CHAPTER 276 Railroad Commission — Rates and Service of Common Carriers

276.010. Definitions. [Repealed.]

Compiler’s Notes.

This section (201e-1, 201g-1, 201g-1a) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.020. Service and facilities of common carriers to be adequate — Rates and practices to be just and reasonable. [Repealed.]

Compiler’s Notes.

This section (201e-1, 201g-2) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.030. Railroad Commission to enforce laws relating to common carriers. [Repealed.]

Compiler’s Notes.

This section (201e-5, 201e-16, 201e-17, 201e-20, 201g-14, 821, 826, 828) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.040. Organization of Railroad Commission — Quorum. [Repealed.]

Compiler’s Notes.

This section (201g-1c, 821) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.050. Districts from which railroad commissioners to be elected. [Repealed.]

Compiler’s Notes.

This section (823, 824) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.060. Office of Railroad Commission — Employees — Salaries — Transportation. [Repealed.]

Compiler’s Notes.

This section (201g-12, 822) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.070. Appointments or gifts not to be solicited or accepted by, or offered to, railroad commissioner. [Repealed.]

Compiler’s Notes.

This section (832) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.080. Fees for copies of records of commission. [Repealed.]

Compiler’s Notes.

This section (833) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.090. Annual reports by railroads and express companies to Railroad Commission. [Repealed.]

Compiler’s Notes.

This section (201e-15, 825, 4078a) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.100. Power of Railroad Commission to secure evidence. [Repealed.]

Compiler’s Notes.

This section (201e-14, 201e-16, 201e-20, 201e-22, 820a-5, 821, 827) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.110. Public disclosure of information obtained by Railroad Commission. [Repealed.]

Compiler’s Notes.

This section (201e-18, 831) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.120. Annual report of Railroad Commission to Governor. [Repealed.]

Compiler’s Notes.

This section (834) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.130. Express companies and carriers by rail to publish, file and display rate schedules. [Repealed.]

Compiler’s Notes.

This section (201e-2, 201e-3, 201e-4, 201g-3, 201g-5, 201g-6) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.140. Written statement of rate to be given on request. [Repealed.]

Compiler’s Notes.

This section (201g-6) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.150. Deviation from rate schedule prohibited — Special contract rates permitted. [Repealed.]

Compiler’s Notes.

This section (201e-4, 201e-6, 201e-8, 201g-6, 201g-9) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.160. Notice of change of rate schedules. [Repealed.]

Compiler’s Notes.

This section (201e-3, 201g-5) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.170. Hearing on proposed change in rate, classification, regulation or practice. [Repealed.]

Compiler’s Notes.

This section (201g-7, 206g-13) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.180. Powers of Railroad Commission as to rates, classifications, regulations and practices of express companies and carriers by water. [Repealed.]

Compiler’s Notes.

This section (201e-5) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.190. Interstate freight rates, duties of Railroad Commission concerning. [Repealed.]

Compiler’s Notes.

This section (826) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.200. Joint rates and traffic agreements — Regulations as to more than one rate, regulation or practice. [Repealed.]

Compiler’s Notes.

This section (201e-5, 201f, 201g-4, 201g-6, 201g-13a) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.210. Rate control arrangements between carriers by water and other carriers prohibited — One not to own interest in other. [Repealed.]

Compiler’s Notes.

This section (201e-20) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.220. Demurrage charges. [Repealed.]

Compiler’s Notes.

This section (201g-10) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.230. Long and short hauls. [Repealed.]

Compiler’s Notes.

This section (201e-13, 820) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.240. Transportation of passengers free or at reduced rates forbidden — Exceptions. [Repealed.]

Compiler’s Notes.

This section (201c-1, 201c-2, 201c-4) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.250. Record of passenger transportation given free or at reduced rates — Report to Attorney General. [Repealed.]

Compiler’s Notes.

This section (201c-10, 201c-12) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.260. Transportation of property free or at reduced rates by express company or carrier by water forbidden — Exceptions. [Repealed.]

Compiler’s Notes.

This section (201e-7, 201e-8) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.270. Transportation of persons for purpose of intimidating public officers forbidden. [Repealed.]

Compiler’s Notes.

This section (804a-1, 804a-2) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.280. Extortion. [Repealed.]

Compiler’s Notes.

This section (201e-10, 816) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.290. Unjust discrimination. [Repealed.]

Compiler’s Notes.

This section (201e-10, 817) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.300. Undue or unreasonable preference. [Repealed.]

Compiler’s Notes.

This section (201e-11, 818) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.310. Hearings and orders as to extortion. [Repealed.]

Compiler’s Notes.

This section (201e-14, 201e-22, 820a-1) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.320. Hearings and orders as to unjust discrimination or undue or unreasonable preference. [Repealed.]

Compiler’s Notes.

This section (201e-5, 201g-8) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.330. Railroad Commission may hear complaints concerning common carriers or act on own motion. [Repealed.]

Compiler’s Notes.

This section (201e-17, 201g-13c, 201g-14, 829) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.340. Form of complaints — Conduct of hearings. [Repealed.]

Compiler’s Notes.

This section (201e-14, 201e-17, 201e-22, 201g-1b, 201g-14, 820a-1, 829) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.350. Revocation or modification of orders of Railroad Commission. [Repealed.]

Compiler’s Notes.

This section (201e-14, 201e-22, 201f, 201g-4, 820a-1) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.360. Evidentiary effect of award of damages. [Repealed.]

Compiler’s Notes.

This section (201g-13b) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.370. Enforcement of award or order — Appeal. [Repealed.]

Compiler’s Notes.

This section (201g-11) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.375. Judicial review of orders of Railroad Commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 301, § 2; 1976 (1st Ex. Sess.), ch. 14, § 261, effective January 2, 1978) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.380. Sheriff to serve summonses and orders of Railroad Commission. [Repealed.]

Compiler’s Notes.

This section (201g-15) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.390. Common carrier statutes are in addition to other laws. [Repealed.]

Compiler’s Notes.

This section (201g-18) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.400. Two railroads using same line to furnish facilities for traffic without discrimination. [Repealed.]

Compiler’s Notes.

This section (792) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.410. Railroad Commission may notify railroad to make repairs or improvements. [Repealed.]

Compiler’s Notes.

This section (772, 830) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.420. Railroads to furnish accommodations for freight and passengers — Checking of baggage. [Repealed.]

Compiler’s Notes.

This section (783) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.430. Waiting rooms — Ticket offices — Notice of delay of train — Announcement of stations and route. [Repealed.]

Compiler’s Notes.

This section (772, 784) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.440. Separate coaches or compartments for white and colored passengers. [Repealed.]

Compiler’s Notes.

This section (795, 796, 799, 801) was repealed by Acts 1966, ch. 184, § 8.

276.450. Transportation of explosives by carriers — Rules of Railroad Commission governing. [Repealed.]

Compiler’s Notes.

This section (788, 789) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.460. Unclaimed freight, express or baggage, how sold. [Repealed.]

Compiler’s Notes.

This section (201a-1: amend. Acts 1966, ch. 239, § 197) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.470. Transportation companies to issue bills of lading — Liability for loss of or damage to freight. [Repealed.]

Compiler’s Notes.

This section (201d-1) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.480. Abandonment of passenger service. [Repealed.]

Compiler’s Notes.

This section (772, 772a-5: amend Acts 1942, ch. 166, §§ 1 and 2; 1948, ch. 162, § 1) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.490. Obstructing or interfering with Railroad Commission. [Repealed.]

Compiler’s Notes.

This section (201e-16, 828) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.500. Limitation of prosecutions and actions. [Repealed.]

Compiler’s Notes.

This section (201e-12, 201e-14, 2012-22, 201g-17, 819, 820a-4 was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.510. Venue of prosecutions and actions. [Repealed.]

Compiler’s Notes.

This section (201c-7, 201c-10, 201e-12 to 201e-16, 201e-22, 201g-8, 793, 798, 804a-3, 819, 820, 820a-2, 828) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.530. Commission’s duty to transmit information concerning abandonment of railroad corridor to Department of Parks and Railtrail Development Office.

The Railroad Commission shall immediately transmit to the Department of Parks and to the Commonwealth’s Railtrail Development Office in the Department for Local Government any information received from a railroad or other person having an ownership interest in a railroad corridor pertaining to a proposed or pending action or proceeding to obtain federal authority for the regulatory abandonment of that railroad corridor.

History. Enact. Acts 2000, ch. 338, § 9, effective July 14, 2000; 2007, ch. 47, § 91, effective June 26, 2007; 2010, ch. 117, § 86, effective July 15, 2010.

276.550. Agreements with Federal Railroad Administration — Approval. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 95, § 1; 1978, ch. 155, § 41, effective June 17, 1978) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

276.990. Penalties. [Repealed.]

Compiler’s Notes.

This section (201c-5, 201c-6, 201c-10, 201e-9, 201e-12 to 201e-16, 201e-20, 201e-22, 201f, 201g-4, 201g-6, 201g-8, 201g-16, 784, 789, 792, 793, 797, 800, 804a-1, 804a-2, 819, 820, 820a-1, 827, 828, 832) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

CHAPTER 277 Railroads — Organization and Operating Regulations

277.010. Organization of railroad companies — Articles of incorporation — Amendments to articles. [Repealed.]

Compiler’s Notes.

This section (763, 764: amend. Acts 1946, ch. 141, § 15a) was repealed by Acts 1972, ch. 274, § 165.

277.020. Foreign railroad companies must incorporate in Kentucky and accept Constitution — Effect of organization and filing prior to July 1, 1946. [Repealed.]

Compiler’s Notes.

This section (765, 841: amend. Acts 1946, ch. 141, § 16) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

277.030. Continuation of limited railroad grants and franchises. [Repealed.]

Compiler’s Notes.

This section (796a-2) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

277.040. Person operating mine or quarry may construct railroad line, truck road, overhead conveyor or pipeline to transport material.

Any person operating a mine or a stone quarry may, for the purpose of transporting material between any railroad or navigable stream and the mine or quarry, construct and operate a line of railroad, truck road, overhead conveyor, or pipeline from the mine or quarry to the most convenient and accessible point on the railroad or stream, and may, under the Eminent Domain Act of Kentucky, condemn the land necessary for track, truck road, or supports for conveyor, or pipeline, not exceeding sixty (60) feet in width for each track, roadway, conveyor, or pipeline necessarily constructed, and the land for necessary buildings at the railroad or stream, not exceeding two (2) acres. The owner or operator of such railroad shall be governed by the laws relating to other railroads, so far as applicable, and shall have the same rights and privileges granted to corporations owning and operating railroads.

History. 815: amend. Acts 1954, ch. 140, § 1; 1976, ch. 140, § 109.

Compiler’s Notes.

The Eminent Domain Act of Kentucky, referred to herein, is compiled as KRS 416.540 to 416.680 .

NOTES TO DECISIONS

  1. Construction.
  2. Condemnation.
  3. — Private.
  4. — Public Use.
  5. Railroad Law Governs.
  6. Separate Business.
  7. Spur Track.
  8. Liability for Trespass.
  9. Joint Stock Company.
  10. Rates.
1. Construction.

This section does not restrict the length of tramways for transportation of lumber to three miles. Goose Creek Lumber Co. v. White, 219 Ky. 739 , 294 S.W. 494, 1927 Ky. LEXIS 450 ( Ky. 1927 ).

2. Condemnation.

Where land was needed to reduce grades and curves in spur between mine and railroad, so as to reduce dangers to operatives, and land was also needed for terminal facilities to avoid an extraordinary outlay, a “necessity” for condemnation existed. Greasy Creek Mineral Co. v. Ely Jellico Coal Co., 132 Ky. 692 , 116 S.W. 1189, 1909 Ky. LEXIS 141 ( Ky. 1909 ).

A “necessity” for condemnation, within the meaning of this section, is a convenience substantially advancing the public interest by making the road safer and better. Greasy Creek Mineral Co. v. Ely Jellico Coal Co., 132 Ky. 692 , 116 S.W. 1189, 1909 Ky. LEXIS 141 ( Ky. 1909 ).

Strip wider than 50 feet may be condemned where more than one track is necessary. Royal Elkhorn Coal Co. v. Elk Horn Coal Corp., 194 Ky. 8 , 237 S.W. 1083, 1922 Ky. LEXIS 97 ( Ky. 1922 ).

Foreign corporations may condemn land under this section. Saulsberry v. North American Refractories Co., 278 Ky. 808 , 129 S.W.2d 525, 1939 Ky. LEXIS 489 ( Ky. 1939 ).

Proceeding to condemn property for railroad spur, under this section, may be consolidated with proceeding to condemn property for tramroad, under KRS 381.580 (now repealed), in order to connect tramroad and spur. Saulsberry v. North American Refractories Co., 278 Ky. 808 , 129 S.W.2d 525, 1939 Ky. LEXIS 489 ( Ky. 1939 ).

The word “buildings” is synonymous with “structure,” and a mine tipple is a building for which land may be condemned. Saulsberry v. North American Refractories Co., 278 Ky. 808 , 129 S.W.2d 525, 1939 Ky. LEXIS 489 ( Ky. 1939 ).

3. — Private.

Owners of stone-cutting rights are not entitled to the use of a railroad track erected by the owner of the servient estate for his own use unless they acquire such right by private negotiations or by condemnation proceedings, nor can they compel owner of the servient estate to permit a railroad company to receive and ship their stone over the track. Bedford-Bowling Green Stone Co. v. Oman, 134 F. 441, 1904 U.S. App. LEXIS 5170 (C.C.D. Ky. 1904 ), aff'd, 134 F. 64, 1905 U.S. App. LEXIS 4250 (6th Cir. Ky. 1905 ).

4. — Public Use.

All persons have equal rights and equal obligations with the owner to the use of a passway, pipeline, or roadway obtained by condemnation. Producers Pipe Line Co. v. Martin, 22 F. Supp. 44, 1938 U.S. Dist. LEXIS 2354 (D. Ky. 1938 ).

The condemnation of lands as authorized by this section is for a public purpose. Greasy Creek Mineral Co. v. Ely Jellico Coal Co., 132 Ky. 692 , 116 S.W. 1189, 1909 Ky. LEXIS 141 ( Ky. 1909 ).

Fact that property sought as right of way is taken for private use does not preclude awarding easement, where owner may be compelled to make use public. Saulsberry v. North American Refractories Co., 278 Ky. 808 , 129 S.W.2d 525, 1939 Ky. LEXIS 489 ( Ky. 1939 ).

According to the generally recognized rule, the length of the public way, the places between which it runs, or the number of people who use it, is not the essential inquiry but the controlling and decisive question is: Has the public the right to its use on the same terms as the person at whose instance the way was established? If it has the right to its use, it is a public use; if it has not, it is a private use. Sturgill v. Commonwealth, Dep't of Highways, 384 S.W.2d 89, 1964 Ky. LEXIS 79 ( Ky. 1964 ).

5. Railroad Law Governs.

Switches built under this section are governed by the railroad law insofar as it is applicable. Greasy Creek Mineral Co. v. Ely Jellico Coal Co., 132 Ky. 692 , 116 S.W. 1189, 1909 Ky. LEXIS 141 ( Ky. 1909 ); Straight Creek Coal Mining Co. v. Straight Creek Coal & Coke Co., 135 Ky. 536 , 122 S.W. 842, 1909 Ky. LEXIS 318 ( Ky. 1909 ).

When mine or quarry owner operates railroad under this section he is not a common carrier within meaning of Const., § 210; but, being governed by railroad laws, he cannot prevent persons along his railroad from using it upon payment of a proper charge, nor can he make this charge prohibitive or extortionate. Straight Creek Coal Mining Co. v. Straight Creek Coal & Coke Co., 135 Ky. 536 , 122 S.W. 842, 1909 Ky. LEXIS 318 ( Ky. 1909 ).

6. Separate Business.

Operation of railroad by mining company under this section was not a separate business but an essential part of business of mining and marketing coal. Strunk v. Barren Fork Coal Co., 253 Ky. 333 , 69 S.W.2d 723, 1934 Ky. LEXIS 670 ( Ky. 1934 ).

7. Spur Track.

Contract under which mining company agreed to indemnify railroad against claims arising from operation of spur track was not contrary to public policy, and was supported by consideration. Luton Mining Co. v. Louisville & N. R. Co., 276 Ky. 321 , 123 S.W.2d 1055, 1938 Ky. LEXIS 551 ( Ky. 1938 ).

Where mining company and railroad entered into contract covering operation of spur track, slight changes in location of tracks made by mining company for its own convenience would not affect its liability under the contract. Luton Mining Co. v. Louisville & N. R. Co., 276 Ky. 321 , 123 S.W.2d 1055, 1938 Ky. LEXIS 551 ( Ky. 1938 ).

8. Liability for Trespass.

If a coal company while constructing a railroad under this section encroached upon lands by depositing rock, dirt and debris outside of the 50-foot right of way, and at a place where it was not reasonably necessary in the construction of the railroad, it committed a trespass, but a later owner could not be held liable for this trespass. Buck Creek R. Co. v. Haws, 264 Ky. 436 , 94 S.W.2d 980, 1936 Ky. LEXIS 328 ( Ky. 1936 ).

9. Joint Stock Company.

Joint stock company, having the right of eminent domain under this section, is a corporation within the meaning of Const., § 203 by reason of Const., § 208. Stearns Coal Co. v. McPherson, 144 Ky. 730 , 139 S.W. 971, 1911 Ky. LEXIS 734 ( Ky. 1911 ).

10. Rates.

Where, as consideration for construction of railroad by mining company, others agreed to pay certain charge for transportation of freight over railroad, they cannot claim that such charges are extortionate until mining company has been repaid its outlay for construction. Straight Creek Coal Mining Co. v. Straight Creek Coal & Coke Co., 135 Ky. 536 , 122 S.W. 842, 1909 Ky. LEXIS 318 ( Ky. 1909 ).

Where mining company owned switch and charged tenants 8¢ per ton royalty for both coal and transportation and charged others 5¢ per ton for transportation, there was no discrimination against such others. Straight Creek Coal Mining Co. v. Straight Creek Coal & Coke Co., 135 Ky. 536 , 122 S.W. 842, 1909 Ky. LEXIS 318 ( Ky. 1909 ).

Cited:

Holladay v. Peabody Coal Co., 560 S.W.2d 550, 1977 Ky. LEXIS 570 ( Ky. 1977 ).

277.050. Corporation constructing or operating union station may condemn land.

Any corporation organized under the laws of this or any other state for the purpose of constructing, maintaining, or operating union railway stations for passengers or freight may, except in cities of the first class or in a consolidated local government, acquire by condemnation, in the manner prescribed by the Eminent Domain Act of Kentucky, such lands and material in this state as it deems to be reasonably necessary for the purpose of constructing, maintaining, and operating such union railway stations and the usual or proper tracks, platforms, sheds, approaches, and other appurtenances thereto.

History. 835a: amend. Acts 1976, ch. 140, § 110; 2002, ch. 346, § 221, effective July 15, 2002.

Compiler’s Notes.

The Eminent Domain Act of Kentucky, referred to herein, is compiled as KRS 416.540 to 416.680 .

