Dissenting opinion By
Judge Sandidge.I agree with the admission in the opinion that the requirements of the statute as to notice and advertisement were not complied with. I disagree with the conclusion of the majority that there was substantial compliance. The court cannot justify yielding to the temptation to cut corners in disregard of the legislative edict on the subject. However, that is not the primary reason for my dissent.
The action was instituted under the Declaratory Judgment Act for the purpose of having it ultimately adjudged by this court that the bond issue involved is valid.
A present actual controversy is a prerequisite to the maintenance of an action for a declaration of rights. There was no such controversy in this “litigation.”
Normally, an action is instituted by a taxpayer to test the validity of a bond issue. Here the action was brought in the name of the county alone as plaintiff. The complaint erroneously alleged the county was a body corporate, with power to sue, et cetera, when everyone should know it is a political subdivision of the state, and that it can sue only through authorization of the fiscal court. There is nothing in the record to indicate the granting of such authority. The action was filed by a nonresident attorney on behalf of the county, rather than by the county attorney. On the day it was filed the city solicitor of Bowling Green, as attorney for defendant, R. D. Lyon, and the nonresident counsel filed a joint motion requesting that Lyon be permitted to defend on behalf of himself and all other citizens and taxpayers of the county. An order to that effect was entered. Thereupon on the same day an answer was filed for the class defendant, in which all allegations of the complaint were admitted, except the immaterial one that the voters were notified of the election through means other than that prescribed by the statute. The complaint alleged there was a “bona fide” controversy between plaintiff and defendant and the members of the class represented by him, but this was a mere conclusion. The only thing alleged which purported to show any type of disagreement was that foreign counsel for the bonding house, which contemplated purchasing the bonds, would not approve the purchase without a decision of this court upholding their validity, and that same would not be approved by the state local finance officer without such decision. The attitude of the foreign attorney and local finance officer hardly created the type of controversy required under the Declaratory Judgment Act; but, even if it should be assumed it did, neither the attorney nor finance officer was *307a party to the action. There were no facts alleged indicating any actual controversy between plaintiff and defendant.
On the next day after the petition and answer were filed, testimony was heard in open court to show the kind and amount of publicity, other than what was required by the statute, that was given to the proposed election. Counsel for defendant cross-examined only one of many witnesses, and then prompted him with three or four questions that were more favorable to plaintiff than to his client. It is admitted in the first sentence of appellee’s brief that this is “a friendly test suit.”
It is perfectly obvious from the record that no actual controversy was or is involved in the “litigation.” It was brought solely to satisfy the whims of the attorney for the prospective purchaser of the bonds and the local finance officer, neither of whom was a party.
Both the lower court and this court were thereby unjustly imposed upon. Everyone should know that if there is no appeal from a judgment of a circuit court in Kentucky within thirty days after it is entered, the judgment is as final and binding as any decision of this court. The time of this court should not be consumed with such unnecessary and useless appeals. In considering same the court is not acting in a judicial capacity, but is doing purely administrative work to please bonding houses and their counsel. Perhaps the approval of a bond issue may be of assistance in reselling the bonds, but the Court of Appeals should not engage in such rubber stamp activities.
Statements of the Court to the contrary in Selle v. City of Henderson, 309 Ky. 599, 218 S.W.2d 645, are unsound, and that decision should be overruled.
Of course, when actual and meritorious controversies are presented with respect to a bond issue, this court should and will' judicially determine them.
I would reverse the judgment of the lower court. Judges Bird and Eblen join in this dissent.