Vanmeter v. City of Paris

• Decision Date: 19 November 1954
• Parties: F. M. VANMETER et al., Appellants, v. CITY OF PARIS, Kentucky, et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 49

273 S.W.2d 49

F. M. VANMETER et al., Appellants, v. CITY OF PARIS, Kentucky, et al., Appellees.

Court of Appeals of Kentucky.

Nov. 19, 1954.

Ogden, Galphin & Abell, Louisville, Bradley & Blanton, Paris, for appellants.

Raymond Connell and David D. Cline, Paris, for appellees.

SIMS, Justice.

This is a second appeal; the first opinion appearing in Ky., 257 S.W.2d 909, gives the facts and issue involved, hence it is unnecessary to repeat them here. However, we will say that the only question decided on the first appeal was that the action was not prematurely brought and we there stated the question in issue is whether the Board of Commissioners must submit the proposed franchise ordinance to a vote of the people under KRS 89.250 at some general election.

Upon a return of the case to the circuit court appellants were allowed to file their amended petition wherein they pleaded the Board arbitrarily and illegally refused to submit to the voters of the city under KRS 89.250 an ordinance providing for the sale of an electric franchise. The prayer of this pleading asked that the Board be mandamused to submit to the voters the ordinance, and for a declaration of rights. The answer pleaded among other things that the city had previously voted to and had been operating an electric plant and as appellants were seeking a renewal of a franchise, this fact made the question an administrative rather than a legislative function, and KRS 89.250 had no application; also that the relief sought by appellants would violate the former franchise issued by the city.

On a hearing the court dismissed the petition on the authority of Seaton v. Lackey, 298 Ky. 188, 182 S.W.2d 336. Evidently, the trial judge misconstrued the Seaton opinion.

That opinion went into many authorities dealing with 'initiative' and 'referendum' statutes and stated the general rule is that such statutes are applicable only to acts which are legislative in character and not to those dealing with administrative or executive matters, even though such administrative and executive acts are exercised by resolution or ordinance. We do not deem it necessary to here discuss the question as we could only repeat what was said in the Seaton opinion. As was there written, it is often difficult to determine whether the exercise of a power concerning a given subject matter is legislative in its character or administrative, but the rule is that the power to be exercised is legislative if it prescribes a new policy or plan, and is administrative if it merely pursues a plan already adopted by the legislative body or some power superior to it. We there held that KRS 89.600 and 89.610 are applicable only to ordinances which may be adopted by the legislative board of the city in the exercise of a legislative discretion,...