277.060. Powers and duties of railroad companies as to construction, alteration and maintenance of railroad line.

  1. Every railroad company may:
    1. Cause such examinations and surveys to be made as are necessary to the selection of the most advantageous route for its proposed railroad, and for that purpose its officers, agents and servants may enter upon the property of any person, subject to liability for all damage done by them to such property.
    2. Receive, hold and take possession of any voluntary grants and donations of property made to it to aid in the construction, maintenance and operation of the road; any real property so received shall be held and used for the purposes of the grant or donation only.
    3. Purchase, hold, take possession of and use all franchises and property necessary for the construction, maintenance and accommodation of its line of railroads, but the same shall not be taken or appropriated without the consent of the owner until the compensation to be made therefor is agreed upon or ascertained, and paid or deposited, as provided by the Eminent Domain Act of Kentucky.
    4. Lay out and construct its road not exceeding one hundred (100) feet in width, unless more than one (1) track is laid, in which case the width may be extended not exceeding fifty (50) feet for each additional track.
    5. Take, in the manner provided by the Eminent Domain Act of Kentucky such lands in the vicinity of or adjacent to its road as are necessary for cuts or embankments, the procurement of stone, gravel or other materials, or for draining the roadbed.
    6. Change, when it deems proper, the gauge of its road.
    7. Change the location or grade of any portion of its road for any reasonable cause, but shall not, except as otherwise provided by law, depart from the general route prescribed in the articles of incorporation.
    8. Construct its road upon or across any private road, highway, street, lane or alley, and across any railroad, canal or watercourse.
  2. Every railroad company shall restore to its former condition, as near as may be, any private road, highway, street, lane, alley, railroad, canal or watercourse upon or across which it has constructed its road, and shall maintain the same in that condition within the right-of-way of the railroad company. It shall construct suitable road and street crossings for the passage of traffic by putting down planks or other suitable material between and on each side of the rails, the top of which shall be at least as high as the top of the rails.
  3. If the railroad is constructed upon any public street or alley, the construction shall be upon such terms and conditions as are agreed upon between the company and the authorities of the city, and the road shall not be constructed until compensation is made, either by agreement or in the manner provided by the Eminent Domain Act of Kentucky, to the owners of the property adjoining those parts of the street or alley on which the road is to be constructed.
  4. Any railroad company may build such spurs, switches, tracks or branches as are necessary to conduct its business or develop business along its line of road, and for that purpose shall have the same powers and be subject to the same restrictions and liabilities as are conferred or imposed upon it for the construction of its main line.

History. 768, 769: amend. Acts 1976, ch. 140, § 111.

Compiler’s Notes.

The Eminent Domain Act of Kentucky, referred to herein, is compiled as KRS 416.540 to 416.680 .

NOTES TO DECISIONS

  1. Application.
  2. Use of Right-of-Way.
  3. Condemnation.
  4. Change of Land Use.
  5. Public Nuisance.
  6. Change in Location.
  7. Construction Across Public Ways.
  8. — Violation of Covenants.
  9. — Consent of City Authorities.
  10. — — Refusal of Consent.
  11. — Sharing of Construction Costs.
  12. Maintenance.
  13. — Order to Abandon Line.
  14. — Sidewalk.
  15. — Crossings.
  16. — Underpasses and Overpasses.
  17. Restoring Property.
  18. Compensation to Owners.
  19. Taking of Private Property.
  20. Abandonment of Easement.
1. Application.

This section applies to railroads of every character, including steam and electric, and although Const., § 163 omits steam railroads the legislature had the power through this section to require steam railroads to obtain city authority to use its streets. Covingtn v. Louisville & N. R. Co., 158 Ky. 136 , 164 S.W. 329, 1914 Ky. LEXIS 569 ( Ky. 1914 ).

Subsection (2) of this section has no application to the erection of safety zone posts in street by street railway for benefit of its passengers. Such posts are not dangerous obstructions of the street. Goucher v. Louisville R. Co., 247 Ky. 504 , 57 S.W.2d 472, 1933 Ky. LEXIS 416 ( Ky. 1933 ).

2. Use of Right-of-Way.

Railroad may use its right-of-way for any purpose necessarily incident to its business, which does not interfere with the rights of property owners or trespass upon the rights of the public. Louisville & N. R. Co. v. Covington, 184 Ky. 811 , 213 S.W. 568, 1919 Ky. LEXIS 141 ( Ky. 1919 ).

State or city may extend streets across an existing railroad right-of-way and railroad is not entitled to compensation for expense it might necessarily incur in constructing, maintaining, or protecting these streets across its right-of-way. Louisville & N. R. Co. v. Louisville, 131 Ky. 108 , 114 S.W. 743, 1908 Ky. LEXIS 115 ( Ky. 1908 ).

3. Condemnation.

Railroad cannot exercise the right of eminent domain by obstructing or appropriating a highway unless it furnishes another way substantially as good as the old one for the public. Louisville & N. R. Co. v. Hart County, 50 S.W. 60, 20 Ky. L. Rptr. 1820 (1899).

Under paragraph (e) of subsection (1) of this section, railroad need only allege that the land proposed to be taken is necessary. This is a question of law for the court to decide. Warden v. Madisonville, H. & E. R. Co., 125 Ky. 644 , 101 S.W. 914, 31 Ky. L. Rptr. 234 , 1907 Ky. LEXIS 309 ( Ky. 1907 ).

In proceeding to condemn strip 200 feet wide, evidence showed reasonable necessity for the land, which is all that is required. Contractor’s testimony that his contract was for single track was not conclusive that railroad did not intend to build another. Warden v. Madisonville H. & E. R. Co., 128 Ky. 563 , 108 S.W. 880, 33 Ky. L. Rptr. 38 , 1908 Ky. LEXIS 77 ( Ky. 1908 ).

Where power of eminent domain is delegated, the state reserves right of future control of the property taken and the power to take it again as many times as is necessary for public use. Louisville & N. R. Co. v. Louisville, 131 Ky. 108 , 114 S.W. 743, 1908 Ky. LEXIS 115 ( Ky. 1908 ).

4. Change of Land Use.

In petition by state to escheat lots lying along and near railroad right-of-way under Const., § 192, lot occupied by section foreman, lot constituting only available site for future station, lot for storing ties, lots near freight station held for future use, lots planted with trees to be used for future ties and lot with buildings occupied by section hands were not subject to escheat. Louisville & N. R. Co. v. Commonwealth, 151 Ky. 325 , 151 S.W. 934, 1912 Ky. LEXIS 812 ( Ky. 1912 ), modified, 151 Ky. 774 , 152 S.W. 976, 1913 Ky. LEXIS 586 ( Ky. 1913 ).

Where deed conveying land to railroad company was unconditional, title did not revert to grantor when railroad ceased to use land for railroad purposes. Davis v. Rose, 278 Ky. 752 , 129 S.W.2d 530, 1939 Ky. LEXIS 491 ( Ky. 1939 ).

5. Public Nuisance.

Use of street for switching purposes by railroad was not such interference with public use as to constitute public nuisance. Illinois C. R. R. v. Covington, 211 Ky. 825 , 278 S.W. 109, 1925 Ky. LEXIS 977 ( Ky. 1925 ).

Permanent obstruction of streets and highways by railroad is nuisance. Chesapeake & O. R. Co. v. Bellevue, 239 Ky. 61 , 38 S.W.2d 943, 1931 Ky. LEXIS 728 ( Ky. 1931 ).

Where railroad crossings over roads at grade level are constructed and maintained in a legal manner, under a statutory right, they cannot be said to constitute a public nuisance. Jefferson County v. Louisville & N. R. Co., 245 S.W.2d 611, 1951 Ky. LEXIS 1264 ( Ky. 1951 ).

In action by railway to enjoin city from enforcing ordinance requiring railway to build an underpass or overpass at one of nine crossings within city limits, city’s answer did not allege facts sufficient to show authorized use of crossings by railway constituted a nuisance and therefore ordinance could not be sustained under KRS 86.150 (now repealed). Harrodsburg v. Southern R. Co., 313 S.W.2d 864, 1958 Ky. LEXIS 280 ( Ky. 1958 ).

Normal, prudent, authorized operation of a railroad over properly constructed and maintained crossing is not a nuisance. Harrodsburg v. Southern R. Co., 313 S.W.2d 864, 1958 Ky. LEXIS 280 ( Ky. 1958 ).

6. Change in Location.

Paragraph (g) of subsection (1) of this section fixes the extent and purpose for which location of railroad may be changed. After railroad has been constructed, no change of location can be made without legislative authority. Southern R. Co. v. Hatchett, 174 Ky. 463 , 192 S.W. 694, 1917 Ky. LEXIS 235 ( Ky. 1917 ) ( Ky. 1917 ).

Removal of railroad tracks in the manner provided by statute does not give one owning property contiguous to abandoned track a cause of action against the railroad. Beatty v. Louisville & N. R. Co., 176 Ky. 100 , 195 S.W. 487, 1917 Ky. LEXIS 47 ( Ky. 1917 ).

7. Construction Across Public Ways.

Right to construct railroad across public street is not superior to right others have to use the street for the purpose for which it was dedicated, and railroad cannot so use street as to amount to a conversion of it to its exclusive use and the exclusion from it of others. Illinois C. R. R. v. Covington, 211 Ky. 825 , 278 S.W. 109, 1925 Ky. LEXIS 977 ( Ky. 1925 ).

Although KRS 67.080 enjoins the fiscal court with the duty of providing for the “good condition of the highways in the county,” it is clear that a county has no statutory authority to prevent a railroad from crossing a county highway at grade level if the railroad company complies with the requirements of this section and KRS 179.290 . Jefferson County v. Louisville & N. R. Co., 245 S.W.2d 611, 1951 Ky. LEXIS 1264 ( Ky. 1951 ).

This section grants railroads the right to cross streets at grade level. Harrodsburg v. Southern R. Co., 313 S.W.2d 864, 1958 Ky. LEXIS 280 ( Ky. 1958 ).

Paragraph (h) of subsection (1) of this section applies to a complete crossing as part of a continuous road and does not apply to a switch or “Y” extending from a track in a street to a lot adjacent to the street. Shelbyville, Ky. v. Glover, 184 F. 234, 1910 U.S. App. LEXIS 5084 (6th Cir. Ky. 1910 ).

Paragraph (h) of subsection (1) of this section does not authorize railroad to lay its tracks longitudinally in the highway. Jefferson v. Louisville & I. R. Co., 155 Ky. 810 , 160 S.W. 502, 1913 Ky. LEXIS 352 ( Ky. 1913 ).

The words “upon” and “across” are to be construed as synonymous when applied to railroad’s occupation and use of a street, sidewalk or highway. Jefferson v. Louisville & I. R. Co., 155 Ky. 810 , 160 S.W. 502, 1913 Ky. LEXIS 352 ( Ky. 1913 ). See Covingtn v. Louisville & N. R. Co., 158 Ky. 136 , 164 S.W. 329, 1914 Ky. LEXIS 569 ( Ky. 1914 ).

8. — Violation of Covenants.

Purchasers of lots in new subdivision outside city were not entitled to injunctive relief against railroad building track through new subdivision, even though deeds to lots provided that purchasers should be entitled to free use of streets and alleys. Husbands v. Paducah & I. R. Co., 176 Ky. 290 , 195 S.W. 831, 1917 Ky. LEXIS 70 (Ky.), modified, 178 Ky. 458 , 199 S.W. 3, 1917 Ky. LEXIS 746 ( Ky. 1917 ).

9. — Consent of City Authorities.

Where city ordinance authorizing construction of railroad in street required it to be constructed so as not to impede or obstruct traffic over its track at any point and provided that no ordinance could be enacted rendering it useless, company was not required to construct its road so that vehicles could pass over it at any point along its line and city had no right after road was constructed to prescribe such grade for the track as would be equivalent to the removal of the road. City of Owensboro v. Owensboro & N. R. Co., 40 S.W. 916, 19 Ky. L. Rptr. 449 (1897).

Where city prescribes streets and route along which interurban railroad may construct tracks, no franchise or privilege is granted to railroad that it does not have under this section; and such grant is not in violation of Const., § 164. Diebold v. Kentucky Traction Co., 117 Ky. 146 , 77 S.W. 674, 25 Ky. L. Rptr. 1275 , 1903 Ky. LEXIS 280 ( Ky. 1903 ).

Previous consent of city for railroad to occupy street did not give railroad right to build track across sidewalk without obtaining permission so to do. Covingtn v. Louisville & N. R. Co., 158 Ky. 136 , 164 S.W. 329, 1914 Ky. LEXIS 569 ( Ky. 1914 ).

Subsections (3) and (4) of this section must be read together, and consent of city must be obtained before railroad can build a spur across sidewalk, which is part of street. Covingtn v. Louisville & N. R. Co., 158 Ky. 136 , 164 S.W. 329, 1914 Ky. LEXIS 569 ( Ky. 1914 ).

Where railroad crosses city streets, its right to excavate and lay water mains under the streets to supply its engines is inherent in the grant to use the streets, but city may prescribe regulations, governing excavation and laying of water mains, for protection of city and traveling public. Louisville & N. R. Co. v. Covington, 184 Ky. 811 , 213 S.W. 568, 1919 Ky. LEXIS 141 ( Ky. 1919 ).

A city council is given the power to authorize the use of the streets by a railway and to determine the sufficiency of the type and plan of construction and where a railroad bridge is constructed and maintained in accordance with the plan, neither the city nor the railroad will be liable in an action of negligence for an injury arising therefrom unless the plan adopted is manifestly unsafe or dangerous. Pugh v. Catlettsburg, 214 Ky. 312 , 283 S.W. 89, 1926 Ky. LEXIS 323 ( Ky. 1926 ).

City cannot assess and collect apportioned cost of street improvement against property of railroad having tracks in center of street, in absence of agreement under subsection (3) of this section. Louisville & N. R. Co. v. Frankfort, 239 Ky. 670 , 40 S.W.2d 288, 1931 Ky. LEXIS 840 ( Ky. 1931 ).

Since legislature has undertaken to exercise complete control of grade crossings and their elimination by statute any common-law rights of cities with regard to grade crossings is clearly abrogated; therefore city of fourth class had no right by virtue of common law to pass ordinance requiring railroad to build underpass or overpass at one of nine crossings within city limits. Harrodsburg v. Southern R. Co., 313 S.W.2d 864, 1958 Ky. LEXIS 280 ( Ky. 1958 ).

Subsection (1)(h) of this section and original franchise granted railroad by city authorized a temporary obstruction by railroad of city streets such as the blocking of all municipal crossings simultaneously by a long moving freight train thereby blocking traffic between two parts of city. Harrodsburg v. Southern R. Co., 313 S.W.2d 864, 1958 Ky. LEXIS 280 ( Ky. 1958 ).

10. — — Refusal of Consent.

Railroad upon rejection of its own terms and refusal of permission by city, cannot proceed to lay its water mains underneath the streets and enforce its right by enjoining city from interfering with the work. If railroad has a remedy for city’s arbitrary refusal to agree upon terms and conditions (a question not decided), it is by mandamus to compel city authorities to exercise their discretion in good faith. Louisville & N. R. Co. v. Covington, 181 Ky. 86 , 203 S.W. 1060, 1918 Ky. LEXIS 494 ( Ky. 1918 ).

11. — Sharing of Construction Costs.

A city may, by ordinance, contract or franchise, require railroad to bear its proportion of the cost of constructing or reconstructing streets along which its tracks run. Kentucky Traciton & Terminal Co. v. Carey-Reed Co., 188 Ky. 226 , 221 S.W. 1078, 1920 Ky. LEXIS 261 ( Ky. 1920 ).

12. Maintenance.

An indictment of a railroad company for a common nuisance in suffering its railroad bridge to remain out of repair was sufficient although it did not allege the bridge was on the railroad’s right-of-way since it apprised the railroad fully of the charge to be tried. Illinois C. R. Co. v. Commonwealth, 138 Ky. 742 , 129 S.W. 94, 1910 Ky. LEXIS 125 ( Ky. 1910 ).

This section imposes a duty to maintain the highway upon the railroad company only where its tracks are constructed over existing highways and streets. Cincinnati, N. O. & T. P. R. Co. v. Wright, 549 S.W.2d 499, 1976 Ky. LEXIS 149 ( Ky. 1976 ).

Unless shown to have constructed its track over an existing highway, a railroad company does not have a duty to perform ordinary maintenance of the highway surface outside of the crossing and its immediate approaches. Cincinnati, N. O. & T. P. R. Co. v. Wright, 549 S.W.2d 499, 1976 Ky. LEXIS 149 ( Ky. 1976 ).

Railroad company which did not construct its tracks over an existing highway has no duty to remove sand on that portion of the highway within its right-of-way, particularly where the sand was installed by the county highway department to protect the public from the dangers of snow and ice. Cincinnati, N. O. & T. P. R. Co. v. Wright, 549 S.W.2d 499, 1976 Ky. LEXIS 149 ( Ky. 1976 ).

13. — Order to Abandon Line.

Where part of consideration for conveyance of right of way was agreement of railroad to maintain switch and flag station on conveyed right-of-way “forever,” it was held that intention of parties was that switch and flag station should be maintained only so long as railroad operated line along right-of-way, and railroad’s obligation ceased when it was ordered by interstate commerce commission to abandon line. Meacham v. Louisville & N. R. Co., 293 Ky. 642 , 169 S.W.2d 830, 1943 Ky. LEXIS 678 ( Ky. 1943 ).

14. — Sidewalk.

Under this section a railroad company has the duty to keep a sidewalk crossed by its tracks in a reasonably safe condition for pedestrians. Chesapeake & O. R. Co. v. Pope, 296 Ky. 254 , 176 S.W.2d 876, 1943 Ky. LEXIS 150 ( Ky. 1943 ).

15. — Crossings.

It is the duty of a railroad company to maintain in reasonable order and condition all highways crossing the tracks of the railroad, to the full width of the right-of-way, regardless of any question as to the time of their establishment and failure so to do constitutes a nuisance. Commonwealth v. Louisville & N. R. Co., 109 Ky. 59 , 58 S.W. 478, 22 Ky. L. Rptr. 572 , 1900 Ky. LEXIS 170 ( Ky. 1900 ).

Requirement of railroad’s charter that railroad furnish farm crossings is a continuing obligation and it is required to furnish crossings reasonably necessary for the fair use of the land and when timber land is cleared and occupied as a residence the owner is entitled to a reasonable crossing from one part of the land to the other. Louisville & N. R. Co. v. Troutman, 137 Ky. 827 , 127 S.W. 474, 1910 Ky. LEXIS 633 ( Ky. 1910 ).

Railroad’s duty to restore highway at crossing and construct and maintain approaches to crossing cannot be delegated to county officials. Louisville & I. R. Co. v. Speckman, 169 Ky. 385 , 183 S.W. 915, 1916 Ky. LEXIS 695 ( Ky. 1916 ).

Where retaining wall outside right-of-way is a support both for railroad road-bed and approach to a crossing, the railroad alone has duty of properly constructing and maintaining the wall in a condition to make the approach and crossing safe for travel. Louisville & I. R. Co. v. Speckman, 169 Ky. 385 , 183 S.W. 915, 1916 Ky. LEXIS 695 ( Ky. 1916 ).

If changes in the ordinary and usual mode of travel render a railroad crossing and structure dangerous, the duty rests upon the railroad company to meet these changes and exigencies of modern travel. Tennessee C. R. Co. v. Hancock's Adm'x, 245 Ky. 426 , 53 S.W.2d 708, 1932 Ky. LEXIS 605 ( Ky. 1932 ).

In the absence of undisputed evidence of actual or presumptive knowledge of defects, a railroad company is only required to exercise ordinary care to maintain highway across its tracks to the requisite standard of being reasonably safe for public travel as it is not an insurer of such maintenance. Louisville & N. R. Co. v. Jackson's Adm'r, 243 Ky. 59 , 47 S.W.2d 941, 1932 Ky. LEXIS 35 ( Ky. 1932 ).

