105 Ky. 678 | Ky. Ct. App. | 1899
delivered the opinion of the court.
This is an agreed case, brought to test the validity of a contract entered into, or attempted to be made, between the city of Somerset and appellee for a franchise and privilege of an electric light and power plant in the city of Somerset. The agreed facts present an ordinance or resolution passed by the council at a regular meeting in August, 1897. This resolution provides for a public letting of a franchise privilege for the period of twenty years, beginning at the expiration or termination of a contract then in existence, made in 1890, for the period of ten years. There are many provisions of the resolution about the letting, acceptance, ratification, and completion of the contract, the bonds and deposits required of the successful bidder, as well as the manner of construction of the plant, and its conduct and management. The agreed facts show that the franchise was let as required, and appellee, Smith, was the best bidder, and it was stricken off to him. This action was reported to a meeting of the council, composed of three members and the mayor (the other members of the board, three in number, not, being present), in December, 1897. The council, so composed of the three members and the mayor, ratified and approved the letting, and made the contract with appellee, as the resolution provided. It is agreed that the minutes of this meeting and of this action of the council were correctly drawn by the clerk of the council, and appear on the minute book, but were never formally approved and signed by the mayor, for the reason that at the next regular meeting, in January, 1898, the council by a vote of four to three, refused so to do. A new mayor had come into office in the meantime, and he cast his vote against approval after the tie. The circuit court,
The city of Somerset is of the fourth class, and its charter is. contained from sections 3481 to 3606, both inclusive, of the Kentucky Statutes.
By section 164 of the Constitution it is provided: “No county, city, town, taxing district or other municipality shall be authorized or permitted to grant any franchise or privilege, or make' any contract in reference thereto, for a term exceeding tweúty years.”
It is contended that this contract is void, because in conflict with this constitutional provision. In this we concur. The franchise or privilege is said to be for only twenty years from its beginning, and that it begins when the present contract expires or is terminated. The present contract expires in 1900, and although it is provided that this privilege, or franchise may begin before that date, and then extend only .twenty years, yet the contract made is for more than twenty years, as it did not begin on the day of the ratification of the contract, but it is expressly postponed to some future date. Whatever may be said about the franchise, this is certainly a contract in reference to a franchise, and the term contracted for exceeds the constitutional limit.
It is also contended that the contract is illegal because it was not made by a majority of the board of council, there being in Somerset six councilmen and a mayor. In this contention we also concur. Section 3482, Kentucky Statutes, provides: “The corporate powers of each city shall be divided into a legislative, executive and judicial department, and neither of said • departments shall exercise any powers properly belonging to either of the others,
For the reasons indicated, the judgment is reversed, and the cause remanded for judgment in accordance with this opinion.