Oregon Creamery Manufacturers Ass'n v. White , 159 Or. 99 ( 1938 )

I cannot agree with the majority opinion that no justiciable question is involved in this case. Certainly nothing said by Professor Borchard in his valuable work on Declaratory Judgments sustains that conclusion. On the contrary he says:

"With the ever-greater interference by government in the affairs of private individuals, it often becomes important to the individual to test the validity of the interference, present orproposed, before it is applied or invoked against him." (Italics ours.)

Further on in the same paragraph, page 342, he says:

"* * * As a rule, the mere enactment of a statute or ordinance imposing restraints on an individual and implying enforcement by prosecuting officials threatens and hampers the plaintiff's freedom, peace of mind or pecuniary interests, and creates that justiciability of the issue which sustains a proceeding for an injunction and, a fortiori, for a declaratory judgment."

Clearly, if the above is a correct statement of the law, as undoubtedly it is, then these plaintiffs were not bound to wait before commencing action to test the validity of this act until some action had been taken against them to enforce it by the prosecuting officers of the state. Nor does the case of Faulknerv. Keene, 85 N.H. 147 (155 A. 195), sustain the majority opinion. On the contrary, it holds to the exact opposite of what is said in the majority opinion. Nor was that decision based upon an application made to the city for a license and the denial of such application. Certainly, the making of such application and its refusal by the city, where nothing else was done, affords no ground for making a distinction between that case and this. In that case, the court said:

"Thus it has been held that the mere enactment of a statute or ordinance limiting the use of property, without any attempt to apply it to the complaining party, made cause for injunctive relief."

Further on in the opinion, the court said:

"The objections to it are the product of undue conservatism. ``We have canonized the ancient tradition of a cause of action, in all its original crudeness, and have made it the condition and the measure of judicial action. We have failed utterly to see the enormous and far-reaching possibilities in preventive relief, — prevention not merely of threatened wrongs but prevention of uncertainty and misunderstanding in the assertion of rights. Yet here is an effective, workable system, tried out under conditions identical with those in our own country, which makes an advance over previous doctrines comparable to the great reform which equity made over the harsh rules of the common law. Its use would entail no reconstruction of our judicial machinery, no readjustment of other elements in our remedial system. Its theory and operation are perfectly simple.' 16 Mich. Law Rev. 69, 89.

"Statutes designed to confer such jurisdiction should be construed so as to effectuate their evident purpose. Questions will undoubtedly arise as border line cases are presented. It is sufficient for the disposition of the present controversy to decide that the issue as to the application of the statute and ordinance involved is a proper matter to be determined in such a proceeding, that the situation of the plaintiffs entitles them to invoke the judgment of the court, and that the claims of the defendant are adverse in a sense covered by the act."

In Terrace v. Thompson, 263 U.S. 197, 216 (44 S. Ct. 15, 18,68 L. Ed. 255), (1923), which was a suit in equity to enjoin the attorney general of Washington from enforcing the state alien land law, it was contended that no justiciable question was involved. In that case, the court said:

"They [the appellants] are not obliged to take the risk of prosecution, fines and imprisonment and loss of property in order to secure an adjudication of their rights."

While that was a suit for injunctive relief and not for a declaratory judgment, yet it must be remembered that what will constitute a justiciable issue in the one case, as said by Professor Borchard, will sustain a proceeding "a fortiori, for a declaratory judgment".

In Pierce v. Society of Sisters, 268 U.S. 510 (45 S. Ct. 571,69 L. Ed. 1070, 39 A.L.R. 468), (1925), the supreme court of the United States sustained Judge Wolverton in enjoining the enforcement of a statute of this state two years before it was to go into effect. In that case, the court said:

"* * * If no relief had been possible prior to the effective date of the Act, the injury would have become irreparable."

So, obviously for the protection of the rights of the plaintiffs in this case, it is not necessary for them to wait until some prosecution has been had or proceedings brought for the enforcement of this act before becoming entitled to test the validity of the act and to have their rights and status under the act determined in this proceeding.

Moreover, the majority opinion overrules Multnomah County FairAssociation v. Langley, 140 Or. 172 (13 P.2d 354). In that case an action, under the uniform declaratory judgments act of this state, was brought to determine whether horse racing was violative of the lottery and nuisance statutes, and the question was determined in that proceeding although there had been no interference with the rights of the plaintiff by any prosecuting officer. The decision in that case was written by Mr. Justice ROSSMAN and concurred in by all the members of his department. Hence, we have the authority of our own court to sustain plaintiffs' right to a declaratory judgment determining the validity of this act although no prosecution has been had or other proceedings brought to enforce the act. And such is the meaning of the statute when properly construed.

Under section 2-1402, Oregon Code 1930, "Any person * * * whose rights, status or other legal relations are affected by a statute, * * * may have determined any question of construction or validity arising under the * * * statute, * * * and obtain a declaration of rights, status or other legal relations thereunder."

As to the construction of contracts, section 2-1403 provides that it may be construed "either before or after there has been a breach thereof."

