Hunt-Forbes Construction Co. v. City of Ashland

61 S.W.2d 891, 250 Ky. 41, 1933 Ky. LEXIS 616

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: June 20, 1933
• Status: Published

Opinion

Opinion op the Coubt by

Creal, Commissioner

.'Reversing.

The Hnnt-Forbes Construction Company was awarded a contract for original construction of Thirteenth street in the city of Ashland, which improvement, as .provided by ordinance, was to be made- at the exclusive •cost of the owners of the property abutting and fronting thereon. No question is made as to the legality of the necessary ordinance or steps preliminary to the let-ding of the contract. After'the work was .completed, 'dhe city engineer prepared and filed his final' estimate ■of the cost thereof, which was duly accepted and approved by the general council of the city as' a final estimate of the cost of the work and of the completion of the contract upon the part of the construction company; •and the cost of the .improvement and the benefits accruing therefrom were apportioned to respective ■ parcels ■of real estate liable to assessment therefor as provided by statute. Within 30 days after such apportionment 'had been made, some of the. ownérs of the property liable to.assessment entered into aii agreement with the ■city to accept the 10-year payment plan, bufa number •of the owners refused to accept that plan, and failed ■and refused to pay the assessment ¿gainst' their lots!

Suits have been instituted against a number of delinquent owners by the city, and in these suits the,,construction company has intervened. After .-these actions were instituted, the city instituted this action against the construction company, seeking a declaration of rights as between the parties on questions set'forth in the petition concerning which it is alleged a real controversy exists. The construction company being dissatisfied with the lower court’s judgment declaring the rights of the parties, is appealing.

Nine questions are presented, and some of them are subdivided into two or more questions. They call for a declaration of rights as between the city and the contractor with respect ’to practically every question that might arise in the 'matter of making and enforcing assessments for such improvements,. ■ Many of these ques tions involve rules of procedure or substantive rights; involved in the suits pending to enforce the liens against the property owners. Other questions ' present propositions purely speculative, in' that they anticipate and call for a declaration upon matters which may or may not arise.

In the case of Jefferson County v. Chilton, 236 Ky. 614, 33 S. W. (2d) 601, 603, the court, after setting out the true purpose of the Declaratory Judgment Act (section 639a-1 et seq., Civil Code of Practice), said:

“But the act was not designed, and is not suitable, for the determination of the procedural rules,, or the declaration of the substantive rights involved in a pending suit. Such decisions ‘ and declarations must be made in the first instance by the court whose power is invoked and which is competent to decide them.

“Every question submitted to the court can be decided by the trial court, in the original action,, with a right of review in this-court after final judgment in the trial tribunal.”

In the later case of Oldham County v. Arvin, 244 Ky. 551, 51 S. W. (2d) 657, 658, the court, in approving and quoting at length from the opinion in the Chilton Case, summed up the two most pertinent conclusions reached in it in the following language:

“(a) That courts will not take jurisdiction in actions brought under the statute, unless the alleged controverted questions are justiciable ones, and which does not include abstract legal questions designed merely to furnish information to the inquirer and which,, if jurisdiction was taken, would convert courts into a sort of law school for the instruction of the inquisitive mind (see Revis v. Daugherty, 215 Ky. 823, 287 S. W. 28); and (b) that in no event will procedural questions be determined when they relate to and are designed to' operate upon litigation or an action, or proceedings already pending in a court having jurisdiction, since such court possesses both jurisdiction and authority to determine such questions during the progress of the investigation.”

In the case of Shearer v. Backer, 207 Ky. 355, 269 S. W. 543, it was pointed out that it was not the inten- Hon or purpose of'the Declaratory Judgment Act to bring upon courts the burden of answering anticipated or speculative propositions of law merely to satisfy the curiosity or the fears' of' parties concerning possible ■controversies that may or may'not arise out of their executed contract.

The rule announced in these eases forbids that we ■should answer or determine these questions until they •are properly presented as therein indicated. Wherefore the judgment of the lower court is reversed, with directions to dismiss the petition.