129 Ky. 220 | Ky. Ct. App. | 1908
Opinion of the Court by
Eeversing.
Hickman, a city of the fifth class in this Commonwealth, was asked hy promoters of the scheme to be permitted to install a public telephone exchange within the corporation. In order to comply with the requirements of the law, the town council was duly called in extra session on August 16, 1894, when the proposition was regularly presented to the city. The council determined to grant the franchise. It directed the city clerk to advertise for the public sale of the franchise on September 3, 1894, which was the date
Appellant’s contentions against the judgments are that the ordinance granting the franchise was passed-on. September 3, 1894, was void because (a) it was not passed in conformity to section 46 of the Constitution ; (b) that it was passed at the same session
Appellee’s first contention is based upon the analogy between ordinances of a public and political nature, enacted by municipalities in virtue of the power conferred upon them by the Legislature, and similar laws when passed by the Legislature itself. Therefore, it reasons, these precautions deemed essential to protect the public from improvident action by the Legislature, and which the Constitution has instituted as checks upon such legislation when attempted by the General Assembly, must by the force- of the same public consideration be applied to town councils when they come to legislate. Section 46 of the Constitution invoked by appellant under this head provides that all bills must be printed; reported upon by a committee; read at length on three different days in each house, and shall on their final passage receive the votes of at least two-fifths of the members elected to each house, etc. The particular point sought to be applied here is that the ordinance should have had three readings, on as many different days, before it could be passed. There is no reason why, if one of the features of section 46 applies to town council proceedings, all would not. It would seem to be a sufficient answer to appellant’s contention to say that the section is part of the subdivision
The other argument of the appellant as to the regularity of the passage of the ordinance is that, as the ordinance granting the franchise was passed the same day that the franchise was sold (after it was sold), it was passed on the same day as of its introduction. To establish a basis for this argument it is necessary for appellant to also establish its assumption that, until an ordinance (or resolution) is passed defining or creating a franchise, such franchise cannot
Appellant contends that the ordinance of March 11, 1895, was void, because it was also the granting of a franchise without sale, and because the ordinance was passed on the same day it was introduced. If the ordinance granted any additional privilege in the streets and public places of the city, there would be irresistible force in appellant’s contention here; or, even if there was some material change in the terms of the grant, so as that the city was or might have been prejudiced by the fact, -a very grave question would arise whether such an ordinance was not in effect the granting of a franchise without a sale. But we do not find such to be the case here. The grantee had agreed to certain conditions as part consideration for this grant. One of them, the rate of tolls, was of particular interest to the public; in other words, the city. The other condition was as to the time within which work on the plant was to be begun. The latter was not of so much importance to the city, except as a kind of security that the bid was in good faith. It was a condition which the city might have been justified in not exacting the penalty for its breach, if the delay had not been material. Still it was a matter of importance to the grantee, as it weakened his hold upon his franchise. We think it was competent for the city to waive the forfeiture of the franchise because the work had not been begun within six months, in consideration of a reduction of the rates by the
The first suit — the one brought by the city — contained. a prayer of alternative relief, it will be remembered. Section 90, Civ. Code Prac., contains this provision: “If no defense be made, the plaintiff cannot have judgment for any relief not specifically demanded.’’ It, of course, does not follow that he would be entitled to any relief prayed for specifically in such case. The prayer for relief serves a two-fold purpose: (1) It defines specifically the legal right claimed by the plaintiff, by which the court will be guided in granting or refusing the relief; for while it may not be granted, as not being warranted, supposing the plaintiff has mistaken his right, the court will not voluntarily grant him some other relief which the facts might have entitled him to, but which the plaintiff may not desire, and the court would not in such ease be 'warranted in thrusting it upon him. (2) The other feature of the prayer is to apprise the defendant of what is demanded of him; for the same facts may authorize any of several remedies. If the defendant is informed
Appellant contends that as it had bought a franchise — a mere right to occupy certain public streets with its poles and wires — it could not be compelled to use its right (i. e., to occupy the streets); that a court of chancery will not enjoin a man from abandoning his right or incorporeal property. We might grant so much, yet it is a sufficient response, we think, that, notwithstanding, the court will compel him who bought a right to pay for it, although he may choose to abandon it. In this instance the pay, the considera
In the ordinance granting the franchise in question there is a preamble setting forth the extent of the use of the streets contemplated in the establishment of the telephone plant in the city, which clause concludes thus: “And are to set up poles, string wires, and make necessary excavations therefor, and thus connect said central exchange, and thereby each subscriber’s instrument, with such other cities and towns, to wit: Paducah, Mayfield, Fulton and Union City, and to such other neighboring towns to which this system can be extended, for the full term of twenty years upon the following terms and conditions: * * * Fifth. The rate for use of said telephone shall not exceed $1.50 per month for each telephone, and $1.00 per month for exchange service for each subscriber. ’ ’ The language of the ordinance of March 11, 1895, except as to the amount, is substantially the same as above. The
To the extent indicated, the judgment in the case of Davidson and others was erroneous, and is reversed, and remanded for the entry of a judgment in conformity herewith. But the judgment in the case of the city of Hickman is affirmed.