KAOK-CATV, Inc. v. Louisiana Cable T. V., Inc.

• Decision Date: 15 February 1967
• Docket Number: No. 1918,KAOK-CAT,INC,1918
• Citation: 195 So.2d 297
• Parties: , Plaintiff-Appellant, v. LOUISIANA CABLE T.V., INC., Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 297

195 So.2d 297

KAOK-CATV, INC., Plaintiff-Appellant, v. LOUISIANA CABLE T.V., INC., Defendant-Appellee.

No. 1918.

Court of Appeal of Louisiana, Third Circuit.

Feb. 15, 1967.

Stewart & Bond, by John R. Stewart, Lake Charles, for plaintiff-appellant.

Kaufman, Anderson, Leithead, Scott & Boudreau, by James A. Leithead, Lake Charles, for defendant-appellee .

Before TATE, SAVOY and CULPEPPER, JJ.

SAVOY, Judge.

Plaintiff and defendant are two domestic corporations engaged in the business of receiving signals from television stations and piping these signals through a cable, to which, for a monthly fee, owners of television sets may connect and receive programs on the various channels which plaintiff and defendant receive and transmit.

Both parties to this litigation have a non-exclusive franchise within the City Limits of Lake Charles, Louisiana, for the purpose mentioned above.

Plaintiff also has a non-exclusive franchise from the Parish of Calcasieu, Louisiana, to furnish direct wire reception of television, music and like programs throughout Calcasieu Parish, and to sue and occupy the alleys, streets, roads, highways, bridges, lines, sidewalks, rights-of-way easements and servitudes which are under the control and jurisdiction of Calcasieu Parish in connection with its cable system.

Defendant corporation does not have a franchise from the Parish of Calcasieu, Louisiana.

On August 6, 1966, defendant commenced the construction of an antenna tower and transmission cable. The tower and a portion of the cable were located outside the corporate limits of the City of Lake Charles, Louisiana, but within the Parish of Calcasieu, Louisiana. Defendant used telephone poles for said cable by virtue of a contract with Southern Bell Telephone and Telegraph Company. The poles and cable are located on road right-of-way maintained by and under the control of the Police Jury of Calcasieu Parish, the governing body of said parish.

Shortly after defendant commenced its operation outside of the corporate limits of the City of Lake Charles, plaintiff filed the present suit praying for a preliminary injunction against defendant enjoining it from operating in the Parish of Calcasieu outside the corporate limits of the City of Lake Charles, Louisiana.

The grounds for injunctive relief are two-fold:

1. That defendant does not have a franchise from the Police Jury of Calcasieu Parish, and, therefore, cannot operate in the Parish of Calcasieu; and

2. That defendant has not operated under its franchise from the City of Lake Charles, Louisiana, and because of its unlawful acts, is causing plaintiff irreparable injury.

We shall discuss the first ground urged for the granting of the injunction, because if this ground is not valid, the second ground will be moot insofar as the instant case is concerned.

We shall commence a discussion of the subject by stating that police juries, being creatures of and political subdivisions of the state have only those powers as are conferred upon them by the Constitution and laws of this State. Washington Parish Police Jury v. Washington Parish Hospital S.D., (La.App., 1 Cir., 163), 152 So.2d 362, writ refused 244 La. 669, 153 So.2d 883, (and cases cited therein).

The powers of police juries are set forth in LSA-R.S. 33:1236. Among the powers granted to police juries dealing with roads are those contained in Sections (2) and (20), which read as follows:

'(2) To regulate the proportion and direction, the making and repairing, of the roads, bridges, causeways, dikes, dams, levees, and highways, and when, in the opinion of the police jury, such work will further the best interests of the parish and the parish road system, the police jury may perform all or any part of the repair, maintenance and care of roads, streets, alleys, bridges, and culverts, situated within and under the jurisdiction of any municipality, with less than five thousand inhabitants, in the parish.'

'(20) To pass all ordinances and regulations which they deem necessary to govern and regulate the laying out of subdivisions, re-subdivisions, roads, streets, alleys, ways, subways, viaducts, bridges, parks, parkways, boulevards, playgrounds, community centers and other public buildings, grounds, or improvements, and the location, re-location, widening, removal, vacation or extension or other improvements of such existing public works; the platting of land into lots, roads, streets, and other dedicated or private ways; the location, re-location, development, routing, and re-routing of transit and transportation lines, which in the opinion of the police jury are in the interest of the systematic planning of the parish.'

LSA-R.S. 33:4361 provides that police juries may grant franchises for use of streets, roads and alleys located outside of municipalities for specific purposes. LSA-R.S. 33:4361 contains the following language, to-wit:

'Police juries may, subject to any conditions, regulations, and restrictions which they...