Request By:
Mr. David G. Mason
Henry County Attorney
Main Street
New Castle, Kentucky 40050
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your first question relates to telephone lines on county right of way. It reads:
"May the telephone company lay telephone lines above or below ground on county road right-of-ways and county property without the county giving the phone company an easement right of way to do so?"
Generally telephone companies, in order to install poles and cables on county right of way, must acquire a franchise from the fiscal court of the pertinent county pursuant to KRS 278.540 and Section 164 of the Kentucky Constitution. See Christian-Todd Telephone Co. v. Commonwealth, 156 Ky. 557, 161 S.W. 543 (1913) 545.
If the telephone company happens to be Southern Bell, then we have another situation. In Southern Bell Telephone and Telegraph Co. v. Commonwealth, Ky., 266 S.W.2d 308 [1954] [Watterson Expressway case], the court held that Southern Bell in Kentucky holds an irrevocable, perpetual legislative franchise to maintain poles and lines upon any or all highways in the Commonwealth in such a manner as to afford no obstruction to public use. Southern Bell's franchise calls for no compensation to the state, its agencies or subdivision. See OAG 65-227, which deals in detail with the Southern Bell Telephone Company state-wide perpetual franchise.
The next question relates to the incarceration of women. The Henry County jail presently incarcerates men but not women. In Eminence, Kentucky, there is a city jail which has been discontinued because of the new court system. Your question is whether or not the City of Eminence could permit the use of the city jail for incarcerating women pending the outcome of their cases. The city jail has no jailer, but there is twenty-four hour police protection and a police officer and dispatcher live above the jail.
See KRS 71.050 concerning the central role of the county jailer. There are no city police courts. However, under present law, a city jail may still be maintained. See KRS 441.005(1), 441.410 and 86.110(3) and (6). You are really asking whether or not these women defendants can be placed in the old city jail without a jailer. The answer is "no". A properly run jail requires constant round-the-clock supervision. There are at least two factors involved in such a rigid requirement. One relates to the security of the public. In other words these women could conceivably break out of the jail since there is no one, as President Lyndon Johnson put it, "minding the store." A second point is that the people who are placed in jail are entitled to humane treatment. You simply can't put these women in jail and throw the key away. Thus the security of the prisoners is a statutory responsibility of a jailer. But here there is no jailer. Now if something were to happen to these women, or other persons because of the negligence of the city in incarcerating the women without a jailer, under the doctrine of the case of Haney v. City of Lexington, Ky., 386 S.W.2d 738 (1965), the city could be held liable for such negligence or tort. If the city jail is to be used at all to incarcerate these women or any other persons, then the city would have the responsibility to see that it is under the constant and round-the-clock care and supervision of a jailer.