In the absence of undisputed evidence of actual or presumptive knowledge of defects a railroad is only required to exercise ordinary care to maintain the highway across its tracks to the requisite standard for the use of the traveling public, including persons traveling on foot, and it is not an insurer of such maintenance. Cincinnati, N. O. & T. P. R. Co. v. Terry, 267 Ky. 707 , 103 S.W.2d 65, 1937 Ky. LEXIS 362 ( Ky. 1937 ).

Where pedestrian could have crossed tracks ahead of approaching train safely, but caught his foot in a hole in the sidewalk, and was unable to extricate same in time to avoid injury, the question involved was the negligence of the railroad for failure to maintain crossing in safe condition as required by this section. Chesapeake & O. R. Co. v. Pope, 296 Ky. 254 , 176 S.W.2d 876, 1943 Ky. LEXIS 150 ( Ky. 1943 ).

Because there was evidence that a gravel drive that crossed railroad tracks was not maintained by the county and that it was rarely used by any one other than a farmer, and because plaintiff deputy produced no evidence that the county in fact maintained the drive, the court agreed with the district court’s conclusion that the gravel drive was private and thus defendant railroad’s duties were minimal unless the crossing were deemed ultra-hazardous. Dugle v. Norfolk Southern Ry., 683 F.3d 263, 2012 FED App. 0192P, 2012 U.S. App. LEXIS 12631 (6th Cir. Ky. 2012 ).

16. — Underpasses and Overpasses.

This section imposes upon a railroad the duty to keep a bridge on its right-of-way in proper condition for public travel and it is immaterial that the bridge was originally built and formerly maintained by town. Illinois C. R. Co. v. Commonwealth, 138 Ky. 742 , 129 S.W. 94, 1910 Ky. LEXIS 125 ( Ky. 1910 ).

County cannot require railroad, at its own expense, to carry a new highway over its track by means of a bridge. Louisville & N. R. Co. v. Hopkins County, 153 Ky. 718 , 156 S.W. 379, 1913 Ky. LEXIS 907 ( Ky. 1913 ).

Railroad’s failure to erect guard rails to a bridge or its approaches where clearly necessary for the safety of travelers is actionable negligence. Cincinnati, N. O. & T. P. R. Co. v. Dungan, 162 Ky. 36 , 171 S.W. 1007, 1915 Ky. LEXIS 11 ( Ky. 1915 ).

The common-law duties of railroads relating to an overhead crossing have neither been repealed nor modified by statute. Louisville & N. R. Co. v. Muncey, 229 Ky. 538 , 17 S.W.2d 422, 1928 Ky. LEXIS 10 ( Ky. 1928 ).

Where a bridge was constructed by a city for the purpose of connecting two (2) public ways of the city and with the consent of a railroad company it crossed the railroad right-of-way 30 feet above the surface of the earth it was the duty of the railroad company to maintain the bridge in reasonably safe condition for the traveling public. Louisville & N. R. Co. v. Muncey, 229 Ky. 538 , 17 S.W.2d 422, 1928 Ky. LEXIS 10 ( Ky. 1928 ).

Where a railroad consents to the construction of a public overhead crossing above its tracks, it has duty of maintaining such crossing in a reasonably safe condition for the benefit of the traveling public. Louisville & N. R. Co. v. Muncey, 229 Ky. 538 , 17 S.W.2d 422, 1928 Ky. LEXIS 10 ( Ky. 1928 ).

Where city, with consent of railroad, constructed overhead bridge crossing railroad, city had primary duty to maintain bridge in proper condition, but railroad was also under duty to see that bridge was properly maintained. Louisville & N. R. Co. v. Muncey, 229 Ky. 538 , 17 S.W.2d 422, 1928 Ky. LEXIS 10 ( Ky. 1928 ).

City was not required to construct through street up to both sides of railroad fill before it could compel railroad to construct underpass, where evidence showed that construction of underpass was only practical way of restoring street. Chesapeake & O. R. Co. v. Bellevue, 239 Ky. 61 , 38 S.W.2d 943, 1931 Ky. LEXIS 728 ( Ky. 1931 ).

Railroad must maintain private crossing over which it has constructed overpass. Juett v. Cincinnati, N. O. & T. P. R. Co., 245 Ky. 379 , 53 S.W.2d 551, 1932 Ky. LEXIS 586 ( Ky. 1932 ).

When railroad company destroyed overpass and erected a new one one-fourth (1/4) wider and twice as long, contract of property owner to pay for half the cost of repairing the original overpass terminated. Juett v. Cincinnati, N. O. & T. P. R. Co., 245 Ky. 379 , 53 S.W.2d 551, 1932 Ky. LEXIS 586 ( Ky. 1932 ).

Where railroad in constructing bridge restored approach thereto to its former condition, it was not required to erect or maintain guard on side of approach along river. Christopher's Adm'r v. Louisville & N. R. Co., 259 Ky. 166 , 82 S.W.2d 282, 1935 Ky. LEXIS 285 ( Ky. 1935 ).

17. Restoring Property.

Subsection (2) of this section, providing for restoration of road, does not apply where railroad by purchase or condemnation acquires a private passway, from the owner thereof, as part of its right-of-way. However, the statute does apply if the passageway is an easement in favor of one not the owner of the land over which it runs, and who has not been compensated for its loss. Turner v. Louisville & N. R. Co., 189 Ky. 714 , 225 S.W. 1072, 1920 Ky. LEXIS 503 ( Ky. 1920 ).

Subsection (2) of this section imposes upon a railroad crossing a highway or street the absolute duty of restoring to its former condition any highway or street thus interfered with, and although it is expressly dealing with the whole subject of the duties and responsibilities of the railroad respecting such crossings, it is significantly silent in imposing any duty with respect to the maintenance outside of the right-of-way of such structures as it may be necessary for it to erect in the approaches to the crossing. Fiscal Court of Fulton County v. Nashville, C. & S. L. R. Co., 202 Ky. 846 , 261 S.W. 617, 1924 Ky. LEXIS 831 ( Ky. 1924 ). See Louisville & N. R. Co. v. Commonwealth, 149 Ky. 459 , 149 S.W. 898, 1912 Ky. LEXIS 658 ( Ky. 1912 ).

City may, either under subsection (2) of this section or under common law, compel railroad to restore street with which railroad has interfered in building tracks. Chesapeake & O. R. Co. v. Bellevue, 239 Ky. 61 , 38 S.W.2d 943, 1931 Ky. LEXIS 728 ( Ky. 1931 ).

Railroad’s duty to restore streets and highways includes doing whatever may be necessary to effect purpose of statute, whether by means of viaduct, bridge, grade crossing or underpass. Chesapeake & O. R. Co. v. Bellevue, 239 Ky. 61 , 38 S.W.2d 943, 1931 Ky. LEXIS 728 ( Ky. 1931 ).

18. Compensation to Owners.

Damages may be awarded property owners abutting a railroad only when the rights of the owners are unreasonably abridged and the construction and operation of a railroad in a street by a railroad granted the right to use the street gives to abutting owners no cause of action in absence of unreasonable abridgement of their rights. Chesapeake & O. R. Co. v. Kobs, 30 S.W. 6, 17 Ky. L. Rptr. 130 (1895).

Where city addition had been platted, but before streets therein had been accepted railroad was permitted by landowner to lay a switch on what subsequently became city street and switch was subsequently authorized by city ordinance, railroad’s right to maintain switch was not a mere license revocable at will of licensor, but railroad was entitled to continue the maintenance of the switch after acceptance of street by the city only upon payment of damages to adjoining landowner as provided in subsection (3) of this section. Koch v. Kentucky & I. R. & B. Co., 80 S.W. 1133, 26 Ky. L. Rptr. 216 (1904).

19. Taking of Private Property.

Subsection (4) of this section does not give railroads the right to take private property for private purposes without the consent of the owner. It was intended to enable railroads to acquire by consent or condemnation property in a proper state of case upon which it might construct and operate a branch road. Riley v. Louisville, H. & S. L. R. Co., 142 Ky. 67 , 133 S.W. 971, 1911 Ky. LEXIS 126 ( Ky. 1911 ).

20. Abandonment of Easement.

Because railroad owned nothing more than a right-of-way easement, upon abandonment of the easement, it could not be obligated to maintain fencing along the easement and its attempt to convey by quit-claim deed a certain stretch of the right-of-way to outside parties was ineffective; present owners of the servient estates hold the underlying strips of land discharged with the easement; owners generally holding to the center of the strip of land comprising the easement to be determined on remand. Illinois Cent. R.R. v. Roberts, 928 S.W.2d 822, 1996 Ky. App. LEXIS 139 (Ky. Ct. App. 1996).

Cited:

Louisville & N. R. Co. v. Owensboro, 238 S.W.2d 148, 1951 Ky. LEXIS 806 ( Ky. 1951 ); Hunt’s Adm’r v. Chesapeake & O. R. Co., 254 S.W.2d 705, 1952 Ky. LEXIS 1136 ( Ky. 1952 ); Louisville & N. R. Co. v. Taylor, 290 S.W.2d 608, 1956 Ky. LEXIS 334 ( Ky. 1956 ).

Research References and Practice Aids

Cross-References.

Cities of fourth class may grant right of way to and regulate operation of railroads, KRS 96.070 .

Condemnation of land by railroads, KRS 416.010 .

Ditch, levee or altered watercourse crossing or affecting railroad track, duties of railroad company concerning, KRS 267.140 , 267.190 , 267.270 , 268.540 .

Grade-crossing elimination, KRS 177.110 to 177.210 .

Railroad to restore road within six months after obstructing, KRS 179.290 .

Kentucky Law Journal.

Proximate Cause — Contributory Negligence — The Last Clear Chance Doctrine — Chesapeake and Ohio Railway Company v. Poe, 33 Ky. L.J. 132 (1945).

277.065. Allocation of costs of eliminating grade crossings between railroad and governmental unit.

The entire construction costs of projects for the elimination of hazards of railroad-highway crossings, including the separation or protection of grades at crossings, the reconstruction of existing railroad grade crossing structures, and the relocation of highways to eliminate railroad grade crossings which may be paid for in whole or part from state funds, including, but not limited to, the cost of preparing the plans and specifications and supervising the improvement, the acquisition of necessary property, the construction of approaches, drainage structures, roadways and pavements, accommodations for public utilities, and damages paid to abutting property owners, shall be allocated between the railroad involved, and the governmental unit or units involved in the same ratio as the net benefit received by such railroad from the project bears to the net benefit accruing to the public using the highway, and in no case shall the net benefit to any railroad or railroads be deemed to be more than ten percent (10%) of the total benefit resulting from the project. The Department of Highways shall be responsible for determining the proportion of the benefits derived by the railroad from the project, and shall fix standards for the determining of said benefits which shall be consistent with the standards adopted for similar purposes by the United States Bureau of Public Roads under the Federal-Aid-Highway Act of 1944. The cost of maintenance of all structures for the elimination of railroad grade crossings, and of installations for the protection of existing grade crossings, constructed or installed under this section, shall be borne by the governmental unit or units constructing them. Before any state funds shall be expended for any project constructed under this section, a contract shall be entered into between the railroad and the governmental unit or units involved setting forth the duties of each as to construction and maintenance of the project.

History. Enact. Acts 1958, ch. 78, § 1, effective June 19, 1958.

Compiler’s Notes.

The Federal-Aid-Highways Act, referred to herein, was recodified and is presently compiled as 23 USCS §§ 101 et seq.

NOTES TO DECISIONS

1. Contract for Maintenance of Electric Signals.

Contract between department of highway (now department of highways) and railroad under which department agreed to maintain certain electric signaling devices at grade crossings over railroad did not constitute a donation or lending of credit of the state to a private corporation, since the maintenance of such devices are for the promotion of safety for the public who use the highway. Ward v. Louisville & N. R. Co., 402 S.W.2d 98, 1966 Ky. LEXIS 356 ( Ky. 1966 ).

Research References and Practice Aids

Cross-References.

Counties containing first-class cities, KRS 178.355 .

State, KRS 177.170 .

277.070. Map of route to be recorded — Notice to Transportation Cabinet if another railroad crossed.

  1. Every railroad company proceeding to construct its road in or through any county shall file and have recorded at its expense, in the office of the county clerk of that county, a map of the route showing the center and the width of the proposed road. If, after the map is filed and recorded, the location or the proposed route is changed, a map showing the change, and the center and width thereof, shall be filed and recorded at the expense of the company in the office of the county clerk of the county in which the change is made.
  2. If the proposed route indicated by the map crosses the line of any other railroad, the company filing the map shall, before commencing the construction of the road near the point of crossing, notify the Kentucky Transportation Cabinet. The cabinet shall notify the company whose road it is proposed to cross, and the company proposing to cross it, that if any objection is made to the crossing the cabinet will meet, at a stated time and place, to consider the question of approving the crossing. The cabinet may determine the manner in which the crossing shall be made in order to protect against accidents.

History. 767: amend. Acts 2000, ch. 417, § 11, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

NOTES TO DECISIONS

  1. Application.
  2. Priority of Survey.
  3. Authorization of Railroad to Cross Another.
1. Application.

This section does not apply to the crossing of a trunk railroad by a street railroad. Louisville & N. R. Co. v. Bowling G. R. Co., 110 Ky. 788 , 63 S.W. 4, 23 Ky. L. Rptr. 273 , 1901 Ky. LEXIS 158 ( Ky. 1901 ).

2. Priority of Survey.

The purpose of requiring a map to be filed under this section is to give notice of the location of the right-of-way but if a person has actual notice of the location of the right of way, the fact that the map was not filed cannot be relied on by him and where railroad making survey saw stakes of railroad making prior survey the first railroad to survey had priority although it was not the first to record a map of its location. Cumberland R. Co. v. Pine M. R. Co., 96 S.W. 199, 28 Ky. L. Rptr. 574 (1905).

3. Authorization of Railroad to Cross Another.

Under this section the action of railroad commission in authorizing one railroad to cross another under a trestle is conclusive and will not be disturbed on the ground that the trestle may be injured. Chicago, S. L. & N. O. R. Co. v. Louisville & N. R. Co., 58 S.W. 799, 22 Ky. L. Rptr. 658 , 1900 Ky. LEXIS 270 (Ky. Ct. App. 1900).

Research References and Practice Aids

Cross-References.

Aviation, KRS Ch. 183.

Common carrier not to consolidate with or acquire parallel or competing line, Const., § 201.

Motor carriers, KRS Ch. 281.

277.080. Railroad company may transport by motor vehicle and by air.

Any railroad company may engage in the business of a common carrier for the transportation of persons and property by motor vehicles operated upon the highways and by airplanes in the air, and may purchase or lease the property, rights and franchises of any person engaged in transportation of persons or property by motor vehicle or by airplane, and may acquire the capital stock of any corporation engaged in such transportation, or make any agreement or arrangement, not inconsistent with laws, with any person engaged or authorized to engage in such transportation. All railroad companies exercising the powers granted by this section shall, in their operation of motor vehicles, be deemed common carriers by motor vehicle, and shall be subject to all the laws of this state applicable to such motor carriers.

History. 768a.

277.090. Railroad company may operate ferry.

  1. Any railroad company may, without securing the grant of any ferry franchise or privilege from the county judge/executive, transport, or employ other persons to transport for it, any passengers, baggage or freight carried, or to be carried, on its railroad line, across any stream within or bordering upon this state.
  2. Any railroad company operating a ferry for the purposes mentioned in subsection (1) of this section may transport thereon any other persons, freight or baggage offered for transportation upon obtaining the grant of a ferry franchise or privilege in the manner prescribed by law, except that no railroad company, employee, agent or trustee of a railroad company, shall be granted a franchise or privilege to establish, operate or maintain a new ferry within one mile and a half in a straight line of any ferry already established and in operation.

History. 769a-1: amend. Acts 1978, ch. 384, § 455, effective June 17, 1978.

NOTES TO DECISIONS

1. Liability for Injury to Passengers.

Railroad was given the same rights and privileges as supplied to individual holders of ferry franchises under the laws of the state and railroad could not lease ferry to an out-of-state railroad and avoid liability for injury to passengers. Brooker v. Maysville & B. S. R. Co., 119 Ky. 137 , 83 S.W. 117, 26 Ky. L. Rptr. 1022 , 1904 Ky. LEXIS 152 ( Ky. 1904 ) (decided under prior law).

Research References and Practice Aids

Cross-References.

Private toll bridges and ferries, KRS Ch. 280.

277.100. Purchase or sale of railroad property and franchises — Subscription to stock in other railroads. [Repealed.]

Compiler’s Notes.

This section (769) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

277.110. Contract or lease under which railroad is operated to be recorded.

Every person operating a railroad in this state under a contract or lease shall, within thirty (30) days after the contract or lease is executed, have it recorded in the office of the Secretary of State and in the office of the county clerk of each county in which the road or any part thereof lies.

History. 791.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Written Lease.
  3. Indictment.
1. Constitutionality.

This section does not interfere with interstate commerce and does not violate the federal Constitution. Commonwealth v. Chesapeake & O. R. Co., 101 Ky. 159 , 40 S.W. 250, 19 Ky. L. Rptr. 329 , 1897 Ky. LEXIS 164 ( Ky. 1897 ).

2. Written Lease.

The lease required to be recorded by this section is a written lease. Commonwealth v. Chesapeake & O. R. Co., 101 Ky. 159 , 40 S.W. 250, 19 Ky. L. Rptr. 329 , 1897 Ky. LEXIS 164 ( Ky. 1897 ).

3. Indictment.

Indictment for violation of this section need not charge that the lease was a written one but will be sufficient if it follows the language of the statute and expressly charges the commission of the offense. Commonwealth Chesapeake & O. R. Co., 72 S.W. 359, 24 Ky. L. Rptr. 1880 , 1903 Ky. LEXIS 446 (Ky. Ct. App. 1903). See Commonwealth v. Chesapeake & O. R. Co., 101 Ky. 159 , 40 S.W. 250, 19 Ky. L. Rptr. 329 , 1897 Ky. LEXIS 164 ( Ky. 1897 ).

277.120. Borrowing by railroad company — Mortgages — Bonds. [Repealed.]

Compiler’s Notes.

This section (771: amend Acts 1946, ch. 141, § 17) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

277.130. Plan for reorganization of insolvent railroad company. [Repealed.]

Compiler’s Notes.

This section (771a-1, 771a-5, 771a-6) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

277.140. Judicial approval of plan and acceptance by creditors. [Repealed.]

Compiler’s Notes.

This section (771a-2, 771a-3) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

277.150. Sale of property where no plan proposed — Reorganization by purchasers. [Repealed.]

Compiler’s Notes.

This section (771a-4) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

277.160. Signs at railroad crossings — Imitation forbidden.

  1. Every railroad company shall cause signal boards to be placed and constantly maintained at each public highway where it is crossed by the railroad track at the same level, except that such boards need not be put up in any city unless required by the city authorities. The boards shall be well supported, and shall be placed so as to be easily seen by travelers and not to obstruct travel, and shall contain on each side, in capital letters at least five (5) inches high, the words “Railroad Crossing.”
  2. No person shall erect on or near a public highway any signboard or other contrivance similar to or like the danger signals used by railroads, interurbans and electric railway companies at road crossings.

History. 773, 773a-1.

NOTES TO DECISIONS

  1. Purpose.
  2. Duty to Give Warning.
  3. Duty to Employees.
  4. Public Crossings.
  5. — Duty of Motorist.
  6. Signals.
  7. — Failure to Install.
  8. — Failure to Function.
  9. — Adequacy.
  10. — Double Tracks.
  11. — Maintenance.
1. Purpose.

