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12-824. Franchise to interurban railway or electric company; certain provisions declared void; notice; petition; election; certificate of convenience and necessity. (a) All incorporated cities in the state of Kansas into or through which any interurban railroad may have been built, or into or through which any interurban railroad may propose to build a line of interurban railroad, or into or through which any corporation operating a system for the transmission of electric current between two or more incorporated cities in the state shall have been built, or into or through which any such corporation may propose to build its transmission lines, are hereby authorized and empowered upon such terms and conditions, as any such city may by ordinance prescribe, to grant franchises to such interurban railroad companies and transmission corporations for any public utility purposes for which they are or may be incorporated. Any such franchise shall be granted for a period not greater than the time for which the charter under which such company or corporation is then operating continues to run but in no case to exceed 35 years. Such franchise shall not be granted until notice of the proposition to grant the same has been given for 20 days by publication in some newspaper in general circulation in such city. If within such twenty-day period, 10% of the qualified electors petition such city authorities to submit the same to a vote of the electors of the city, such city authorities shall submit the franchise proposition to a vote of the people before such franchise is granted. No such election shall be held until a certificate is procured from the corporation commission that public necessity and convenience requires the construction of such improvements or the furnishing of such public services. Nothing in this act shall be construed as applying to telephone and telegraph companies.

(b) On and after the effective date of this act, any provision for compensation or consideration, included in a franchise granted pursuant to this section which is established on the basis of compensation or consideration paid by an interurban railroad company or transmission corporation under another franchise, is hereby declared to be contrary to the public policy of this state and shall be void and unenforceable. Any such provision, included in a franchise granted pursuant to this section and in force on the effective date of this act which requires payments to the city by an interurban railroad company or transmission corporation to increase by virtue of the compensation or consideration required to be paid under a franchise granted by another city to the company's or corporation's predecessor in interest, is hereby declared to be contrary to the public policy of this state and shall be void and unenforceable.

History: L. 1915, ch. 282, § 1; L. 1921, ch. 94, § 1; R.S. 1923, § 12-824; L. 1985, ch. 71, § 1; July 1.

Attorney General's Opinions:

Applicability of initiative and referendum ordinance to municipal franchise. 83-153.

CASE ANNOTATIONS

1. Section cited in considering jurisdiction over public utility; interurban railway. In re Wright, 102 Kan. 329, 331, 170 P. 28.

2. Time in which signatures to petition may be withdrawn considered. State, ex rel., v. City of Independence, 114 Kan. 837, 221 P. 245.

3. Conclusiveness of commissioner's findings as to requisite number of petitioners. State, ex rel., v. Electric Power Co., 116 Kan. 70, 73, 226 P. 254.

4. Title of act sufficiently complies with constitutional requirements. City of Wichita v. Wichita Gas Co., 126 Kan. 764, 271 P. 270.

5. Ordinance published in conformity with this statute only sufficient. City of Wichita v. Wichita Gas Co., 126 Kan. 764, 768, 271 P. 270.

6. Section upheld and distinguished from K.S.A. 14-1701. City of Council Grove v. Kansas Electric Power Co., 137 Kan. 109, 110, 111, 112, 113, 19 P.2d 460.

7. Cited in holding gas franchise resolutions invalid under K.S.A. 13-2801. Gas Service Co. v. Consolidated Gas Utilities Corp., 145 Kan. 423, 436, 65 P.2d 584.

8. Discussed; petition for election under K.S.A. 12-2001 need not be verified. State, ex rel., v. City of Walnut, 165 Kan. 205, 210, 193 P.2d 712.

9. Franchise fee extended to electric utility held analogous to a "sales tax"; not an impermissible exaction. United States v. City of Leavenworth, Kan., 443 F. Supp. 274, 276, 282.


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