said land into three or more parts for the purpose of laying out any town or city, or any addition thereto, or any part thereof, or suburban lots, within the contemplation of Section 34-113, Wyoming Statutes 1957?
The trial court held that the Pursels were in fact subdividers and subdividing their land for the purpose of laying out suburban lots under the statute, but further held that § 34-123 violated the due process clauses of the federal and state constitutions.
The suit was brought under the Uniform Declaratory Judgments Act, appearing in Wyoming Statutes 1957, §§ 1-1049 to 1-1064.
The court was petitioned under and by authority of § 1-1052, entitled 'Right of interested party to have determination made.' This section of the statute provides:
'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 statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.' (Emphasis ours)
We find that this is a proper case to utilize the declaratory judgments act and there is a justiciable controversy based upon the facts apparent in the record.
Even though it was not raised by the litigants, we call attention to § 1-1061 of the declaratory judgments act, which is entitled 'Parties generally; proceedings involving validity of ordinance or franchise.':
(Emphasis ours)
This is a controversy in which a statute is alleged to be unconstitutional and, by admission of counsel, the attorney general of Wyoming had not been served with a copy of the proceeding or given the opportunity to be heard, as provided and directed by § 1-1061, supra.
In light of this, we must determine whether or not it is fatal to this appeal necessitating a remand to the district court for purposes of complying with § 1-1061, supra, and other attendant ramifications. If it is in fact necessary that the attorney general be served with a brief and given an opportunity to be heard, it would be improper for this court to now decide the other issues raised on the appeal since this, then, would become an exercise in advisory opinion-rendering and we should not render advisory opinions. 2
UNDER THE DECLARATORY JUDGMENTS ACT, WHERE A STATUTE IS ALLEGED TO BE UNCONSTITUTIONAL, THE ATTORNEY GENERAL MUST BE SERVED WITH A COPY OF THE PROCEEDING AND BE GIVEN AN OPPORTUNITY TO BE HEARD. THIS STATUTORY INJUNCTION IS MANDATORY AND JURISDICTIONAL.
In 22 Am Jur 2d, Declaratory Judgments § 85, entitled 'As defendants.', at page 949, the text says:
It is said in Anderson, Declaratory Judgments, Volume 1, § 179, page 345, under the hearing, 'State or Officer or Sub-Division of a State as a Party to an Action,':
,
citing numerous cases in Note 42; and also see Volume 1 Supplement, Note 42, page 162, citing more recent cases.
In Wheeler v. Bullington, 264 Ala. 264, 87 So.2d 27, the court was concerned with a bill for a declaratory judgment to determine the invalidity of an act of the legislature and to enjoin the enforcement thereof. The question was whether or not the act was constitutional.
The court said:
'. . . it appears to be universally held that compliance with this provision is mandatory and goes to the jurisdiction of the court.'
A long list of citations is given in support of this rule.
In Bond's Jewelry Company v. City of Mobile, 266 Ala. 463, 97 So.2d 582 (1957), a bill for a declaratory judgment was before the court to determine the validity of a municipal ordinance which was under attack on constitutional grounds. The statute provided that in such cases the attorney general shall be served with a copy of the proceedings and have an opportunity to be heard; and in reiterating its holding in Wheeler v. Bullington, supra, the court held:
'It is clear, therefore, that the trial court never acquired jurisdiction to render the decree appealed from, and said decree is void. The absence of jurisdiction is apparent on the face of the record.
'A void decree will not support an appeal; this court can acquire no jurisdiction on such an appeal even by consent of the parties; it must take notice of its own want of jurisdiction apparent on the record.'
In In re City of Bellingham, 52 Wash.2d 497, 326 P.2d 741 (1958), the question was whether or not a certain city ordinance was constitutional.
The appellant had not complied with the applicable provisions of the declaratory judgments act with respect to the attorney general and the court said:
See also Hydraulic Press Brick Co. v. City of Independence, 38 Ohio App.2d 37, 311 N.E.2d 873 (1974), and Bollhoffer v. Wolke, 66 Wis.2d 141, 223 N.W.2d 902 (1974).
In Wyoming, related areas contemplating the necessity of serving the attorney general with copies of briefs have been considered by the legislature and this court.
Rule 12(e) of the Rules of the Supreme Court, provides:
'Service of briefs upon attorney general.-In all cases both criminal and civil, in which the state is a party, or in which any of its property is involved, including criminal cases upon reserved questions, and cases arising upon exceptions taken in a criminal case by the prosecuting attorney counsel shall also serve a copy of their brief upon the attorney general.' (Emphasis ours)
We held in State v. Kelly, 33 Wyo. 420, 422, 240 P. 207, where this rule was disregarded:
'. . . the fact is not denied that the brief was not served upon the Attorney General, and that is...
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...duty of this court to notice and act on jurisdictional matters even though not raised by the parties or the district court. Tobin v. Pursel, Wyo.1975, 539 P.2d 361. While this court has said that immunity from suit is a threshold question, it is my view that at least an equally threshold qu......
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