Request By:
Mr. Martin W. Johnson
Marshall County Attorney
Courthouse, P.O. Box 172
Benton, Kentucky 42025
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The city of Hardin and Marshall County, Kentucky, have run into certain legal problems with regard to Marshall County's granting a county wide cable television franchise in August, 1981, and under which the successful bidder is constructing the system.
The factual background was stated as follows in your letter:
"The problem that the County has encountered is the issue of what areas its cable franchise covers in view of certain matters that relate to the organization of the City of Hardin, Kentucky (a city of the 5th class under the provisions of KRS 81.010). It appears from the records of both Marshall County and the City of Hardin that all streets and roads within the city of Hardin are by ordinance 'county roads' which have been in the past and are now maintained as a part of the county's road system. When the County bid its cable television franchise it advertised for bids for service on all county roads and streets, but specifically excluded incorporated areas within the County. The successful bidder included in its bid the area of Hardin."
You and the Hardin City Attorney raise several questions for our opinion.
Question No. 1:
"May a city of the 5th class by ordinance absolve itself of any responsibility for roads or streets within its corporate boundaries?"
Hardin is a fifth class city pursuant to KRS 81.010(5). See also KRS 82.081 and 82.082, for city powers. Also see KRS 82.110 (acquisition of land for governmental purposes) and KRS 82.400 (procedure for dedication of public ways).
The city legislative body has complete control over its streets and public ways pursuant to KRS 94.360. For the sake of uniformity among cities, that statute was repealed in 1980 (Acts 1980, Ch. 233, § 3, eff. July 15, 1980). However, its jurisdiction over city streets is contained in the general power statutes, KRS 82.081 and 82.082. The jurisdiction of the city is attended with the responsibility for maintaining its jurisdiction over the streets within its boundaries. Graves County v. City of Mayfield, 305 Ky. 374, 204 S.W.2d 369 (1947) 370, 372.
The answer to this question is that we are not aware of any statute permitting the city to abdicate its responsibility and jurisdiction over existing city streets.
Question No. 2:
"May a County accept as part of its road system all streets and roads within the corporate limits of a city?"
The answer is a qualified "yes". The city has exclusive jurisdiction and control over its city streets. See Graves County v. City of Mayfield, supra. Since the city has exclusive jurisdiction and control over its city streets, that absolute concept does not permit some other governmental unit having any similar control. The word "exclusive" means "excluding others from participation." Webster's Seventh New Collegiate Dictionary (Merriam Webster) p. 290. It means sole jurisdiction by a particular entity. However, pursuant to KRS 178.010(2) and 67.083, a fiscal court, with the consent of the city, may validly take into the county road system by fiscal court order city streets for the purpose of expending county money on the construction or improvement of such streets.
Question No. 3:
"If a county may legally accept title to and the responsibility of all roads and streets within the corporate limits of a city of the 5th class, can it, upon doing so, include these areas with its ordinance for a cable television franchise? "
The answer is "no". Even if the title to the city streets were transferred to the county, the city can in no way relinquish its control and jurisdiction over the city streets to the county. See Graves County v. City of Mayfield, 305 Ky. 374, 204 S.W.2d 369 (1947), in which case an area within the city of Mayfield, a city of the fourth class, was conveyed to Graves County. The court reiterated the statutory principle that the city has the right and duty to control its city streets. Thus the county cannot legally accept title to city streets so as to militate against the jurisdiction of the city. KRS 178.010(2) provides in effect that although the fiscal court may take a city street into its county road system, that shall not be construed as taking from the jurisdiction or control of the legislative body of the city the street exclusively under the jurisdiction or control of the city affected. See also KRS 67.083. However, where the fiscal court makes the city street a part of the county road system in order to expend county money upon the street's construction or improvement, the city's consent would be necessary. Bates v. Greenup County, 282 Ky. 268, 138 S.W.2d 463 (1940) 465. See OAG 81-142, copy enclosed.
In any event, where the city street is made a part of the county road system by fiscal court order, it would in no way take away the city's control and jurisdiction as relates to city street right of way needed for cable television. See KRS 178.010(2) and Sarver v. Allen County, Ky., 582 S.W.2d 40 (1979).
Question No. 4:
"If the County has improperly included the streets and roads within the corporate limits of a city of the 5th class in its cable television franchise can the city allow the county to bid a franchise for cable television within the corporate limits of the city?"
The county's action in letting out bids for a cable television, as involving all county roads and streets, but specifically excluding incorporated areas within the county, was, we think, proper for the foregoing reasons. However, the successful bidder included in its bid the streets of the city of Hardin. That, unfortunately, constituted an improper response to the county's advertisement for bids. Such a bid should have been rejected by the county as being materially unresponsive to the county's ad for bids.
We wrote in OAG 79-208, copy enclosed, that while §§ 163 and 164 of the Kentucky Constitution dealing with franchises dealing with franchises are self-operative in nature, the Interlocal Cooperation Act, i.e., KRS 65.240, would permit the city and county to grant jointly one cable television franchise (upon advertised bid solicitation) which would service the county and city. We see nothing in the joint action which would militate against the self-executing nature of §§ 163 and 164 or against the exclusivity of separate governmental control over the streets and roads of the county and city respectively.
Since the city of Hardin and the county had not entered into an interlocal agreement relative to a joint cable television franchise, the unilateral solicitation of bids by the county and the county's acceptance of a bid which included the area of Hardin resulted in an illegal award of franchise. As to whether a subsequent interlocal agreement between the city and county for a joint franchise would cure the infirm successful bid would be for the courts to decide. See OAG 79-208, concerning details relating to a joint franchise under an interlocal agreement. We said there that a joint contract (interlocal agreement) and the steps taken to effectuate §§ 163 and 164, Constitution, may properly include joint advertising, joint consideration of bids, joint awarding of the franchise covering the city and county areas, etc. See OAG 79-208 for further details.
Question No. 5:
"May a city of the 5th class by ordinance allow the county to accept bids for a cable television franchise within the corporate limits of the city? If the answer is yes, may the city in such ordinance, retain all rights to the franchise once the bid has been accepted by the county."
We have dealt with the details of a jointly issued franchise by the city and county, in OAG 79-208, enclosed, under an interlocal agreement. The joint agreement involves joint action, but the city and county maintains its basic and separate jurisdiction and control over city and county right of way.