with whom WILLIAMS, Judge, joins, dissenting.
In the opinion it is stated that the former judgment was ineffective to bind anyone as a matter of res adjudicata or otherwise, because (1) In the suit between the taxpayer and the library board there was a failure to join an indispensable party, namely, the library director, Mr. Graham; and (2) There was no justiciable controversy between the plaintiff and the city of Louisville and the two boards of education. It seems to Judge Williams and me that this interpretation of the agreed case statute, KRS 418.020, is so restrictive and confining that it will result not only in making the statute useless, but will have the same effect when applied — and similarly it should be applied if the holding is correct — to KRS 418.040 et sequitur.
We will state some facts in order to discuss the first proposition. In the agreed verified statement in the first case it was-alleged: The plaintiff, A. Walter Redmon,. was a substantial taxpayer of the city of Louisville and of Jefferson County, and had paid and was paying county taxes, county school taxes, city school taxes and taxes of the city of Louisville.
The second paragraph made formal allegations concerning the corporate existence of the library and it was alleged that the city board of education and the county board of education were boards of education of the state of Kentucky having charge of city and county schools.
The third paragraph averred that some of the funds for conducting the libraries in the city of Louisville were rents from property owned by it and that it also received appropriations from the city of Louisville.
In the fourth paragraph it was set forth that Clarence R. Graham had been director of the library for some nineteen years and he had received a salary of $7200 per an-num; in addition for several years prior to July 1, 1961, he had also rendered services to the University of Louisville and received therefrom a salary which the University had discontinued on July 1, 196L
The next paragraph recites this resolution of the Library Board:
“WHEREAS, there is now no constitutional limitation on the amount of salary to be paid to the Director, and, we are advised, KRS 64.620 does not limit the salary to be paid to the Director; now, therefore, in order that the aggregate remuneration to the Director shall not be reduced by reason of the action taken by the University of Louisville, it is unanimously
“RESOLVED that effective July 15,. 1961 the salary to be paid to Clarence-R. Graham as Director of the Louisville Free Public Library shall be at the rate of $10,755 per annum.”-
It seems to us that here we have a clear and actual controversy between a taxpayer *300who has an interest because he has paid part of a tax, and a board which is charged with the duty, rightfully, to disburse that tax in payment for the discharge of the duties of a public position, namely, director. The one who fills that office, it appears, so far as the legal question is concerned, is immaterial. We presume he could be removed or replaced at the pleasure of the board. The main issue concerns whether the board has a right to disburse tax funds in this amount for this purpose.
In Smith v. Campbell, Ky., 286 S.W.2d 532, a citizen and taxpayer filed action against the county treasurer and all magistrates who had served as members of the fiscal court since 1946, and sought to recover lump sum payments made to the magistrate members of the fiscal court for office rent and telephone expenses. In the year 1935, the fiscal court had passed a resolution providing for allowances to the magistrates for office rent. An appeal was tak<en from the order of the fiscal court to the ■circuit court in which the county attorney was the appellant and the fiscal court as an ■entity was the appellee. The circuit court affirmed the validity of the resolution of the fiscal court and this prior judgment was pled as being res adjudicata of the question.
Upon appeal this court held that the 1935 suit was res adjudicata of the question as to all payments made prior to 1950 at which time the statute was enacted which prohibits lump sum payment of expenses. The court said:
“With respect to the question of whether the parties are the same, the appellee makes some point of the fact that the 1935 judgment was rendered on an appeal from an order of the fiscal court, in which the county attorney was the appellant and the fiscal court as an entity was the appellee; whereas the present action is by a citizen and taxpayer as plaintiff against the individual magistrates as defendants.
“We have no difficulty in concluding that the county attorney in the 1935 adtion, and the citizen and taxpayer in the present action, both represented the people of the county and therefore were privies in interest. Accordingly, on one side of the actions the parties must be considered the same. It is also our opinion that on the other side of the actions the fiscal court in the 1935 action, and the individual magistrates in the present action, must be considered as privies and the same parties. Any individual liability of the magistrates to repay the allowances made to them would depend upon a finding that the fiscal court had no authority to make the allowances. It seems to us that a finding in an action against the fiscal court, that the authority did exist, must be conclusive of the question of individual liability, because of the dependent nature of the liability.”
