Washington-Detroit Theater Co. v. Moore

Citation249 Mich. 673,229 N.W. 618
Decision Date06 March 1930
Docket NumberNo. 41.,41.
PartiesWASHINGTON-DETROIT THEATER CO. v. MOORE.
CourtSupreme Court of Michigan

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Wayne County, in Chancery; Homer Ferguson, Judge.

Action for declaratory judgment by the Washington-Detroit Theater Company against Anna Moore. From an order denying motion to dismiss bill, defendant appeals.

Affirmed, and case remanded.

Argued before the Entire Bench, except McDONALD, J.Stevenson, Butzel, Eaman & Long, of Detroit (Rockwell T. Gust, Edward H. Rogers, and Victor W. Klein, all of Detroit, of counsel), for appellant.

Wilkinson, Lowther, Wilkinson & O'Connell, of Detroit (Ralph B. Wilkinson, of Detroit, of counsel), for appellee.

FEAD, J.

Plaintiff has a ninety-nine year lease of premises owned by defendant, upon which is a theater building. Plaintiff claims the right, under the lease, to demolish the building, erect a new one, and use the latter for other than theater purposes. Upon discussion of the matter with defendant, the latter denied plaintiff's construction of the lease and threatened to forfeit it if plaintiff commenced destruction of the building or used it otherwise than for a theater. Plaintiff alleges that it cannot operate the building for theater purposes without great loss, and has already lost an opportunity for profitable sublease because of defendant's position. It brought this action under Act No. 36, Pub. Acts 1929, the Declaratory Judgment Law, to have its rights in this respect determined, and prayed for an injunction restraining defendant from interfering with destruction of the building or attempting to forfeit the lease. The bill states a cause of action under the act and, upon motion to dismiss, the court held the bill well laid and defendant has appealed.

The question is upon the constitutionality of the act.

A former declaratory judgment statute, Act No. 150, Pub. Acts 1919, was held unconstitutional by a majority of this court, Mr. Justice Fellows writing the prevailing opinion, and Mr. Justice Sharpe filing in dissent. Anway v. Grand Rapids Railway Co., 211 Mich. 592, 179 N. W. 350, 355, 12 A. L. R. 26. This was a pioneer case in this country, the discussion was exhaustive and, as the report is readily obtainable, we need not retread the ground.

The major part of Mr. Justice Fellows' opinion was founded upon the construction of the statute, that it provided for the determination of ‘moot cases,’ the rendition of ‘advisory opinions,’ and the giving of ‘advice.’

‘In short, it requires that the time of the court shall be taken, not in the determination of actual controversies where rights have been invaded and wrongs have been done, but in the giving of advice to all who may seek it.’

The present statute, while substantially identical with the former act in other respects, eliminates the possibility of its being so construed. By its language it is brought into general harmony with the interpretation given the former act by Mr. Justice Sharpe. It provides in section 1 that it applies only to cases of actual controversies,’ and contains a paragraph which has no counterpart in the former act:

Sec. 6. Declarations of rights made under this act shall have the effect of final judgments.’

That the present act does not constitute a court a fountain of legal advice to fill the cups of loitering wayfarers is also amply sustained by judicial opinion. The courts of Scotland have been rendering declaratory judgments for over 300 years. In England, they have been in vogue since 1852. They are part of judicial systems in Canada. About contemporaneous with, or since the Anway Case, seventeen or more American states have adopted identical or similar laws. Many of the courts have spoken upon them. It is of interest to note some of the adjudged requirements of a proper case for declaratory relief, especially as approved by American courts.

1. The exercise of the jurisdiction is discretionary with the court, and where no consequential relief is sought, it will be exercised with great care, extreme caution, and only where there are special circumstances demanding it. Kariher's Petition, 284 Pa. 455, 131 A. 265;Greene v. Holbrook, 128 Misc. Rep. 769, 220 N. Y. S. 151.

2. There must be an actual and bona fide controversy as to which the judgment will be res adjudicata. Such a case requires that all the interested parties shall be before the court. Holt v. Custer County, 75 Mont. 328, 243 P. 811;Stinson v. Graham (Tex. Civ. App.) 286 S. W. 264;West v. Wichita, 118 Kan. 265, 234 P. 978;Revis v. Daugherty, 215 Ky. 823, 287 S. W. 28;Patterson v. Patterson, 144 Va. 113, 131 S. E. 217;Tanner v. Boynton Lumber Co., 98 N. J. Eq. 85, 129 A. 617;Burton v. Durham Realty & Ins. Co., 188 N. C. 473, 125 S. E. 3;Ezzell v. Exall, 207 Ky. 615, 269 S. W. 752;Shearer v. Backer, 207 Ky. 455, 269 S. W. 543;Kelly v. Jackson, 206 Ky. 815, 268 S. W. 539.

