89 Ky. 454 | Ky. Ct. App. | 1890
delivered the opinion of the court.
This action was brought by the appellee, the Newport Light Company, to enjoin the appellant, the City of Newport, from removing poles erected by the company upon the streets of the city, and upon which it has stretched wires for electric illuminating purposes. It claims the right to so use the streets under a contract with the city for lighting it. It is denied that the terms of the contract embrace such a use, and if so, then the power of the city to make it is denied.
The appellee, the. Light Company, by its charter,.
It was held by this court in the case of the City of Newport v. Newport Light Company, 84 Ky., 166, that where a municipal corporation has the power by legislative grant to maintain gas-works in order to fulfill its duty of lighting its streets and furnishing its inhabitants with | the means of obtaining gas at their' own expense, it has the implied power to contract with others to do so. This rule is not now questioned, but it is insisted that, as the city charter authorizes the construction and operation of gas-wovks only, the city had no power to contract for the electrical lighting of' its streets. The Legislature had, however, by the company’s charter, declared that it might “furnish any city *• * * with gas or other light for such time and upon such terms as may be agreed upon by the parties.” This, in view of the fact that the city charter gives to it the power to contract, authorized a contract between these parties as to lighting the city by gas, electricity or any other mode. The city drew its power to make the contract for this particular purpose from the act incorporating the Light
The first section of the city ordinance evidencing the contract gives to the company for twenty-five years the exclusive privilege of “using any or all of the streets, lanes, commons, alleys, and public places of the city for the purpose of laying pipes to convey and supply gas to the said city of Newport and others,” and the only use of the streets named in the entire ordinance is for gas apparatus and fixtures. The seventh section, however, reads thus: “ Said company or their successors may adopt any other mode equal to gas for supplying light to the city and its inhabitants, &c., provided the same shall be done at no greater cost or expense to the city or consumers than the gas light.”
It is claimed that by virtue of this provision the right is to be implied in favor of the company to use the streets in any manner necessary to the introduction of any other light than gas. It is true that, as a general rule, where the power is given to do a thing, the right to the exercise of the means necessary to the end is implied without further consent or grant. This case does not, however, in our opinion, fall within the rule. The parties to the contract can not reasonably be supposed to have so intended. The right to the use of the streets, now contended for, is not a natural one. It is a franchise, which is a priv
It is unreasonable to imply the power upon the part of the company to such a use of the streets for another reason. The entire contract must, of course, be considered in construing it. No use of the streets is named in the ordinance, save to supply gas. The first section grants the privilege of using the streets for laying pipes for this purpose. The second section regulates the manner of this use, and places certain conditions upon it. . An unrestricted grant of the use of the streets for any other mode of lighting the city should not, therefore, be implied. The entire contract considered forbids it, and in case of the introduction of a light other than gas, requiring a different use of the streets, a consent upon the part of the city to such new use is necessary. The right is not to be implied from the ordinance in question, and unless it is made to appear that it has been otherwise given, the de murrer to the petition should be sustained and the-action dismissed.
Judgment reversed, and cause remanded for further proceedings consistent with this opinion.