Request By:
Mr. James P. Pruitt, Jr.
Attorney at Law
The Call Building
Pikeville, Kentucky 41501
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As attorney for Pike Fiscal Court's effort to grant franchises for cable television operators in Pike County, you request our opinion as to the legal authority for the fiscal court's granting franchises under a Pike County cable television ordinance in light of the recent opinion of the Supreme Court of Kentucky dealing with KRS 67.083, the Home Rule statute.
The Supreme Court of Kentucky, in Fiscal Court of Jefferson County v. City of Louisville (76-604) [decided September 16, 1977], in holding that the Home Rule statute was unconstitutional, ruled that the General Assembly has no constitutional authority, under § 29, Constitution, to delegate to fiscal courts the power to enact laws. The court said that fiscal courts are not legislative bodies under the Constitution. However, the court pointed out that the legislature can enact a law and delegate in the law the power to fiscal court to determine some fact or state of things upon which the law makes or intends to make its own action depend. In other words, where the General Assembly enacts a law, it may provide that a fiscal court can implement the law by way of exercising an administrative or executive discretion. The court relied on
Bloemer v. Turner, Ky., 137 S.W.2d 387 (1939) and
Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974) for its decision on this point.
The answer to your question is that a fiscal court may, pursuant to § 164 of the Kentucky Constitution, grant cable television franchises. The declaring of KRS 67.083 as being unconstitutional by the court in no way affects the right of fiscal courts to grant cable television franchises, since the granting is done strictly under § 164 of the constitution. The constitution is our supreme law. As we said in OAG 77-111, § 164 is self-operative or self-executing and requires no implementing legislation on the part of the General Assembly. That section confers upon both cities and counties authority to grant franchises pertaining to subjects over which they were given supervisory jurisdiction by the laws of the state.
Irvine Toll Bridge Co. v. Estill Co., 210 Ky. 170, 275 S.W. 634 (1925); and
Warfield Natural Gas Co. v. Lawrence County, 300 Ky. 410, 189 S.W.2d 357 (1945). Thus since fiscal courts have control over county roads and bridges within the county [KRS 67.080 and KRS Chapters 178 and 179], fiscal courts are authorized to grant franchises for the use of public ways of the counties by television antenna cable systems pursuant to § 164, Constitution. See
Ray v. City of Owensboro, Ky., 415 S.W.2d 77 (1967); and City of Owensboro v. Top Vision Cable Co. of Ky., Ky., 487 S.W.2d 283 (1972).
We pointed out in OAG 77-111 that even under KRS 67.083 the fiscal court had no authority to extend such franchises into municipal territory within the county, since the city's exclusive authority over city streets (by statute) would prohibit such intrusion. Since KRS 67.083 has been struck down, the fiscal court still cannot project its franchises into municipalities within the county, since the county's jurisdiction in granting a franchise under § 164 of the constitution extends only to the county's unincorporated territory.
Thus the Home Rule decision does not prohibit nor affect a fiscal court's granting a cable television franchise under § 164, Constitution. Of course the fiscal court's franchise can cover only unincorporated territory.