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ject-matter and the parties cannot thereafter be the subject, between such parties and their privies, of "actual controversies," within the meaning of that term as used in the Declaratory Judgment Act, and hence the court will not assume jurisdiction to render a declaratory judgment in such a case. Shearer v. Backer (1925) 207 Ky. 455, 269 S. W. 543.

In Kelly v. Jackson (1925) 206 Ky. 815, 268 S. W. 539, it was held that a declaratory judgment should not be rendered in a proceeding to determine the right of voters at an election to vote on the question whether cattle should be permitted to run at large in the streets of incorporated towns or cities, where it did not appear that any election had been called and there was no actual controversy presented as to the right to vote. The court said there was no suggestion that an actual controversy existed, that it appeared to be only a neighborhood question, and added that courts are not provided for the settlement of arguments or differences of opinion, but of actual controversies involving legal rights.

In Smith v. Atty. Gen. [1924] (Can.) S. C. 331, [1924] 3 D. L. R. 189, the court denied the right of a plaintiff to have a declaratory judgment as to the effect of certain legislation relative to prohibiting the importation of intoxicating liquors into a certain province. It is pointed out that the plaintiff had no foundation for his action against the attorney general other than that he wrote several dealers in another province requesting each of them to supply him with such liquors, and they each refused on the ground that doing so would be illegal. The court said that the proceeding was an attempt to elicit an opinion from the court, which, under the facts, the court had no right to give, either one way or the other.

By the provisions of the statute limiting the jurisdiction of the court to matters of actual controversy and actual antagonistic assertions and denials of a right, it was intended to prevent the consideration of moot questions, and not to deprive the court of jurisdiction to enter a declaratory decree where there was an actual an

tagonistic assertion and denial of right. Patterson v. Patterson (1926) 144 Va. 113, 131 S. E. 217.

It has been held that the only condition necessary to invoke the action of the court, and have it declare rights under the Declaratory Judgment Statute, is that the question must be real, and not theoretical; the person raising it must have a real interest, and there must be someone having a real interest in the question who may oppose the declaration sought. It is not necessary that any breach be first committed, any right invaded, or wrong done. The purpose of the act, as expressed, is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and it is to be liberally construed and administered. Miller v. Miller (1923) 149 Tenn. 463, 261 S. W. 965.

d. When involving future event. (Supplementing annotation in 12 A.L.R. 69.)

The court will not, under the Declaratory Judgment Act, undertake to decide or declare rights of the parties upon a state of facts, future, contingent, or uncertain. Tanner v. Boynton Lumber Co. (1925) 98 N. J. Eq. 85, 129 Atl. 617; Re Gooding (1925) 124 Misc. 400, 208 N. Y. Supp. 793.

In declaratory judgment proceedings, the court will not decide future rights in anticipation of an event which may not happen, but, just as in the ordinary executory action, it will wait until the event actually takes place, unless special circumstances appear which warrant immediate decision, as, for instance, where present rights depend on the declaration sought by plaintiff; even then such rights will not be determined unless all parties concerned in their adjudication are present and ready to proceed in the case so that the judgment rendered will make the issue involved res judicata in the full sense of that term. Kariher's Petition (1925) 284 Pa. 455, 131 Atl. 265.

e. Contingent event. (Supplementing annotation in 12 A.L.R. 71.)

The statute relative to declaratory judgments does not contemplate declarations upon remote contingencies, or an expression of opinion as an aid in other transactions, or declarations on remote, incidental, or abstract questions. Hodges v. Hamblen County (1925) 152 Tenn. 395, 277 S. W. 901.

f. Disputed question of fact. No later decisions herein. For earlier cases, see annotation in 12 A.L.R. 72.

g. As to claim which it is feared defendant may assert.

No later decisions herein. For earlier cases, see annotation in 12 A.L.R. 73.

h. As to matters over which jurisdiction is vested in another court.

(Supplementing annotation in 12 A.L.R. 75.)