The only purpose of signal board is to give travelers on highway notice of railroad crossing. Louisville & N. R. Co. v. Foster, 230 Ky. 157 , 18 S.W.2d 983, 1929 Ky. LEXIS 51 ( Ky. 1929 ).

Purpose of signals and warnings as to railroad crossings is to warn of approach of trains, and railroad has no duty to warn motorists that train is standing on crossing. Sympson v. Southern R. Co., 279 Ky. 619 , 131 S.W.2d 481, 1939 Ky. LEXIS 313 ( Ky. 1939 ).

The purpose of a sign is to warn of the presence of the crossing so that the traveler may be on the lookout for the approach of trains. Gibson v. Louisville & N. R. Co., 382 S.W.2d 568, 1964 Ky. LEXIS 352 ( Ky. 1964 ).

2. Duty to Give Warning.

Where it was not argued that KRS 277.190 and this section were violated it was not required that railroad company, under the facts shown, should have placed servants on each side of the train with lights, so as to warn travelers, or have adopted some other method to notify travelers that a train was standing across the highway. Louisville & N. R. Co. v. Mischel's Adm'x, 272 Ky. 295 , 114 S.W.2d 115, 1938 Ky. LEXIS 119 ( Ky. 1938 ). See Scarbrough v. Louisville & N. R. Co., 276 Ky. 292 , 124 S.W.2d 88, 1939 Ky. LEXIS 520 ( Ky. 1939 ).

Motorist who drove into side of freight car standing on illuminated grade crossing could not recover from railroad since railroad had no duty to warn motorists that train was standing on crossing. Sympson v. Southern R. Co., 279 Ky. 619 , 131 S.W.2d 481, 1939 Ky. LEXIS 313 ( Ky. 1939 ).

Railroad has no duty to give warning of approach of its trains to a private crossing or to keep a lookout there, in the absence of proof that crossing was used by public generally in such numbers and for such time as to impose such duty. Louisville & N. R. Co. v. Engle, 278 Ky. 576 , 129 S.W.2d 133, 1939 Ky. LEXIS 470 ( Ky. 1939 ).

Where railroad had provided a standard sign reading “railroad crossing” in letters at least five inches high as required by this section and the crossing was not an extra hazardous one it was not under any duty to provide a flagman or any kind of signal lights and was not guilty of negligence. Bibbs v. Kentucky & I. T. Railroad, 300 S.W.2d 229, 1957 Ky. LEXIS 443 ( Ky. 1957 ).

3. Duty to Employees.

A railroad owes to its employees, who are not themselves responsible for discharging the railroad’s duty of care, the same duty to avoid accidents as it owes to nonemployees. Louisville & N. R. Co. v. Carter, 226 Ky. 561 , 10 S.W.2d 1064, 1927 Ky. LEXIS 843 ( Ky. 1927 ).

4. Public Crossings.

A road only a mile in length, one-half (1/2) of it being upon the land of an individual, and the other half upon the right-of-way of railroad and parallel with its tract over which freight and passenger trains were being operated daily and not dedicated to use by the public or accepted by the county or not shown to be used by the public under right of prescription was not a public road and railroad was under no duty to place and maintain signals. Louisville & N. R. Co. v. Survant, 96 Ky. 197 , 27 S.W. 999, 16 Ky. L. Rptr. 545 , 1894 Ky. LEXIS 104 ( Ky. 1894 ). See Louisville, H. & S. L. R. Co. v. Commonwealth, 104 Ky. 35 , 46 S.W. 207, 20 Ky. L. Rptr. 371 , 1898 Ky. LEXIS 127 ( Ky. 1898 ).

Erection of signboard at crossing after collision tended to establish that crossing was a public crossing since railroad is only required to erect signboard at public crossing. Louisville & N. R. Co. v. Foster, 230 Ky. 157 , 18 S.W.2d 983, 1929 Ky. LEXIS 51 ( Ky. 1929 ).

Railroad company was entitled to summary judgment in an action alleging negligent failure to keep a railroad crossing safe and negligent failure to warn the decedent of the approach of the train; the estate failed to show that the railroad crossing should be deemed public for purposes of KRS 277.160 and KRS 277.190 , that the crossing was extra-hazardous or habitually and pervasively used, or that the railroad company violated any of the limited duties at the private crossing. Gaw v. CSX Transp., Inc., 2008 U.S. Dist. LEXIS 23131 (W.D. Ky. Mar. 24, 2008), aff'd, 326 Fed. Appx. 382, 2009 FED App. 0374N, 2009 U.S. App. LEXIS 11334 (6th Cir. Ky. 2009 ).

5. — Duty of Motorist.

Motorist approaching crossing has duty only to use such care as would usually be expected of an ordinary prudent person in driving his car, and to learn of the approach of the train and keep out of its way. Chesapeake & O. R. Co. v. Pittman, 292 Ky. 331 , 166 S.W.2d 443, 1942 Ky. LEXIS 83 ( Ky. 1942 ).

A railroad crossing is in itself a warning of danger and a traveler having knowledge of its existence must exercise care for his own safety in such a degree as is proportionate to the danger then present or apparent of being struck by a train and if he miscalculates and is injured he is guilty of contributory negligence where there was proper crossing signboard at the crossing. Louisville & N. R. Co. v. Troutman, 351 S.W.2d 516, 1961 Ky. LEXIS 176 ( Ky. 1961 ).

6. Signals.

The character of signals to be given at crossing within incorporated cities is left to the city authorities. Illinois C. R. Co. v. Commonwealth, 108 Ky. 348 , 56 S.W. 409, 21 Ky. L. Rptr. 1779 , 1900 Ky. LEXIS 43 ( Ky. 1900 ).

7. — Failure to Install.

The failure of railroad to install a warning sign of its own was not the proximate cause of the accident where driver stated in his deposition that there was no traffic at the intersection in any direction, that he had no recollection of any parked cars, that he noticed the “stop sign” at the intersection and stopped, looked right and left, saw no traffic and proceeded and the next thing was the impact with the engine and that at no time prior to the impact did he see or hear the engine since under Kentucky law a party will not be heard to say that he looked and did not see what was in plain sight. Bolam v. Louisville & N. R. Co., 295 F.2d 809, 1961 U.S. App. LEXIS 3188 (6th Cir. Ohio 1961).

Where automobile stopped before crossing to see whether train was approaching, failure of railroad to maintain signal board was not negligence since the only purpose of signal board is to give travelers on highway notice of railroad crossing. Louisville & N. R. Co. v. Foster, 230 Ky. 157 , 18 S.W.2d 983, 1929 Ky. LEXIS 51 ( Ky. 1929 ).

Failure to place signal boards would not render railroad liable, where motorist knew railroad crossing and ran into train at night, when signal boards would have served no good purpose. Coil's Adm'x v. Chicago, S. L. & N. O. R. Co., 232 Ky. 33 , 22 S.W.2d 428, 1929 Ky. LEXIS 384 ( Ky. 1929 ).

8. — Failure to Function.

Where signal bell is maintained at crossing, railroad is bound to exercise ordinary care to see that it works, and is liable for injuries to persons using the crossing for its failure to do so. Payne v. Barnette's Adm'r, 196 Ky. 489 , 244 S.W. 896, 1922 Ky. LEXIS 537 ( Ky. 1922 ).

Where bell required to be maintained by railroad at crossing became out of order and remained out of order the railroad was not exercising ordinary care owed to employees to avoid a collision. Louisville & N. R. Co. v. Carter, 226 Ky. 561 , 10 S.W.2d 1064, 1927 Ky. LEXIS 843 ( Ky. 1927 ).

Refusal of court to instruct that if plaintiff relied exclusively on failure of electric signals to work, without using ordinary care for his own safety, then he was guilty of contributory negligence, was not error, since it is for jury to determine whether motorist, in proceeding across crossing where signals were not working, was using ordinary care under the circumstances in relying on the failure of the signals. Chesapeake & O. R. Co. v. Pittman, 292 Ky. 331 , 166 S.W.2d 443, 1942 Ky. LEXIS 83 ( Ky. 1942 ).

Where train approaching crossing was in a cut for some distance, and motorist on highway could not see the train before reaching a point on the highway only 75 or 80 feet from the crossing, and then only when the engine was within 40 or 50 feet of the crossing, and there was evidence that whistle and bell were not sounded until train was within 300 feet of the crossing and that wigwag signal was not working, motorist approaching crossing at 35 miles per hour was not negligent as a matter of law in failing to reduce speed or in failing to observe approach of train until too late to avoid being struck. Chesapeake & O. R. Co. v. Pittman, 292 Ky. 331 , 166 S.W.2d 443, 1942 Ky. LEXIS 83 ( Ky. 1942 ).

The fact that electric crossing signals are not working does not relieve the motorist of the duty to exercise ordinary care for his safety, but it does diminish the quantum of care considered as ordinary. Chesapeake & O. R. Co. v. Pittman, 292 Ky. 331 , 166 S.W.2d 443, 1942 Ky. LEXIS 83 ( Ky. 1942 ).

9. — Adequacy.

One sign in the immediate proximity of the tracks easily observable by a traveler approaching from either direction may be adequate. Gibson v. Louisville & N. R. Co., 382 S.W.2d 568, 1964 Ky. LEXIS 352 ( Ky. 1964 ).

10. — Double Tracks.

Person, crossing double track immediately behind train on near track without waiting to see if train was approaching from opposite direction on other track, was not contributorily negligent as matter of law where signal crossing bell that had been ringing had ceased to ring after train on near track had passed. Payne v. Barnette's Adm'r, 196 Ky. 489 , 244 S.W. 896, 1922 Ky. LEXIS 537 ( Ky. 1922 ).

11. — Maintenance.

Contract between department of highways and railroad under which department agreed to maintain certain electric signaling devices at grade crossings over railroad did not constitute a donation or lending of credit of the state to a private corporation, since the maintenance of such devices are for the promotion of safety for members of the public who use the highway. Ward v. Louisville & N. R. Co., 402 S.W.2d 98, 1966 Ky. LEXIS 356 ( Ky. 1966 ).

Cited:

Hunt’s Adm’r v. Chesapeake & O. R. Co., 254 S.W.2d 705, 1952 Ky. LEXIS 1136 ( Ky. 1952 ).

Opinions of Attorney General.

A city is authorized to require a railroad to erect sign boards at the railroad crossings on city streets inside the city limits. OAG 66-672 .

Research References and Practice Aids

Cross-References.

Buses, duty when approaching railroad crossing, KRS 281.745 .

Motor vehicles, duty when approaching railroad crossing, KRS 189.560 .

Treatises

Kentucky Instructions to Juries (Civil), 5th Ed., Railroads, §§ 25.01 — 25.04.

277.170. Flagman or gate at crossing of railroad with highway.

If the Kentucky Transportation Cabinet determines it is in the public interest for a gate to be erected or maintained or a flagman stationed at any highway crossing within one mile of the corporate limits of any city, the cabinet shall give the superintendent or manager of the railroad written notice that a gate or flagman is required. If a gate is required, the notice shall prescribe the time within which the gate shall be erected, the character of gate required, and shall designate the hours during which a man shall be kept in charge of the gate. If a flagman is required, the notice shall designate the hours during which he shall be kept at the crossing. The railroad company shall comply with the provisions of the notice. The cabinet may authorize the discontinuance of the gate or flagman whenever, in its judgment, the public interest no longer requires it.

History. 774: amend. Acts 2000, ch. 417, § 12, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

NOTES TO DECISIONS

  1. Duty of Railroad.
  2. Crossings Within City Limits.
  3. Train Standing on Crossing.
  4. Duty of Trainmen.
1. Duty of Railroad.

Failure of railroad commission to require flagman at crossing does not relieve railroad for failure to have flagman where common prudence requires the precaution to be taken. Such failure by commission is not admissible to show due care by railroad. Chesapeake & O. R. Co. v. Gunter, 108 Ky. 362 , 56 S.W. 527, 21 Ky. L. Rptr. 1803 , 1900 Ky. LEXIS 50 ( Ky. 1900 ).

Fact that railroad commission may require gates and flagmen within certain distance of towns does not relieve railroad from using proper means to warn travelers at other crossings. Louisville, H. & S. L. R. Co. v. Lyon, 58 S.W. 434, 22 Ky. L. Rptr. 544 , 1900 Ky. LEXIS 626 ( Ky. 1900 ).

2. Crossings Within City Limits.

Under KRS 96.070 , an ordinance of a city of the fourth class requiring all railroads to erect safety gates at certain street crossings is authorized. Chesapeake & O. R. Co. v. Maysville, 69 S.W. 728, 24 Ky. L. Rptr. 615 , 1902 Ky. LEXIS 324 (Ky. Ct. App. 1902).

Though railroad commission had no authority to require watchman be stationed at crossing in city, in action against railroad for running trains through city at unsafe speed without giving warning at crossings, evidence that watchman was stationed at crossing at request of commission was admissible to show good faith. Cincinnati, N. O. & T. P. R. Co. v. Commonwealth, 126 Ky. 712 , 104 S.W. 771, 31 Ky. L. Rptr. 1113 , 1907 Ky. LEXIS 98 ( Ky. 1907 ).

Fifth-class city was without authority to require railroad to erect safety gates at crossings. Chesapeake & O. R. Co. v. Harmon, 153 Ky. 669 , 156 S.W. 121, 1913 Ky. LEXIS 884 ( Ky. 1913 ).

Railroad commission has no authority over crossings within city limits. Chesapeake & O. R. Co. v. Maysville, 69 S.W. 728, 24 Ky. L. Rptr. 615 , 1902 Ky. LEXIS 324 (Ky. Ct. App. 1902). See Chesapeake & O. R. Co. v. Harmon, 153 Ky. 669 , 156 S.W. 121, 1913 Ky. LEXIS 884 ( Ky. 1913 ).

3. Train Standing on Crossing.

Railroad was not negligent in failing to have lights on side of train or box cars stopped on street crossing or to otherwise give warning to the traveling public that the train was occupying the highway crossing. Scarbrough v. Louisville & N. R. Co., 276 Ky. 292 , 124 S.W.2d 88, 1939 Ky. LEXIS 520 ( Ky. 1939 ).

Ordinarily a railroad has no duty to warn of the presence of a train standing at a crossing, however, an exception to this rule exists where it has been a custom of the railroad to give a warning and that custom has been certain, definite, uniform and known to travelers. Illinois C. R. Co. v. Maxwell, 292 Ky. 660 , 167 S.W.2d 841, 1943 Ky. LEXIS 726 ( Ky. 1943 ).

Where only evidence as to custom of railroad to maintain a flagman and lights at a crossing was that such was the practice during switching operations, the evidence was not sufficient to establish liability of railroad where a full train was standing on the crossing and no switching was being done. Illinois C. R. Co. v. Maxwell, 292 Ky. 660 , 167 S.W.2d 841, 1943 Ky. LEXIS 726 ( Ky. 1943 ).

4. Duty of Trainmen.

Where railroad maintains a guard, gates or signal bell at crossing, trainmen only have duty of giving statutory crossing signals. Payne v. Barnette's Adm'r, 196 Ky. 489 , 244 S.W. 896, 1922 Ky. LEXIS 537 ( Ky. 1922 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Civil), 5th Ed., Railroads, §§ 25.01 — 25.04.

ALR

Duty of railroad to maintain flagman at crossing. 24 A.L.R.2d 1161.

277.180. Railroad crossings, when trains to stop before reaching.

Whenever railroad lines cross each other in this state, each train shall be brought to a full stop at least fifty (50) feet before it reaches the crossing, unless the crossing is regulated by a derailing switch or other safety appliance that prevents collisions at crossings, or a flagman or watchman is stationed at the crossing and signals that the train may cross in safety.

History. 775.

NOTES TO DECISIONS

  1. Purpose.
  2. Liability of Railroad.
  3. Indictment.
1. Purpose.

Duty imposed by this section is for benefit of those on trains. Louisville & N. R. Co. v. Carter, 226 Ky. 561 , 10 S.W.2d 1064, 1927 Ky. LEXIS 843 ( Ky. 1927 ).

2. Liability of Railroad.

Where a collision was caused by failure of an approaching train to stop because of defective brakes, the halting of a train at a point where two (2) railroads cross, in violation of this section, was not the proximate cause of the accident and did not constitute contributory negligence. Louisville & N. R. Co. v. East Tennessee, V. & G. R. Co., 60 F. 993, 1894 U.S. App. LEXIS 2149 (6th Cir. Tenn. 1894).

Railroad failing to stop for crossing in violation of statute was not liable for death of boy, who seeing train coming, started across tracks and fell down, though if train had stopped he would have had time to recover and cross. Greshem's Adm'r v. Louisville & N. R. Co., 24 S.W. 869, 15 Ky. L. Rptr. 599 (1894).

Railroad is not relieved from compliance with this section by reason that it operates all trains that run over two (2) lines where they cross. Chesapeake & O. R. Co. v. Commonwealth, 99 Ky. 175 , 35 S.W. 266, 18 Ky. L. Rptr. 54 , 1896 Ky. LEXIS 62 ( Ky. 1896 ).

3. Indictment.

Indictment under this section alleging that on a certain day defendant failed to stop any of its trains before reaching crossing was not defective, but conviction under the indictment could not be had for more than one offense. Commonwealth v. Chesapeake & O. R. Co., 29 S.W. 136, 16 Ky. L. Rptr. 481 (1895).

277.190. Bell to be rung or whistle sounded at crossings — Local government regulation of sounding train whistles at night.

  1. Every railroad company shall provide each locomotive engine running over any of its lines with a bell of ordinary size and a whistle. The bell shall be rung or the whistle sounded at a distance of at least fifty (50) rods from the place where the track crosses upon the same level any highway or crossing where a signboard is required to be maintained. The bell shall be rung or the whistle sounded continuously or alternately until the engine has reached the highway or crossing except as provided in subsection (2) of this section.
  2. A city, county, urban-county, or charter county government may regulate the sounding of train whistles at night if the city, county, urban-county, or charter county government enacts an ordinance adopting the provisions of Emergency Order Number 15, Notice Number 4, issued by the Federal Railroad Administration on August 31, 1993. If the Federal Railroad Administration updates the requirements of Emergency Order 15, a city, county, urban-county, or charter county government that has adopted the provisions of Emergency Order 15 shall by ordinance adopt the most recent federal requirements governing the sounding of train whistles.

History. 786: amend. Acts 1992, ch. 229, § 5, effective July 14, 1992; 1994, ch. 195, § 3, effective July 15, 1994.

NOTES TO DECISIONS

  1. Purpose.
  2. Application.
  3. Crossings.
  4. — Public.
  5. — Private.
  6. — City.
  7. — Dangerous.
  8. — Train Standing on Crossing.
  9. Warnings.
  10. — Duties of Railroad.
  11. — — Reliance by Travelers.
  12. — Failure to Warn.
  13. — — Negligence.
  14. — Sufficiency of Warning.
  15. Contributory Negligence.
  16. Proximate Cause.
  17. Last Clear Chance.
  18. Procedure.
  19. Evidence.
  20. — Burden of Proof.
  21. — Electric Warning Signal.
  22. Instructions.
1. Purpose.

