Van DeVegt v. Board of County Commissioners

The following opinion was filed March 19, 1936.

Mr. Justice Bouck

files the following opinion as a statement of his reasons for thinking that the proceedings in error should be dismissed without a decision on the merits:

At the very moment when in January of 1936 the tentative draft of the majority opinion herein first came on for consideration by this court the case was undoubtedly moot. (Italics in this opinion are mine.)

Under a practice heretofore uniformly followed by this court, we have hitherto refrained from deciding cases after they have become moot, whether by lapse of time or otherwise. Sound principles of law, justice, and reason underlie this procedure. Some of the Colorado cases establishing and approving the procedure will be cited later on in this opinion.

In the case at bar, the plaintiff in error Van DeVegt, desirous of operating a “liquor licensed drug store” *178 under section 18-A of chapter 142, S. L. 1935, asked the county court for a writ of mandamus to compel issuance to him of a license for the year ending December 31,1935. If that license had been issued, it would now (in the year 1936) have automatically expired. However, the trial court refused to grant the writ, and so the license was not issued. Hence neither the applicant for the license nor the licensing authority (namely, the board of county commissioners of Larimer county, defendant in error here) has the slightest practical interest in any disposition that could now be made of thei present case by this court. In other words, at this time there is no actual controversy here between litigants. Certainly we could not now consistently reverse the judgment which denied a mandamus writ and ourselves order the trial court to compel the issuing of a license for a period already wholly in the past, that is, the doing of things which can now no longer be done. To affirm the judgment, on the other hand, would be a useless and illogical act. Because the case is moot, anything this court might now say in so affirming would be nothing more or less than sheer dictum. Under our practice, it is no longer important or proper or lawful for us to consider whether the trial court was right or wrong.

To be consistent with the practice heretofore employed, this court must dismiss the proceedings in error on the simple ground that the case has become moot, regardless of whether the lower court erred or not.

We as a court are not commissioned to write a judicial code or treatise, nor to frame a set of working rules for the licensing authorities. We might have definite notions of how we ourselves would exercise our official discretion if we were duly elected to be such authorities in the executive branch of the state government. However, being merely a tribunal which reviews administrative acts when presented in an actual controversy, we as a court — coordinate, but not superior, as a branch of the government —have no right to arrogate to ourselves the functions of *179 the executive department. Colo. Const., Art. III. The actual licensing authorities must use their own official discretion, not ours, in each particular case. By not prejudicing such a controversy, but by letting it take its usual course, we shall be able to give future litigants their day in court according- to the letter and the spirit of our Constitution.

A comparatively short period has elapsed since the enactment of the 1935 license statute. This may — and perhaps must — be the explanation of our failure to decide the present case before the matter became moot. One or the other or both parties may perhaps consider it a misfortune that this is so. But it is so, and the proceedings should, in accordance with our regular and wholesome practice, be dismissed. There is certainly ample time for the bringing and deciding of an actual case when and if another license applicant complains of alleged abuse of discretion by the licensing authority. That then will depend upon the particular facts in such actual controversy and not !upon the facts in the present case now moot. “If, during the pendency of the appeal, the controversy between the parties, by reason of the occurrence of extrinsic events, has become moot or academic, the appellate tribunal will decline to express its opinion in the case and will dismiss the appeal.” Zoline, Appellate Jurisdiction and Procedure, page 288, §2.

In Colorado we have uniformly applied this general rule. Agricultural D. Co. v. Rollins, 42 Colo. 267 , 93 Pac. 1125 ; People v. Hall, 45 Colo. 303 , 100 Pac. 1129 ; Northern Colo. Co. v. Pouppirt, 47 Colo. 490 , 108 Pac. 23 ; Denver v. Brown, 47 Colo. 513 , 108 Pac. 971 ; Arnold v. Carey, 60 Colo. 499 , 154 Pac. 94 ; People ex rel. v. Cannon, 26 Colo. App. 500 , 145 Pac. 711 .

