Bloxton v. State Highway Commission , 225 Ky. 324 ( 1928 )

This suit under the Declaratory Judgment Act was brought by a taxpayer with an intervening petition filed by a bank who proposes to bid for bonds which may be issued pursuant to the provisions of this act if it be held constitutional. I take it that it is elementary that a suitor may not attack the constitutionality of an act except in so far as he is affected thereby. The broad terms of the Declaratory Judgment Act, Civ. Code, sec. 639a-1 et seq., were never meant to afford the opportunity of "taking the opinion of the justices" as is the practice in some states, such as Maine and Massachusetts, and we have heretofore steadily declined to make a declaration of rights under that act if the rights of those not parties to the suit are involved. See Coke v. Shanks, 209 Ky. 723,273 S.W. 552; Herbert C. Heller Co. v. Hunt Forbes Construction Co.,222 Ky. 564, 1 S.W.2d 970. Experience has dictated the wisdom of these rules. The act under consideration specifically provides that if any part of it be unconstitutional, that shall not affect the rest of the act. To me, it is patent that the rights of neither the petitioner nor of the intervening petitioner are affected in any manner by those parts of the act authorizing the condemnation of existing bridges. Whether the act impairs the obligation of contract as discussed in point 1 of the opinion, or not, may be vitally important to some bridge company whose bridge may be sought to be condemned, and whether the procedure provided for that purpose is constitutionally provided as discussed in points 2 and 7 of the opinion may also be vitally important to such bridge company; but such matters do not affect either this taxpayer or the bank. The record does not show that any toll bridge now owned by a bridge company has been condemned, or that it is the purpose of the highway commission to condemn any such bridge. Indeed, it may never do so. But whether it does or not, the obligations or rights of the plaintiffs, original and intervening, to this suit are neither increased nor decreased by these provisions governing the condemnation of such bridges. Even if they be unconstitutional, they cannot affect the rest of the act, and we ought not to be making a declaration of rights here which so vitally affects the rights of those not parties to the suit, especially when there are no rights to declare. The fact that one bridge company has filed a brief amicus curiae does not change the situation. That does not make the bridge company a party to this suit, nor will it be bound by this decision. In 2 C. J. 1325, in speaking of the powers of an amicus curiae, it is said:

"As an amicus curiae can only suggest matters to the court, he will be deemed not to be aggrieved if the court declines to adopt his suggestion, whether brought to the attention of the court by motion or in any other manner; hence he cannot make a valid exception to the ruling of the court, as his friendly offices, conceding them to be disinterested, are at an end when he has informed the court.

"Am amicus curiae, having no control over a suit, has no right to institute any proceeding therein, and he cannot take the case from one court to an other by appeal or writ of error; nor may he maintain a bill of review or a bill in the nature of a bill of review."

From this, it is obvious that the bridge company here will not be bound by the decision herein rendered on the points I have mentioned.

As to the other points discussed in the opinion, I concur with the majority opinion. They do bear on the rights of at least the original plaintiff to this suit. As to points 1, 2, and 7, I do not think a declaration ought to be made at this time.

I am authorized to state that Judge McCandless concurs in these views and this opinion.