City of Somerset v. Smith

• Decision Date: 16 February 1899
• Citation: 49 S.W. 456,105 Ky. 678
• Parties: CITY OF SOMERSET v. SMITH. [1]
• Court: Kentucky Court of Appeals

49 S.W. 456

105 Ky. 678

CITY OF SOMERSET v. SMITH. ^[1]

Court of Appeals of Kentucky.

February 16, 1899

Appeal from circuit court, Pulaski county.

"To be officially reported."

Agreed case between the city of Somerset and Beecher Smith to test the validity of a contract. Judgment for Beecher Smith, and the city appeals. Reversed.

James Denton and Curd & Smith, for appellant.

O. H Waddle, for appellee.

WHITE J.

This is an agreed case, brought to test the validity of a contract entered into, or attempted to be made, between the city of Somerset and appellee for a franchise and privilege of an electric light and power plant in the city of Somerset. The agreed facts present an ordinance or resolution passed by the council at a regular meeting in August, 1897. This resolution provides for a public letting of a franchise privilege for the period of 20 years, beginning at the expiration or termination of a contract then in existence, made in 1890 for the period of 10 years. There are many provisions of the resolution about the letting, acceptance, ratification, and completion of the contract, the bonds and deposits required of the successful bidder, as well as the manner of construction of the plant, and its conduct and management. The agreed facts show that the franchise was let as required and appellee, Smith, was the best bidder, and it was stricken off to him. This action was reported to a meeting of the council, composed of three members and the mayor (the other members of the board, three in number, not being present), in December, 1897. The council, so composed of the three members and the mayor, ratified and approved the letting, and made the contract with appellee, as the resolution provided. It is agreed that the minutes of this meeting and of this action of the council were correctly drawn by the clerk of the council, and appear on the minute book, but were never formally approved and signed by the mayor, for the reason that at the next regular meeting, in January, 1898, the council, by a vote of four to three, refused so to do. A new mayor had come into office in the meantime, and he cast his vote against approval after the tie. The circuit court, on these agreed facts, adjudged that the contract was legal and binding, and from that judgment this appeal is prosecuted.

The city of Somerset is of the fourth class, and its charter is contained in sections 3481 to 3606, both inclusive, of the Kentucky Statutes. By section 164 of the constitution it is provided: "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." It is contended that this contract is void, because in conflict with this constitutional provision. In this we concur. The franchise or privilege is said to be for only 20 years from its beginning,...