In Northern Colo. Co. v. Pouppirt, supra ( 47 Colo. at page 492 , 108 Pac. at page 24 ), which like the case at bar was a mandamus case, Mr. Chief Justice Campbell, then an associate justice, said: “The mandate of the peremptory writ has, or has not, been performed. If it was *180 performed by defendant, as stated by counsel for plaintiff at the oral argument and not denied, defendant is not in a position to have a decision, upon this review, of the questions litigated and determined below. If the writ was not complied with, even if defendant is entitled to a reversal of the judgment, any order as to the merits that could be made here would be either useless or impossible of performance. The irrigation season of 1905 has long since passed and it would be absurd now to make an order either denying or granting the writ prayed for.”

With the greatest possible force the principle applies here, when the lower court has refused to grant a writ which cannot now be effective for any purpose whatever.

The case should, in my opinion, be dismissed without any purported decision on the merits.

The draft of the foregoing was submitted to my colleagues on January 15, 1936. Mr. Justice Young — without questioning the uniformity or soundness of the practice indicated by the Colorado citations I have above given — has undertaken, in a paragraph added at the close of his opinion, to overcome their authority by the mere mention of the case of Southern Pacific Terminal Company v. Interstate Commerce Commission, 219 U. S. 498 , 31 Sup. Ct. 279, 55 L. Ed. 310 .

The case, however, cannot accomplish such a purpose. The distinction between that case, on the one hand, and the Colorado cases cited as aforesaid and the case at bar, on the other, is clear and unmistakable.

In order not to rely upon my own interpretation of the ease so relied upon by the majority, I shall let the United States Supreme Court \ speak for itself. I first quote, therefore, somewhat at length, from its opinion in the case referred to, as written by Mr. Justice McKenna, drawing vital distinctions which our own majority opinion wholly ignores. (Italics below will be mine.)

“This court,” declares the learned Justice [ 219 U. S. *181 514 , 31 Sup. Ct. 283, 55 L. Ed. 315 ], “has said a number of times that it will only decide actual controversies, and if, pending an appeal, something occurs without any fault of the defendant which renders it impossible, if our decision should be in favor of the plaintiff, to grant him effectual relief, the appeal will be dismissed. Jones v. Montague, 194 U. S. [24 Sup. Ct. 611, 48 L. Ed. 913 ], and Richardson v. McChesney, decided November 28 of this term, 218 U. S. 487 [31 Sup. Ct. 43, 54 L. Ed. 1121 ], But in those cases the acts sought to be.enjoined had been completely executed, and there was nothing that the judgment of the court, if the suits had been entertained, could have affected. The case at bar comes within the rule announced in United States v. Trans-Missouri Freight Ass’n, 166 U. S. 290, 308 [17 Sup, Ct. 540, 546, 41 L. Ed. 1107 , 1016], and Boise City Irr. & Land Co. v. Clark (C. C. App. 9th Cir.), 131 Fed. Rep. 415 [ 65 C. C. A. 399 ],

“In the case at bar the order of the Commission may to some extent (the exact extent it is unnecessary to define) be the basis of further proceedings. But there is a broader consideration. The question involved in the orders of the Interstate Commerce Commission are usually continuing (as are manifestly those in the case at bar) and their consideration ought not to be, as they might be, defeated, by sfiort term orders, capable of repetition, yet evading review, and at one time the Grovernment and at another time the carriers have their rights determined by the Commission without a chance of redress.”

Mr. Justice McKenna thereupon discusses, the two cases thus cited by him to show what is properly considered not moot, continuing: “In United States v. Trans-Missouri Freight Ass’n, supra, the object of the suit was to obtain the judgment of the court on the legality of an agreement' between railroads, alleged to be in violation of the Sherman law. In the case at bar the object of the suit is to have declared illegal an order of the Interstate Commerce Commission. In that case there was an attempt to defeat the purposes of the suit by a voluntary *182 dissolution of the agreement, and of the attempt the court said: ‘The mere dissolution of the association is not the most important object of this litigation. The judgment of the court is sought upon the question of the legality of the agreement itself, for the carrying out of which the association was formed, and if such agreement be declared to be illegal the court is asked not only to dissolve the association named in the bill, but that the defendant should be enjoined for the future. * * * Here * * * there has been no extinguishment of the rights (whatever they are) of the public, the enforcement of which the Government has endeavored to procure by the judgment of a court under the provisions of the act of Congress above cited. * * *’ ”

