123 Ky. 90 | Ky. Ct. App. | 1906
Opinion by
Affirming.
Appellee is the owner of a franchise to operate a telephone plant in the city of Covington. It is admitted to be a legal one, obtained in the way directed by section 164 of the Constitution. The record shows that the appellant has no right whatever to construct or operate a telephone plant in the streets of the city of Covington, except that it claims a permissive right granted by the city council for an indefinite length of time. It does not claim its right to operate a telephone in that city by reason of the purchase of a franchise, as provided by the section of the Constitution referred to.
Appellant’s contention is predicated upon the assumption that, even admitting it has no right in the public streets of Covington, appellee cannot enjoin it from operating a telephone in that city, because ap
The only questions, therefore, to be determined are: First. Did the appellant ebtain a legal franchise to operate a telephone line in the city by the ordinance making an indefinite grant to it for that purpose? Second. If not, has the appellee the right to maintain this action to prevent it from exercising this illegal right?
Section 164 of the Constitution says: “Before granting such franchise or privilege for a term of years, such municipality shall first, after due advertisement, receive bids therefor publicly,” etc. This section became operative upon the adoption of the Constitution. It did not require an ordinance of the general council to make it binding and obligatory. See case of Nicholasville Water Co. v. Board of Councilman, 36 S. W. 549, 38 S. W. 430, 18 Ky. Law Rep. 592. Therefore any effort or act of the council in
We will now consider the grant under which apellant is operating or attempting to operate. It is conceded that the ordinance making the grant was enacted in 1895, more than 10 years since. Its right to operate under the franchise or privilege was without limit, except as the city council might see proper to revoke it. This is a clear attempt to avoid the provisions of the Constitution. The appellant has already operated under this privilege or franchise for half the time for which it could have purchased the right, and without buying and paying for it. In our opinion appellant is operating its telephone without authority of law, and the attempted grant to it by the council was void and conferred no right whatever upon it.
But the question before us was not decided, and we are of the opinion that it is not necessary to decide the matter in this case, as we have arrived at the conclusion that appellee can maintain this action upon another ground. It is conceded that appellee is a citizen and taxpayer of that city, and in our opinion, as such, it should have the right by action to prevent the further continuance of the wrong perpetrated by the council of that city, in granting illegally the franchise to appellant, by stopping it from the further exercise of its pretended rights thereunder. The appellee is interested with all citizens in saving the
For these reasons the judgment is affirmed.