Request By:
Mr. Dale M. Morris
Larue County Attorney
Courthouse
Hodgenville, Kentucky 42748
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your request for an opinion concerns a cable television franchise. The question:
"Realizing that the Constitution requires that a franchise must be advertised and accepted on bids, but having made two (2) efforts to secure said bids and having been unsuccessful in doing so, can the fiscal court legally now negotiate for the issuance of a cable television franchise for the unincorporated areas of Larue County, Kentucky?"
Section 164 of the Kentucky Constitution reads:
"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. Before granting such franchise or privilege for a term of years, such municipality shall first, after due advertisement, receive bids therefor publicly, and award the same to the highest and best bidder; but it shall have the right to reject any or all bids. This section shall not apply to a trunk railway."
A federal district court, in Union Light, Heat & Power Co. v. Railroad Commission of Com. of Ky., 17 F.2d 143 (1926), pointed out that in an unbroken line of cases, the Kentucky Court of Appeals had held that § § 163 and 164 must be read together and are mandatory. They are to be construed strictly. Thus no franchise to occupy the streets and public ways of a municipality can be acquired in any other way than by a strict compliance with these two sections. There must be a public advertisement for bids; the bids must be received publicly; the franchise must be awarded to the highest and best bidder, and cannot be granted for a period in excess of twenty years; and, upon the expiration of the life of the franchise, the owner thereof has no right to longer occupy and use the public ways of the municipality, and can acquire no such right, nor can the city grant any such right, except that a new sale is effected under the provisions of sections 163 and 164 of the Constitution. The court went on to say that these decisions of the Court of Appeals of Kentucky, construing its own constitution and involving no federal question, are binding on the federal court.
See
Hatcher v. Kentucky & West Virginia Power Co., 280 Ky. 583, 133 S.W.2d 910 (1939), stressing the mandatory nature of § 164 of the Constitution. Also see
City of Nicholasville v. Blue Grass R.E. Coop. Corp., Ky., 514 S.W.2d 414 (1974), indicating that the bidding procedure of § 164 is a sine qua non for the granting of a franchise.
Since § 164 of the Constitution contains no exception to the mandated bidding procedure, and since the appellate cases are firm on the mandatory nature of § 164, it is our opinion that there is no valid or constitutional exception to § 164. Thus, even though at present no bids have been received under advertisements for bids, the fiscal court has no basis for issuing a cable television franchise. It is our opinion that the fiscal court cannot validly negotiate such contract. Section 164 is wholly unlike a statute, for example, KRS 424. 260, which statute provides for circumventing bidding in an emergency.