Summary
stating that the "test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all"
Summary of this case from Thompson v. Florida Cemeteries, Inc.Opinion
January 15, 1952.
Appeal from the Circuit Court for Dade County, William A. Herin, J.
Rosenhouse Rosenhouse, M.H. Rosenhouse, D.L. Rosenhouse all of Miami, and Watkins Cohen, Tallahassee, and David B. Newsom, Miami, for appellant.
Richard W. Ervin, Atty. Gen., Mallory H. Horton, Asst. Atty. Gen., Lilburn R. Railey, A.B. Bernstein, L.S. Bonsteel, and Hudson Cason, all of Miami, for appellees.
On October 20, 1950, appellant M.H. Rosenhouse, as a resident, taxpayer and citizen of Dade County, Florida, filed a bill for declaratory decree and injunctive relief against 1950 Spring Term Grand Jury, its clerk treasurer and foreman, the Board of County Commissioners for Dade County and its clerk, the State Attorney for the Eleventh Judicial Circuit and one Robert H. Givens, who was employed as a special counsel by and for the Grand Jury pursuant to a statute here under attack.
The constitutionality of Chapter 25765, Laws of Florida, Special Acts of 1949, was questioned.
A challenge was likewise directed to the constitutionality of Chapter 25478, Laws of Florida, 1949.
In his bill appellant prayed for a declaratory decree as to (1) the constitutionality of the acts above cited, (2) the right of the special counsel for the Grand Jury to attend and examine witnesses during Grand Jury sessions, (3) the right of a court reporter to be present during sessions of the Grand Jury, (4) the right of a special Grand Jury Attorney to sign indictments. The court below was requested to determine, should it hold the acts above cited constitutional, what rights the special attorney has in regard to the duties of the regular state attorney, but should the court declare the acts unconstitutional, it was appellant's prayer that injunctive relief be granted.
Upon motion the Attorney General of Florida was allowed to intervene, and upon joint motion of the Attorney General and the State Attorney three causes were consolidated. The Grand Jury filed an answer and also filed a motion to dismiss on the grounds that: (1) the bill fails to state a claim or cause of action upon which relief can be granted, (2) the bill fails to show that the plaintiff (appellant) has a bona fide interest in the determination sought, (3) the defendants are not proper parties to the suit.
The remaining defendants filed motions to dismiss on the following additional grounds: (1) the bill fails to allege facts to show that a real controversy exists whereby the rights, privileges or immunities of the plaintiff (appellant) would be affected; (2) the bill fails to show wherein the legislative acts above cited are unconstitutional or invalid; (3) the bill fails to show that the Grand Jury and special counsel have acted beyond the scope of authority granted them; (4) the bill fails to show that the Grand Jury has acted beyond its authority in employing the court reporter as authorized by statute.
On December 15, 1950, upon hearing on all the motions, the Chancellor entered a final order of dismissal with prejudice without stating the ground or grounds therefor. The court subsequently denied appellant's petition for rehearing and his motion for the court to state in writing the grounds for dismissal of his bill.
The only question raised by the appellant relates to the right of appellant as a resident, citizen and taxpayer of Dade County to bring a bill for declaratory decree to construe a statute appropriating and authorizing the expenditure of public moneys and defining the duties of public officials in the execution of the statutory purpose. The appellees, Board of County Commissioners of Dade County and its clerk, have merely attempted to answer the question raised by the appellant while the Attorney General, as intervenor, has endeavored to sustain the constitutionality of the aforementioned acts.
We cannot tell from the final order of dismissal entered by the learned Circuit Judge whether he was of the view that appellant had failed to allege facts which entitle him to a declaratory decree or whether said Circuit Judge was of the opinion that the legislative acts in question were and are constitutional and that because of such facts it was unnecessary to enter a declaratory decree upholding the constitutionality of said legislative enactments. The Circuit Judge did not declare the aforementioned legislative acts to be constitutional; in fact, he did not enter any declaratory decree or judgment. Consequently, we are actually faced with but one question, to-wit: Did the appellant allege facts which established that he was entitled to a declaratory decree expressly determining whether the aforementioned acts are constitutional? The right to utilize our declaratory decree statute does not depend upon the existence of an actual controversy but depends upon whether or not the movant shows that he is in doubt as to the existence or non-existence of some right, status, immunity, power or privilege, that he is entitled to have such doubt removed, and, if circumstances warrant it, obtain appropriate and necessary relief. Ready v. Safeway Rock Co., 157 Fla. 27, 24 So.2d 808; Caldwell v. North, 157 Fla. 52, 24 So.2d 806.