Signals required by this section are for protection of stock as well as persons on or near a crossing. Mobile & O. R. Co. v. Roper, 58 S.W. 518, 22 Ky. L. Rptr. 666 , 1900 Ky. LEXIS 697 ( Ky. 1900 ). See Chesapeake & O. R. Co. v. Burton, 156 Ky. 736 , 161 S.W. 1116, 1914 Ky. LEXIS 181 ( Ky. 1914 ); Campbell v. Mobile & O. R. Co., 162 Ky. 58 , 171 S.W. 1002, 1915 Ky. LEXIS 8 ( Ky. 1915 ); Chesapeake & O. R. Co. v. Turley, 192 Ky. 568 , 234 S.W. 188, 1921 Ky. LEXIS 113 ( Ky. 1921 ).

This section is for protection of persons on a hand car rightfully using the track. Illinois C. R. Co. v. McIntosh, 118 Ky. 145 , 80 S.W. 496, 81 S.W. 270, 26 Ky. L. Rptr. 14 , 26 Ky. L. Rptr. 347 , 1904 Ky. LEXIS 17 ( Ky. 1904 ).

This section is for the benefit of the traveling public and must be complied with at all times and under all circumstances, and compliance with its provisions exempts the company from liability for accidents occurring at ordinary public crossings, unless the trainmen see person in danger in time to prevent injury to him. Louisville & N. R. Co. v. Ueltschi's Ex'rs, 97 S.W. 14, 29 Ky. L. Rptr. 1136 (1906).

The warning is not for the benefit of those on the train or elsewhere than at the railway highway crossing. Cincinnati, N. O. & T. P. R. Co. v. Harrod's Adm'r, 132 Ky. 445 , 115 S.W. 699, 1909 Ky. LEXIS 81 ( Ky. 1909 ).

This section is primarily intended for travelers using or intending to use the crossing and the company owes no duty to give the statutory warnings to trespassers upon the track or elsewhere and it does not protect persons driving restive animals on highway near crossing without intending to use crossing. Louisville & N. R. Co. v. Richmond, 202 Ky. 281 , 259 S.W. 329, 1924 Ky. LEXIS 690 ( Ky. 1924 ).

This section is not intended to protect trespassers or licensees on or along side the tracks, and as to them a failure to comply with this section is not negligence. Cooper v. Louisville & N. R. Co., 321 S.W.2d 53, 1959 Ky. LEXIS 264 ( Ky. 1959 ).

2. Application.

Although railroad failing to give required signals for public crossing was liable to persons who used nearby private crossing and who relied on the signals given for the public crossing, this rule did not apply to persons using railroad track. Louisville & N. R. Co. v. Vittitoe's Adm'r, 41 S.W. 269, 19 Ky. L. Rptr. 612 (1897). See Chesapeake & O. R. Co. v. Nipp's Adm'x, 125 Ky. 49 , 100 S.W. 246, 30 Ky. L. Rptr. 1131 , 1907 Ky. LEXIS 253 ( Ky. 1907 ); Cincinnati, N. O. & T. P. R. Co. v. Carter, 180 Ky. 765 , 203 S.W. 740, 1918 Ky. LEXIS 153 ( Ky. 1918 ); Louisville & N. R. Co. v. Horton, 187 Ky. 617 , 219 S.W. 1084, 1920 Ky. LEXIS 178 ( Ky. 1920 ); Louisville & N. R. Co. v. Eversole's Adm'x, 198 Ky. 502 , 248 S.W. 1026, 1923 Ky. LEXIS 470 ( Ky. 1923 ); Chesapeake & O. R. Co. v. Butcher's Adm'r, 263 Ky. 45 , 91 S.W.2d 551, 1936 Ky. LEXIS 128 ( Ky. 1936 ).

This section applied to a crossing which was within the limits of an incorporated city but which was outside of the settled portion thereof, and in effect a county crossing. Louisville & N. R. Co. v. Molloy's Adm'x, 122 Ky. 219 , 91 S.W. 685, 28 Ky. L. Rptr. 1113 , 1906 Ky. LEXIS 40 ( Ky. 1906 ). See Chesapeake & O. R. Co. v. Warnock's Adm'r, 150 Ky. 74 , 150 S.W. 29, 1912 Ky. LEXIS 854 ( Ky. 1912 ).

This section applies only to railroad crossings outside of incorporated cities and villages. Collins' Adm'r v. Chesapeake & O. R. Co., 276 Ky. 659 , 124 S.W.2d 1039, 1939 Ky. LEXIS 567 ( Ky. 1939 ).

The statutory duty of signaling imposed by this section is not applicable in cities and towns as it applies only to crossings outside of incorporated cities and towns where the local government regulates the giving of signals. Deitz' Adm'x v. Cincinnati, N. O. & T. P. R. Co., 296 Ky. 279 , 176 S.W.2d 699, 1943 Ky. LEXIS 149 ( Ky. 1943 ).

3. Crossings.
4. — Public.

For a road to be public road with a public crossing it must have been dedicated by deed or result from such use and lapse of time as would constitute a right in an individual by preemption and accepted by the court or town, either upon their records, or by the continued use and recognition of the ground as a highway for such a length of time as would imply an acceptance. Louisville & N. R. Co. v. Survant, 96 Ky. 197 , 27 S.W. 999, 16 Ky. L. Rptr. 545 , 1894 Ky. LEXIS 104 ( Ky. 1894 ). See Louisville, H. & S. L. R. Co. v. Commonwealth, 104 Ky. 35 , 46 S.W. 207, 20 Ky. L. Rptr. 371 , 1898 Ky. LEXIS 127 ( Ky. 1898 ).

If crossing is a public one, and in a place where presence of people upon the track may be expected, railroad must give signals, regardless of whether crossing is in an unincorporated town. Chesapeake & O. R. Co. v. Warnock's Adm'r, 150 Ky. 74 , 150 S.W. 29, 1912 Ky. LEXIS 854 ( Ky. 1912 ).

Although a road was used after use and control was discontinued by county court it was not a public crossing within this section. Louisville & N. R. Co. v. Whittle's Adm'rs, 216 Ky. 314 , 287 S.W. 894, 1926 Ky. LEXIS 906 ( Ky. 1926 ), overruled in part, Ellington v. Becraft, 534 S.W.3d 785, 2017 Ky. LEXIS 510 ( Ky. 2017 ).

For a crossing to be a public one the road or street on which it is situated must be a public road or street established either in the manner prescribed by statute or by dedication, and if in the latter manner there must be an acceptance. Deitz' Adm'x v. Cincinnati, N. O. & T. P. R. Co., 296 Ky. 279 , 176 S.W.2d 699, 1943 Ky. LEXIS 149 ( Ky. 1943 ).

Railroad crossing where collision between train and taxicab occurred was deemed a public and not a private crossing, and failure of train to give warning signal of its approach therefore violated this section though railroad had constructed crossing and portion of highway at own expense, on own property, and under contract with coal company, to replace portion of public road destroyed when railroad was built to mining camp, and though crossing had never been accepted by county, since present highway was built to conform with crossing erected by railroad and it was thus presumed that highway was located and built pursuant to subsection (2) of KRS 277.060 , and since railroad had treated crossing as a public one by erecting statutory warning signs. Louisville & N. R. Co. v. Blanton, 304 Ky. 127 , 200 S.W.2d 133, 1947 Ky. LEXIS 597 ( Ky. 1947 ).

This section requires that each locomotive give a signal of its approach at each public crossing, while the general rule has been established that a railway company owes no duty of lookout or warning at private crossings. Hunt's Adm'r v. Chesapeake & O. R. Co., 254 S.W.2d 705, 1952 Ky. LEXIS 1136 ( Ky. 1952 ).

When a private crossing is used by the public generally with the consent of the railroad company, a duty devolves to give warning of the approach of trains; in other words, if a crossing is a public one, there is no doubt about the duty to give warning or signal; if the crossing is a private one and sufficient evidence is introduced to show habitual use of the crossing by the public, then this use may impose the duty of lookout and warning. Hunt's Adm'r v. Chesapeake & O. R. Co., 254 S.W.2d 705, 1952 Ky. LEXIS 1136 ( Ky. 1952 ).

5. — Private.

Railroad was liable to persons injured at private crossing when it failed to give signals for public crossing and persons using the private crossing could hear and relied on the signals required for the public crossing. Cahill v. Cincinnati, N. O. & T. P. R. Co., 92 Ky. 345 , 18 S.W. 2, 13 Ky. L. Rptr. 714 , 1891 Ky. LEXIS 182 ( Ky. 1891 ). See Wilson's Adm'rs v. Chesapeake & O. R. Co., 86 S.W. 690, 27 Ky. L. Rptr. 778 (1905), writ of error dismissed, 214 U.S. 191, 29 S. Ct. 546, 53 L. Ed. 963, 1909 U.S. LEXIS 1907 (U.S. 1909); Chesapeake & O. R. Co. v. Wilson's Adm'r, 102 S.W. 810, 31 Ky. L. Rptr. 500 (1907), writ of error dismissed, 214 U.S. 191, 29 S. Ct. 546, 53 L. Ed. 963, 1909 U.S. LEXIS 1907 (U.S. 1909); Thacker v. Norfolk & W. R. Co., 162 Ky. 337 , 172 S.W. 658, 1915 Ky. LEXIS 64 ( Ky. 1915 ).

Failure to slacken the speed of a train, or to give signals at an approach to private crossings is not negligence. Louisville & N. R. Co. v. Survant, 96 Ky. 197 , 27 S.W. 999, 16 Ky. L. Rptr. 545 , 1894 Ky. LEXIS 104 ( Ky. 1894 ). See Louisville & N. R. Co. v. Bodine, 109 Ky. 509 , 59 S.W. 740, 23 Ky. L. Rptr. 147 , 1900 Ky. LEXIS 227 ( Ky. 1900 ); Early's Adm'r v. Louisville, H. & S. L. R. Co., 115 Ky. 13 , 72 S.W. 348, 24 Ky. L. Rptr. 1807 , 1903 Ky. LEXIS 70 ( Ky. 1903 ); Davis's Adm'r v. Chesapeake & O. R. Co., 116 Ky. 144 , 75 S.W. 275, 25 Ky. L. Rptr. 342 , 1903 Ky. LEXIS 180 ( Ky. 1903 ); Hoback's Adm'r v. Louisville H. & S. L. R. Co., 99 S.W. 241, 30 Ky. L. Rptr. 476 (1907); Chesapeake & O. R. Co. v. Hunter's Adm'r, 170 Ky. 4 , 185 S.W. 140, 1916 Ky. LEXIS 6 ( Ky. 1916 ); Louisville & I. R. Co. v. Morgan, 174 Ky. 633 , 192 S.W. 672, 1917 Ky. LEXIS 228 ( Ky. 1917 ); Louisville & I. R. Co. v. Clore, 183 Ky. 261 , 209 S.W. 55, 1919 Ky. LEXIS 482 ( Ky. 1919 ); Simpson v. Louisville, H. & S. L. R. Co., 207 Ky. 623 , 269 S.W. 749, 1925 Ky. LEXIS 149 ( Ky. 1925 ); Hess' Adm'r v. Louisville & N. R. Co., 249 Ky. 624 , 61 S.W.2d 299, 1933 Ky. LEXIS 579 ( Ky. 1933 ).

Only duty of railroad to person crossing at private crossing is to use ordinary care to avoid injuring him after discovering him. Louisville & N. R. Co. v. Engle, 278 Ky. 576 , 129 S.W.2d 133, 1939 Ky. LEXIS 470 ( Ky. 1939 ).

Railroad has no duty to give warning of approach of its trains to a private crossing or to keep a lookout there, in the absence of proof that crossing was used by public generally in such numbers and for such time as to impose such duty. Louisville & N. R. Co. v. Engle, 278 Ky. 576 , 129 S.W.2d 133, 1939 Ky. LEXIS 470 ( Ky. 1939 ).

Train need not signal at private crossing unless it has been customary to give signals and persons using the crossing were accustomed to rely upon the signals. Illinois C. R. Co. v. Maxwell, 292 Ky. 660 , 167 S.W.2d 841, 1943 Ky. LEXIS 726 ( Ky. 1943 ). See Louisville & N. R. Co. v. Engleman's Adm'r, 135 Ky. 515 , 122 S.W. 833, 1909 Ky. LEXIS 315 ( Ky. 1909 ); Chesapeake & O. R. Co. v. Young's Adm'r, 146 Ky. 317 , 142 S.W. 709, 1912 Ky. LEXIS 78 ( Ky. 1912 ); Louisville & I. R. Co. v. Cantrell, 175 Ky. 440 , 194 S.W. 353, 1917 Ky. LEXIS 330 ( Ky. 1917 ); Stull's Adm'x v. Kentucky Traction & Terminal Co., 172 Ky. 650 , 189 S.W. 721, 1916 Ky. LEXIS 241 ( Ky. 1916 ).

If the crossing is that of a private road, this section does not require a train to give the specified signal. Chesapeake & O. R. Co. v. Burke's Adm'x, 299 Ky. 851 , 187 S.W.2d 295, 1945 Ky. LEXIS 821 ( Ky. 1945 ), overruled, Collett v. Taylor, 383 S.W.2d 692, 1964 Ky. LEXIS 59 ( Ky. 1964 ).

Railroad company was entitled to summary judgment in an action alleging negligent failure to keep a railroad crossing safe and negligent failure to warn the decedent of the approach of the train; the estate failed to show that the railroad crossing should be deemed public for purposes of KRS 277.160 and KRS 277.190 , that the crossing was extra-hazardous or habitually and pervasively used, or that the railroad company violated any of the limited duties at the private crossing. Gaw v. CSX Transp., Inc., 2008 U.S. Dist. LEXIS 23131 (W.D. Ky. Mar. 24, 2008), aff'd, 326 Fed. Appx. 382, 2009 FED App. 0374N, 2009 U.S. App. LEXIS 11334 (6th Cir. Ky. 2009 ).

6. — City.

It was the duty of the railroad in running its trains through the city to give the signals of its approach to the street crossings required by law and although person was not using the street crossing, he had a right to rely on these signals being given. Louisville & N. R. Co. v. Penrod's Adm'r, 108 Ky. 172 , 56 S.W. 1, 22 Ky. L. Rptr. 73 , 1900 Ky. LEXIS 26 ( Ky. 1900 ).

The bell shall be rung or the whistle sounded at a distance of at least 50 rods from the place where the railroad crosses a public highway upon the same level at every crossing outside of incorporated cities and towns and it is immaterial whether the engine when it arrives at the 50-rod limit is inside or outside of the limits of the town. Illinois C. R. Co. v. Commonwealth, 108 Ky. 348 , 56 S.W. 409, 21 Ky. L. Rptr. 1779 , 1900 Ky. LEXIS 43 ( Ky. 1900 ).

This section gives cities the exclusive power to determine by ordinance what signals shall be given within the corporate limits, whether upon the streets or crossings. Cincinnati, N. O. & T. P. R. Co. v. Commonwealth, 126 Ky. 712 , 104 S.W. 771, 31 Ky. L. Rptr. 1113 , 1907 Ky. LEXIS 98 ( Ky. 1907 ).

Where train is within city limits and approaching crossing within city limits it is not required to give signals required by this section. Louisville & N. R. Co. v. Bays' Adm'x, 220 Ky. 458 , 295 S.W. 452, 1927 Ky. LEXIS 558 ( Ky. 1927 ). See Louisville & N. R. Co. v. Galloway, 219 Ky. 595 , 294 S.W. 135, 1926 Ky. LEXIS 128 ( Ky. 1926 ).

The common law duties resting upon a railroad company in cities and towns where streets are occupied or crossed by the railroad tracks require that those in charge of the trains must operate them at a moderate rate of speed, give reasonable and timely warning of the approach of trains, maintain a proper lookout, and take such other precautions as the circumstances and the exercise of ordinary care may demand for the security of life. Louisville & N. R. Co. v. Curtis' Adm'r, 233 Ky. 276 , 25 S.W.2d 398, 1929 Ky. LEXIS 463 ( Ky. 1929 ).

Common-law duty to warn of approaching train was discharged where railroad had constructed and maintained, in good working order, an automatic crossing signal at crossing within city limits; sounding of bell and whistle on locomotive was unnecessary. Louisville & N. R. Co. v. Craig, 310 Ky. 43 , 219 S.W.2d 954, 1948 Ky. LEXIS 1088 ( Ky. 1948 ).

Where provisions of this section were inapplicable because accident occurred at crossing within city limits, and no city ordinance prescribing signals was introduced in evidence, railroad was required to give only warning required by common law. Louisville & N. R. Co. v. Craig, 310 Ky. 43 , 219 S.W.2d 954, 1948 Ky. LEXIS 1088 ( Ky. 1948 ).

7. — Dangerous.

If railroad knew or should have known that crossing was unusually dangerous and that statutory signals and warnings were not sufficient to give notice of approach of trains, it was under duty to use such other means to prevent injury to travelers at said crossing as, in the exercise of a reasonable judgment by ordinarily prudent persons operating the railroad might be considered necessary. Louisville & N.R. Co. v. Lucas' Adm'r, 98 S.W. 308, 30 Ky. L. Rptr. 359 , 1906 Ky. LEXIS 297 (Ky. Ct. App. 1906).

Trainmen must not only give statutory signals for exceptionally dangerous crossings, but also employ such other methods to warn travelers of approach of trains as prudent persons operating trains would consider necessary. Cincinnati, N. O. & T. P. R. Co. v. Champ, 104 S.W. 988, 31 Ky. L. Rptr. 1054 (1907). See Louisville & N. R. Co. v. Kimble's Adm'x, 140 Ky. 759 , 131 S.W. 790, 1910 Ky. LEXIS 359 ( Ky. 1910 ); Southern R. Co. v. Thacker's Adm'x, 156 Ky. 483 , 161 S.W. 236, 1913 Ky. LEXIS 455 ( Ky. 1913 ); Kentucky Traction & Terminal Co. v. Wilson, 165 Ky. 123 , 176 S.W. 991, 1915 Ky. LEXIS 500 ( Ky. 1915 ); Louisville & N. R. Co. v. Treanor's Adm'r, 179 Ky. 337 , 200 S.W. 634, 1918 Ky. LEXIS 226 ( Ky. 1918 ); Louisville & N. R. Co. v. Scott's Adm'r, 184 Ky. 319 , 211 S.W. 747, 1919 Ky. LEXIS 55 ( Ky. 1919 ); Louisville & N. R. Co. v. Staebler, 184 Ky. 730 , 212 S.W. 919, 1919 Ky. LEXIS 122 ( Ky. 1919 ); Louisville & N. R. Co. v. Adams' Adm'r, 205 Ky. 203 , 265 S.W. 623, 1924 Ky. LEXIS 83 ( Ky. 1924 ).

The sound of train whistle or bell is not sufficient if a crossing is unusually dangerous or much traveled and railroad must use such other means to prevent injury as a prudent person would ordinarily use. Adkisson's Adm'r v. Louisville, H. & S. L. R. Co., 110 S.W. 284, 33 Ky. L. Rptr. 204 (1908). See Franklin v. Louisville & N. R. Co., 267 Ky. 577 , 102 S.W.2d 1010, 1937 Ky. LEXIS 349 ( Ky. 1937 ).

Where the crossing is dangerous, an increased duty devolves upon both the traveler and the railroad, to avoid receiving or giving injury, in proportion to the increase of the danger. Piersall's Adm'r v. Chesapeake & O. R. Co., 180 Ky. 659 , 203 S.W. 551, 1918 Ky. LEXIS 131 ( Ky. 1918 ).