And after this discussion of the Trans-Missouri case, Mr. Justice McKenna proceeds to analyze the other authority cited by him, saying: “In Boise City Irr. & Land Co. v. Clark, supra, the period for which a municipal ordinance fixed a water rate expired pending the litigation as to its legality, and it was contended that the case had become moot. The court replied: ‘But the courts have entertained and decided such cases heretofore, partly because the rate, once fixed, continues in force until changed as provided by law, and partly because of the necessity or propriety of deciding some question of law presented which might serve to guide the municipal body when again called upon to act in the matter.’ ”

The distinction which I am attempting to draw is not a technical or artificial one. It is fundamental. The United States Supreme Court itself has repeatedly explained and invariably limited the doctrine of Southern Pacific Terminal Co. v. Interstate Commerce Commission, supra, from which I have quoted and which, as already stated, is the sole authority cited by the majority opinion on the question whether the lease at bar is now moot. Thus, in 1916, Mr. Chief Justice White (one of the judges who decided the Southern Pac. Terminal Co. case in 219 *183 U. S. and the Trans-Missouri case in 166 U. S.), handing down the opinion in United States v. Hamburg-American Co., 239 U. S. 466, 475 , 36 Sup. Ct. 212, 216, 60 L. Ed. 387, 391 , a case involving the legality of a contract which had been entered into by certain steamship companies, but which was interrupted by the outbreak of the World War, used the following unequivocal language:

“While this mere outline [of the facts in that case] shows the questions which are at issue and which would require to be considered ,if we had the right to decide the controversy, it at once further demonstrates that we may not, without disregarding our duty, pass upon them because of their absolute want of present actuality, that is, because of their now moot character as an inevitable legal consequence springing from the European war * * *. The legal proposition is not in substance controverted, but it is urged in view of the character of the questions aA%d the possibility or probability that on the cessation of war the parties, mil resume or recreate their asserted illegal combination, we should now decide the controversies in order that by operation of the rule to be established any attempt at renetoal of or creation of the combination in the future will be rendered impossible. But this merely upon a prophecy as to future conditions invokes the exercise of judicial power not to decide an existing controversy, but to establish a rule for controlling predicted future conduct, contrary to the elementary principle which was thus stated in California v. San, Pablo & Tulare R. R., 149 U. S. 308, 314 [13 Sup. Ct. 876, 878, 37 L. Ed. 747, 748 ]: 'The duty of this court, as of every judicial tribunal, is limited to determining rights of persons or property, which are actually controverted in the particular case before it. When, in determining such rights, it becomes necessary to give an opinion upon a question of law, that opinion may have weight as a precedent for future decisions. But the court is not empowered to decide moot questions or abstract propositions, or to declare, for the government of future cases, *184 principles or rules of lam which cannot affect the result as to the thing in issue in the case before it. * * *’

“Our attention has indeed been directed to a recent decision in United States v. Prince Line, Limited, 220 Fed. Rep. 230, where although it was recognized that ‘The combination against which this proceeding is directed, composed of two British and two German steamship companies, has been practically dissolved as a result of the European War,’ and the'questions presented ‘have become largely academic, ’ the court nevertheless proceeded to consider and dispose of the case on the merits, observing in conclusion, however: ‘In view of the fact that the logic of events has turned this investigation into an autopsy, instead of a determination of live issues it seems unnecessary to discuss the persuasiveness of the proofs,’ etc. But we cannot give our implied sanction to what was thus done or accept the persuasiveness of the reasoning upon which the action was based in view of the settled decisions of this court to the contrary and the fundamental principles of public policy upon which they are based. # * *

