*1 Argued 28, 1972, and remanded November reversed February 12, petition review denied March Appellant, ASHLAND CORNELIUS, CITY OF 72-564-E), Respondent. (No. argued the Pinnoch, Ashland, cause and M.
Donald appellant. brief filed the
Ronald Salter, L. the canse Ashland, argned filed the brief for respondent.
Before Schwab, Langtry Chief Judge, and Judges. Thornton,
SCHWAB, C.J. An ordinance enacted the recently by city of Ashland authorizes in Ashland to police jail any person for to hours up for, two other among things, to failing “reasonable, a of his explanation actions” give when police. ‹ questioned the by a Plaintiff, resident of Ash- ‹ The challenged portion question pro of the ordinance in vides: inquiry. “Section 26. Threshold Temporary police City “a. detention. The officers of the may any stop person public place of Ashland in a 1. If an grounds suspect person officer has reasonable committing, to that the committed, commit, 2. has or is about to a crime ordinance, may inquire person or breach of and of such his name, address, business, being going. person and where he is If the questioned, give name, thus fails to his lawful and a explanation aсtions, reasonable of his this shall not constitute punishable ordinance, person may violation of but such be by period exceeding officer detained the for a (2) two questioned investigated. hours, further and Successive de- person of a cannot be used tentions detaining as a colorable basis for person the more than two hours hereunder. No such arrest, be deemed or detention shall recorded as an and at the person authorized, thus end of the time be either the so detained shall promptly arrested, charged released or with a person breach of crime or a ordinance. If a refuses to submit hereunder; may detention the to lawful as officer use such means reаsonably necessary may to be effect the detention. If the hereunder, employs detention is lawful and if the officer no
greater means, reasonably force, or other than necessary, re- flight by person the whom sistance he seeks to detain shall hereunder. be á violation during If Protective Search. the “b. violation of some- crime, tempоrary thing, detention not a above, authorized the reasonably danger believes himself to be in Officer of attack person detained, thus may the or assault the officer ‘frisk’ proceeding judgment this land, initiated the constitution- to challenge 28.020 to ORS pursuant demurrer defendant-city’s The ordinance. of this ality Plaintiff the trial court. appeals. was sustained by whether revolve around presented The questions establish sufficient to that alleges facts complaint of the ordinance is a constitutionality the issue to that has justiciable controversy, plaintiff the constitutional ordinance, and that challenge adjudication. › issue ripe material portions plaintiff’s complaint controversy is an “actual between'the that there
allege “is a of the City Ashland”; he resident parties”; liberties are subject and that his “rights being dangerous weapons person or concealed without kept such arrest. may weapon person Any found on such during detention, period, at the end of such the officer and thus detained, person he is at shall be returned unless *3 involving for crimе or breach of ordinance that time arrested a possession weapon. use, of such the concealment Rights. Nothing Constitutional herein contained shall “e. relieving police according the officer from be as the construed rights privileges, person detained his constitutional and in- may cluding required. be thus such admonition as Nothing shall construеd as lim- Limitations. herein be “d. right police inquiry iting officer to conduct such 6r the of interrogation, search or wise authorized detention, such arrest or or make such effect may seizure, warrant, other- with without as Oregon by of the State of and the the laws anything constitutions; in section nor shall this federal or state be construed as authorizing any permitting or conduct which by punishable crime the of made as a laws the is defined and Oregon.” State of › justiciable standing controversy, the It clear whether is not declaratory judgment ripeness requirements in cases are and basically synony completely distinct, mous. interrelated or somewhat arguments example, case, while defendant’s are this In controversy terms, justiсiable the real thrust of phrased those in questions ripeness. arguments raise more of and seems
184 deprived any by at time use of this ordinance police officers of defendant.” problem, apparently
A threshold not considered parties or circuit is whether the issues court, justiciable controversy, standing ripeness are properly deсlaratory judgment proceeding raised in a by way of demurrer.
Quoting
City
Cherryvale
from
Wilson,
v.
(1941),
Oregon Supreme
510, 112
Kan
P2d 111
505,
Cottage
et al
al,
Court Cabell
Grove et
256,
(1943),
ALR
261, 130
1013,
stated:
*“*
*
appro-
is rare that a
‘It
demurrer is an
priate pleading for
petition
the defendant to file to a
* *
declaratory judgment’
for a
recently,
Clatsop
More
Webb
School
3,
Dist.