Where crossing is so unusually dangerous because of obstruction to sight or hearing as to render statutory precautions insufficient to give warning of the train’s approach, the exercise of ordinary care demands of the company that other precautions commensurate with the danger shall be taken to avoid injury to members of the public using or about to use the crossing regardless of whether the obstruction to sight or hearing is a natural obstruction or has been placed or allowed to remain by the company upon its right of way. Louisville & N. R. Co. v. Locker's Adm'r, 182 Ky. 578 , 206 S.W. 780, 1918 Ky. LEXIS 398 ( Ky. 1918 ).

Railroad is required to take other precautionary measures than giving ordinary signals only at a crossing exceptionally dangerous and which is extensively traveled. Milner v. Evansville R. Co., 188 Ky. 14 , 221 S.W. 207, 1920 Ky. LEXIS 222 ( Ky. 1920 ).

The ordinary crossing signals required by this section, if insufficient to warn traveler at unusually dangerous crossing, do not relieve railroad from liability to a person on the crossing who was not guilty of contributory negligence. Illinois C. R. Co. v. Peebles, 216 Ky. 9 , 287 S.W. 574, 1926 Ky. LEXIS 880 ( Ky. 1926 ).

If crossing is hazardous and much used by public to knowledge of train crew, crew has duty, in addition to ringing bell and sounding whistle, to use such other means to avoid injuring those using crossing as prudent person would use. Hopper v. Barren Fork Coal Co., 263 Ky. 446 , 92 S.W.2d 776, 1936 Ky. LEXIS 201 ( Ky. 1936 ).

8. — Train Standing on Crossing.

Failure to give signals required by this section would not render railroad liable where motorist ran into train standing across highway, and, in view of motorist’s speed, no amount of signals given before train was placed on crossing would have prevented accident. Coil's Adm'x v. Chicago, S. L. & N. O. R. Co., 232 Ky. 33 , 22 S.W.2d 428, 1929 Ky. LEXIS 384 ( Ky. 1929 ).

Railroad was not bound to place employees with lights on each side of train or adopt some other method of notifying travelers that a train was standing across the highway where all signs and warnings required by statute were given. Louisville & N. R. Co. v. Mischel's Adm'x, 272 Ky. 295 , 114 S.W.2d 115, 1938 Ky. LEXIS 119 ( Ky. 1938 ). See Scarbrough v. Louisville & N. R. Co., 276 Ky. 292 , 124 S.W.2d 88, 1939 Ky. LEXIS 520 ( Ky. 1939 ).

Where it was not argued that KRS 277.160 and this section were violated it was not required that railroad company under the facts shown, should have placed servants on each side of the train with lights, so as to warn travelers, or have adopted some other method to notify travelers that a train was standing across the highway. Louisville & N. R. Co. v. Mischel's Adm'x, 272 Ky. 295 , 114 S.W.2d 115, 1938 Ky. LEXIS 119 ( Ky. 1938 ). See Scarbrough v. Louisville & N. R. Co., 276 Ky. 292 , 124 S.W.2d 88, 1939 Ky. LEXIS 520 ( Ky. 1939 ).

When a train or car is actually occupying the crossing, this in itself is effective and adequate warning to travelers on the highway. Louisville & N. R. Co. v. Branson, 267 S.W.2d 945, 1954 Ky. LEXIS 885 ( Ky. 1954 ).

9. Warnings.

Handcar need not give a signal when approaching a crossing. Louisville & N. R. Co. v. Howerton, 115 Ky. 89 , 72 S.W. 760, 24 Ky. L. Rptr. 1905 , 1903 Ky. LEXIS 80 ( Ky. 1903 ).

The railroad may either ring the bell continuously or sound the whistle continuously before reaching the crossing; and it is not liable if any person or animal is put in peril by the noise, when trainmen do not discover and are not under duty to discover peril. It is immaterial whether whistle is coarse, loud or shrill. Louisville & N. R. Co. v. McCandless, 123 Ky. 121 , 93 S.W. 1041, 29 Ky. L. Rptr. 563 , 1906 Ky. LEXIS 126 ( Ky. 1906 ).

It is not negligence to sound the whistle during the time required by this section, unless trainmen discover that sounding the whistle is causing animal on parallel highway to become frightened. Rowe v. Louisville & N. R. Co., 143 Ky. 823 , 137 S.W. 511, 1911 Ky. LEXIS 502 ( Ky. 1911 ).

The same warnings must be given by interurban railroads as by steam trains. Bohmer's Adm'x v. Kentucky Traction & Terminal Co., 212 Ky. 524 , 279 S.W. 955, 1925 Ky. LEXIS 1129 ( Ky. 1925 ). See Commonwealth v. Louisville & E. R. Co., 141 Ky. 583 , 133 S.W. 230, 1911 Ky. LEXIS 39 ( Ky. 1911 ).

10. — Duties of Railroad.

Railroad had no duty to keep lookout on highway parallel to railroad and fact railroad employees might, by ordinary care, have discovered team had become frightened by whistle for crossing and substituted ringing of bell would not render railroad liable. Louisville & N. R. Co. v. Smith, 107 Ky. 178 , 53 S.W. 269, 21 Ky. L. Rptr. 857 , 1899 Ky. LEXIS 152 ( Ky. 1899 ).

Fact that railroad crossings are protected by gates or a flagman does not relieve those in charge of the train of the duty to exercise ordinary care in approaching crossings to prevent accident to persons at the crossing or the duty to give statutory signals where they are required or other warning where the statutory signals are not required. Cross v. Illinois C. R. Co., 110 S.W. 290, 33 Ky. L. Rptr. 432 (1908).

Stationary bell or gate at crossing does not relieve trainmen of giving usual and ordinarily required signals. Louisville & N. R. Co. v. Adams' Adm'r, 205 Ky. 203 , 265 S.W. 623, 1924 Ky. LEXIS 83 ( Ky. 1924 ).

Railroad may not exonerate itself of giving train signals on approaching a grade crossing by any sort of local precautions to warn travelers that it may establish at the crossing. Louisville & N. R. Co. v. Jameson's Adm'x, 214 Ky. 552 , 283 S.W. 1026, 1926 Ky. LEXIS 400 ( Ky. 1926 ).

Although this section was passed prior to use of automobiles, the railroad is not required to give other danger signals at crossings than those required by this section. Land v. Cincinatti, N. O. & T. P. R. Co., 226 Ky. 374 , 10 S.W.2d 1084, 1928 Ky. LEXIS 85 ( Ky. 1928 ).

After trainmen discover animals on highway parallel with tracks are being frightened by train, they must use ordinary care not to increase the fright of the animals. Robinson v. Chesapeake & O. R. Co., 227 Ky. 458 , 13 S.W.2d 500, 1929 Ky. LEXIS 902 ( Ky. 1929 ).

Railroad companies and their employees are only required to exercise ordinary care for the protection of highway travelers. Collins' Adm'r v. Chesapeake & O. R. Co., 276 Ky. 659 , 124 S.W.2d 1039, 1939 Ky. LEXIS 567 ( Ky. 1939 ).

Having once installed an electric warning signal it is the duty of a railroad company to exercise ordinary care to have the signal in reasonably effective working condition so as to give reasonable warning of the approach of a train to the crossing. Whitney v. Louisville & N. R. Co., 282 Ky. 392 , 138 S.W.2d 503, 1940 Ky. LEXIS 174 ( Ky. 1940 ).

Duty of railroad company regarding warning of approach of trains is to provide such means and take such steps as an ordinarily prudent man would do in the same or similar circumstances. Louisville & N. R. Co. v. Marshall's Adm'x, 289 Ky. 129 , 158 S.W.2d 137, 1942 Ky. LEXIS 506 ( Ky. 1942 ).

The duties of a railroad company are defined in part by statute, in part by common law, and sometimes by city ordinances and even though an engineer blew the whistle as a warning he was negligent in not reducing his speed when approaching a crossing on a dark, foggy night. Illinois C. R. Co. v. Arms, 361 S.W.2d 506, 1962 Ky. LEXIS 243 ( Ky. 1962 ).

11. — — Reliance by Travelers.

Motorist has the right to place some reliance upon a train crew giving the signals which the Kentucky law prescribes. Baird v. Cincinnati, N. O. & T. P. R. Co., 315 F.2d 717, 1963 U.S. App. LEXIS 5676 (6th Cir. Ky. 1963 ).

Travelers crossing railroad are not required to stop, look and listen, but are entitled to rely on statutory signals being given by trainmen. Louisville, H. & S. L. R. Co. v. Sanders' Adm'r, 92 S.W. 937, 29 Ky. L. Rptr. 212 (1906). See Chesapeake & O. R. Co. v. Hawkins, 124 S.W. 836, 1910 Ky. LEXIS 679 ( Ky. 1910 ); Barksdale's Adm'r v. Southern R. Co., 199 Ky. 592 , 251 S.W. 656, 1923 Ky. LEXIS 884 ( Ky. 1923 ); Cincinnati, N. O. & T. P. R. Co. v. Howe's Adm'r, 207 Ky. 769 , 270 S.W. 57, 1925 Ky. LEXIS 180 ( Ky. 1925 ); Cox's Adm'r v. Cincinnati, N. O. & T. P. R. Co., 238 Ky. 312 , 37 S.W.2d 859, 1931 Ky. LEXIS 232 ( Ky. 1931 ); Louisville & N. R. Co. v. Ratliff's Adm'r, 260 Ky. 380 , 85 S.W.2d 1006, 1935 Ky. LEXIS 478 ( Ky. 1935 ); Hopper v. Barren Fork Coal Co., 263 Ky. 446 , 92 S.W.2d 776, 1936 Ky. LEXIS 201 ( Ky. 1936 ); Cincinnati, N. O. & T. P. R. Co. v. Fox, 269 Ky. 242 , 106 S.W.2d 973, 1937 Ky. LEXIS 582 ( Ky. 1937 ).

Travelers upon a public highway contiguous to a railway crossing, driving horses afraid of cars have a right to rely upon the employees of the railroad to give the statutory warnings in approaching the crossing in order that they may take such precautions as are necessary to protect themselves from injury. Louisville & A. R. Co. v. Davis, 96 S.W. 533, 29 Ky. L. Rptr. 846 (1906).

A traveler upon the highway is not entitled, under all circumstances and conditions, to rely upon the efficiency of an electric warning signal to warn him that a train is approaching the crossing; he must exercise ordinary care in looking for trains. Whitney v. Louisville & N. R. Co., 282 Ky. 392 , 138 S.W.2d 503, 1940 Ky. LEXIS 174 ( Ky. 1940 ).

Failure to signal where traveler knows of approach of train, will not give rise to cause of action by traveler, or support charge of negligence, based on failure to signal. Louisville & N. R. Co. v. Penrod's Adm'r, 108 Ky. 172 , 56 S.W. 1, 22 Ky. L. Rptr. 73 , 1900 Ky. LEXIS 26 ( Ky. 1900 ). See Illinois C. R. Co. v. Willis, 123 Ky. 636 , 97 S.W. 21, 29 Ky. L. Rptr. 1187 , 1906 Ky. LEXIS 196 (Ky. Ct. App. 1906); Illinois C. R. Co. v. Dupree, 138 Ky. 459 , 128 S.W. 334, 1910 Ky. LEXIS 92 ( Ky. 1910 ); Chesapeake & O. R. Co. v. Williams' Adm'r, 148 Ky. 178 , 146 S.W. 381, 1912 Ky. LEXIS 404 ( Ky. 1912 ); Chesapeake & O. R. Co. v. Warnock's Adm'r, 150 Ky. 74 , 150 S.W. 29, 1912 Ky. LEXIS 854 ( Ky. 1912 ); Stull's Adm'x v. Kentucky Traction & Terminal Co., 172 Ky. 650 , 189 S.W. 721, 1916 Ky. LEXIS 241 ( Ky. 1916 ); Louisville & N. R. Co. v. Shaw's Adm'x, 264 Ky. 321 , 94 S.W.2d 642, 1936 Ky. LEXIS 308 ( Ky. 1936 ); Cincinnati, N. O. & T. P. R. Co. v. Wallace's Adm'r, 267 Ky. 661 , 103 S.W.2d 91, 1937 Ky. LEXIS 369 ( Ky. 1937 ); Chesapeake & O. R. Co. v. Bryant's Adm'r, 272 Ky. 339 , 114 S.W.2d 89, 1937 Ky. LEXIS 699 ( Ky. 1937 ); Louisville & N. R. Co. v. Mitchell's Adm'x, 276 Ky. 671 , 124 S.W.2d 1025, 1939 Ky. LEXIS 562 ( Ky. 1939 ); Chesapeake & O. R. Co. v. Boyd's Adm'r, 290 Ky. 9 , 160 S.W.2d 342, 1942 Ky. LEXIS 349 ( Ky. 1942 ).

12. — Failure to Warn.

Where because of factors beyond his control, a motorist’s opportunity to discover danger is impaired, he should not, as a matter of law, be barred from recovery because he did not insure his own safety by stopping or employing extra caution that reasonably careful driver would use had he reason to anticipate a failure of train crew to counterbalance his disadvantages by signaling as law required it to do. Baird v. Cincinnati, N. O. & T. P. R. Co., 315 F.2d 717, 1963 U.S. App. LEXIS 5676 (6th Cir. Ky. 1963 ).

Evidence that a person is killed at crossing where signals are required to be given and that train did not give statutory or customary signals is sufficient to take case to jury. Kelsch's Guardian v. Chesapeake & O. R. Co., 251 Ky. 332 , 64 S.W.2d 886, 1933 Ky. LEXIS 848 ( Ky. 1933 ). See Illinois Cent. Illinois C. R. Co. v. Henry, 255 Ky. 434 , 74 S.W.2d 689, 1934 Ky. LEXIS 255 ( Ky. 1934 ); Amburgy's Adm'x v. Chesapeake & O. R. Co., 272 Ky. 571 , 114 S.W.2d 1093, 1938 Ky. LEXIS 163 ( Ky. 1938 ).

That the railroad failed to give the warnings required either by statute or by the common law does not necessarily mean that there must therefore be a jury question as to whether, under all the circumstances of the case, there was enough warning to alert the ordinarily prudent traveler approaching on the intersecting thoroughfare. Hargadon v. Louisville & N. R. Co., 375 S.W.2d 834, 1963 Ky. LEXIS 194 ( Ky. 1963 ).

13. — — Negligence.

Failure of trainmen to give statutory signals may be shown under allegation of general negligence. Nashville, C. & S. L. R. Co. v. Higgins, 92 S.W. 549, 29 Ky. L. Rptr. 89 (1906). See Chesapeake & O. R. Co. v. Coates, 271 Ky. 736 , 113 S.W.2d 28, 1937 Ky. LEXIS 264 ( Ky. 1937 ).

Failure of railroad to give crossing signal required by this section is actionable negligence. Louisville, H. & S. L. R. Co. v. Sanders' Adm'r, 92 S.W. 937, 29 Ky. L. Rptr. 212 (1906). See Louisville & N. R. Co. v. Joshlin, 110 S.W. 382, 33 Ky. L. Rptr. 513 (1908); Conway v. Louisville & N. R. Co., 135 Ky. 229 , 119 S.W. 206, 1909 Ky. LEXIS 252 ( Ky. 1909 ); Illinois C. R. Co. v. Moss' Adm'r, 142 Ky. 658 , 134 S.W. 1122, 1911 Ky. LEXIS 250 ( Ky. 1911 ); Davis v. Davis, 195 Ky. 522 , 242 S.W. 870, 1922 Ky. LEXIS 365 ( Ky. 1922 ), overruled, Louisville & N. R. Co. v. Dunn, 380 S.W.2d 241, 1964 Ky. LEXIS 295 ( Ky. 1964 ); Western Collieries Co. v. Rhye, 209 Ky. 559 , 273 S.W. 91, 1925 Ky. LEXIS 544 ( Ky. 1925 ); Hertell's Adm'x v. Louisville & N. R. Co., 215 Ky. 639 , 286 S.W. 693, 1926 Ky. LEXIS 756 ( Ky. 1926 ); Big S. & K. R. R. Co. v. Blair, 224 Ky. 367 , 6 S.W.2d 453, 1928 Ky. LEXIS 602 ( Ky. 1928 ).

A railroad does not relieve itself of negligence as imputed by KRS 277.330 until it shows it has given the signals for crossings as provided by this section since this section is sufficiently broad to hold the company negligent for a failure to observe its provisions whether men or stock may be killed or injured at a grade crossing if its provisions are violated. Campbell v. Mobile & O. R. Co., 154 Ky. 582 , 157 S.W. 931, 1913 Ky. LEXIS 107 ( Ky. 1913 ).

Failure to give signals required by this section is not gross negligence per se which would entitle to recovery of punitive damages. Schmid's Adm'r v. Louisville & N. R. Co., 155 Ky. 237 , 159 S.W. 786, 1913 Ky. LEXIS 236 ( Ky. 1913 ).

Violation of city ordinance requiring crossing gong or signal was negligence. Louisville & N. R. Co. v. Louisville Provision Co., 212 Ky. 709 , 279 S.W. 1100, 1926 Ky. LEXIS 222 ( Ky. 1926 ).

Railroad was not negligent where fireman shouted to engineer to stop the train and did not tell him to sound the whistle when he saw that an automobile about 12 to 14 feet from the track traveling approximately five miles an hour was not going to stop. Chesapeake & O. R. Co. v. Harrell's Adm'r, 258 Ky. 650 , 81 S.W.2d 10, 1934 Ky. LEXIS 586 ( Ky. 1934 ).

14. — Sufficiency of Warning.

Where a railroad track crosses a public highway on a trestle, it is the duty of those in charge of a train approaching the crossing to give some warning of its approach for the protection of those who might be riding or driving on the highway, that they might secure themselves against injury by reason of the frightening of their horses, and the question of whether or not the failure to give such warning is negligence should be left to the decision of the jury. Chesapeake & N. R. Co. v. Ogles, 73 S.W. 751, 24 Ky. L. Rptr. 2160 (1903).

Statutory signals are generally considered a sufficient warning of the approach of a train to an ordinary crossing in the country when a lookout is also maintained. Piersall's Adm'r v. Chesapeake & O. R. Co., 180 Ky. 659 , 203 S.W. 551, 1918 Ky. LEXIS 131 ( Ky. 1918 ).

A signal of train’s approach which was ordinarily sufficient to give notice of its coming to persons who were themselves exercising ordinary care for their own safety and in possession of their ordinary faculties was reasonable. Simpson v. Louisville, H. & S. L. R. Co., 207 Ky. 623 , 269 S.W. 749, 1925 Ky. LEXIS 149 ( Ky. 1925 ).

Either the ringing of the bell or the blowing of the whistle is sufficient to comply with this section. Louisville & N. R. Co. v. Frye, 246 S.W.2d 458, 1952 Ky. LEXIS 631 (Ky. Ct. App. 1952).

15. Contributory Negligence.

If person crossing railroad is contributorily negligent, he does not thereby become a trespasser and thereby forfeit the protection of the law, but the railroad will be liable if the injury might have been averted by ordinary care. Louisville & N. R. Co. v. Taylor's Adm'r, 104 S.W. 776, 31 Ky. L. Rptr. 1142 (1907).

When ordinary signals are not given and lookout is not maintained, the rule is that the question of contributory negligence will ordinarily be left to the jury. Louisville & N. R. Co. v. Taylor's Adm'r, 104 S.W. 776, 31 Ky. L. Rptr. 1142 (1907).

It is not negligence per se to drive a balky or excitable horse upon a railroad crossing. Louisville & N. R. Co. v. O'Nan's Adm'r, 119 S.W. 1192 ( Ky. 1909 ).

