Waterman v. City of Independence

• Decision Date: 06 October 1969
• Docket Number: No. 25111,25111
• Citation: 446 S.W.2d 471
• Parties: D. E. WATERMAN et al., Plaintiffs-Respondents, v. CITY OF INDEPENDENCE, Missouri, et al., Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 471

446 S.W.2d 471

D. E. WATERMAN et al., Plaintiffs-Respondents, v. CITY OF INDEPENDENCE, Missouri, et al., Defendants-Appellants.

No. 25111.

Kansas City Court of Appeals, Missouri.

Oct. 6, 1969.

James S. Cottingham, City Counselor, Thomas D. Cochran, Asst. City. Counselor, Independence, for appellants.

Charles C. Shafer, Jr., Kansas City, for respondents.

SHANGLER, Judge.

In its original form, plaintiffs, D. E. Waterman and Lewis L. Castle, alleged to be residents, taxpayers and registered electors of Independence, Missouri, filed their First Amended Petition in two counts, as representatives of that class, against the City of Independence and William R. Moore, colorably, its Acting City Manager. The remedial objectives of the petition were that of a declaratory judgment decreeing the 'rights, duties, privileges and obligations of the parties' under the charter and ordinance of Independence and the laws of Missouri, and, as well, for an injunction to prevent, among other things, defendant Moore from compounding the illegality of his assumption of office by the continued discharge of its functions.

This dispute was brought to pass by the conjunction of certain Charter provisions relating to the selection of an Acting City Manager and the actions of a City Council of seven persons, deeply cleft as to purpose. On April 30, 1968, Ordinance No. 1755 came up for vote. It undertook to appoint defendant Moore the Acting City Manager (thereby terminating the tenure of then Acting City Manager Keith Wilson, Jr.). Four among the council voted for adoption, and three against. Mayor Donald M. Slusher, as presiding officer of the council, (presumably having voted against the ordinance) declared the ordinance invalid as it had not received five affirmative votes. This ruling was appealed and the Chair was overruled. Thereafter, on May 2, 1968, as authorized by the Charter, a special meeting of the council was held pursuant to a call by the regnant four and was attempted by them only. Two resolutions, Nos. 268 and 269 were adopted by them. They dealt respectively with the suspension of Mr. Wilson as Acting City Manager and with the appointment of defendant Moore as successor Acting City Manager. Thereupon, defendant Moore was sworn in as Acting City Manager.

Section 3.1 of the Charter required five affirmative councilmanic votes for the appointment of a City Manager. Section 3.2 of the Charter provided for the appointment by the Council of an Acting City Manager but is silent as to the number of votes required to accomplish it. The two essential issues raised by the First Amended Petition and the pleadings responsive thereto, therefore, were: (1) What minimum number of councilmanic votes were required under the Charter of the City of Independence in order to appoint defendant Moore Acting City Manager, and (2) Was that appointment effected by the adoption of Resolution 269, or was it necessary to adopt an ordinance to that purpose? Such were the issues fairly raised by the pleadings prior to the trial, itself.

On the day of trial, however, plaintiffs, in effect, amended Count II of their petition (although the court deemed it a dismissal of that Count) as to delete from it 'any and all requests for injunctive relief'. Moreover, it is evident from the colloquy between the court and counsel for plaintiffs that plaintiffs intended thereby 'to amend out any question to the color of title to (Moore's) office'. With the pleadings and issues thus truncated, evidence was heard by the court. At its conclusion, the court invited counsel to suggest the scope of the declaration sought, as there appeared to be, understandably, some uncertainty as to the issues remaining for determination. Diffidently, counsel for plaintiffs informed the court: 'We basically, are trying to establish legislative procedure, Your Honor, for appointments here, for the edification of this council in the future, if it may move freely by resolution when it can't do it by ordinance; and that's the sum and substance of this case.' Responsive thereto, the court entered its judgment and declaration: '(W)e find that the Council may appoint an Acting City Manager under the circumstances detailed in 3.2 by a vote of at least five (5) members of the Council.' Defendants appeal from that judgment. It is to be noted that counsel's statement does not describe and the court's judgment does not resolve any alleged dispute between plaintiffs and defendants, and particularly, defendant Moore.

When this appeal was argued, defendants' counsel acknowledged frankly that defendant Moore had since terminated his position with the city as its Acting City Manager. We have concluded that the pleadings, thus reduced, and the evidence received thereupon, raised no justiciable controversy and proved none, and, cognately, could a justiciable controversy be said to have existed, it had become moot by the termination of defendant Moore's tenure as Acting City Manager. Accordingly, we are required to annual trial court's decree and declaration and dismiss this appeal.

Among the points of alleged error raised by appellants, one relates to the court's implicit finding that plaintiffs were fairly chosen and adequately and fairly represented the whole class as contemplated by Civil Rule 52.09, V.A.M.R. and Section 507.070, RSMo, 1959, V.A.M.S. We do not reach that point. Neither do we consider whether, as argued by defendants before and during the trial but not on this appeal, as the essence of plaintiff's action was the trial of title to public office, the exclusive remedy therefor was by an information in the nature of a quo warranto and not by declaratory judgment. See: Civil Rule 98.01; 39 Am.Jur., Parties, p. 863, 4; Bogess v. Pence, Mo., 321 S.W.2d 667, at 671. We merely observe that it is extremely doubtful plaintiffs succeeded in their design of 'amending out' any question of the color of title to Moore's office. In any event, we do not decide that question but base our decision, as previously stated, upon the plaintiff's failure to prove an existing justiciable controversy as to authorize relief by declaratory judgment, Section 527.010. RSMo 1959, V.A.M.S. and also because this cause has been rendered moot.

'In testing whether or not there is a justiciable controversy within the purview of the declaratory judgment act, the facts alleged should be examined as to whether or not they show there is a substantial controversy between the parties having actual adverse legal interests and requiring judicial action to warrant issuance of a declaratory judgment.' (Emphasis added.) Anderson, Declaratory Judgments, Second Edition, Vol. 1, 1959 Supp., p. 17; 22 Am.Jur.2d Declaratory Judgments, p. 849; 26 C.J.S. Declaratory Judgments § 24, p. 94. Such a controversy must be...