(dissenting). I consider the question involved in this case of sufficient importance to justify me in stating the reasons why I do not concur in the opinon handed down by a majority of the court. I rest my dissent upon the following grounds:
(1) When a city or other municipality elves to a public service corporation, except a trunk railway, the right to permanently use and occupy a street, highway, or other public place, it is the granting of a franchise or privilege within the meaning of section 164 of the Constitution, reading: “No county, city, *520town, 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 á trunk railway.”
(2) It is wholly immaterial whether the franchise or privilege is of much or little value to the corporation, or whether the use and occupation under it extends over a small or a large portion of the street, highway, or public place, or whether the city or other municipality or its people suffer injury, loss, or disadvantage or derive benefit or gain from the granting of the franchise or privilege.
(3) When a franchise is granted to use and occupy a particular street, highway, or place, the grantee cannot under this grant use or occupy any other street, highway, or place in the city or municipality without first obtaining the right so to do in the manner provided in the Constitution.
(4) If a city or other municipality undertakes to grant a franchise or privilege except in the manner pointed out in the section of the Constitution mentioned, its'action is void, and the corporation using and occupying the street, highway, or public place is a trespasser, and any citizen and taxpayer of the city or municipality has the right to directly bring an action to oust the trespasser from its unlawful use and occupancy.
(5) This constitutional provision is mandatory, and its provisions cannot be evaded or disregarded in any material particular.
*521These propositions have been sustained by this court in many cases. Thus in Nicholasville Water Co. v. Board of Councilmen of the Town of Nicholasville, 36 S. W. 549, 38 S. W. 430, 18 Ky. Law Rep. 592 — and which is by the way the first case construing this section — the court said: “The grant of the franchise of the town of Nicholasville to the Kentucky Water, Heating & Illuminating Company, in June, 1892, may be treated as void, because of the failure of the municipality to receive bids publicly after due advertisement as provided in section 164 of the Constitution. ’ ’
In City of Somerset v. Smith, 105 Ky. 678, 49 S. W. 456, the attempt was made in 1897 to grant a franchise to an electric light and power comnany for the period of 20 years beginning in 1900. The court said : “It is contended that this contract is void, because in conflict with this constitutional provision. In this we concur. The franchise or privilege is said to be for only twenty years from its beginning, and that it begins when the present contract expires or is terminated. The present contract expires in 1900, and although it is provided that this privilege or franchise may begin before that date, and then extend only twenty years, yet the contract made is for more than twenty years, as it did not begin on the day of the ratification of the contract, but it is expressly postponed to some future date. Whatever may be said about the franchise, this is certainly a contract in reference to a franchise, and the term contracted for exceeds the constitutional limit.”
In City of Providence v. Providence Electric Light Co., 122 Ky. 237, 91 S. W. 664, it was said in speaking of section 164 of the,Constitution: “This section is mandatory and no contract made in violation of *522its provisions can be^enforced. Nor can any franchise or privilege be granted without a compliance with its requirements.” To the same effect is Monarch v. Owensboro City Ry. Co., 119 Ky. 939, 85 S. W. 193; Keith v. Johnson, 109 Ky. 421.
In Merchants’ Police & District Tel. Co. v. Citizens’ Tel. Co., 123 Ky. 90, 93 S. W. 642, 29 Ky. Law Rep. 512, the facts were these: The appellee owned a legal franchise to operate a telephone plant in tn® city of Covington. The appellant, although using the streets of the city by permission of the council under an ordinance, did not obtain a franchise in the manner pointed out in the Constitution. The appellee brought a suit against the appellant to enjoin it from'the use of the streets. The lower court granted the relief sought, and this court in affirming the judgment said: “Therefore any effect or act of the council in granting a franchise or privilege contrary to this section (164) of the Constitution is absolutely void, and confers no right whatever upon the party securing the grant. * * * In our opinion appellant did operate its telephone without authority of law, and the attempted grant to it by the council is void and conferred no right whatever upon it. * * * It is conceded that appellee is a citizen and taxpayer of the city, and in our opinion as such it should have the right by action to prevent the further continuance of the wrong perpetrated by the council of that city in granting illegally the franchise to appellee by stopping it from the further exercise of its pretended rights thereunder. The appellee is interested with all citizens in saving the city from loss of its revenues by the illegal gift of valuable franchises which if sold legally would increase the revenues and thereby lessen the taxes of appellee and all citizens in the city. ’ ’
*523In Hilliard v. Fetter Lighting & Heating Co., 127 Ky. 95, 105 S. W. 115, 31 Ky. Law Rep. 1330, it is said: “Municipal authorities cannot grant a franchise or privilege for a use intended to be permanent except in the manner pointed out in section 164 of the Constitution. Nor can this section be evaded or its purpose nullified by making the grant for an indefinite period or for less than a term of years or by any other scheme or device.