(1950),
332,
“Demurrer be usеd to test the complaint [declaratory judgment] these upon any statutory it is vulnerable cases, if * * grounds (Emphasis supplied.) demurrer statute, The relevant ORS 16.260, lists seven grounds appear a demurrer. The ones that subject jurisdic possibly are lack of relevant matter 16.260(1), and failure to state a tion, ORS cause of 16.260(6). may action, questions It be that ORS controversy, stаnding justiciable ripeness subject are elements of jurisdiction, context matter this of a cause of but action, we are or elements not aware expressly any cases that so state. Cf., Dick- Dist. et 62C Or 238, et al v. School man (1962), denied 371 cert US S 41,Ct holding question that the 2d 62 L Ed of stand *4 jurisdictional. proceedings equity ing not in
185
practice in
that the better
seems
It
always require
judgment
to almost
actions would
implied
et al v.
pleading,
responsive
as
Cabell
justice
Cottage
supra.
do more
It would
al,
et
Grove
controversy,
justiciable
questions of
the
more often if
ripeness
defenses in an
raised as
were
16.290(2)(b), and then determined
answer, ORS
just
examining
pleadings,
the “face
rather than
both
16.260. fi
complaint,”
ORS
spite of these
we
considerations,
Nevertheless,
justiсiable
assumption
proceed
that the issues of
on the
properly
controversy, standing
ripeness were
by defendant’s demurrer.
raised in this case
Turning
note that
there are
merits,
we
support
party’s posi-
each
that tend
cases
impossible,
that it is
if not
difficult,
also note
tion. We
all of the relevant cases.
to reconcile
support
рlaintiff.
majority
of eases
De-
judgments
granted
claratory
on the
were
merits con-
constitutionality
penal
cerning
statutes
Anthony
Veatch,
462,
493,
189 Or
221 P2d
(1950), appeal
923,
dismissed 340 US
499,
S Ct
(1951), and Amer. F.
L.
al
L Ed 667
et
v. Bain
ALR
183, 106 P2d
et
165 Or
al,
granted
Declaratory judgments were
on the merits
distinguished
concerning
applicability, as
from
validity,
penal
in McKee
Foster,
statutes
219 Or
(1959), and Mult.
Fair
322, 347 P2d
Ass’n v.
Langley,
172,
statutes and ordinances. Foeller v.
City
(1953);
Portland,
205,
198 Or
256
of
of
P2d
ALR
Welsh,
228,
154
59
106
286,
Portland v.
Or
County
(1936);
Bank,
First Nat.
Multnomah
v.
1188
(1935);
Bennett
also,
129
see
Recall
342, 50 P2d
151 Or
(1952).
In alleges complaint plaintiff’s facts that a suffi make controversy, justiciable showing cient ripeness following for the demurrer reasons. to survive majority support (1) cases this The fl Defendant incorrеctly Seaton, that Gortmaker states v. question 440, (1969), involved a constitution P2d Actually, question purely penal ality statute. statu of a Alexander, App it in v. resolved State tory. since haveWe background Sup denied Ct review The fully Note, is more discussed in case Or L Gortmaker Rev Anthony et al v. Bain L. Veatch; Amer. F. result. Lang- Ass’n v. Mult. Fair Foster; al; et McKee v. City Authority Housing Portland; ley; Fоeller County v. Nat. First Multnomah Welsh; Portland v. plaintiff seeks supra. question on which Bank, all hypothetical or is more case no in this a declaration questions those speculative determined than the substantially are affected Plaintiff’s interests as cases. question case in this as were the ordinance plaintiffs’ in those cases. interests
Language equity of Dickman et al v. in the ease *6 supra is also 244-45, at accord: Dist. et School 62C “* * * standing on do not The cases guide. provide It has that us a clear been held with contesting person purposes a least a for some at prove expenditure plead public the must and that probably general will result in a threatened action increase expressly did not taxation. Plaintiffs allege comрlaint expenditures that the in their by district made the defendant increase the tax upon upon taxpayers generally, them al- burden though might that such an increase the claim occurs allegations plaintiffs that from the be inferred are moneys appropriated taxpayers, public were purchase expended of in the textbooks for dis- school and that John’s tribution tutes St. this ‘consti- imposition precise question a of tax.’ The the taxpayer standing has a of whether contest the expenditure moneys public support of of passed upon religious has education been other adjudicated of the In some cases courts. the tax- standing accorded payer has been evеn in the ab- proof allegation that he damaged of will sence be way. support pecuniary And there is a problem proposition that the will of importance an issue unusual when overlooked is (Emphasis supplied.) presented.” is (2) result also Such a consistent Avith history declaratory judgment pro- and rationale ceedings. general, theory early
In common law was that courts existed to redress the commission private wrongs punish they crimes had after early pro- been At an committed. date the limitations conceptualization duced such a of the courts led to expansion equity jurisdiction, e.g., actions to quiet title—examples or remove a cloud on of situations private wrong necessarily yet where had no been com- recently, century mitted. More this most American declaratory judgment states have enacted statutes to availability expand preventive, anticipatory remedies.
