Silva v. City of Newport

119 Ky. 587

• Court: Court of Appeals of Kentucky
• Decided: January 15, 1905
• Status: Published

Opinion

Opinion oe the court by

JUDGE BARKER

Reversing.

'This-action was instituted in the Campbell circuit court to test the validity of an ordinance of Newport, a city of the second class. Bo much of the ordinance as we deem essential to the decision of the question before ns is as. follows: “Ordinance for Light Franchise in Newport. An ordinance providing for the letting at public bidding of the franchises, rights and privileges of entering in and upon the streets and public ways of and in the city of Newport,- Ky., for the purpose of laying, maintaining and operating mains and pipes, with all necessary appendages, and therefrom to supply the city of Newport and its consumers with light, heat, fuel arid power, by means of either gas alone, or by means of gas and hot water, or by means of gas and1 steam, or by means of gas, hot water and steam, for a term of twenty (20) years from the acceptance- of the successful hid therefor, and granting such franchise, rights and privileges to the highest bidder. Be it ordained by the- general- council of the city of Newport, Kentucky.”' TYe do not recall ever having seen an ordinance framed precisely like the above. It will be observed that in the first line it is entitled “Ordinance for Light Franchise in Newport,” and then follows, at the place -usually set apart for the preamble (where there is one), what is nothing more nor less than a second, or more extended . title, containing the purposes of the proposed ordinance. This is not a preamble, for that is a history or1 recitation of the necessity for the legislation in question. Bouvier defines it as follows: “It [preamble] is no more than a recital of some inconvenience, which does' not exclude any others for which a remedy is given by the enacting part of the statute.” We conclude that all above “Be it ordained by the general council of Newport, Kentucky,” constitutes the title of the ordinance. It is apparent that the title relates to, at least, three subjects, to-wit, the furnishing of the city with light, heat, and power by means either of gas, hot -water, or steam, or a combination of these. Here are three separate and distinct franchises provided for in one ordinance. Section 3059 of the Kentucky Statutes of 1903 (charter of cities of the' second class) provides," among other things, that “no ordinance shall embrace more than one subject, and that shall be expressed in the title.” As the title and ordinance under consideration contain more than one subject, the whole is void. Hind v. Rice, 10 Bush, 528. The demurrer to the petition should have been overruled.

Wherefore the judgment is reversed for proceedings consistent herewith.