The statutory signals at public crossings are mandatory, and may be said to be the minimum of duty to be exercised by enginemen outside of incorporated cities and towns, notwithstanding railroad has an electric bell at the crossing. However, if traveler is warned by other signals and disregards them he is guilty of contributory negligence. Chesapeake & O. R. Co. v. Stone's Adm'r, 200 Ky. 502 , 255 S.W. 134, 1923 Ky. LEXIS 141 ( Ky. 1923 ).

Where injuries are received at a public crossing, for which the required signals were not given, and nothing is shown against the injured person indicating lack of care on his part, other than that he failed to “stop, look, and listen,” he cannot be said to have been guilty of negligence as a matter of law. Louisville & N. R. Co. v. Cooper, 296 Ky. 307 , 176 S.W.2d 693, 1943 Ky. LEXIS 146 ( Ky. 1943 ).

Where, in case involving automobile being struck by east-bound passenger train at crossing within city, automobile having started across track after westbound freight train cleared the crossing, the plaintiff and his witnesses testified that the electric flash signals ceased to flash as soon as the freight train had cleared the crossing and that the bell on the passenger locomotive was not ringing, plaintiff could not be held contributorily negligent as a matter of law, notwithstanding testimony of engineer and fireman that bell was ringing and flash signal was still flashing. Kentucky & I. T. R. Co. v. Cantrell, 298 Ky. 743 , 184 S.W.2d 111, 1944 Ky. LEXIS 1004 ( Ky. 1944 ).

Where required signals are not given by railroad, and motorist has exercised ordinary care except in failing to “stop, look and listen,” motorist cannot be held contributorily negligent as a matter of law. Kentucky & I. T. R. Co. v. Cantrell, 298 Ky. 743 , 184 S.W.2d 111, 1944 Ky. LEXIS 1004 ( Ky. 1944 ).

Even though a railroad may have been guilty of negligence in failing to comply with this section the plaintiff could not recover where she was contributorily negligent where she drove onto the crossing without looking for the train and thereafter stalled her car in trying to move from the crossing after the approaching train was called to her attention. Norfolk & W. R. Co. v. Bailey, 307 Ky. 386 , 211 S.W.2d 154, 1948 Ky. LEXIS 747 ( Ky. 1948 ).

16. Proximate Cause.

Where deceased had not been struck by the front part of the engine, but had completed his crossing of the railroad tracks, was in a place of safety, and must necessarily have been aware of the approach of the train, the omitted warning signals could have added nothing to that awareness and failure to give them was not the proximate cause of his death. Cincinnati, N.O.&T.P.R.Co. v. Eller, 197 F.2d 652, 1952 U.S. App. LEXIS 2667 (6th Cir. Ky.), cert. denied, 344 U.S. 864, 73 S. Ct. 105, 97 L. Ed. 670, 1952 U.S. LEXIS 1629 (U.S. 1952).

Failure to give signals at crossing will not make railroad liable for injuries caused by horse being frightened by train after the crossing has been made in safety. Louisville & N. R. Co. v. Survant, 96 Ky. 197 , 27 S.W. 999, 16 Ky. L. Rptr. 545 , 1894 Ky. LEXIS 104 ( Ky. 1894 ).

Where plaintiff rode upon track at railroad crossing, where deep cut prevented view of approaching train, which was within 15 or 20 feet of crossing and horse was frightened and plaintiff injured if plaintiff went upon track because of failure of trainmen to give signal, such failure was proximate cause of plaintiff’s injury. Illinois C. R. Co. v. Mizell, 100 Ky. 235 , 38 S.W. 5, 18 Ky. L. Rptr. 738 , 1896 Ky. LEXIS 164 ( Ky. 1896 ).

Railroad is not liable unless failure to give signal is proximate cause of injury. Louisville & N. R. Co. v. Onan's Adm'r, 110 S.W. 380, 33 Ky. L. Rptr. 462 (1908). See Louisville & N. R. Co. v. Lewis, 212 Ky. 460 , 279 S.W. 657, 1926 Ky. LEXIS 171 ( Ky. 1926 ); Goldberg v. Chesapeake & O. R. Co., 211 Ky. 115 , 276 S.W. 1087, 1925 Ky. LEXIS 822 ( Ky. 1925 ); Chesapeake & O. R. Co. v. Goodman's Adm'x, 218 Ky. 117 , 290 S.W. 1054, 1927 Ky. LEXIS 99 ( Ky. 1927 ); Chesapeake & O. R. Co. v. Bryant's Adm'r, 272 Ky. 339 , 114 S.W.2d 89, 1937 Ky. LEXIS 699 ( Ky. 1937 ).

Evidence that body of deceased was found lying between tracks was insufficient for jury, notwithstanding evidence of failure to give crossing signals as there was nothing from which jury could reasonably infer that this failure, if it existed, was the proximate cause of the injury to decedent. Chesapeake & O. R. Co. v. Butcher's Adm'r, 263 Ky. 45 , 91 S.W.2d 551, 1936 Ky. LEXIS 128 ( Ky. 1936 ).

Failure of railroad to give statutory signals was not a proximate cause of injury to pedestrian crossing tracks, where pedestrian knew that train was approaching and stepped in path of train without looking. Louisville & N. R. Co. v. Mitchell's Adm'x, 276 Ky. 671 , 124 S.W.2d 1025, 1939 Ky. LEXIS 562 ( Ky. 1939 ).

Traveler may rely upon train giving statutory signals, and need not stop, look and listen before proceeding to cross tracks, but where he knows train is approaching, he cannot base his right of action on antecedent negligence of railroad in failing to give signals since it is not the proximate cause of his injuries. Louisville & N. R. Co. v. Mitchell's Adm'x, 276 Ky. 671 , 124 S.W.2d 1025, 1939 Ky. LEXIS 562 ( Ky. 1939 ).

In action for injuries against railroad, the giving of bell and whistle signals as the train approaches crossing has no other relevancy except to notify travelers on or across the track of the train’s approach, and if traveler knows of its approach when he enters the track, failure to give signals is immaterial since it is not the proximate cause of the injuries. Louisville & N. R. Co. v. Brock's Adm'r, 281 Ky. 240 , 135 S.W.2d 898, 1940 Ky. LEXIS 18 ( Ky. 1940 ).

17. Last Clear Chance.

Where plaintiff chose to plead specific omissions and from testimony it was made doubtful that there was a constant or alternate giving of “statutory signals” and pleadings did not contain general allegations of negligence an instruction on the last clear chance or discovered peril doctrine was erroneous. Southern R. Co. v. Stanaford's Adm'x, 275 Ky. 78 , 120 S.W.2d 768, 1938 Ky. LEXIS 371 ( Ky. 1938 ).

Railroad was not liable under last clear chance doctrine for death of pedestrian crossing track in the daytime where the evidence was conflicting as to whether the statutory signals were duly given and the pedestrian was contributorily negligent in failing to keep a lookout and the railroad operatives could not have done anything to avoid the accident after the pedestrian’s inattentiveness was realized. Cincinnati, N. O. & T. P. R. Co. v. Wood, 392 S.W.2d 437, 1965 Ky. LEXIS 276 ( Ky. 1965 ).

18. Procedure.

Indictment stating the fact that the place where violation of this section occurred was a crossing at grade of railroad and a “public highway” was sufficient and it was not necessary to state when and by what authority the public highway was established. Chesapeake & O. R. Co. v. Commonwealth, 43 S.W. 445, 19 Ky. L. Rptr. 1345 (1897).

A railroad company is entitled to be advised by the pleadings as to which one of the theories the claimant will rely upon, that is, whether it was a public crossing or a private crossing used by the public generally. Hunt's Adm'r v. Chesapeake & O. R. Co., 254 S.W.2d 705, 1952 Ky. LEXIS 1136 ( Ky. 1952 ).

19. Evidence.

Whether positive testimony that signals were given outweighs negative testimony of others that they did not hear it and overwhelms it by superior weight is a question for the jury. Louisville & N. R. Co. v. O'Nan's Adm'r, 119 S.W. 1192 ( Ky. 1909 ). See Chesapeake & O. R. Co. v. Brashear's Adm'x, 124 S.W. 277, 1910 Ky. LEXIS 663 ( Ky. 1910 ); Chesapeake & O. R. Co. v. Hawkins, 124 S.W. 836, 1910 Ky. LEXIS 679 ( Ky. 1910 ).

Negative testimony, to the effect that witness did not hear whistle, may be given some weight. Mossbarger's Adm'x v. Louisville & N. R. Co., 279 Ky. 178 , 130 S.W.2d 54, 1939 Ky. LEXIS 257 ( Ky. 1939 ).

Question whether engineer failed to blow whistle on approaching crossing was for the jury, where evidence was conflicting. Mossbarger's Adm'x v. Louisville & N. R. Co., 279 Ky. 178 , 130 S.W.2d 54, 1939 Ky. LEXIS 257 ( Ky. 1939 ).

Where numerous witnesses testified, some stating that whistle was blown beginning 50 rods from crossing and continuously thereafter, and that wigwag signal at crossing was operating, and others stating that wigwag was not operating and that whistle was not blown until just before train reached crossing, the question of negligence was for the jury, notwithstanding that some of testimony of plaintiff’s witnesses was “negative” in that it consisted only of statements that witnesses did not hear whistle and did not see wigwag in operation. Chesapeake & O. R. Co. v. Pittman, 292 Ky. 331 , 166 S.W.2d 443, 1942 Ky. LEXIS 83 ( Ky. 1942 ).

Plaintiff’s testimony that neither whistle nor bell was sounded was insufficient to take case to jury where there was positive and direct testimony of railroad employees and eight disinterested witnesses that not only was the bell rung and the whistle sounded but both created unusual noise and warning of the approach of the train to the crossing. Fryrear v. Kentucky & I. T. R. Co., 310 Ky. 250 , 220 S.W.2d 546, 1949 Ky. LEXIS 887 ( Ky. 1949 ).

Where 14 witnesses testified train gave adequate warning of its approach at crossing by sounding its whistle or ringing its bell trial court was properly exercising a judicial function when it determined as a matter of law that a true jury issue was not presented with respect to the violation of statutory duties by the railroad company because plaintiff’s was not of sufficient probative value. Wadkins' Adm'x v. Chesapeake & O. R. Co., 298 S.W.2d 7, 1956 Ky. LEXIS 33 ( Ky. 1956 ).

There was sufficient evidence to support trial court’s finding that no bell or whistle was sounded to give warning of the train’s approach which should have been done within 50 rods of the crossing. Louisville & N. R. Co. v. Worthington, 354 S.W.2d 755, 1962 Ky. LEXIS 52 ( Ky. 1962 ).

Where the evidence was conflicting as to whether any warning was given by a bell or whistle as train approached crossing it was not erroneous to give instructions concerning the duty under this section to ring bell or sound whistle. Blair v. Louisville & N. R. Co., 390 S.W.2d 178, 1965 Ky. LEXIS 345 ( Ky. 1965 ).

20. — Burden of Proof.

In action for death caused by violation of this section, plaintiff has burden of showing that the crossing was not in an incorporated city or village. Collins' Adm'r v. Chesapeake & O. R. Co., 276 Ky. 659 , 124 S.W.2d 1039, 1939 Ky. LEXIS 567 ( Ky. 1939 ).

21. — Electric Warning Signal.

Evidence that electric bell at crossing was in perfect working order and actually operating on morning following accident was admissible. Kelsch's Guardian v. Chesapeake & O. R. Co., 251 Ky. 332 , 64 S.W.2d 886, 1933 Ky. LEXIS 848 ( Ky. 1933 ).

Evidence is admissible to show that an electric warning signal at a railroad crossing was not working after the accident occurred and on the same day, if there is no evidence that conditions had changed before the accident. Whitney v. Louisville & N. R. Co., 282 Ky. 392 , 138 S.W.2d 503, 1940 Ky. LEXIS 174 ( Ky. 1940 ).

Evidence that an electric warning signal was not working properly a week before an accident occurred at the crossing, is admissible for the purpose of showing that the railroad company had notice of the condition of the signal. Whitney v. Louisville & N. R. Co., 282 Ky. 392 , 138 S.W.2d 503, 1940 Ky. LEXIS 174 ( Ky. 1940 ).

22. Instructions.

Where plaintiff alleged her horse became frightened at train and no signal was given at dangerous crossing, the question was whether horse became frightened by railroad’s failure to give warning of approach of train and not whether railroad company carelessly and negligently frightened plaintiff’s horse and the jury should have been so instructed. Chesapeake & O. R. Co. v. Gunter, 108 Ky. 362 , 56 S.W. 527, 21 Ky. L. Rptr. 1803 , 1900 Ky. LEXIS 50 ( Ky. 1900 ).

Instruction that railroad was required to give notice of approach of engine and train to the crossing where plaintiff claimed he was injured by blowing the whistle or ringing the bell did not impose the care required by this section. Nashville, C. & S. L. R. Co. v. Higgins, 92 S.W. 549, 29 Ky. L. Rptr. 89 (1906).

An instruction was technically incorrect where it charged the railroad with the duty to ring the bell or blow the whistle continuously. Chesapeake & O. R. Co. v. Stone's Adm'r, 200 Ky. 502 , 255 S.W. 134, 1923 Ky. LEXIS 141 ( Ky. 1923 ).

Instruction, requiring train to sound whistle not less than 50 rods from city crossing, following this section, was erroneous. Louisville & N. R. Co. v. Thompson's Adm'r, 217 Ky. 21 , 288 S.W. 761, 1926 Ky. LEXIS 3 ( Ky. 1926 ).

Instruction as to duty of railroad to give signals should state that warning of approach of train should be given “by ringing the bell or sounding the whistle.” Collins' Adm'r v. Chesapeake & O. R. Co., 276 Ky. 659 , 124 S.W.2d 1039, 1939 Ky. LEXIS 567 ( Ky. 1939 ).

Cited:

Louisville & N. R. Co. v. Troutman, 351 S.W.2d 516, 1961 Ky. LEXIS 176 ( Ky. 1961 ); Allen v. Arnett, 525 S.W.2d 748, 1975 Ky. LEXIS 109 ( Ky. 1975 ).

Opinions of Attorney General.

A city of the third class may enact an ordinance requiring a flagman or other reasonable precautions at certain designated railroad crossings provided it is not arbitrary, in view of the dangerous nature of the crossing and the flow of traffic involved, and, in addition, under its police power, it may require certain precautions at railroad crossings. OAG 75-178 .

Research References and Practice Aids

Cross-References.

Buses, duty when approaching railroad crossing, KRS 281.745 .

Motor vehicles, duty when approaching railroad crossing, KRS 189.560 .

Treatises

Kentucky Instructions to Juries (Civil), 5th Ed., Railroads, §§ 25.01 — 25.04.

277.200. Period of obstructing highway, street or navigable stream limited.

  1. No railroad company shall obstruct any public highway or street, or the navigation of any stream, by stopping and permitting trains, engines or cars to stand upon a public grade crossing or upon a drawbridge for more than five (5) minutes at any one time, unless such stopping and standing is caused by circumstances beyond control of the railroad company.
  2. No member of a railroad train crew shall be held personally guilty of violating a municipal ordinance regulating the blocking of public grade crossings by trains, engines or cars, on proof that his action was necessary to comply with the orders or instructions of the railroad company or its officers; provided that nothing in this section shall relieve the railroad company from any responsibility placed upon it by said ordinance.

History. 768: amend. Acts 1970, ch. 201, § 1.

NOTES TO DECISIONS

  1. Duties While Train Stopped.
  2. Clearing Crossing.
  3. — Notice of Intent to Move.
  4. Liability of Railroad.
  5. — Proximate Cause.
  6. Ordinance.
  7. Prosecution for Violation.
1. Duties While Train Stopped.

When engine is stopped close to crossing, trainmen must exercise reasonable care, consistent with safety of persons and property on train, to prevent unusual or unnecessary noises to be made by the engine. Cox v. Illinois C. R. Co., 142 Ky. 478 , 134 S.W. 911, 1911 Ky. LEXIS 241 ( Ky. 1911 ).

2. Clearing Crossing.

Engine need not be moved further from crossing than is required to permit travel, unless trainmen are notified further removal is necessary to permit use of crossing, in which event train should be removed as far as possible with regard to safety of train and persons connected with it. Cox v. Illinois C. R. Co., 142 Ky. 478 , 134 S.W. 911, 1911 Ky. LEXIS 241 ( Ky. 1911 ).

When train is under duty to clear a road crossing, it must cut its cars in such manner that the entire width of the right-of-way of the road will be unobstructed. Harvey v. Illinois C. R. Co., 159 Ky. 492 , 167 S.W. 875, 1914 Ky. LEXIS 838 ( Ky. 1914 ).

3. — Notice of Intent to Move.

A railroad company having blocked a highway in excess of five (5) minutes is under the duty, at least as to infants, of giving reasonable signal or notice of intention to start its cars. Illinois C. R. Co. v. Thomason, 288 Ky. 386 , 156 S.W.2d 192, 1941 Ky. LEXIS 115 ( Ky. 1941 ).

4. Liability of Railroad.

Where railroad obstructed access to its depot by permitting its trains to stand across highway for an unreasonable time, causing passenger to stand outside exposed to cold, it was liable for resulting injury to her health. Louisville & N. R. Co. v. Daugherty, 108 S.W. 336, 32 Ky. L. Rptr. 1392 (1908).

Where railroad unlawfully obstructs highway with standing cars, it is liable to highway traveler exercising care if the horse he is driving becomes frightened at the cars, thereby causing him injuries. Harvey v. Illinois C. R. Co., 159 Ky. 492 , 167 S.W. 875, 1914 Ky. LEXIS 838 ( Ky. 1914 ).

5. — Proximate Cause.

Railroad which obstructed crossing for 30 minutes was not liable for injuries suffered by woman as a result of her standing in cold while waiting for train to move, where she could have avoided injury by going in nearby warm building. Louisville & N. R. Co. v. Cooper, 164 Ky. 489 , 175 S.W. 1034, 1915 Ky. LEXIS 415 ( Ky. 1915 ) ( Ky. 1915 ).

Blocking of crossing in violation of this section was not, under circumstances, proximate cause of team running away and injuring plaintiff. Griffin v. Chesapeake & O. R. Co., 169 Ky. 522 , 184 S.W. 888, 1916 Ky. LEXIS 733 ( Ky. 1916 ).

Mere presence of standing box car on one of several tracks at street crossing was not proximate cause of injury to pedestrian who was struck by passenger train traveling on another track. Collins' Adm'r v. Chesapeake & O. R. Co., 276 Ky. 659 , 124 S.W.2d 1039, 1939 Ky. LEXIS 567 ( Ky. 1939 ).

6. Ordinance.

City ordinance imposing fine for train remaining across street for more than ten (10) minutes is void insofar as it conflicts with this section. Louisville & N. R. Co. v. Commonwealth, 117 Ky. 350 , 78 S.W. 124, 25 Ky. L. Rptr. 1452 , 1904 Ky. LEXIS 186 ( Ky. 1904 ).

This section did not preempt the field of regulation of obstruction of public streets by municipalities as evidenced by the last proviso, and municipal ordinance prohibiting obstruction of a public street by a train for more than five minutes was not arbitrary or unreasonable. Louisville & N. R. Co. v. Commonwealth, 488 S.W.2d 329, 1972 Ky. LEXIS 35 ( Ky. 1972 ).

7. Prosecution for Violation.

This section was not intended to define a violation of its prohibition as a public nuisance. There being no penalty for its violation, no criminal prosecutions can be maintained under it. Illinois C. R. Co. v. Commonwealth, 45 S.W. 367, 20 Ky. L. Rptr. 115 , 1898 Ky. LEXIS 309 (Ky. Ct. App. 1898) (decision prior to 1970 amendment of this section and KRS 277.990 ).

