OKLAHOMA CITY, OKLAHOMA, a municipal corporation, et al., Appellants, v. Harry V. DULICK, J. E. Kutscher, and S. J. Sabinske, Appellees

United States Court of Appeals for the Tenth Circuit1963-06-13No. No. 7176

318 F.2d 830

Summary · law.co

Holding. The judgment is reversed and the case is remanded with directions to vacate the judgment and dismiss the action because the case became moot when the ordinance was repealed, leaving no justiciable controversy.

Property owners and taxpayers in Oklahoma City filed a declaratory judgment action challenging the constitutionality of Oklahoma statutes governing sanitary sewer districts, claiming violations of due process under the Fourteenth Amendment and the Oklahoma constitution. The city had created a sewer district including the appellees' lands through ordinance in 1961, but repealed that ordinance in 1962. The trial court rejected the city's mootness defense and ruled in favor of the property owners, declaring the relevant statute unconstitutional.

On appeal, the court reversed, finding the case moot because the repeal of the original ordinance eliminated any actual legal injury to the plaintiffs. The court explained that federal courts lack authority to issue advisory opinions or decide abstract constitutional questions; they may only resolve disputes involving concrete legal interests in actual cases. Since the property owners were no longer subject to the ordinance whose validity they challenged, their interest in the constitutional question became purely hypothetical. The mere possibility that the city might enact a similar ordinance in the future was insufficient to preserve the controversy.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Mootness doctrine in declaratory judgment actions
Ripeness and standing of property owners to challenge statutes
Federal court jurisdiction over abstract constitutional questions
Whether repeal of an ordinance eliminates justiciability

Procedural posture

The trial court granted summary judgment for the appellees and declared the statute unconstitutional; the appellants appealed, but the appellants abandoned their mootness argument, and both parties requested decision on the merits.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PER CURIAM.

Alleging violations of the due process provisions of the Fourteenth Amendment and the Oklahoma constitution, the appellees, as property owners and taxpayers in Oklahoma City, brought this declaratory judgment action attacking the validity of certain Oklahoma statutes relating to sanitary sewer districts. Among other things the statutes provide for the creation of these districts by municipal ordinance. On February 28, 1961, the Council of Oklahoma City passed, and the Mayor signed, Ordinance No. 9263 establishing a sanitary sewer district which included lands of the appellees. This ordinance was repealed by Ordinance No. 9884 enacted on September 4, 1962. By amendment to their answer and by motion to dismiss, the appellants, as city officials, asserted that the ease became moot upon the repeal of Ordinance No. 9263. The trial court declined to dismiss and gave summary judgment for the appellees, holding that due process was denied and declaring 11 Old. St.Ann. § 277 unconstitutional. In this court the city officials forego reliance on mootness and all parties request an adjudication on the merits.

A federal court can declare a state statute void for unconstitutionality only when “it is called upon to adjudge the legal rights of litigants in actual controversies.” Federal courts have no power to give advisory opinions or to adjudicate constitutional questions in the absence of “concrete legal issues, presented in actual cases, not abstractions.” These principles apply to actions for declaratory judgments.

The repeal of Ordinance No. 9263 eliminated any justiciable controversy from this case. At that time the interest of the appellees-plaintiffs in the constitutionality of the questioned Oklahoma statutes became hypothetical. One who is not affected by a statute may not question its constitutionality. The possibility of the enactment of another similar ordinance does not change the situation because the record contains nothing to show that such action is threatened or even contemplated. The case is moot and, in accordance with the approved practice, the judgment is reversed and the case remanded with directions to vacate the judgment and dismiss the action.

. 11 Okl.St.Ann. §§ 274, 277, and 278.

. Liverpool, New York and Philadelphia Steamship Company v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899; quoted in Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663.

. Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 89 L.Ed. 1725.

. United Public Workers of America (C. I. O.) v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 564, 91 L.Ed. 754.

. Electric Bond & Share Co. v. Securities and Exchange Comm’n, 303 U.S. 419, 443, 58 S.Ct. 678, 82 L.Ed. 936.

. Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 97 L.Ed. 1586; Tileston v. Ullman, State’s Attorney, 318 U.S. 44, 46, 63 S.Ct. 493, 87 L.Ed. 603.

. Cf. Local No. 8-6, Oil, Chemical and Atomic Workers International Union, AFL-CIO, v. Missouri, 361 U.S. 363, 368-369, 80 S.Ct. 391, 4 L.Ed.2d 373, and Henriques v. Gulf Oil Corporation, 10 Cir., 305 F.2d 51, 53.

. See United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 86.