In Frankfort Telephone Company v. Board of Councilmen of Frankfort, 125 Ky. 59, 100 S. W. 310, 30 Ky. Law Rep. 885, the telephone company was operating in the city under an ordinance giving it the right so to do, but not under a franchise obtained under section 164. It brought an action to enjoin the council from regulating its charges. The lower, court dismissed its petition, and in affirming that judgment we said: “The framers of the Constitution intended by section 164 to take it out of the power of municipalities to .give away franchises to do business within their boundaries.” And in concluding the opinion, the court said: “It results that appellant has no franchise from the city of Frankfort and this being so it cannot be heard to complain that there has béen established a rate of telephone charges which prohibited it from doing business therein.”
In East Tennessee Telephone Company v. Anderson County Telephone Company, 115 Ky. 488, 74 S. W. 218, 24 Ky. Law Rep. .2358, the Anderson Telephone Company sued the East Tennessee Telephone Company upon an injunction, bond to recover damages for its unsuccessful attempt to prevent it from exercising an alleged franchise it had obtained to do business in the city of Lawrenceburg; but the court *524held that, as the Anderson County Telephone Company had never obtained in the proper way the right to the use of the streets of the city, it was a mere trespasser and could not sue and recover damages for interference with its rights, as it had no rights. To the same effect is Rough River Telephone Co. v. Cumberland Telephone Co., 119 Ky. 470, 84 S. W. 517, 27 Ky. Law Rep. 32; Rural Home Telephone Co. v. Kentucky & Indiana Telephone Co., 128 Ky. 209, 107 S. W. 787, 32 Ky. Law Rep. 1068; Maraman v. Ohio Valley Telephone Co., 76 S. W. 398, 25 Ky. Law Rep. 784. In these four last-named cases, section 164 of the Constitution was not involved. Tney are only cited for the purpose of illustrating that the occupation of a street by a public service corporation that has not obtained in a legal way the right to occupy them is a trespass. A citizen and taxpayer has the right to enjoin an unlawful exercise of power by municipal authorities where the attempt is made to grant rights, privileges, or franchises injurious to the taxpayer without authority so to do. Dyer v. City of Newport, 123 Ky. 203, 94 S. W. 25, 29 Ky. Law Rep. 656; Keith v. Johnson, 109 Ky. 421, 59 S. W. 487, 22 Ky. Law Rep. 947; Hilliard v. Fetter Lighting & Heating Co., 127 Ky. 95, 105 S. W. 115, 31 Ky. Law. Rep. 1330; Roberts v. Louisville, 92 Ky. 97, 17 S. W. 216, 13 Ky. Law Rep. 406, 844; Dillon on Municipal Corporations, section 914; City Item Printing Co. v. New Orleans, 51 La. Ann. 713, 25 South. 313; Collins v. Davis, 57 Iowa, 256 10 N. W. 643; Adamson v. Union Ry. Co., 74 Hun (N. Y.) 3, 26 N. Y. Supp. 136; Mayor and City Council of Baltimore v. Gill, 31 Md. 375; 28 Cyc. p. 1734.
Keeping in mind these opinions of this court, and applying the principles so often declared to the facts *525of this case, it seems plain that when the city council by the mere enactment of an ordinance granted the street railway company a right to use and occupy Park place and Court avenue, its action was without authority, and the occupation of this street and public place by the company a trespass. There is no pretense of any sort or character in either brief or record that under any franchise previously granted in pursuance of the Constitution the railway company had the right to go upon or occupy any part of Park place or Court avenue.
It is said, however, in the opinion, that the purpose of the city in authorizing the railway company to occupy Park place and Court avenue was not the granting of a franchise but merely the right to relocate the tracks of the company for the benefit of the city and the public, and that the council had the power by ordinance to authorize this change. I do not know whether the city intended to grant a franchise or not when it authorized the occupation of these streets, but I do know that their occupation is a franchise within the meaning of the Constitution.The fact that the company paid to the council a consideration for permission to change its tracks from one street, to another, or that the parties acted in good faith, is not entitled to any weight in disposing of the question presented. The suggestion in the opinion that a franchise for the use of Park place and Court avenue could not be sold to any other street railway company, I am not prepared to answer. There is nothing whatever in the record bearing upon the question. The record does not show how long Court avenue is, or how much of Park place the tracks of the railway company occupy, or whether or not this place or street is of much or *526little value for railway purposes, or whether or not a franchise may be sold for the use of either of them. But it does show that they are nermanently occupied and used by the tracks of the eomnany, and this is all that is necessary to constitute a franchise or privilege.
I do not controvert the proposition that if a franchise is purchased to use several or any number of streets, and all -of them are not occupied immediately, that the grantee may change its tracks from one street to another upon which it has a franchise, but that question is not here as it is admitted that the railway company never had a franchise to use or occupy Park place or Court avenue. Under the majority opinion, a public service corporation may obtain a franchise to use one street, and then for such consideration as the council will accept, get from it the right to use any other streets that it desires. Hereafter, when such a corporation — to illustrate — ■ desires to obtain the right to use “A” street without buying it at a public sale made to the highest and best bidder after due advertisement, it may obtain under the Constitution a franchise to use “B” street and then trade its right to use “B” street with the council for the right to use “A” street. This is precisely what was done in this case. If the Constitution is to have the construction given to it by the opinion, then all we have written about the value of this section and its beneficial purposes, and all that we have said about its provisions being mandatory, count for nothing.
Judge Nunn joins in this dissent.