131 A. 265 | Pa. | 1925
In addition to attacking the legal correctness of the conclusion just stated, appellant raises the question of the constitutionality of the Declaratory Judgments Act; and, if this latter point is decided against it, then appellant questions the right of the court below to assume jurisdiction under the act, claiming that the orphans' court, and not the court of common pleas, was the proper tribunal for that purpose.
After briefly stating the salient facts of the case, we shall dispose of the above questions in their inverse order.
Abigail Kariher owned a farm of fifty acres in Lawrence County, underlaid with limestone. On August 23, 1902, she leased the limestone to appellant company for a term of twenty years from January 1, 1903. No limestone was quarried or removed during the term, but the minimum royalty stipulated for in the lease was paid annually. The lease contained an "option to [the lessee] to take and receive a new lease of said premises." Abigail Kariher died, a widow, in 1904, intestate, and leaving, as her only descendants and sole heirs at law, three sons, John C. F. Kariher, Hiram Kariher and Terhan H. Kariher. In 1909, Hiram and Terhan conveyed their respective undivided interests in the farm to their brother John, but each reserved his interest in the limestone, oil and gas underlying the premises. In 1912, the three sons leased twenty-five acres of the farm *461 for oil and gas purposes. Hiram died in 1922, testate, and his undivided one-third interest in the limestone passed to Bernard F. Kariher, his only child. John still lives and retains his one-third interest in the limestone. Terhan died August 20, 1920, leaving to survive him an only child, Orie M. Kariher, the appellee. The lease now in controversy was negotiated by Orie M. Kariher, claiming to be the owner in fee of an undivided one-third of the mineral rights in question, and by his uncle John C. Kariher, claiming another third, and his cousin Bernard F. Kariher, claiming the remaining third. No question is raised as to the absolute ownership of the two last mentioned persons, but that of Orie M. Kariher is questioned, as before stated.
The controlling point submitted for decision by the court below was, whether the proposed lease by the three persons above named "would pass and convey to such lessee full legal right and authority to mine and remove said limestone and to exercise all other rights and privileges on said premises granted to said lessee by the terms of such lease"; and, to pass upon this question, it, of course, became necessary for the court below to determine the subordinate question, also submitted, as to the quality and quantity of the interest of Orie M. Kariher, one of the three lessors.
The Uniform Declaratory Judgments Act provides by section 1 that "courts of record, within their respective jurisdictions, shall have power to declare *462 rights," etc., and by section 2 that "Any person interested under a . . . . . . written contract or other writings constituting a contract or whose rights, status or other legal relations are affected by a . . . . . . contract, . . . . . . may have determined [by the court] any question of construction or validity arising under the instrument . . . . . . and obtain a declaration of rights, status, or other legal relations thereunder."
Since there was no effort in this proceeding to enforce against the estate of the deceased lessor specific performance of the option clause in the original lease, — the proceedings being instituted as before stated, for the purpose of ascertaining and declaring the legal right of one of the parties to the new lease, to contract, so that appellant company, as well as the other parties to the contract agreed on, would know whether it was bound to, or could with legal safety, accept the lease in question and obtain thereunder the rights bargained for, — we are of opinion that the court of common pleas was the proper tribunal to adjudicate the points involved, rather than the orphans' court.
The distinctive characteristic of the declaratory judgment is that the declaration stands by itself; that is to say, no executory process follows as of course. Again, in order to obtain a declaration, it is not required that an actual wrong should have been done, such as would give rise to an action for damages, and no wrong need be immediately threatened, such as would be the proper basis for an injunction. In other words, a cause of action, in the sense in which that term is ordinarily used, is not essential to the assumption of jurisdiction in this form of procedure. It is upon these characteristics of the declaratory judgment that the chief constitutional attacks have been based; its opponents contending the declaration of legal rights and obligations contemplated by the act represents the exercise of a nonjudicial duty, which the legislature cannot place on the courts, and that, since such declarations do not necessarily include the right to execution, they are not judgments at all, but represent the mere giving of advice, rather than the adjudication of controversies; further, that an occasion for judicial action cannot properly arise until some claim is made that an actual wrong has been done or is imminent; and, finally, that the whole idea of the declaratory judgment is an unallowable innovation.
In considering these contentions, it may first be noted that there are many judgments under present forms which do not include the right to execution, except possibly for costs; and the present declaratory judgment practice involves an award as to costs (see section 10 of the act); moreover, under the act before us (section 8), execution, or "further relief," based on a declaratory judgment, may be had where appropriate, and allowed *464 by the court. Next, it may be noted that, since the numerous jurisdictions enjoying this practice all hold that a real controversy must exist, that moot cases will not be considered, and that declaratory judgments are res judicata of the points involved, such judgments cannot properly be held merely advisory; and that there can be proper occasion for judicial action before the infliction of injury or its immediate threat, is sufficiently shown, for example, by the quia timet actions, which lay before damage and without imminent danger thereof. Finally, it should be observed that an act like the present one which permits only a more general use of a device heretofore existing in our practice, cannot be held to be an unallowable innovation in Pennsylvania; for we in this State have long resorted to the declaratory judgment in many fields, though not calling it by that name.