A court will not take jurisdiction to render a declaratory judgment where another statutory remedy has been especially provided for the character of case presented. Kariher's Petition (1925) 284 Pa. 455, 131 Atl. 265. Where the question as to the validity of certain assessments and the liability of certain property owners with reference thereto is clearly a matter for the law court, equity will not take jurisdiction of a petition for a declaratory judgment with reference to the matter. Wight v. Board of Education (1926) — N. J. —, 133 Atl. 387.

Questions already adjudicated by a court having jurisdiction of the subject-matter and the parties cannot thereafter be the subject, between such parties and their privies, of an actual controversy within the meaning of this term in the Declaratory Judgment Act. Shearer v. Backer (1925) 207 Ky. 455, 269 S. W. 543.

So, where there has been a declaratory judgment rendered sustaining the validity of a statute providing for a certain highway bridge, and there are proceedings pending in the Federal court with reference to the construction of this bridge, and no appeal has been taken from the declaratory judgment, the court will not, at the instance of the attorney general, render

another declaratory judgment passing upon the validity of this statute. State ex rel. Baird v. Wyandotte County (1924) 117 Kan. 151, 230 Pac. 531. The court said that it had "jurisdiction to make a declaration of right only because it could grant consequential relief if such relief were prayed for. After declaration, further relief may be demanded, . . and the case is to be regarded in the same light as if the county board were to be ousted from exercise of assumed authority to deliver the bonds, under sanctions likely to make the ouster effective. If the court should now proceed to judgment on the merits, and should conclude the bonds were wrongfully issued, intolerable consequences would necessarily result. The court would be placed in antagonism to the Federal court, which has decreed that the bonds shall be issued, and this, too, after twice indicating that the Federal court, already in full possession of the controversy, was capable of dealing with it. Under the circumstances stated, it would be highly improper for [the court] to make a binding declaration of right in respect to the matters in controversy, and, exercising its judicial discretion, it declines to do so."

Where questions are pending in an injunction suit, it is proper for the court, in the exercise of its discretion, to refuse to make a declaration touching the issues there raised. Proctor v. Avondale Heights Co. (1923) 200 Ky. 447, 255 S. W. 81.

A declaration will not be made where the purpose is to affect proceedings which may or may not be taken before a public board which has full power to act in the matter and, in proceeding, would not be bound by the declaratory judgment. Re Windsor (1923) 54 Ont. L. Rep. 222, [1924] 2 D. L. R. 177.

In Lethbridge v. Canadian West Natural Gas L. H. & P. Co. [1923] (Can.) S. C. 652, [1923] 4 D. L. R. 1055, it was held that a declaratory judgment with reference to the rights of the parties under a contract which came within the jurisdiction of the public utilities board would not be ren

dered, where the effect would be to embarrass the board to whose jurisdiction the parties must ultimately have

recourse.

In List's Estate (1925) 283 Pa. 255, 129 Atl. 64, while the court entertained jurisdiction to render a declaratory judgment upon the point as to whether the children or grandchildren of the testator were entitled to the corpus of his residuary estate and the remainder after the death of his widow, it, however, pointed out that the proper practice would have been for the matter to have been determined when the question arose with regard to the distribution of the estate, and hence there was no necessity for resorting to the Declaratory Judgment Act.

In Hagan v. Dungannon Lumber Co. (1926) 145 Va. 568, 134 S. E. 570, the court refused to take jurisdiction in behalf of a corporation not shown to be insolvent, and claiming merely that certain creditors were proceeding at law against it, or threatening to proceed against it, and asking that a receiver be appointed to wind up its affairs, and, from the proceeds realized to pay its debts.

V. Illustrative cases.

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(Supplementing annotations in 12 A.L.R. 76, and 19 A.L.R. 1130.)

A contractor is entitled to invoke the aid of the court for a declaratory judgment to establish his rights in relation to a fund held by the owner by determination of the rights of alleged lienors, and his rights against the owner, and against the casualty company under a bond. Alfred E. Joy Co. v. New Amsterdam Casualty Co. (1923) 98 Conn. 794, 120 Atl. 684. The court pointed out: "The complaint discloses that the plaintiff is ignorant of its jural relations as to the defendants because of its inability to determine without judicial aid the validity 50 A.L.R.-4.

or amounts of certain claimed mechanics' liens on the hospital property in question, and that, upon the determination of these facts and the legal consequences flowing from them, the existence or nonexistence of rights of action against the hospital society and the casualty company, and the extent of the same, depend. The situation of the plaintiff, as appears by the amended complaint, discloses that it is in uncertainty as to its rights against the hospital society and the casualty company because of its ignorance of its legal relations to them, owing to the claimed liens above mentioned; and further, that, because of the condition precedent contained in the bond as to the time of beginning suit against the casualty company, it is in danger of loss. The plaintiff, therefore, has such an interest as § 63 (a) of the rules requires in order to base a prayer for a declaratory judgment."

