The Birmingham age-herald., 1915-12-08
Boyd Says Contract With
 Phone Conpdny Is InUalid
Opinion of City Attorney Presented to Commits sion Yesterday By Commissioner Barber-City Engineer and City Attorney Instructed to Gather Data On Charges For Telephones In Other Cities

, daily newspaper published in said city. S"" Nor shall any extension enlarge
 ment of any such rights or powers pre- viously granted be made or given except ill the manner and subject to all tho con ditio1s herein provided for to the orig inal grant of same
 Tt is further provided in said section $ that if at any election called and held within 30 days after the passage of such ordinance or resolution for the purpose of voting on such proposition, majority of the voters vote against the same, no rights or powers shall be acquired there | under.
 PUBLISHED BUT ONCE Where statute requires notice by publication such provisions are usually I mandatory and jurisdictional and must be strictly followed. 1 find that the ordi- l nance authorizing this five-year con tract was not published once a week for three consecutive weeks, but was pub lished only once in the case of ord- nary ordinances. therefore if the effect of this ordinance and contract was to grant franchise. lease or right to use
 the public streets or was an enlargement of or extension of such an existing right or franchise it follows that such fran chise or right or such extension or en- largement never became effective. be- cause of the failure to give the notice by 1 publication required by statute. If the l telephone company had no such right or | franchise this ordinance and contract, if 1 legally adopted would probably have | granted same for a period of five years. l On the other hand, if the company al- ready had such right or franchise the l fixing of rates would grant immunity from regulation by the government for | the five-year period and consequently would be an enlargement of such rights
 or franchise previously acquired
 | This same point was before Judge
 ~ | the waterworks contendng the water con l tract referendum election was void be- | cause ordinance 9I-C did not enlarge or extend the water company's franchise, | but Judge Grubb held against the water company on this point and in accordance with the views above stated. It, there I fore, follows that the five-year contract
 and ordinance authorizing same never became effective because of the fact that | the ordinance was never published three times as required by law.
 Tt is well settled that municipalities, railroad commissions and other similar
 bodies have no power to regulate rates of public utility companies in the ab- sence of a statute granting such power.
 Prior to last September the legislature had failed to grant such right as to tele- phone rates to either the city or railroad commission and in order to meet this
 defect a clause granting such power to the city was included in the omnibus bill prepared by the city attorney and the citys legislative agent last spring, with the approval of the board, and passed last September, but several days after the omnibus bill was passed the legsa-
 ture passed the Denson bill, divesting the city of such power and investing it in the Alabama public service commission,
 which body under the special telephone
 regulation bill approved September 15. 1915. now has adequate power to regulate telephone rates in any city in Alabama | in the absence of a valid subsisting con | tract fixing such rates, and in my opinion | the telephote company has no such con | tract in Birmingham. Respectfully sub mtted ROMAINE BuiD,
 City Attorney