Seaton v. Lackey

• Decision Date: 20 June 1944
• Citation: 298 Ky. 188,182 S.W.2d 336
• Parties: SEATON, Mayor, et al. v. LACKEY.
• Court: Kentucky Court of Appeals

182 S.W.2d 336

298 Ky. 188

SEATON, Mayor, et al. v. LACKEY.

Court of Appeals of Kentucky

June 20, 1944

Rehearing Denied Oct. 10, 1944.

Appeal from Circuit Court, McCracken County; Joe L. Price, Judge.

Action by Pierce E. Lackey against W. C. Seaton, Mayor, and others as the Board of Commissioners of the City of Paducah, and others for an injunction permanently restraining the city manager from offering for sale a bus franchise voted by the Board of Commissioners and requiring the Board to repeal such franchise or to certify the question of its repeal to the electorate. The lower court granted the relief prayed for and defendants appeal.

Reversed.

Adrian H. Terrell, Corp. Counsel, and Wheeler &amp Shelbourne, all of Paducah, for appellants.

L. B Alexander, of Paducah, for appellee.

VAN SANT, Commissioner.

The City of Paducah operates under the City Manager form of government. KRS 89.590 provides, among other things, that an ordinance granting any franchise of the right to use or occupy the streets, highways, bridges, or public places of a city operating under the City Manager form of government shall, after its introduction and before its adoption, remain on file at least one week for public inspection in the form in which it shall be put upon its final passage, and shall not become effective until ten days after its passage. KRS 89.600 provides: 'Referendum. If during the ten days next following the passage of any ordinance that cannot become effective within ten days after its passage, a petition signed by a number of voters equal to at least twenty-five percent of the total number of votes cast for both candidates for mayor at the last preceding regular election for mayor stating the residence of each signer, and verified as to signatures and residences by the affidavits of one or more persons, is presented to the board of commissioners, protesting against the passage of the ordinance, the ordinance shall be suspended from going into effect and shall be reconsidered by the board of commissioners. If the ordinance is not then repealed, the board shall submit to the voters of the whole city, at a regular election, the following question: 'Shall the ordinance (briefly describing it) go into effect'? If a majority of the votes cast upon the question is in the negative, the ordinance shall not go into effect. If a majority of the votes cast upon the question is in the affirmative, the ordinance shall go into effect as soon as the result is officially ascertained and declared.'

KRS 89.610 provides:

'Initiative. (1) If a petition signed by a number of voters equal to at least twenty-five percent of the total number of votes cast for both candidates for mayor at the last preceding regular election for mayor, stating the residence of each signer, and verified by the affidavits of one or more persons as to the signatures and residences, requesting the board of commissioners to pass an ordinance therein set forth, is presented to the board of commissioners, and if the ordinance therein requested to be passed is one that the board has a legal right to pass, the board shall then either pass the proposed ordinance without alteration within ten days after the petition is filed, or submit the question of its passage to the voters of the city at the next regular election. At such election the question submitted shall be: 'Shall the proposed ordinance (briefly describing it) be passed'? If a majority of the votes cast upon the question is in the affirmative, the proposed ordinance shall be thereby passed, and shall become effective as soon as the result is officially ascertained and declared, and the ordinance shall not be amended or repealed except by the voters at a regular biennial city election. Any number of proposed ordinances requested by petition as above provided for may be voted on at any election.

'(2) The board of commissioners may submit the question of repeal or amendment of any such ordinance to the voters at any succeeding regular city election, and if a majority of the votes cast on the question is in favor of the repeal or amendment, the ordinance shall be thereby repealed or amended as the case may be.'

On the 6th day of April, 1936, the city sold the franchise right to operate motor busses for transportation in the city for a ten-year period. That franchise is being operated by the owner thereof, and will expire on April 6, 1946. KRS 96.010 recites:

'Sale of public utility franchies by cities. (1) At least eighteen months before the expiration of any franchise acquired under or prior to the present Constitution, the legislative body of each city shall provide for the sale of a new franchise to the highest and best bidder on terms that are fair and reasonable to the city, to the purchaser of the franchise and to the patrons of the utility. The terms shall specify the quality of service to be rendered and, in cities of the first class, the price that shall be charged for the service.

'(2) If there is no public necessity for the kind of public utility in question and if the city desires to discontinue entirely the kind of service in question, or if, in the case of cities other than those of the first class, the city owns or desires to own and operate a municipal plant to render the required service, this section shall not apply.'

Pursuant to KRS 96.010, supra, there was introduced for passage at a regular meeting of the Board of Commissioners of the city, on January 25, 1944, an ordinance entitled 'Motor Bus Franchise Ordinance No. 2', directing the sale of a franchise authorizing the purchaser to maintain and operate motor passenger busses over and upon the streets and public ways of the city for a period of ten years commencing upon the expiration of the existing franchise. The Board of Commissioners ordered the ordinance to lie over for one week. At its regular meeting held on February 1, 1944, one week after it was introduced, the ordinance was adopted by the affirmative vote of a majority of the...