Blythe v. Transportation Cabinet of the Commonwealth

GANT, Justice. Appellant filed this petition in the Franklin Circuit Court, asking that court to declare unconstitutional any bonds issued pursuant to HB 931 (Chapter 109, Part IV) and HB 295 (Chapter 398, Part IV) and to permanently enjoin the appellees from issuing any bonds under the authority granted in KRS 175.750 to 175.810. The statutes herein questioned are listed under the general heading “Economic Development Road Projects,” and provides for the issuance of bonds by the Turnpike Authority of this state in an amount “up to $300,000,000 in the 1982-84 biennium for the construction and reconstruction of roads.” KRS 175.770 and KRS 175.780 stipulate that the Turnpike Authority shall utilize and employ “all of the authority, rights and procedures granted to the authority by KRS 175.410 to KRS 175.690, inclusive,” and that such is subject to the limitations contained in the biennial appropriations act. In essence, the statutes provide for the authority to lease to the Department of Transportation subject to a project, the lease payments to be made by the Department from funds appropriated to it each biennium by the legislature, the improvements, construction and reconstruction costs to be paid from the bonds. It is further provided that the bonds do not constitute a debt of the Commonwealth, and there is no binding commitment by the legislature to appropriate funds. After the complaint herein was filed, ap-pellees moved for judgment on the pleadings, which motion was granted and judgment and orders were entered dismissing the appellant’s complaint. Direct appeal to this court was granted. It is our opinion that language in KRS 175.770 and 175.780 that the turnpike authority shall have, use, utilize and employ “all authority, rights and procedures provided by ... KRS 175.410 to KRS 175.690, inclusive,” of necessity includes any limitations on such authority or right provided by those sections, and we so construe that language. Thus, it is the opinion of this court that all issues presented herein were identical to those presented to the court in the case of Turnpike Authority of Kentucky v. Wall, Ky., 336 S.W.2d 551 (1960). That case concerned the authority of the Turnpike Authority to construct toll roads, issue revenue bonds to finance them and to lease said turnpikes to the Department of Transportation for an agreed rental. This rental was to be paid from various sources, including appropriations not to extend beyond the biennium made by the legislature to the Department to defray the expense of the lease. The court in the Wall case stated as follows: It may be conceded as fundamental that the legislature can authorize the commitment of revenues anticipated during the biennium for which its appropriations are to be budgeted (citing cases). Therefore, to the extent that the Department is authorized to obligate all or any part of its previously unencumbered revenues anticipated for this two-year period there is no question. The Wall case went on to hold that the statutory plan for financing such bonds, identical to the one here, was not unconstitutional in violation of § 49 and § 50 of the Kentucky Constitution. Additionally, we find no applicability of § 178 of the Kentucky Constitution. It has long been the law in Kentucky that judgment on the pleadings will be granted if, on the admitted material facts, the movant is clearly entitled to a judgment. See Archer v. Citizens Fidelity Bank & Trust Company, Ky., 365 S.W.2d 727 (1963); 6 Clay, Kentucky Practice, (3d ed. 1974); Civil Rule 12.02, p. 200. It is the [670] opinion of this court that all issues raised by the appellant herein were disposed of in Turnpike Authority of Kentucky v. Wall, supra, and that no issue remained. No bonds having been issued pursuant to the statutes before us, nothing in this opinion is intended to nor does it reflect on the validity of the bonds themselves, which may be subject to subsequent litigation. Further, this opinion is not authority for the appellees to enter contracts and expend money in the contemplation of the issuance of bonds. The judgment and orders of the Franklin Circuit Court are affirmed. STEPHENS, C.J., and GANT, LEIBSON and WINTERSHEIMER, JJ., concurring. AKER, STEPHENSON and VANCE, JJ., dissenting. VANCE, J., files herewith a dissenting opinion in which AKER and STEPHENSON, JJ., join.