Judgments in suits against the State do nothing more than declare the legal result of the relations between the parties; they include no right to execution. In equity proceedings to remove a cloud from the title to real estate, where no consequential relief is granted (which includes most of such cases), the court does nothing more than declare the law. In cases of bigamous marriages, the Act of April 14, 1859, P. L. 647, provides that the courts of common pleas can declare that the second marriage was void from the beginning; no new status is created and no execution follows, the decree being purely declaratory: see Klaas v. Klaas,
Though usually camouflaged as an adverse executory action, perhaps the best known example, in Pennsylvania practice, of a proceeding to obtain a declaratory judgment is the case stated to pass on the marketability of the title to real estate, wherein we are so frequently called upon to construe wills and other written instruments; in most of such cases, no execution is contemplated by anyone concerned, and the executory judgment is a mere form, which the necessities of our practice, before the present act, induced the courts to tolerate.2
No doubt many other instances could be cited where we in Pennsylvania are to-day, and have been for many years, indulging in declaratory judgments; the present legislation simply makes that practice more extensive. When this latter fact is realized, the whole argument as to the act's imposing on the courts something new, in the nature of a nonjudicial function, fails; for the statute before us merely presents the extension of a long and well established judicial function, previously enjoyed to a considerable extent in this State, of declaring the law which governs a given condition of facts so as to make the controversy covered by these facts res judicata, *466 albeit in many cases no execution may be called for, and even though the action was started before damages were actually inflicted or before danger thereof was imminent.
The declaratory-judgment procedure has been available not only in the foreign jurisdictions hereinbefore mentioned, but in Rhode Island since 1876, in Connecticut since 1893, and in New Jersey since 1915; in all of these states the scope of the practice has been widened by statutes passed at later dates. Other American states have enacted declaratory-judgment laws in more recent years,3 and wherever the constitutionality of these statutes has been raised they have been upheld, with a single exception.
The only jurisdiction in which a declaratory-judgment statute has been held unconstitutional is Michigan. There, the question arose in a case which was not a proper one for such a judgment, and the statute was held to be unconstitutional, by a divided court (see Anway v. Grand Rapids Ry. Co.,
The Michigan court seems to have been of the impression that proceedings under the act dealt simply with moot cases or called for only advisory opinions, not for *467
judicial decisions; but the difference between declaratory judgments and both advisory opinions and decisions of moot cases is obvious and need not be dwelt upon in detail. A moot case is imaginary, it does not exist in fact; to decide it serves no useful purpose, — nothing is adjudicated, for nothing is affected (Com. v. Mamatey,
In the Michigan case, the court also thought (mistakenly, we join other courts in believing) that Gordon v. United States, 2 Wall. 561,
The Muskrat Case arose out of an act of Congress which authorized the plaintiff to bring an action in the court of claims to test the validity of a federal statute relating to Indians, the United States being named as defendant; provision was made for an appeal to the federal Supreme Court. The government had no interest adverse to the plaintiff, and the Indians affected were not parties; hence there was no real controversy to be adjudicated, and the Supreme Court refused to consider the appeal, Justice DAY saying (p. 362), "In a legal sense, the judgment could not be executed." The Michigan court thought that this "should forever put at rest" the question of the constitutionality of the Declaratory Judgments Act. But Justice DAY said also (p. 361), that "judicial power . . . . . . is the right to determine actual controversies arising between adverse litigants duly instituted in courts of proper jurisdiction," and (p. 362) that a judgment entered on the then-present record would not be conclusive "when actual litigation" might bring to the court the question there involved; his opinion as a whole clearly shows that it was the lack of an actual controversy between adverse litigants present *469 in court which kept the case from being a proper one for judicial decision.
When adverse litigants are present in court and there is a real controversy between them, a final decision rendered in any form of proceeding of which the court has jurisdiction is a judgment in the proper sense of that term, and the giving of it is a judicial function, whether or not execution may follow thereon. For instance, the ordinary judgment for defendant is merely a declaration that, on the evidence offered, the plaintiff has no case; though as a matter of fact, it may be entered in an action or proceeding which was instituted by the plaintiff with the idea, or hope, of securing an executory judgment; but, like all other declaratory judgments, a judgment for defendant has the effect of making the issues at stake res judicata, and, in this important sense, such judgments are forever enforceable, — which, more than the fact that execution may or may not be issued thereon, gives them the character of judgments. These conclusions, while contrary to those of the Michigan court, accord with the prevailing opinions expressed by the appellate tribunals of other states.4
As to any question of invalidity by denial of trial by jury, it is sufficient to say that the act, by section 9, expressly provides for that sort of procedure in cases which involve the determination of an issue of fact, where a trial by jury would be the proper method of determining such issue: North Penn C. Co. v. Snowden,
There is no denial of due process of law. The instant act takes the fundamental conceptions of declaratory-judgment procedure as theretofore established. The court must have jurisdiction; there must be notice, an opportunity to present one's cause, a proceeding appropriate to the character of the particular case, and an adjudication of the same nature as is present in other cases. Where these things are present there is due process of law: Hagar v. Reclamation District,
The legislature has power to change methods of procedure, to create new forms and to remove restrictions against invoking court action; for example, a statute providing for the quieting of title under circumstances which theretofore would have been insufficient for laying the foundation of such a suit, is constitutional: Holland v. Challen,
Before closing our consideration of the branch of the case now under discussion, it may be well to state that, in all jurisdictions where declaratory-judgment practice obtains, the rule is established that it is a matter of judicial discretion whether or not jurisdiction will be taken of any particular case (Dyson v. Attorney-General (1911), 1 K. B. 410, 417; Braman v. Babcock,
In our opinion, the Uniform Declaratory Judgments Act is a constitutional piece of legislation, which, within proper limits, can be made of real use.