“Nor is there anything,” continues the Chief Justice, “in United States v. Trans-Missouri Freight Association, 166 U. S. 290 , and Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498 , which conflicts with this fundamental doctrine. In the first, the Trans-Missouri case, a combination between railroads charged to be illegal was by consent dissolved and it was held that in view of the continued operation of the railroads and the relations between them their mere consent did not relieve of the duty to pass upon the pending-charge of illegality under the statute of their previous conduct, since by the mere volition of the parties the combination could come into existence at any moment. Leaving aside some immaterial differences, in terms the ruling in the Southern Pacific Case was based upon the decision in the Trans-Missouri Case. Here on the contrary the business in which the parties to the combination were en *185 gaged has by force of events beyond their control ceased and by the same power any continued relation concerning it between them has become unlawful and impossible. The difference between this and the Trans-Missouri Case was clearly laid down in Mills v. Green, 159 U. S. 651 [16 Sup. Ct. 132, 40 L. Ed. 293 ], where after announcing the general rule as to the absence of authority to consider a mere moot question and referring to possible exceptions resulting from the fact that the want of actuality had arisen either from the consent of the parties or the action of a defendant, it was declared (p. 654): ‘But if the intervening event is owing to the plaintiff’s own act or to a power beyond the control of either party, the court will stay its hand.’ ”

So spoke the United States Supreme Court in United-States v. Hamburg-American Co., supra.

In Southern Pac. Co. v. Eshelman, 227 Fed. 928, 932 , it was said:

“However convenient or desirable for either party that the questions mooted in the case be authoritatively settled for future guidance, the court is not justified in violating fundamental principles of judicial procedure to gratify that desire. To invoke the jurisdiction of a court of justice, it is primarily essential that there be involved a genuine and existing controversy, calling for present adjudication as involving present rights, and although a case may have originally presented such a controversy, if before decision it has, through act of the parties or other cause, lost that essential character, it is the duty of the court, upon the fact appearing, to dismiss it. [Citing numerous authorities.]

“The principles finding expression in these cases have been thus aptly epitomized and stated in 2 Encye. Sup. Ct. Eep. 289, where, referring to the rule uniformly followed by the Supreme Court, it is said:

“ ‘It has been the universal practice of this court to dismiss the case whenever it becomes apparent that there is no real dispute remaining between the plaintiff and *186 the defendant, or that the case has been settled or otherwise disposed of by agreement of the parties, and there is no actual controversy pending. In other words, whenever it appears, or is made to appear, that there is no actual controversy between the litigants, or that, if it once existed, it has ceased, it is the duty of every judicial tribunal not to proceed to the formal determination of the apparent controversy, but to dismiss the case. It is not the office of courts to give opinions on abstract propositions of law, or to decide questions upon which no rights depend, and when no relief can be afforded. Only real controversies and existing rights are entitled to invoke the exercise of their powers. ’

“The case of S. P. Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498 , 31 Sup. Ct. 279, 55 L. Ed. 310 , referred to by plaintiff, is not apposite, as tending to show the inapplicability of the principles above stated to the present case. There the Interstate Commerce Commission had made an order, limited as to time, requiring the Terminal Company to desist from giving the preference complained of. The time limit of the order expired pending the appeal, and a motion to dismiss was made upon the ground that the case had thereby become moot; but it was held that, as the Commission had power to immediately renew its order, the mere expiration of the particular order involved did not have the effect of settling the controversy, and the cause could not, therefore, be justly said to have lost its vitality as presenting no living issue.”

The general rule is unhesitatingly recognized both by the United States Supreme Court and by other federal courts. The exceptions represented by the Southern Pacific Terminal case include cases, for instance, where the legality of an order must be determined because of possible liability for reparations, or where there is a possible liability on an injunction or other bond, or where there is involved any other actual or potential liability or a vested interest. Compare: Southern Pac. Co. v. In *187 ter state Commerce Commission, 219 U. S. 433, 451 , 31 Sup. Ct. 288, 294, 55 L. Ed. 283, 290 , per White, C. J.; Ohio Collieries Co. v. Stuart, 290 Fed. 1005, 1006 . It is at once apparent that no such question is in the case at bar. The licensing authority in the case at bar duly acted — under the protection of the usual presumption in favor of official honesty and regularity — by refusing a license for the year 1935, already expired at the time when the majority reached its opinion herein. That refusal is final because of the lapse of time. This court cannot now lawfully make, authorize, or direct any other disposition of the matter once in controversy between these litigants. The license applicant in this case may or may not apply for a 1936 license. He can apply in ample time to have his application acted upon at an early date. If such an application, by the same or by another applicant, is made, it will be wholly different from the one for 1935, separate and apart therefrom. A mandamus in 1935 to compel the granting of the former application has no relation to a mandamus in 1936 to compel the granting of the later one.

