Akers v. Floyd County Fiscal Court

• Decision Date: 16 September 1977
• Citation: 556 S.W.2d 146
• Parties: Everett AKERS et al., Appellants, v. FLOYD COUNTY FISCAL COURT et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 146

556 S.W.2d 146

Everett AKERS et al., Appellants, v. FLOYD COUNTY FISCAL COURT et al., Appellees.

Supreme Court of Kentucky.

Sept. 16, 1977.

J. K. Wells, Wells, Porter & Schmitt, Paintsville, for appellants.

Jarvis Allen, James R. Allen, Prestonsburg, for appellees.

STERNBERG, Justice.

The Fiscal Court of Floyd County, Kentucky, adopted a resolution which divided the county into multi-cable television districts. It proposes to sell a 15-year franchise in each district for the exclusive right and privilege of operating a cable television station therein. The pertinent portions of the resolution read as follows:

"IN RE: RESOLUTION OF THE FISCAL COURT OF FLOYD COUNTY, KENTUCKY, AUTHORIZING THE DIVISION OF FLOYD COUNTY INTO COMMUNITY TELEVISION AREAS AND AUTHORIZING THE ADVERTISEMENT FOR BIDS ON COMMUNITY CABLE TELEVISION AREA FRANCHISES.

WHEREAS, there exists numerous Cable Television Systems, in Floyd County operated by various persons, furnishing signals, to the citizens of the County for a fee and;

WHEREAS, the Cable Television Systems must have a Franchise to operate in the future under the rules and regulations of the Federal Communications Commission and;

WHEREAS, there must be some standards and regulations imposed on the Operators of Community Television Systems for the protection of the consumer, and the prevention of monopolies and WHEREAS, the Fiscal Court has the duty and obligation to protect the welfare and convenience of the citizens of the County and has the authority to issue Franchises for the operation of Cable Television Systems and;

WHEREAS, the Operators of existing Community Cable Systems have expended great sums in creating their systems and in furnishing Cable Service to their customers and such Operators are entitled to some protection.

Be it therefore resolved:

(1) That Floyd County be divided into areas for Franchise purposes and for the purpose of preventing a monopoly, and that said areas be so set as to cover the entire County, each area containing a system or systems all under the same Operator.

(2) That these areas be advertised for bids on an area basis and that exclusive Franchises be awarded to the highest and best bidder, such best bidder to be selected by the Fiscal Court, taking into consideration the ability financially and educationally to operate such system and the moral character and fitness of such bidder.

(4) The Franchise will be granted for a period of fifteen (15) years and the successful bidder will be required to meet the requirements of the Federal Communications Commission.

(5) In order to prevent a monopoly no owner or operator of a Community Television System will be allowed to bid on an area in which a system is operating, other than the one in which he is presently operating, nor shall any person bid for same on his behalf or with the intent of permitting him to operate same. Should there be two (2) operators in the same area, then the first operator who has given continual service shall be preferred in awarding Franchise if he meets all other qualifications.

Should an area be advertised for bids and no bids be received from the present operator or other qualified persons, then same shall be readvertised and other operators be allowed to bid on such area.

(6) Should a person other than the operator of a system in an area, become the successful bidder, then such successful bidder must purchase the existing system at a price to be determined by an appraisal arrived at by three (3) appraisers, one appointed by the owner and one appointed by the successful bidder and one by the Fiscal Court.

(7) The successful bidder shall furnish at least three (3) channels including ABC, CBS, NBC and a Kentucky Station if permitted by the Federal Communications Commission rules and regulations, and shall have exclusive rights to construct, maintain and operate Television Cables Systems upon and over County Highways or other public property of the County."

