106 Ky. 667 | Ky. Ct. App. | 1899
delivered the opinion of the court.
Previous to the adoption of the present Constitution, the council of a municipal corporation, without legislative authority, could not grant to any person or corporation the right to use the streets and alleys of a city or town t'qr any purpose other than for which they were dedicated. The streets and alleys of a city or town are intended for public travel, and, when an additional servitude is placed upon them, it is in derogation of common right. Ruttles v. City of Covington (10 Ky. Law Rep., 766), [10 S. W., 644]; Com. v. City of Frankfort, 92 Ky., 149. [17 S. W., 287],
In City of Newport v. Newport Light Co., 84 Ky., 166, the court, in considering the question of the right of a gas company to use the streets to enable it to lay down its pipes, .said: “It may be regarded, however, as well settled that the right to use the streets of a city by a gas company to enable it to lay down its pipes is a franchise that can be granted only by the Legislature, or some local or municipal authority authorized to confer it.” (Dillon on Municipal Corporations, second column, section 691.)
“However it may be as respects the power of the Legisla*670 ture to make tbe grant exclusive, no such power, it is clear, can be exercised by a municipal council, unless it be plainly conferred by express words, or by necessary or at least reasonable implication.” (Id., sec. 695.)
Section 163 of the Constitution, to which we will hereafter refer, recognizes that to occupy the streets and alleys of a city or town with telephone poles and wires is an additional servitude, by refusing telephone companies the right to enter upon the streets and alleys of a city or town without the consent of the proper legislative bodies or boards of such city or town being first obtained. It is the imposition of a new and additional servitude on streets and alleys of a city or town to erect telephone poles and string wires thereon. Board of Trade Telegraph Co. v. Barnett, 47 Am. Rep., 453; Broome v. New York & New Jersey Telephone Co., 42 N. J. Eq., 141 [7 Atl., 851]; Western Union Telegraph Co. v. Williams, 86 Va., 696 [19 Am. St. R., 908; 11 S. E., 106]; Stowers v. Postal Telegraph Cable Co., 24 Am. St. R., 290 [9 South., 356]; Pacific Postal Telegraph Cable Co. v. Irvine, &c., 49 Fed. Rep., 113.
On November, 18, 1890, the Board of Councilmen of the city of Russellville granted to J. W. Clark, “for ten years, exclusive franchise for the purpose of erecting a system of. telephone lines in that city.” At that time the councilmen of that city had no legislative authority, express or implied, which authorized them to grant such a privilege to him. He enjoyed no charter privilege which conferred upon him the right to occupy the streets and alleys of that city for the purposes stated. The date of the grant of the privilege shows that it was before the adoption of the present Constitution.
Previous to February 8, 1893, a motion was entered before the Board of Councilmen to the effect that Clark be
There is no pretense in this case that Clark had any charter which authorized him to build a telephone line over the streets and alleys of the city of Russellville; neither is it pretended that the charter of the telephone company conferred any- such right. So neither of them had charters which conferred such rights. Nor had they commenced work, in good faith or otherwise, for the purposes of erecting the telephone line, when the present Constitution was adopted. As the action of the Board of Councilman previous to the adoption of the present Constitution was invalid, no
It is suggested that section 3650, Kentucky Statutes, which reads as follows, “All laws, ordinances, by-laws and resolutions now in force in .said cities, and not inconsistent with this chapter, shall remain in full force until altered or repealed by ordinance,” validates the ordinance granting the appellant’s franchise. By the express terms of this section, it only keeps in force ordinances, by-laws, and resolutions which were in force at the time the act for the government of cities of the fifth class became a law. The franchise which the common council attempted to give Clark and the telephone company was not even in force at the time of the adoption of the Constitution; and, had the franchise been granted by a charter then, it would have been invalid, unless work in good faith had been begun under it before the adoption of the Constitution.
The judgment is affirmed.