Under section 2-1405, the enumeration in the preceding sections of the act "does not limit or restrict the exercise of the general powers conferred in section 1 (§ 2-1401), in any proceedings where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty."

Section 2-1412 provides:

"This act is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations, and is to be liberally construed and administered."

Under these provisions and under the avowed purposes of the act, how is it reasonable to contend that there is no controversy or uncertainty as to the rights, status or legal relations of these plaintiffs as affected by this statute and that there can be none until some steps are taken by some proper officer for its enforcement? Certainly there is as much uncertainty and doubt as to the validity of this statute at this time, although no action has been taken for its enforcement, as there would have been if such action had been taken prior to the commencement of this action. As pointed out by Borchard on page 343:

"The development of the declaratory judgment in actions against the government to place in issue the validity of administrative action has been a matter of slow growth. It had to make its way in England against the older view that a petition of right was the proper means of challenging the validity of governmental action. But necessity created distinctions. In the famous case of Dyson v. Attorney-General, Dyson asked a declaratory judgment that certain forms issued by the tax authorities and requiring under penalty detailed information as to his property and business were illegal and unauthorized. Over the protests of the Attorney-General that the proceeding should have been brought by petition of right, the Court of Appeal held that the declaration was proper to test the validity of administrative action and that the petition of right was confined to the demanded conveyance of property or money claims against the Crown. Cozens-Hardy on the Chancery side added:

"``It is no light matter for the Commissioners to issue broadcast forms which purport to impose obligations which do not exist and which add a threat of a penalty in case of non-compliance. A general declaration is pre-eminently desirable in these circumstances.'

Farwell, L.J., remarked in this case:

"``It would be a blot on our system of law and procedure if there is no way by which a decision on the true limit of the power of inquisition vested in the Commissioners can be obtained by any member of the public aggrieved, without putting himself in the invidious position of being sued for a penalty.' (1 K.B. 410, 421.)"

The author then says:

"It often becomes useful to ask for both a declaration and an injunction; the fear of forfeiting or jeopardizing threatened rights may warrant both. The special value of the declaration lies in the fact that it may be issued and may conclusively determine the rights of the parties, notwithstanding the fact that an injunction may for some technical or practical reason be refused."

On page 349, Borchard sets forth the dangers to which an officer is exposed either in refusing to carry out a statute which he believes unconstitutional or in carrying out a statute which later proves to have been unconstitutional, all of which may be avoided by a declaratory judgment determining whether the statute is valid or invalid. The same is true as to the parties affected by the statute, for as said by Chief Justice Peaslee inTirrell v. Johnston, 86 N.H. 530 (171 A. 641, 642):

"* * * When the law is settled it will be obeyed. It is therefore immaterial whether the proper proceeding is an application for a restraining order or a petition for a declaratory judgment. A final interpretation of the law in either form of proceeding would be binding upon these parties."

Upon this subject, Borchard says, p. 380:

"Those who have rights under contract or statute are frequently faced with a threat or risk of breach or violation by the defendant. Their fear of loss and prejudice persuades them to seek to avoid a breach by suing for a declaration of their rights. Such a declaration serves as a warning to the defendant and reassures the plaintiff in the enjoyment of his rights. It removes the cloud generated by the threat or danger of improper action by the defendant, confirms the plaintiff's rights, and stabilizes a doubtful or uncertain or challenged legal relation. It thus serves a most important social function in settling disputed rights at the inception of the controversy, saves from destruction and violence an existing status quo, preserves contracts against threatened breach, holds parties to their contractual and statutory duties, and avoids the economic and social damage which breach would entail. It acts as a preventive and conservatory measure, saving existing relationships from the risks of breach, violation, injury, and destruction. Issue is joined while the relationship still exists and before irretrievable losses have occurred by reason of one or the other party acting upon his own interpretation of his rights."

From this it will be seen that, unless the whole weight and authority of Borchard's work on Declaratory Judgments is repudiated, the majority opinion in this case cannot be sustained. Moreover, the majority opinion characterizes the uniform declaratory judgments act as beneficent legislation, yet it so limits the operation of the act as to destroy one of the most vital purposes which it was intended to accomplish.

Thus far we have not referred to the act which the plaintiffs challenge in this action. It is the act known as the Oregon Agricultural Marketing Act (chapter 65, Oregon Laws Special Session, 1935). It is largely a re-enactment of the same provisions that were contained in the original Agricultural Marketing Act (chapter 37, Oregon Laws, 2d Special Session, 1933, as amended by chapter 250, Oregon Laws 1935). That act was held unconstitutional by this court in Van Winkle v. Fred Meyer,151 Or. 455 (49 P.2d 1140), and the present act is unconstitutional for the same reasons as were set forth in that case.

To hold, therefore, as the majority opinion does, that, before the plaintiffs will be permitted to have the constitutionality of this act determined, their rights must be wrongfully interfered with and they, themselves, subjected to prosecution and to the imposition of fines and penalties for their refusal to conform to it, is, in my opinion, clearly erroneous and contrary to the overwhelming weight of authority upon that question in this country and in all other English-speaking countries.

For these reasons, I dissent.