Prior to the division of the county into cable television districts, the appellants and appellees Herman Porter, Hubert Bartley, Bertha Cole, Fred Fraley, John Campbell, James E. Allen, Fred F. Bailey, Lowell Conley and Paul Gearheart each operated a cable television station in Floyd County, Kentucky. As laid out by the fiscal court, the districts are of such shapes and areas that the service of appellants would extend into more than one district. Appellants filed suit in the Floyd Circuit Court challenging the constitutionality of the resolution and they sought to enjoin the sale and issuance of the proposed franchises. The right of the fiscal court to adopt a resolution dividing the county into cable television districts is not challenged by any of the parties. Ky.Const. § 164; KRS 67.080; and City of Owensboro v. Top Vision Cable Co. of Ky., Ky., 487 S.W.2d 283 (1972).

As lifted from appellants' brief, the issues are:

"1. May persons whose property rights will be invaded by enforcement of an unconstitutional ordinance, enjoin enforcement of the ordinance?

2. Is an ordinance constitutional if it, without police power justification, deprives a citizen of the right to earn a livelihood?

3. May police power be properly exercized to protect private enterprise against competition?

4. Is a classification in a franchising ordinance of those who can and those who cannot bid on the franchises, which excludes from bidding all cable operators in the county other than the one named in the ordinance, constitutionally permissible?

5. Is a provision of a CATV franchising ordinance which permits confiscation by the successful franchise bidder, of existing CATV cables in his franchise district at an arbitrated price, constitutional?"

May appellants enjoin the enforcement of an alleged unconstitutional resolution? CR 65.01 provides that injunctive relief may be granted under stated terms and conditions. In their complaint, appellants challenge the constitutionality of the resolution and further aver that they will suffer great and irreparable injury and have no adequate remedy at law. Pursuant to appellants' motion, a restraining order was issued ex parte. In due time appellees filed a motion to dissolve the restraining order. Appellants responded with a motion for a temporary injunction. After a hearing on these and other motions by the Honorable Reed D. Anderson, Special Judge designate, a temporary injunction was issued. Upon consideration of the case in chief, the trial judge dissolved the temporary injunction and dismissed the action.

In 42 Am.Jur.2d, Injunctions, it is stated as follows:

" § 186. Generally.

An important branch of the law of injunctions is that dealing with applications for injunctive relief against the enforcement of statutes, ordinances, and administrative orders. The restraining order in such cases is directed, in effect, not against the execution of the particular statute or ordinance, but against the acts of the officials, the statute or ordinance notwithstanding, and the state's immunity from suit does not extend to such suits against public officers to enjoin them from threatened enforcement of invalid laws. However, in observance of the rule that courts will not, except under extraordinary circumstances, interfere with the duties of other departments of the government, equity will not ordinarily interfere with the action of public officers taken under statutory authorization. The power thus to arrest the hand of an officer as he is about to carry out the command of the legislature is to be exercised with a wisdom and discretion commensurate with its greatness; no trivial grounds will be sufficient to authorize the granting of such extraordinary relief."

" § 187. Unconstitutionality or invalidity of statute or order.

The usual ground for asking injunctive relief against the enforcement of statutes is their invalidity. But invalidity, of itself, is not sufficient to warrant the exercise by equity of its extraordinary injunctive power. In other words, the mere fact that a statute is alleged to be unconstitutional or invalid will not entitle a party to have its enforcement enjoined. Further circumstances must appear which bring the case under some recognized head of equity jurisdiction and present some actual or threatened and irreparable injury to complainant's rights for which there is no adequate legal remedy. * * * "

Injunctive processes of law are available to be invoked in an action challenging the constitutionality of a legislative act and of the carrying out or enforcement of its provisions. The appellants plead sufficient facts which, if sustained by the record, would entitle them to injunctive relief. Injunctive relief is ancillary to the main issue. The main issue is whether the resolution is constitutional. It goes without saying that a person who is injured or prejudiced by an unconstitutional law can complain of it. Kohler v. Benckart, Ky., 252 S.W.2d 854 (1952); Second Street Properties, Inc. v. Fiscal Court of...