# Buechner v. Bond

> Supreme Court of Missouri · January 31, 1983 · 650 S.W.2d 611

URL: https://www.frixlaw.com/law-library/cases/9642317

## Case

- **Full name:** John W. BUECHNER and Wayne Goode, Plaintiffs-Appellants, and John D. Schneider, Plaintiff-Intervenor-Respondent-Appellant, v. Christopher S. BOND, Et Al., Defendants-Respondents-Appellants.
- **Court:** Supreme Court of Missouri
- **Decided:** January 31, 1983
- **Citations:** 650 S.W.2d 611
- **Precedential status:** Published
- **Opinion:** Dissent by Billings
- **Judges:** Higgins, Welliver, Donnelly, Seiler, Rendlen, Gunn, Billings, Blackmar
- **Cited by:** 54 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9642317

## Opinion text

BILLINGS, Judge,
dissenting.
I dissent because plaintiffs Buechner and Goode, as representatives, and intervenor Schneider, as senator, have no standing to prosecute this action; that as individuals and taxpayers their pleadings do not allege any injury or damage to them; and, when shorn of its wrappings, this suit is nothing more and nothing less than an effort by plaintiffs and intervenor to obtain a purely advisory opinion of this Court.
The petitions of plaintiffs and intervenor allege they are taxpayers of Missouri but the entire thrust of both pleadings is that they want guidance in connection with their legislative duties because they disagree with the defendants’ interpretation of the term “total state revenues.”
In Sommer v. City of St. Louis, 631 S.W.2d 676 (Mo.App.1982), the court considered the standing of Sommer, as an alderman and a taxpayer, to prosecute a suit for declaratory judgment which sought an adjudication that an ordinance was invalid. On the question of Sommer’s standing as an alderman to maintain the suit, the court said at 679:
We consider only the issues of plaintiff Sommer’s standing and plaintiff NDC’s capacity to sue, for these dispose of the case. Standing is an ‘antecedent to the right to relief’ and has been said to be, ‘in a sense, jurisdictional in limine .... ’ State ex rel. Schneider v. Stewart, 575 S.W.2d 904, 909 [7] (Mo.App.1978). See also Spencer’s River Roads Bowling Lanes, Inc. v. Unico Management Company, 615 S.W.2d 121, 124 [5] (Mo.App.1981).
In his first amended petition, plaintiff Sommer alleged that the unconstitutionality and illegality of defendant City’s acts ‘... damage and injure plaintiff Sommer and the members of plaintiff, Metropolitan New Democratic Coalition, both as residents and taxpayers, and in plaintiff Sommer’s elected capacity as Alderman, by interfering with and preventing the faithful performance of his obligations, duties and responsibilities to his constituency.’ At trial, plaintiff Sommer testified that ‘as a taxpayer’ he had ‘been at least potentially damaged [bjecause under the adoption of this ordinance certain amounts of property in the City have been off the tax rolls longer than [they] otherwise would have been.’ He also testified that ‘as Alderman I need a Court ruling instructing me as to what is legal for the Board of Alderman to do in terms of voting.’
An inquiry into standing presents ‘the task of deciding whether a particular interest asserted is deserving of judicial protection.’ Davis, ‘Standing,’ Administrative Law Text at § 22.04. We begin our inquiry with a brief review of plaintiff Sommer’s assertion of an interest in this matter based on his status as an alderman. As an alderman, Sommer has *618 no judicially protective interest in a determination of the constitutionality of a city ordinance. We find no authority conferring standing to sue on an elected official, as such, in this type of case, and Sommer cites us to none. In his capacity as alderman, he patently sought an advisory opinion, which it is not the function of the courts of this state to provide. See State ex rel. McNary v. Stussie, 518 S.W.2d 630, 638 (Mo. banc 1974); Tietjens v. City of St. Louis, 359 Mo. 439 , 222 S.W.2d 70, 71 [1] (1949). Alderman Som-mer lacks standing to sue in this case
Next, the court of appeals reviewed the matter of Sommer’s standing as a taxpayer to maintain the suit. Preparatory to ruling adversely to him on this issue the court observed at 679:
Where, as here, a plaintiff seeks to establish his standing by virtue of his status as a taxpayer of a governmental unit, he must show some injury and damage to himself in that capacity.
Here, neither in pleading nor proof have plaintiffs or intervenor demonstrated any standing by reason of injury or damage to maintain a suit for a declaratory judgment. To paraphrase Sommer , plaintiffs and inter-venor, in their legislative capacities, seek an advisory opinion, which it is not the function of the courts of this state to provide.
The principal opinion finds no difficulty in determining that intervenor Schneider's contention regarding the equal protection clause is not ripe for adjudication because that contention is based on “probability and speculation.” The same reasoning is applicable to the contentions advanced by petitioners Buechner and Goode. The legislature is not bound to adopt the proposed budget of the executive and is free to exercise its will in voting on appropriation and revenue matters.
In Gershman Investment Corporation v. Danforth, 517 S.W.2d 33 (Mo. banc 1974), this Court said at 35:
In City of Joplin v. Jasper County, 349 Mo. 441, 443 , 161 S.W.2d 411, 412, 413 , this Court speaking of the Declaratory Judgments Act (§§ 527.010-527.140, RSMo 1969), said:
‘The act furnishes a particularly appropriate method for the determination of controversies relative to the construction and validity of statutes and ordinance .... But, when it is attempted to be so used and a judicial declaration is sought the court must be presented with a justiciable controversy — one appropriate for judicial determination — a case admitting of specific relief by way of a decree or judgment conclusive in character and determinative of the issues involved .... There must be a sufficiently complete state of facts presenting issues ripe for determination before a court may declare the law. “A mere difference of opinion or disagreement or argument on a legal question affords inadequate ground for invoking the judicial power.” Borch-ard, Declaratory Judgments, p. 77; State ex rel. La Follette v. Dammann, 220 Wis. 17 , 264 N.W. 627 , 103 A.L.R. 1089 .’ (Emphasis added)
I submit that what we have here is a “mere difference of opinion or disagreement or argument” between plaintiffs and intervenor on the one hand and the defendants on the other; that under the decisional law of this state the judicial power should not be invoked in order to render an advisory opinion. In my view the case should be dismissed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9642317. Public record. Not legal advice.