The essential distinction between an action for declaratory judgment and the traditional common law wrong action is that actual no need have been com- mitted or loss have occurred in order to invoke de- claratory judgment jurisdiction. remedy of de- claratory judgment designed parties to relieve uncertainty by adjudicating rights and duties before actually wrongs damages have been committed or have declaratory judgment In short, pre- been suffered. justice. ventive
(3) a perceptible result consistent with Such *7 expansion availability toward trend of declara- validity tory to test the applicability relief of Annotation, statutes. (1966). criminal ALR3d arguments support Strong expan- continuation and Note, trend. 80 Harv L of this Rev sion Finally, presents (4) this case even more com- declaratory pelling for relief reasons typical than the against challenge a substantive criminal statute or Anybody challenges who a ordinance. substantive proceedings judgment criminal law theoretically if raise the same issues and when could prosecution against a However, were initiated him. very its does create ordinance, terms, Ashland merely permits police jail people a it for crime; regardless they оf hours whether have committed two a crime. validity applicability
A or declaration penal a statute has been substantive never denied grounds plaintiff potential on the that the had the remedy just defending prosecution. a alternative Anthony Veatch; F. L. et et Amer. al Bain al; Langley, McKee v. Foster; Mult. Fair Ass’n v. all supra. applicability Instead, а declaration as to the validity of a criminal statute has been denied existing remedy, an when there is alternative effective already prosecution i.e., when a has been initiated, as Knight, the case Nelson v. 460 P2d impossible plaintiff prose it Since to be violating question, cuted for the ordinance he does remedy—either existing not have the alternative potential—that anybody challenging is available to presence a criminal substantive statute. If of an existing remedy grounds effective alternative denying declaratory judgment, a Knight, Nelson v. supra, it would seem to follow that the total absence remedy an alternative in this case cuts in favor granting declaratory judgment. appeаrs Indeed, this holding basis of the to be the Ostrander v. L inn, 237 Iowa approval 694, NW2d cited with Knight, supra. appears This Nelson v. also to be See, rule. Anti-Fascist federal Committee v. Mc- 123, 156, 341US 71 S Ct L (1951) Grath, 95 Ed 817 *8 appropriate determining standing to (in is consider it (Mr. denying judicial relief”) hardship Justice “the concurring). Frankfurter, granting foregoing the order reasons For is case re- reversed, and thе demurrer defendant’s validity of the of the determination manded for a argued question, an issue briefed ordinance in this court. remanded.
Reversed and
dissenting.
THORNTON, J.,
declaratory judgment
maintain his
order to
In
plaintiff
challenge
ordinance,
the Ashland
to
action
standing, namely,
that he has
demonstrate
first
must
* * *
rights,
“person
status
whose
he is
that
legal
the ordinance.
are аffected
other
relations”
allegation
Standing requires
of a
ORS 28.020.
controversy. Gort
in matter in
interest
substantial
440,
Plaintiff has nor that shown, not particularly subject nor he has ordinance, to the application, nor been threatened its that he suffers any injury prospective, other or from the use current, that he the ordinance. Ho asserts is a citizen, validity of the of the uncertain ordinance. appellate jurisprudence is
“It
fundamental
hypothet
that courts
not
‘to
abstract,
do
sit
decide
*
**
contingent questions
any
ical, or
or to decide
question
necessity
constitutional
for
advance
*#
”
decision
its
Gortmaker
Seaton,
v.
supra,
quoting
252
at 442,
Or
Federation
Labor
McAdory,
v.
325
S
450, 461,
US
65 Ct
L
1384,89 Ed
1725
Plaintiff,
brief,
his
relies on cases
de
where
claratory
employed
relief was
to test the constitution
ality
alleged
“chilling
of laws
to have a
effect” on First
especially protected,
rights.
or
Amendment,
other
required
is-still
However,
such eases, .usually provided by
allegation
past,
of some
prosecution.
threatеned,
See, Dombrowski
Pfister,
v.
(1965);
479,
1116,
380
85 Ct
14 L
2d 22
US
S
Ed
Co
City Orange,
Super 400,
111
marco v.
NJ
268 A2d
Super
(1970),
(1971);
531,
354
116
A2d
NJ
122
Shaver, 82 N Mex 347,
Balizer v.
Standing
a basic
a mere
but
judicial
requisite
function.
exerсise
holding in the case
I
to reconcile our
am unable
Seaton,
stated
at bar with
rule
Gortmaker
standing.
showing
special
supra, requiring
prevailing opinion
a number of well
cites
Anthony
including,
cases,
known earlier
(1950),
221 P2d
493,
220 P2d
Veatch,
462,
189 Or
appeal
95 L Ed
923,
499,
US
Ct
dismissed 340
S
(1951),
L. et
v. Bain et
183,
F.
al
165 Or
Amer.
(1940),
wherein supporting statutes, as reference criminal with *10 declaratory granting relief in the at case bar. however, of these will show cases, An examination out) ques- points (as opinion properly that the justiciable of a nonexistence tion of existence controversy apparently never raised the de- appears public samе officials. The to be true fendant cited wherein relief was as to cases exception granted with the statutes, as to civil al., v. Bennett et Bennett Com. 196 Or Recall (1952), which the officials were parties. nominal previously
Finally, has this court refused to constitutionality challenges criminal entertain defendants where such criminal defendants statutes persons with the class of bona fide were not challenge constitutionality grounds See, asserted. on the State v. Schul- statutes Sup App 81, Ct man, review 6 Or denied Drummond, State v. 558, App P2d 958 (1971).
For these I reasons, would affirm the judgment below.