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News Students participate in program. News AAA: More teens learning to drive at younger age is great news for all drivers. News Early screenings can help detect lung cancer before dangerous symptoms appear. Covington Street Ry. City of Covington, 9 Bush, Ky. City of Covington, 90 Ky. City of Frankfort, 92 Ky. City of Russellville, Ky.
Public ways, as used in this act, shall mean all public streets, alleys, sidewalks, roads, lanes, avenues, highways and thoroughfares, and the same shall be under the exclusive management and control of said city, with powers to improve them by original construction or to re-construct them, as may be prescribed by ordinance. Appellants claim that this provision includes the power to grant franchises, relying upon Owensboro v. Cumberland Telephone Telegraph Co.
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South Covington Cincinnati Street Ry. But the Supreme Court in the latter case stated:. We think that under the rule of Erie R. Tompkins, supra, the dissenting opinion in the Covington case, supra, has now become the law, for it cites and follows the Kentucky decisions. It points out that in Louisville City Ry. City of Louisville, 8 Bush, Ky. The same rule is laid down in Covington Street Ry. City of Covington, supra, and Bateman v. City of Covington, supra.
As stated in Ruttle v. City of Covington, 10 S. Law Rep. This declaration was approved in Louisville Nashville R.
City of Louisville, Ky. Since the city had no authority to grant franchises in , obviously the agreement made in that year creates no franchise. In the Constitution of Kentucky was amended to provide that a franchise may not be granted for a term exceeding twenty years. Nor can estoppel arise here against the city.
After it was incorporated, it granted an exclusive thirty-year franchise to the Middlesborough Electric Light, Heat Power Company, and occupation of the city streets by that company and its successors, including the Kentucky Utilities Company, up to June, , was under agreement with the city. The city's action against Kentucky Utilities was filed Dec.
Neither the payment of a franchise tax Cumberland Telephone Telegraph Co. City of Calhoun, Ky. City of Princeton v. Princeton Electric Light Power Co. Upon petition for rehearing, appellants urge with additional emphasis points raised and considered in the original hearing, but not discussed in the opinion. They contend that under section 10, subsection 30, of the charter of the city, the city was empowered on August 11, , to grant a perpetual franchise. The provision reads as follows:. Counsel did not at the hearing, nor do they now, cite any Kentucky decision which construes the above provision or sheds light upon its meaning.
This provision does not in terms delegate to the city the power to grant franchises of any duration. The powers granted to the council with reference to railroad companies or street railway companies are much more specific and sweeping than those granted with reference to electric light companies. It was empowered to grant electric light companies only "the right of way that may be necessary. A right of way for a railway company is an easement. Mammoth Cave Nat. Park Assn. State Highway Commissioner, Ky. Howard, Ky. Jarvis, Ky. An easement is not a franchise, but is an interest in land.
It may be said that this is a tenuous distinction.
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Certainly if a municipality authorized to issue franchises, in accordance with the formalities prescribed by law, grants a specific right of way in the streets for the operation of a utility business, this is generally considered to be a special franchise. But this is not the question confronting us here. The question is whether subsection 30 of section 10, which merely gives the city permissive authority to control its streets with reference to their use by private utilities, delegates to the city the sovereign power to issue franchises.
The words "that may be necessary" do not aid appellants. They embrace no time element, and we infer that they relate to the kind of easement or right of way to be acquired as in the laying of pipes in the streets or in the erection of poles and wires. The logical explanation for the peculiar wording of the provision is that the legislature wished to confer upon the council merely the power to grant rights of way "as may be necessary" in the streets and public ways, according to the local needs, and that the council was not given the power to grant a franchise.
We need not consider further the nature of this provision, whose ambiguities, if any, will be resolved in favor of the public. In addition, the power conferred under section 10 of the charter was required to be exercised "by ordinance. Craft, Mayor v. Richie, Ky. Bell, Ky. In Massey v. City of Bowling Green, Ky.
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This was not the case under section 7 of the charter of the City of Middlesborough, which provided that publication of an ordinance should be made before any ordinance is enforced, but contained no such provision as to resolutions. All of the reasons for maintaining the distinction between resolutions and ordinances which are usually applied in these cases apply with fuller force when the question involved is that of the city's power to grant a perpetual franchise.
In Kentucky, even when a city has authority to grant a franchise, under Section of the Constitution, the passage of a mere resolution permitting a utility to occupy the streets does not confer a franchise. The petition for rehearing is denied.
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