The recent case of Matthews v. Ward, Ky., 350 S.W.2d 500 (Oct. 20, 1961) was presented under KRS 418.020 as an agreed case to determine the validity of an agreement which the Department of Highways had made with one of its engineers, Mr. Graves. Under the contract the Department of Highways agreed to pay to the engineer the sum of $300 in lieu of his moving expenses. Engineer Graves was not made a party. No question was raised as to whether Graves was an indispensable party. The court expressed its opinion concerning the questions raised.
In Iroquois Post No. 229, American Legion, v. City of Louisville, Ky., 279 S.W.2d 13, which was an action under the Declaratory Judgment Act for a declaration that appellant’s institution was one of purely public charity within the constitutional provision exempting such property from taxation by the city, this question was raised on appeal and it was said:
“It appears from the briefs that some question was raised in the lower court as to whether the county tax commissioner should have been made a party defendant, because of the fact that the *301■City of Louisville, in accordance with KRS 132.285, has adopted the assessments of the county tax commissioner. However, we do not find any motion appropriately raising the question. Upon remand of the case, if an appropriate motion is made, the court should ■order that the county tax commissioner be made a party, in view of the fact that his interests may be affected by the declaration. KRS 418.075.”
This opinion, in a limited way, indicates that parties remotely interested should be ■drawn into the controversy but at the same time there is an implication that unless a motion is made to join such parties the defect may be waived. In the case at bar, -no one asked that the library’s director be joined nor was the question raised by the “Statement of Points under C R 75.04.”
The term, indispensable party, is difficult to define. The best attempt to do so, we have found, is in Baltimore & O. R. Co. v. Chicago River & I. R. Co., 7 Cir., 170 F.2d 654, which is as follows:
“An indispensable party is one without whom the court can do nothing, or as was said in Barney v. Baltimore City, 73 U.S. 280, 284, 6 Wall. 280, 284, 18 L.Ed. 825, ‘(an indispensable party is one) whose interests in the subject-matter of the suit, and in the relief sought, are so bound up with that ■of the other parties, that their legal presence as parties to the proceeding is an absolute necessity, without which the court cannot proceed.’ ”
As is stated above in this opinion it appears the controversy between the taxpayer and the library board is whether the tax paid by one may be so disbursed by the •other. That question seems complete in itself and subject to judicial determination by "the court. If this were a case by a taxpayer to require the library board to recover back salary paid to its director or a suit to recover payment of the salary from hoth the board and the director, then the director would be an indispensable party because it would fix liability upon him.
If the interpretation given this term by the majority opinion is correct, then in the future, suits under KRS 418.020 and 418.040 will be greatly limited and it will be necessary for the parties to wait until the damage has been done before a judicial determination of their rights may be had.
In connection with the second thesis set forth in the opinion that there was no jus-ticiable controversy between the plaintiff and the city of Louisville and the two boards of education, the original suit, after setting forth in great detail the library’s problem, makes this allegation:
“The City proposes to take similar action in raising the salaries of certain city employees above the limit of $7,200 per annum.
“The City Board of Education and the County Board of Education propose to increase the salaries of their respective superintendents so that they will receive in excess of $12,000.
“The City contends, as does the Library, that KRS 64.620 does not limit salaries to city officers and employees to $7,200 a year, and the City School Board and the County School Board similarly contend that KRS 64.600 does not, when properly construed, limit the salaries of their officers and employees to $12,000 per annum.
“The plaintiff contends that the city employees are limited to $7,200 per an-num and that the officers and employees of the City and County School Boards are limited to $12,000 per an-num.”
The foregoing allegations were unchallenged by any request to make them more detailed or specific. In light of the allegations that preceded them no party could be deceived by the action which the school boards or the city were taking or had taken and here again the question between the *302taxpayer and the disbursing board was clearcut. We think in such cases of doubt the rules of pleading, as exemplified by the Civil Rules and the intention of the Agreed Suit Act and the Declaratory Judgment Act should be construed as said in C R 1: “To secure the just, speedy and inexpensive determination of every action.”
Both Judge WILLIAMS and I believe the original judgment erroneously interpreted the previous construction of KRS 64.620 and 64.600, hut no appeal was taken from that judgment and whether it was correct or incorrect is now immaterial. See Carroll v. Fullerton, 215 Ky. 558, 286 S.W. 847. The damage which this opinion may do to the usefulness of suits under the Agreed Judgment Act and the Declaratory Judgment act compels us respectfully to dissent from the majority opinion of the court.