2. Distribution.

No later decisions herein. For earlier cases, see annotations in 12 A.L.R. 77, and 19 A.L.R. 1130.

c. Construction and validity of instruments.

1. Wills.

(Supplementing annotations in 12 A.L.R. 78, and 19 A.L.R. 1130.)

A declaratory judgment will be rendered construing a will in belief of a remainderman during the life of the life tenant, the title to property being involved. Cavin v. Little (1926) 213 Ky. 482, 281 S. W. 480.

In the absence of any necessity therefor, the court is not authorized to pass upon future or contingent rights that may never arise under a will. It may, however, act in the matter where there is a present need for a construction of the will, although there is no actual controversy between the parties with reference thereto. For example, where one or more of the devisees desire to sell, mortgage, or improve their share of the estate, and a construction of the will is necessary to enable them to determine the extent of their interests, the court will act in

the matter. Norton v. Moren (1924) 206 Ky. 415, 267 S. W. 171.

In Kariher's Petition (1925) 284 Pa. 455, 131 Atl. 265, the court took jurisdiction and rendered a declaratory judgment construing a will in order to determine the rights of certain devisees to join in a lease of the property, the claim being that one of the devisees had but a life estate, and the proceeding being taken by the lessor for a declaration as to his property rights. All persons having a possible interest were joined as respondents, including certain alleged remaindermen, and a trustee representing other possible contingent remaindermen and persons who might in the future possess alternative interests.

In Brown's Estate (1927) 289 Pa. 101, 137 Atl. 132, a declaratory judgment was rendered as to the validity of a devise which was claimed to transgress the rule against perpetuities.

In Miller v. Miller (1923) 149 Tenn. 463, 261 S. W. 965, the court, at the instance of the widow of a testator, rendered a declaratory judgment as to the right of the widow to convey a good title to real estate under authority given by the will of her deceased husband, notwithstanding it appeared that there was no actual controversy in the sense of threatened litigation as to the widow's right to sell said real estate under the clause of the will. It did appear, however, that she was unable to sell, because purchasers were fearful of her authority in that regard.

In Re Gooding (1925) 124 Misc. 400, 208 N. Y. Supp. 793, the court refused to entertain a proceeding to construe a will to determine whether or not the petitioner's debtor, who was deceased, had an interest in a certain estate under the will of the decedent, where the petitioner had not established his claim against the estate of his debtor. The court said it could not determine the rights of parties upon a state of facts which had not yet arisen, but upon a matter which was speculative, related to the future, and was uncertain.

2. Contracts.

(Supplementing annotations in 12 A.L.R. 80, and 19 A.L.R. 1131.)

The most fruitful field for the use of declaratory judgments is in the construction of written instruments, as to the interpretation of which there is a dispute, to determine the relative rights of the contracting parties. Recourse to such relief, however, cannot be had to determine the consequences of an anticipatory breach of a contract by one of the parties thereto, since in such case the injured party already has a full, immediate, and complete remedy. Loesch v. Manhattan L. Ins. Co. (1926) 128 Misc. 232, 218 N. Y. Supp. 412.

If the court cannot decree a contract to be specifically performed, it will not indirectly accomplish the same and by declaring the contract to be binding upon the parties. ChangYen-Mao v. Moreing (1906) 120 L. T. Jo. (Eng.) 313.

In Blakeslee v. Wilson (1923) 190 Cal. 479, 213 Pac. 495, it was held proper for the court to assume jurisdiction to render a declaratory judgment with regard to the rights of a party under a certain contract of employment, where his rights under this contract were denied by the other contracting parties.

