East Tennessee Telephone Co. v. Board of Councilmen of City of Frankfort

• Decision Date: 17 January 1911
• Parties: EAST TENNESSEE TELEPHONE CO. v. BOARD OF COUNCILMEN OF CITY OF FRANKFORT.
• Court: Kentucky Court of Appeals

133 S.W. 564

141 Ky. 588

EAST TENNESSEE TELEPHONE CO. v. BOARD OF COUNCILMEN OF CITY OF FRANKFORT.

Court of Appeals of Kentucky.

January 17, 1911

Appeal from Circuit Court, Franklin County.

Petition for injunction by the East Tenessee Telephone Company against the Board of Councilmen of the City of Frankfort. From an order dismissing the petition, plaintiff appeals. Reversed and remanded.

Ira Julian, for appellant.

Scott &amp Hamilton, G. H. Briggs, and T. Hiter Crockett, for appellee.

HOBSON C.J.

The East Tennessee Telephone Company, through its agent, C. E Taylor, desiring to go into business in Frankfort, applied to the council, which on April 11, 1881, adopted the following resolution: "The petition of Mr. C. E. Taylor, for permission to the ___ Telephone Company, to erect telephone poles on different streets of the city and to carry it across the City Bridge, was presented and granted." Under this authority the telephone company erected its poles established a telephone exchange, and began business on June 16, 1881. On July 28, 1887, it sold out to the East Tennessee Telephone Company of Kentucky a corporation organized under the laws of this state, and this corporation has continued the business from that time to this. In the year 1909 a dispute arose between the company and the city as to the rights of the company. The city on May 23d passed an ordinance providing that no telephone company should be allowed to do business in the city of Frankfort without first obtaining a franchise in accordance with the ordinance passed April 27 and May 3, 1909, and that any telephone company doing business in violation of the ordinance should be fined not exceeding $100, each day to be deemed a separate offense. On June 13th it passed another ordinance providing that, if any telephone company charged a larger rental than as set out in the ordinance passed April 27 and May 3, 1909, it should be deemed guilty of a misdemeanor and fined not less than $5 nor more than $20 for each offense. The East Tennessee Telephone Company had not obtained a franchise in accordance with the ordinance passed April 27 and May 3, 1909, and was charging for its telephones a larger rental than allowed by that ordinance. On October 3, 1910, at the direction of the mayor, a number of prosecutions were begun in the city police court against the telephone company for the violation of the penal ordinances of May 23d and June 13th. Thereupon the telephone company brought this suit against the city to enjoin the prosecutions. The circuit court on final hearing dismissed the petition, and the telephone company appeals.

It is insisted for the city that the resolution of April 11, 1881 is void because the permission is granted to ___ Telephone Company, and because the permission was given by resolution and not by ordinance. It is also insisted that the rights given were not assignable. There would be more force in the objection that the telephone company is not named in the resolution if the resolution had not been executed. But the grantee having taken possession under the resolution, and having held for a number of years with the acquiescence of the city, the objection to the form of the resolution now comes too late. Thus in Fletcher v. Mansur, 5 Ind. 267, a deed...