The exact question which I have raised and earnestly insist upon is not new. It has been decided as I contend it should be in the present case; I find no decisions to the contrary.

In Carlson v. Wyman, 189 Mich. 402, 403 , 155 N. W. 418 , the eight members of the Supreme Court of Michigan united in declaring: “This is a certiorari proceeding by which it is sought to review the action of the circuit judge in denying the relator’s prayer for a writ of mandamus to compel the respondents, who are the president and board of trustees of the village of Munising, to reconvene and approve his application filed October 1, 1914, and bond filed October 10,1914, to engage in the retail liquor business for the remainder of the license year. A meeting of the council was held on October 20, 1914, at which time the relator’s application was rejected without any reason being given, and no action was taken with refer *188 ence to the bond. It now appears, and is conceded by counsel for relator in his brief, that the period covered by the relator Carlson’s application has passed, and that therefore no relief can now be granted him. This litigation, therefore, at this time presents simply abstract questions of law which do not rest upon existing facts or rights. This of necessity renders it a ‘moot case,’ which we will decline to determine. ’ ’

See also: Schouwink v. Ferguson, 191 Mich. 284, 286 , 157 N. W. 726 , where in a case involving a motor bus license the same court unanimously held (on May 6,1916) as follows: “It appearing by the record that relator’s license expired May 1, 1916, and that the certificate of authority expired February 29, 1916, we have nothing before us but abstract questions of law, which do not rest upon existing facts or rights. The questions involved are moot questions, and the case becomes a moot case, which we must decline to consider. When it appears by the record that action by the court would be futile, by reason of the lapse of time, the case will be dismissed.” The two cases just cited are, like ours, proceedings in mandamus. In mandamus proceedings the only question before the court is whether one party has a clear legal right to demand performance, by the other, of a clear legal duty. Gunter v. Walpole, 65 Colo. 234 , 176 Pac. 290 . No equitable.issues are presented, as in So. Pac. Terminal Co. v. Interstate Commerce Commission.

From the existing multitude of decisions, among which I find not a single one that could justify this court in failing to view the present case as moot, I select at random and now add a few representative authorities, as throwing further light from various angles upon the vital principles involved, and as themselves citing numerous cases from their own and other jurisdictions: Dakota Coal Co. v. Fraser (C. C. A. 8), 267 Fed. 130 ; Kirk v. North Little Rock Special School District, 174 Ark. 943 , 298 S. W. 212 ; State ex rel. v. Wheaton, 193 Ind. 30 , 138 N. E. 820 ; Coke v. Shanks, Auditor, 218 Ky. 402 , 291 S. W. 362 ; Tierney *189 v. Union School District, 210 Mich 424 , 177 N. W. 955 ; People ex rel. v. Washburn, 227 N. Y. 585 , 124 N. E. 723 ; Garduño v. Diaz, 46 Philippines, 472.

We are confronted'here with the patent fact that the defendant in error has lost his interest in the case at bar as a once living controversy, now dead through no fault of his by expiration of the year in and for which alone the license he sought could have been issued. It is manifest that in consequence of the new situation his counsel have abandoned any possible idea of further litigating an issue which became purely academic and moot before this court made its decision. These facts are emphasized by the absence of a petition for rehearing herein. In a live case such a petition is a strong safeguard against possible error in judicial action by permitting correction on further consideration of points overlooked and misapprehended, and against the evil of unauthorized dictum. Certainly no expense of time or money for such a petition could be expected to be made when neither the petitioner for rehearing nor his adversary could derive the slightest legal or practical benefit from any decision the trial court has made or any it could make under our direction.

In view of the foregoing, I repeat that according to my conviction the proceedings in error should be dismissed as moot. Neither this court nor any other court can lawfully decide a dead case on its merits.

The present opinion is the one which I adopted by reference in and for the case of Heuston v. Gilman, 98 Colo. 301 , 56 P. (2d) 40 , on the day when the opinions in that case and the case at bar were announced. The fact that the Heuston case is still pending on petition for rehearing was the cause of delay in the filing hereof. My opinion is now filed in view of an order of this date relative to the date of releasing opinions for official publication.