125 Ky. 59 | Ky. Ct. App. | 1907
Affirming.
This action was instituted by the appellant, Frankfort Telephone Company, to enjoin the common council of the city of Frankfort from enforcing an ordinance of the municipality regulating rate charges for the use of telephones, on the ground that the rates are so low that the cost of operating its franchise is greater than its income, and that the effect of the ordinance is confiscatory and results in the taking of the property of the corporation without due process of law, and denies to it the equal protection of the laws.
The first question arising upon the record is whether or not the appellant has a franchise to operate a telephone system in the city of Frankfort. It is admitted that whatever rights it has it owns and holds as assignee of "W. W. Longmoore and others, under an ordinance enacted on the 11th day of January, 1899, which is as follows:
“Be it ordained by the common council of the city of Frankfort:
“Section 1. That W. W. Longmoore, his associates and successors, be and they are hereby authorized to erect in the streets and public ways in the city of Frankfort, State of Kentucky, such poles and lines as may be or become necessary in the operation of a telephone system between its several subscribers by means of an exchange or central station system, and to renew the same from time to time.
“Sec. 2. It is provided that in the erection of the said telephone system that the city of Frankfort shall have the right at all times to attach the wires of its fire alarm system to the poles of the said company,
“Sec. 3. The said telephone company is to make all reasonable efforts to establish and put in operation its proposed system within six months from the passage of this ordinance.
Sec. 4. This ordinance is to take effect and be in force from and after its passage..”
It is also conceded that the franchise granted by this ordinance was not sold by the municipality as required .by the Constitution of the State.
Section 164 of the Constitution is as follows: “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 twenty years. Before granting such franchise or privilege for a term of years, such municipality shall first, after due advertisement, receive bids therefor publicly, and ■ award the same to the highest and best bidder; but. it shall have the right to reject any or all bids. This section shall not apply to a trunk railway. ’ ’
So much of section 3290, Ky. Stat., 1903 (cities of the third class), as is pertinent to the subject in hand is as follows: “The common council of each of said cities shall, within the limitations of the Constitution of the State and this act, have power by ordinance: * * * To grant the right of way along, over, or across the streets, alleys and public grounds of the city to any railway, street railway, gas, water, steam-
It is conceded by the learned counsel for appellant that, in order to grant a valid franchise for a term of years, it is necessary that the privilege be sold at public auction to the highest and best bidder; but it is earnestly insisted that section 164 does not require a franchise for less than a term of years to be sold in order to be valid. In other words, it is urged that the municipality can permit the corporation to exer-' cise a franchise for any length of time, provided it does not bind itself to continue this permission for more than a year. To this we cannot agree. The framers of the Constitution intended by section 164 to take it out of the power of municipalities to give away franchises to do business within their boundaries. It is true the language of section 164 is that, “before granting such franchise or privilege for a term of years, such municipality shall first, after due advertisement, receive bids therefor publicly; and award the same to the highest and best bidder; ’ ’ but courts are not permitted to construe either Constitutions or statutes so as to make them vain and illusory, and section 164 would be vain and illusory if municipalities can do by indirection that which is expressly forbidden. It would open up a way for the commission of a large part of the evils intended to be corrected by the section under discussion to construe it so as to permit cities to give away long franchises
But, even if we were of a different opinion from that herein expressed as to the meaning of section 164 of the Constitution, it would not avail appellants in this case; for, conceding for the present the construction for which counsel contends, it would only
The judgment dismissing the petition is affirmed.