Testator, after directing payment of his debts and making some minor bequests, provided by item 4 of his will as follows: "I . . . . . . devise . . . . . . to my son, Orie Kariher, absolutely as his own," a certain piece of real estate in the City of Youngstown, Ohio. Then, by item 5, the part of the will in which we are principally concerned, he provided thus: "I will, devise and bequeath to my son, Orie Kariher, the use and income of all the rest and residue of my property whether real, personal *473 or mixed, during and for his life. If my said son, Orie Kariher, should remarry, and his second wife is living at the death of my said son . . . . . . then she is to receive one-half of the income and profits, as long as she remains his widow, providing she has always remained with my said son, Orie Kariher. If she is divorced or remains away from him more than one week, she is not to receive any part of my estate. At her death her one-half is to go to the children of my said son Orie Kariher. The other one-half of my property to go to the children of my said son, Orie Kariher. If there are no children living at the time of my said son, Orie Kariher's death, and his second wife's death, then all of my said property remaining shall go to the children of Dora Scott, the girl I raised." In item 6, the testator emphatically provides that, "Mary McIntosh Kariher, the wife of my said son, Orie Kariher, must not have any part of my estate."
Mary McIntosh Kariher, excluded by testator from all participation in his estate, was at the time of the making of the will, and still is, the legal wife of Orie M. Kariher. When this fact is borne in mind, and, in connection therewith, the last above-mentioned testamentary direction, it becomes apparent that Orie's father had no intention, by the fifth item of his will, of vesting a fee in his son; and item 4 plainly shows that testator knew how to bestow a fee when he desired to do so. But, aside from these considerations, the language employed in item 5 is sufficiently clear in itself to indicate the intention of testator. There, in plain words, he first gives a life estate to his son, and, at the son's death, he gives a life estate, or an estate during widowhood, in an undivided part of the property involved to a possible second wife of the son, if the son should remarry and leave a second wife living at the time of his death, provided this possible second wife meets with certain conditions. Of course, this latter life estate is contingent, there being no ascertained person *474 in whom it might vest. After the death of the possible second wife, or at the death of Orie M. Kariher, should he leave no second wife, the children of Orie take all of testator's property; and, "if there are no children living at the time of . . . . . . Orie Kariher's death, and his second wife's death, then all of [testator's] property [goes] to the children of Dora Scott." This latter provision is an alternative limitation to take effect at the time stated, if there is then a failure of issue of Orie Kariher. Since Orie has a son in being, this son possesses a vested remainder, subject to open and let in other afterborn brothers and sisters, and also subject to be defeated by his death without issue prior to the decease of his father, and to postponement in part as to its enjoyment by his parent leaving surviving him a second wife.
In reaching the above conclusions, we have not lost sight of the facts that, at the date of the will, Orie and his wife were separated, that this unhappy state of affairs continued till the decease of testator, some two and a half years thereafter, and that now they are reunited; nor have we overlooked any other of the facts, outside of the will, relied on by the court below or called to our attention by counsel for appellee, showing the conditions which surrounded testator at the time of the execution of his will; but none of these facts can alter or explain away either the plain meaning or legal effect of the words employed in the testamentary dispositions before us, which show that Orie M. Kariher possesses only a life estate in the property here in controversy, and, therefore, cannot contract with appellant according to the terms agreed on for the proposed new lease, so as to vest in the latter the absolute right to the limestone which it bargained to acquire.
The court below, in its formal judgment, very properly declared merely what it conceived to be the legal rights of the several parties in the premises; but it erred in reaching and acting on the conclusions that *475 "the full title" to an undivided one-third of the limestone in question is "now" vested in Orie M. Kariher, and that "no other person has any right, title or interest therein," and also, in reaching and acting on the further conclusion that, for the reason just given, Orie M. Kariher, by joining with John C. F. Kariher and Bernard Kariher in the execution of the lease agreed upon between them and appellant, can pass a good title "in fee simple" to the latter. It should have declared, on the contrary, that Orie M. Kariher had only a life estate in the one-third undivided interest in the limestone covered by the proposed lease, leaving the parties in interest to enter suitable proceedings, in the proper tribunal, to accomplish the legal consummation of the new lease.
The assignments of error are sustained, and the judgment is reversed with directions that the court below enter judgment in conformity with the views here expressed. The costs of this appeal are divided between Orie M. Kariher and the G. W. Johnson Limestone Company.