In Manhattan Bridge Three-Cent Line v. New York (1923) 204 App. Div. 89, 198 N. Y. Supp. 49, affirmed without opinion in (1923) 236 N. Y. 559, 142 N. E. 283, rehearing denied in (1923) 236 N. Y. 637, 142 N. E. 315, a declaratory judgment was rendered construing at contract between a city and a street railway company with reference to the use of certain streets, and making a declaration upon the point as to whether the determination of the revaluation of the grant or franchise for the renewal period, as embodied in the proposed contract, had been agreed upon within the meaning of the subsisting contract between the parties; whether the plaintiff has become obligated to enter into such a contract; whether the defendant had not forfeited its right to enter into the contract subsequently proposed by the

plaintiff; and whether, under the subsisting contract, the right of the defendant to appoint a disinterested fee holder as an appraiser to act on its behalf had been forfeited.

3. Leases; landlord and tenant generally.

(Supplementing annotations in 12 A.L.R. 82, and 19 A.L.R. 1131.)

A declaratory judgment will be granted, determining the respective rights and obligations of the lessor and lessee under a certain lease prior to the expiration of the lease, including the question whether the lease and a sublease shall terminate upon a certain date, or shall be extended to a later period. Fidelity & C. Trust Co. v. Levin (1927) 128 Misc. 838, 221 N. Y. Supp. 269.

In McCrory Stores Corp. v. Braunstein (1926) — N. J. L. 134 Atl. 752, a declaratory judgment was rendered construing a lease under which a building was occupied for a long term of years for a mercantile purpose.

In Aaron v. Woodcock (1925) 283 Pa. 33, 38 A.L.R. 1251, 128 Atl. 665, there was a declaratory judgment rendered upon the point as to whether or not the plaintiff was entitled, under a lease, to a new term of a designated time at the expiration of the lease, or whether he was entitled to a term from year to year only.

4. Insurance policies. (Supplementing annotations in 12 A.L.R. 83, and 19 A.L.R. 1131.)

The complainant is not entitled to a declaration establishing the liability of a company to indemnify him under a certain insurance policy where, owing to certain rules of the company, an action could not at that time be maintained. Piper v. Spence [1925] 1 D. L. The court R. 334, Manitoba, said that the plaintiff had no right to split his cause of action and have the question of liability determined by an anticipatory judgment before the right to sue for the recovery of the claim had accrued.

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earlier cases, see annotation in 12 A.L.R. 83.

6. Mortgages and deeds of trust. (Supplementing annotations in 12 A.L.R. 84, and 19 A.L.R. 1132.)

It has been held that a bill will not be entertained for a declaration which does not seek a judgment construing a written instrument, but merely asks for a declaration of the rights of the parties under a mortgage, as against a person who claims an interest or title in the mortgaged property, free and clear of the mortgage. Naugle v. Baumann (1924) 96 N. J. Eq. 183, 125 Atl. 489. This decision is based upon the peculiar language of the statute which provides that any person claiming a right under a written instrument may apply for the determination of any question or construction thereof, in so far as the same affects such right, and for a declaration of the rights of the parties interested.

7. Assignments.

(No later decisions herein. For earlier cases, see annotations in 12 A.L.R. 84, and 19 A.L.R. 1132.)

d. Construction and validity of statutes. (Supplementing annotations in 12 A.L.R. 84, and 19 A.L.R. 1132.)

The Declaratory Judgment Statute imposes jurisdiction upon the court to construe statutes in order to declare the law concerning the authority of the state superintendent of public instruction to exercise certain powers. State ex rel. Hopkins v. Wooster (1922) 111 Kan. 830, 208 Pac. 656.

In Peters v. O'Brien (1925) 152 Tenn. 466, 278 S. W. 660, the trustee of a county was held entitled to a declaratory judgment declaring the invalidity of a certain statute as being discriminative against him in regard to the question of fees and salary.

It is held that the owner of land is entitled to invoke the aid of the court under a Declaratory Judgment Act to declare as to his claim to a spring under the Spring and Seepage Act, where the defendant had commenced against the plaintiff an action in eminent domain to condemn a right of way for a

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