Flincheum v. Hickman County Kentucky Board of Education

CULLEN, Commissioner. Appellants are citizens, taxpayers and consumers of utilities in Hickman County, Kentucky. For themselves and for all others similarly situated they filed a declaratory judgment suit attacking a 3% utility tax imposed by the fiscal court for the schools. They sought an injunction to prevent levying or collecting the tax. The tax was levied in compliance with a resolution of the Hickman County Board of Education. See KRS, Chapter 160. The trial court adjudged the levy valid and denied the injunction, from which judgment this appeal was lodged. We affirm. Appellants alleged that the notice given by the board of education of the time and place of its meeting, when it resolved to request the levy, did not meet the requirements of KRS 160.603. They charged that the resolution of the board therefore was void. In holding the levy valid, the trial court found that the notice was sufficient. Appellees contended in the trial court and argue here that appellants- sole remedy was by appeal from the fiscal court, under KRS 23.030, and that appellants could not maintain an independent declaratory judgment action. We agree that the appellants cannot maintain the independent action, but for a different reason. The original order of the fiscal court, levying the tax, was entered on April 2, 1971. The appellants petitioned the fiscal court to rescind that order, and on September 11, 1971, the fiscal court entered an order rescinding the April 2 order. The board of education appealed from the September 11 order and the appellants sought to intervene on the appeal, to defend that order. While that appeal was pending the appellants brought the instant declaratory judgment suit. The circuit court, on the appeal by the board of education from the September 11 [753] rescinding order of the fiscal court, overruled the appellants’ motion to intervene and on November 26, 1971, entered judgment reversing the rescinding order. No appeal was taken from the judgment. In these circumstances we think the question is not whether the appellants should have appealed from the April 2 order, but whether they should have appealed from the circuit court judgment. They chose to make a direct attack on the fiscal court order by petitioning the fiscal court to set aside that order. When that order was set aside by the September 11 order, the appellants had for the moment procured all the relief they desired. What placed that relief in jeopardy was the appeal taken to the circuit court, from the September 11 order, by the board of education. The appellants sought to protect their relief by intervention in the appeal proceeding. That effort failed because the circuit court denied their motion to intervene. It seems to us that it was incumbent upon the appellants to appeal from the circuit court judgment, for it was by virtue of that judgment that the tax was reinstated. See Morse v. Buskirk, 167 Ky. 571, 181 S.W. 173; Fugate v. Creech, 271 Ky. 3, 111 S.W.2d 402; City of Henderson v. Todd, Ky., 314 S.W.2d 948; Sutphen Estates, Inc. v. United States, 342 U.S. 19, 72 S.Ct. 14, 96 L.Ed. 19. This is so particularly because the ground on which the appellants prevailed upon the fiscal court to enter the rescinding order, i. e., that the board of education’s request for the tax was invalid because of lack of public notice (which ground was rejected by the circuit court on the appeal), was the same ground that the appellants asserted in their independent action. In our opinion the appellants were entitled, under CR 24.01, to intervene as a matter of right, and therefore could not forego the right of appeal and seek some other remedy. Cf. Brotherhood of R. R. Trainmen v. Baltimore & O. R. Co., 331 U.S. 519, 67 S.Ct. 1387, 91 L. Ed. 1646. Our conclusion is, then, that the appellants were not entitled to relief in their declaratory judgment action, not because they did not appeal from the original fiscal court order, but because they did not appeal from the circuit court judgment denying their right of intervention. The circuit court should have dismissed the action, rather than declare the fiscal court order valid. However, the ultimate result is the same, so we are affirming the judgment. PALMORE, C. J., and JONES, MILLI-KEN, OSBORNE, REED, STEINFELD and STEPHENSON, JJ., sitting. All concur, except that STEINFELD, J., concurs by separate opinion.