Section 87.12, F.S.A., of our Declaratory Decrees, Judgments and Orders Act provides expressly that "The existence of another adequate remedy shall not preclude a decree, judgment or order for declaratory relief." The fact that appellant could have questioned the constitutionality of the acts above enumerated and the authority of public officials to perform duties thereunder in some other type of proceeding does not preclude the appellant from filing his bill for declaratory relief, because he has alleged a bona fide basis for invocation of jurisdiction under our present declaratory decree statute. Bowden v. Seaboard Air Line R.R. Co., Fla., 47 So.2d 786. The appellant has alleged that he is a taxpayer and that the challenged acts authorize the expenditure of public moneys; that he is in doubt as to the constitutionality of said legislative enactments and, consequently, has grave doubt with reference to the legality of the expenditure of public funds as authorized by the statutes which he deems unconstitutional.
The Circuit Court is authorized to adjudicate the question of the constitutionality of a statute in a declaratory judgment proceeding. See McInerney v. Ervin, Fla. 46 So.2d 458. Indeed, such procedure has been used on innumerable occasions to attack the constitutionality of a statute or charter and the appellant as a taxpayer has the right to institute such action because of his interest in the expenditure of public moneys. Mitchell v. Consolidated School District #201, 17 Wn.2d 61, 135 P.2d 79, 146 A.L.R. 612. Almquist v. City of Biwabik, 224 Minn. 503, 28 N.W.2d 744; Beauchamp v. Silk, 275 Ky. 91, 120 S.W.2d 765.
We approve the statement made by the Supreme Court of Alabama in the case of White v. Manassa, 252 Ala. 396, 41 So.2d 395, 397, "The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all."
Since the Circuit Judge did not declare the challenged acts to be constitutional, it cannot be said that he gave any construction at all of the statutes, favorable or unfavorable, to the appellants. Consequently, it would be premature for us at this time to determine the constitutionality of the statutes herein attacked or to discuss the legality of the actions of the public officials thereunder. Appellant had a right to have his doubt resolved by the court below rendering a declaratory decree determining his rights as an interested taxpayer in the expenditure of public funds.
It is our conclusion that the Circuit Judge should have entered a declaratory decree upon the subject of the constitutionality of the challanged acts, whether or not he agreed with appellant's contention that said acts are unconstitutional.
Appellees contend that since the bill was brought against the 1950 Spring Term Grand Jury for Dade County and that the term of this jury has long since expired, the appellant's questions sought to be answered are now moot. There is no merit in this contention. The prayer of the bill is to have construed acts of the legislature authorizing and requiring an annual appropriation of money for a special fund out of public moneys and providing for the use of said fund in carrying on investigation and paying the expenses of a special counsel and a court reporter employed by the Grand Jury. The appropriation act and that providing for the use of said money are continuous laws.
The bill was properly brought against the Board of County Commissioners of Dade County, which is the body legally authorized and required to appropriate and approve the money for the special Grand Jury fund. The Grand Jury is the mere recipient of the proceeds of said fund but the fact that the particular term of the Grand Jury here joined as a party defendant has expired does not prevent appellant as a taxpayer from maintaining his bill against the appropriators of the public funds in which he has a definite interest, to construe statutes authorizing such appropriations.
The fact that the 1950 Spring Term Grand Jury is no longer in existence does not cause the questions presented herein to be moot. The most that can be said is that under such circumstances the 1950 Spring Term Grand Jury may not now be a proper party defendant. The 1950 Spring Term Grand Jury was in lawful existence when this suit was instituted. Upon the going down of the mandate the Chancellor may make such orders with reference to proper parties as he deems advisable.
The decree appealed from granting appellees' motions to dismiss the appellant's bill for a declaratory decree is hereby reversed and the cause remanded to the court below to proceed in accordance with the views herein expressed.
Reversed and remanded.
SEBRING, C.J., and TERRELL and THOMAS, JJ., concur.