3. The court will not decide as to future rights but will wait until the event has happened, unless special considerations otherwise require. Tanner v. Boynton Lumber Co., 98 N. J. Eq. 85, 129 A. 617;In re Gooding's Will, 124 Misc. Rep. 400, 208 N. Y. S. 793;Kariher's Petition, 284 Pa. 455, 131 A. 265.

4. A declaration will not be made in a matter where the interest of the plaintiff is merely contingent upon the happening of some event. Hodges v. Hamblen County, 152 Tenn. 395, 277 S. W. 901.

5. Where the court is asked for no consequential relief, it will not entertain the case if the effect is to interfere with the rights of a party to appeal to a court having jurisdiction of the particular matter by statute. Kariher's Petition, 284 Pa. 455, 131 A. 265; Wight v. Board of Education, 99 N. J. Eq. 843, 133 A. 387;Shearer v. Backer, 207 Ky. 455, 269 S. W. 543;State v. Board of County Com'rs of Wyandotte County, 117 Kan. 151, 230 P. 531;Proctor v. Avondale Heights Co., 200 Ky. 447, 255 S. W. 81;List's Estate, 283 Pa. 255, 129 A. 64;Hagan v. Dungannon Lumber Co., 145 Va. 568, 134 S. E. 570.

6. Ordinarily the court will refuse a declaration which can be made only after a judicial investigation of disputed facts, especially where the disputed questions of fact will be the subject of judicial investigation in a regular action. Newsum v. Interstate Realty Co., 152 Tenn. 302, 278 S. W. 56. In addition to the foregoing, the British courts have another rule which does not seem to have been passed upon in this country.

7. A declaration cannot be had in respect of a cause of action which, it is merely apprehended or feared, defendant may assert, where he has made no claim against the plaintiff thereon, although he refuses to waive any rights thereunder.

These rules and citations are taken from the notes in 12 A. L. R. 52, 19 A. L. R. 1124 and 50 A. L. R. 42, which digest a large number of illustrative cases. Their listing here is not to be taken as advance notice of the future position of this court, although their soundness is appealing, and, so far as they involve the construction of similar statutes, the decisions are entitled to the usual respect and consideration. They are set out particularly to indicate the character of judicial support to the construction of our statute, evident from its language, that a case for declaratory judgment must rest upon an actual controversy, be formally presented with proper parties, and is not a substitute for other regular actions.

Upon the basis that the proceedings are confined to actual controversies, declaratory judgment laws have been held constitutional in the following cases: State v. Grove, 109 Kan. 619, 201 P. 82, 19 A. L. R. 1116;Kariher's Petition, 284 Pa. 455, 131 A. 265;Miller v. Miller, 149 Tenn. 463, 261 S. W. 965;Braman v. Babcock, 98 Conn. 549, 120 A. 150;Patterson v. Patterson, 144 Va. 113, 131 S. E. 217;Blakeslee v. Wilson, 190 Cal. 479, 213 P. 495;McCrory Stores Corporation v. Braunstein, 102 N. J. Law, 590, 134 A. 752;Board of Education v. Van Zandt, 119 Misc. Rep. 124, 195 N. Y. S. 297.

In all except the last two, the Anway Case was cited and discussed. No court except our own has held a declaratory judgment law unconstitutional.

Defendant, however, insists that the act, in providing for proceedings before rights have been invaded or a wrong committed or threatened, is unconstitutional as not covering the exercise of judicial power, under the authority of Liberty Warehouse Co. v. Grannis, 273 U. S. 70, 47 S. Ct. 282, 71 L. Ed. 541, and Willing v. Chicago Auditorium Ass'n, 277 U. S. 274, 48 S. Ct. 507, 72 L. Ed. 880, in which the court held that a proceeding for a declaratory judgment is not a ‘case’ or ‘controversy’ to which the judicial power of the federal judiciary can attach. These cases did not pass upon the constitutionality of an act. In the latter case the facts were substantially identical with those at bar, except in the respect that there was merely a casual disagreement upon the legal right to tear down the building instead of definite negotiations to that end and actual controversy over the right. After eliminating a number of cases as distinguishable, among them Muskrat v. United States, 219 U. S. 346, 31 S. Ct. 250, 55 L. Ed. 246, relied upon and quoted at length by Mr. Justice Fellows, the court planted its ruling on one ground:

‘But still the proceeding is not a case or controversy within the meaning of article 3 of the Constitution. The fact that the plaintiff's desires are thwarted by its own doubts, or by the fears of others, does not confer a cause of action. No defendant has wronged the plaintiff or has threatened to do so. Resort to equity to remove such doubts is a proceeding which was unknown to either English or American courts at the time of the adoption of the Constitution, and for more than half a century thereafter.’ Willing v. Chicago Auditorium Ass'n, 277 U. S. 274, 48 S. Ct. 507, 509, 72 L. Ed. 880.

This historical argument, however much it may circumscribe a government of granted powers, is not applicable to a...

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