As no penalty is provided for the violation of this section, the only question in a prosecution for violation is, did the railroad obstruct the highway for an unreasonable time. It is a common-law proceeding, to be tried on common-law principles, without regard to this section, except that no obstruction for less than five minutes is unlawful. Louisville & N. R. Co. v. Commonwealth, 117 Ky. 350 , 78 S.W. 124, 25 Ky. L. Rptr. 1452 , 1904 Ky. LEXIS 186 ( Ky. 1904 ) (decision prior to 1970 amendment of this section and KRS 277.990 ).

Opinions of Attorney General.

A city had the statutory authority to enact an ordinance prohibiting the blocking of railroad crossings by moving or standing trains for a period in excess of five minutes. OAG 70-697 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Section Hand Injured in Collision of Hand Car with Train, Form 282.16.

277.210. Air brake, passenger trains required to have.

No passenger train shall be run without an air brake, or some equally effective appliance for controlling the speed of trains, that can be applied by the engineer to each car composing the train, and that shall at all times be kept in good condition and ready for use. This section does not apply to mixed trains.

History. 778.

NOTES TO DECISIONS

1. Liability of Railroad.

In order for an injured passenger to recover because air brakes were defective, the condition of the brakes must have been the proximate cause of his injury. Louisville, H. & S. L. R. Co. v. Gregory's Adm'r, 141 Ky. 747 , 133 S.W. 805, 1911 Ky. LEXIS 100 ( Ky. 1911 ).

277.220. Spark arresters on engines; combustible material along right of way. [Repealed.]

Compiler’s Notes.

This section (782, 790) was repealed by Acts 1964, ch. 158, § 21.

277.230. Frogs on tracks.

Every railroad company shall keep the frogs on its tracks adjusted, fixed or blocked to prevent the feet of its employees from being caught therein.

History. 780.

NOTES TO DECISIONS

  1. Purpose.
  2. Failure to Block.
  3. — Guard.
  4. Trespasser.
  5. Liability of Employees.
  6. Recovery Under Federal Employers’ Liability Act.
  7. Indictment.
1. Purpose.

This section is for the protection of employes and does not affect the liability of railroad for unsafe condition of street in which tracks are laid. Louisville Bridge Co. v. Sieber, 157 Ky. 151 , 162 S.W. 804, 1914 Ky. LEXIS 245 ( Ky. 1914 ).

2. Failure to Block.

This section is violated when the railroad fails to block any one of its frogs and each such failure is a separate offense. Louisville & N. R. Co. v. Commonwealth, 154 Ky. 293 , 157 S.W. 369, 1913 Ky. LEXIS 61 ( Ky. 1913 ).

3. — Guard.

Failure to block a guard rail at a frog is not a violation of this section even though the guard rail is curved out at the ends leaving a space where a block might be placed. Commonwealth v. Louisville & N. R. Co., 143 Ky. 501 , 136 S.W. 869, 1911 Ky. LEXIS 419 ( Ky. 1911 ).

4. Trespasser.

Trespasser, voluntarily swinging off a moving train in violation of statute, who caught his foot in an unblocked frog could not recover since this section was intended only for protection of employes. Louisville Bridge Co. v. Sieber, 157 Ky. 151 , 162 S.W. 804, 1914 Ky. LEXIS 245 ( Ky. 1914 ).

5. Liability of Employees.

This section and subsection (2) of KRS 277.990 create no liability, civil or criminal, against railroad employees. Prince v. Illinois C. R. Co., 98 F. 1, 1899 U.S. App. LEXIS 3362 (C.C.D. Ky. 1899 ).

6. Recovery Under Federal Employers’ Liability Act.

In an action brought under the federal employers’ liability act, the railroad company may be shown to be guilty of negligence by violating this section. Luton Mining Co. v. Louisville & N. R. Co., 276 Ky. 321 , 123 S.W.2d 1055, 1938 Ky. LEXIS 551 ( Ky. 1938 ).

Where brakeman caught his foot in unblocked frog, his right to recover under federal employers’ liability act would be a question of contributory negligence, not assumption of risk. Luton Mining Co. v. Louisville & N. R. Co., 276 Ky. 321 , 123 S.W.2d 1055, 1938 Ky. LEXIS 551 ( Ky. 1938 ).

7. Indictment.

An indictment is insufficient if it fails to state that defendant was operating a railroad at the time or place mentioned in the indictment. Commonwealth v. Illinois C. R. Co., 55 S.W. 10, 21 Ky. L. Rptr. 1342 , 1900 Ky. LEXIS 337 ( Ky. 1900 ).

277.240. Height of bridges and passways over railroad tracks — Telltales.

  1. A bridge or passway constructed over any railroad, except in cities having power under their charters to regulate the height of bridges or passways, shall not be at a less height than twenty-two (22) feet above the track of the road, unless by the written authority of the Kentucky Transportation Cabinet.
  2. Whenever there is, over any railroad track, a bridge, tunnel or other obstruction at a height of less than seven (7) feet above the roof of the freight cars used or hauled on that railroad, the officers of the railroad shall erect and keep in repair at or near the bridge, tunnel or obstruction, and on each side thereof, a rod or beam placed across the track at such height and at such distance from the bridge, tunnel or obstruction as the cabinet directs, and from the rod or beam shall be suspended straps, ropes, or cords of such length as the cabinet determines, and not greater than six (6) inches apart, for a width of eight (8) feet, directly over the track.

History. 776: amend. Acts 2000, ch. 417, § 13, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

NOTES TO DECISIONS

1. Injury to Employee.

It was negligence on part of railroad company to have in its trains a car over which its brakemen might be required to pass, so high that they could not safely stand upon it while passing under a bridge which spanned the road. Southern R. Co. v. Duvall, 54 S.W. 741, 21 Ky. L. Rptr. 1153 , 1899 Ky. LEXIS 529 (Ky. Ct. App. 1899).

Though brakeman on freight train, at time when he was not required to do so, went on the one car in his train which it was unsafe for him to be upon, when it was about to pass under a bridge, of which he knew about, he was not guilty of contributory negligence. Southern R. Co. v. Duvall, 54 S.W. 741, 21 Ky. L. Rptr. 1153 , 1899 Ky. LEXIS 529 (Ky. Ct. App. 1899).

277.245. Required equipment on cars for transportation of railroad employees.

It shall be unlawful for any owner or operator of a railroad running through or within the boundaries of the Commonwealth of Kentucky and engaged in the business of common carrier to operate for or transport its employees in a motor car which is not equipped with a reasonably substantial top for the protection of said employees from rain, snow, sleet and hail and equipped with a transparent windshield sufficient in width and height to reasonably protect said employees, which windshield shall be of safety glass and such car shall also be equipped with a permanent electric headlamp of sufficient candle power as to render visible at a distance of three hundred (300) feet in advance of such car under ordinary atmospheric conditions, any obstruction, land mark, warning sign or grade crossing on such railroad and said car shall also be equipped with two (2) electric lights on the rear end thereof with sufficient candle power as to be visible at a distance of three hundred (300) feet under ordinary atmospheric conditions, and such car shall also be equipped with an electric windshield wiper that will remove rain, snow and sleet from the windshield on such car while such car is moving, and said windshield wiper shall be so devised that the driver of said car can start or stop said windshield wiper while he is driving the car.

History. Enact. Acts 1952, ch. 149, § 1, effective June 19, 1952.

277.250. Getting on or off moving train.

No person, except a passenger or an employee in the usual and necessary discharge of his duties, shall get on or off, or swing or ride on, or hang from the outside of, any engine, train or car while it is in motion or switching, or immediately preceding its moving or switching.

History. 805.

NOTES TO DECISIONS

  1. Duty of Railroad.
  2. Liability to Violators.
  3. Trespass.
  4. Attractive Nuisance Doctrine.
1. Duty of Railroad.

Railroad owes no duty to trespasser boarding train in violation of this section until trainmen discover his peril; but where trespasser had returned to pathway habitually traveled by public within town, railroad owed him duty owed general public. Thomas' Adm'r v. Chesapeake & O. R. Co., 245 Ky. 352 , 53 S.W.2d 546, 1932 Ky. LEXIS 583 ( Ky. 1932 ).

A railroad company is not required to police its trains to protect passengers from injury. Louisville & N. R. Co. v. Spence's Adm'r, 282 S.W.2d 826, 1955 Ky. LEXIS 264 ( Ky. 1955 ).

The duty of a railroad company toward a trespasser, either an immature or mature person, infant or adult, arises only where and when its trainmen actually discover the trespasser exposed to danger or peril and not before. Louisville & N. R. Co. v. Spence's Adm'r, 282 S.W.2d 826, 1955 Ky. LEXIS 264 ( Ky. 1955 ).

2. Liability to Violators.

Trespasser, voluntarily swinging off a moving train in violation of this section, who caught his foot in an unblocked frog could not recover damages from railroad; but if he was forced from moving train by railroad officials he could have recovered because statute only applies to acts done voluntarily. Louisville Bridge Co. v. Sieber, 157 Ky. 151 , 162 S.W. 804, 1914 Ky. LEXIS 245 ( Ky. 1914 ).

This section will not bar recovery for injuries received by a child swinging on and off train, where railroad was negligent. Louisville & N. R. Co. v. Steele, 179 Ky. 605 , 201 S.W. 43, 1918 Ky. LEXIS 278 ( Ky. 1918 ), limited, Louisville & N. R. Co. v. Reynolds' Adm'r, 240 Ky. 662 , 42 S.W.2d 911, 1931 Ky. LEXIS 467 ( Ky. 1931 ) ( Ky. 1918 ).

3. Trespass.

A person violating this section is a trespasser as a matter of law although he is known to be on the train. Louisville & N. R. Co. v. Spence's Adm'r, 282 S.W.2d 826, 1955 Ky. LEXIS 264 ( Ky. 1955 ).

4. Attractive Nuisance Doctrine.

There should be applied to railroad companies the same degree of care in respect to looking out for children who habitually go about and upon their trains in the presence of and with the consent of the servants in charge, or at least without objection on their part, that is required to be exercised by other persons in charge of dangerous places, machinery, or appliances that are attractive to children. Louisville & N. R. Co. v. Steele, 179 Ky. 605 , 201 S.W. 43, 1918 Ky. LEXIS 278 ( Ky. 1918 ), limited, Louisville & N. R. Co. v. Reynolds' Adm'r, 240 Ky. 662 , 42 S.W.2d 911, 1931 Ky. LEXIS 467 ( Ky. 1931 ) ( Ky. 1918 ).

Ordinarily trespassing children occupy the same position as trespassing adults except for special responsibility in case of attractive nuisance but this doctrine is not applicable to a moving car or train. Louisville & N. R. Co. v. Spence's Adm'r, 282 S.W.2d 826, 1955 Ky. LEXIS 264 ( Ky. 1955 ).

Research References and Practice Aids

ALR

Contributory negligence of railroad employe in jumping from moving train or car to avoid collision or other injury. 58 A.L.R.2d 1232.

277.260. Ejection from train for offensive conduct or language or for gambling. [Repealed.]

Compiler’s Notes.

This section (806) was repealed by Acts 1988 (1st Ex. Sess.), ch. 1, § 31, effective December 15, 1988.

277.270. Railroad policemen, how appointed and removed.

  1. Any company owning or operating a railroad in this state may apply to the Governor to appoint and commission as railroad policemen such persons as the company designates. The Governor, upon such application being made and upon the payment to him of a fee of five dollars ($5) for each policeman to be appointed, shall appoint such persons as the company designates, or as many thereof as he deems proper to be such policemen, and shall give commissions to those appointed.
  2. When a railroad company no longer needs the services of a railroad policeman so appointed, notice to that effect, signed by the general manager or by the person in charge of operating the railroad, may be filed in the several offices in which the commission of the policeman is recorded. The clerk shall note the fact upon the margin of the record where the commission is recorded, and thereupon the power of the policeman shall cease as to any particular county in which such notice is so filed and recorded.

History. 779a-1, 779a-2, 779a-7, 779a-8.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Qualification Within Prescribed Period.
  3. Office Ceases with Officer.
  4. Liability for Unlawful Arrest.
1. Constitutionality.

This section does not violate Const., §§ 93 and 107 in failing to limit the terms of office of railroad policemen to four (4) years, but the term of office is limited to four (4) years by the constitution. Cincinnati, N. O. & T. P. R. Co. v. Cundiff, 166 Ky. 594 , 179 S.W. 615, 1915 Ky. LEXIS 755 ( Ky. 1915 ).

2. Qualification Within Prescribed Period.

If one appointed under this section fails to qualify by taking oath and executing bond within 30 days after receiving notice of his appointment, he vacates his office under Const., § 236 and KRS 62.010 , 62.050 . Cincinnati, N. O. & T. P. R. Co. v. Cundiff, 166 Ky. 594 , 179 S.W. 615, 1915 Ky. LEXIS 755 ( Ky. 1915 ).

Railroad must see or know that officer appointed at its instance under this section qualified within the statutory period before it permits him to act as policeman. Where policeman did not qualify within time prescribed by statute, or where his term has expired, both railroad and policeman are liable for wrongful arrest made by him. Cincinnati, N. O. & T. P. R. Co. v. Cundiff, 166 Ky. 594 , 179 S.W. 615, 1915 Ky. LEXIS 755 ( Ky. 1915 ).

Validity of appointment and qualification of railroad policeman would be assumed by court in absence of any question being raised on the matter. Congleton v. Commonwealth, 273 Ky. 282 , 116 S.W.2d 300, 1938 Ky. LEXIS 611 ( Ky. 1938 ).

3. Office Ceases with Officer.

When the term of a railroad policeman expires, either by operation of law or at the will of the railroad, the office he held ceases with the officer. When another officer is appointed he does not take it as successor to anyone. Cincinnati, N. O. & T. P. R. Co. v. Cundiff, 166 Ky. 594 , 179 S.W. 615, 1915 Ky. LEXIS 755 ( Ky. 1915 ).

4. Liability for Unlawful Arrest.

Railroads are liable for unlawful arrest and imprisonment by policeman appointed under this section. Louisville & N. R. Co. v. Offutt, 204 Ky. 51 , 263 S.W. 665, 1924 Ky. LEXIS 390 ( Ky. 1924 ).

Cited:

Chesapeake & O. R. Co. v. Welch, 268 Ky. 93 , 103 S.W.2d 698, 1937 Ky. LEXIS 416 ( Ky. 1937 ).

Opinions of Attorney General.

It is not necessary to renew the appointment of road policemen every four (4) years. OAG 63-284 .

Although there is no statutory or constitutional incompatibility between serving as police court judge and in the appointed position of railroad policeman, a common-law incompatibility may exist. OAG 71-427 .

A county ordinance, enacted pursuant to KRS 67.083 , which purports to comprehensively regulate armed security officers for nongovernmental entities of private enterprise is invalid as applied to railroad policemen, under subsection (3) of KRS 67.083 , in view of the direct and specific conflict between the ordinance and KRS 277.270 et seq., and because KRS 277.270 et seq. preempt the field of railroad policemen. OAG 80-157 .

277.280. Bond, powers and compensation of railroad policemen.

  1. Each railroad policeman shall, before he enters upon the discharge of the duties of his office, execute bond, with good security, conditioned for the faithful performance of his duty as such policeman, and take and subscribe an oath of office. The bond shall be executed in the county in which the policeman resides, or in which the railroad has its registered process agent, if any, within the state, or in which the policeman performs any duties as a railroad policeman, and the bond shall be approved, and the oath administered, by the county judge/executive. The bond and oath shall be entered of record by the county clerk, and the execution of the bond and the taking of the oath shall be indorsed upon the commission of the person so qualifying. Each policeman so appointed and commissioned shall, throughout the counties through which the railroad operates, have and exercise the powers of sheriffs and constables in making arrests for public offenses committed upon or about railroad property, and in serving process in criminal and penal prosecutions for such offenses, and shall be subject to all the liabilities of sheriffs or constables.
  2. The compensation of railroad policemen shall be fixed and paid by the railroad company for which they are appointed.

History. 779a-3, 779a-5: amend. Acts 1974, ch. 218, § 1; 1976 (Ex. Sess.), ch. 20, § 6, effective January 2, 1978; 1978, ch. 384, § 456, effective June 17, 1978; 1986, ch. 304, § 1, effective July 15, 1986.

NOTES TO DECISIONS

  1. Policeman as Employee.
  2. Powers.
  3. Responsibility of Railroad.
1. Policeman as Employee.

Although railroad policeman is an officer, he is also a servant and employee of the railroad. Louisville & N. R. Co. v. Moore's Adm'r, 292 Ky. 223 , 166 S.W.2d 68, 1942 Ky. LEXIS 57 ( Ky. 1942 ).

2. Powers.

An arrest of two (2) men by railroad police patrolling employer’s railroad tracks was not illegal where the two (2) men were standing near a three-foot stack of high explosives just above the center support of railroad bridge since the railroad police had the common-law power reinforced by KRS 431.005 to make a citizen’s arrest in the instance of a felony being committed in their presence where there was probable cause to believe the person arrested was participating in committing it. United States v. Hensley, 374 F.2d 341, 1967 U.S. App. LEXIS 7323 (6th Cir. Ky.), cert. denied, 388 U.S. 923, 87 S. Ct. 2139, 18 L. Ed. 2d 1373, 1967 U.S. LEXIS 1245 (U.S. 1967).

In action against railroad for wrongful death resulting from shooting by railroad policeman in attempt to make an arrest, it was not error to instruct jury that policeman had right to make an arrest anywhere in the county for an offense committed on or about railroad property. Louisville & N. R. Co. v. Moore's Adm'r, 292 Ky. 223 , 166 S.W.2d 68, 1942 Ky. LEXIS 57 ( Ky. 1942 ).

Railroad policeman has power to determine when an arrest should be made, and if he acts illegally in attempting to make an arrest he is nevertheless acting within the scope of his employment, and the railroad is liable. Louisville & N. R. Co. v. Moore's Adm'r, 292 Ky. 223 , 166 S.W.2d 68, 1942 Ky. LEXIS 57 ( Ky. 1942 ).

Where railroad policeman believed that persons whom he attempted to arrest had broken into freight car on railroad property, he was acting as agent for railroad company in making the arrest, and the fact that he had no legal right to make the arrest under the circumstances did not make his action beyond the scope of his authority. Louisville & N. R. Co. v. Moore's Adm'r, 292 Ky. 223 , 166 S.W.2d 68, 1942 Ky. LEXIS 57 ( Ky. 1942 ).

Where railroad policeman had abandoned attempt to make arrest at time of assault resulting in death of one of the persons whom policeman had attempted to arrest, there was no occasion for an instruction, in trial of policeman for murder, as to what force he might lawfully use in making an arrest, or as to what was his power of arrest. Raney v. Commonwealth, 292 Ky. 381 , 166 S.W.2d 844, 1942 Ky. LEXIS 95 ( Ky. 1942 ).

3. Responsibility of Railroad.

Where railroad policeman arrested several persons in belief that they had broken into freight car, and after conversation with them told one of them that they might go on home, but such apparent release from arrest was not made known to others, subsequent altercation in which policeman killed one of persons was sufficiently connected with arrest to impose responsibility on railroad for policeman’s actions. Louisville & N. R. Co. v. Moore's Adm'r, 292 Ky. 223 , 166 S.W.2d 68, 1942 Ky. LEXIS 57 ( Ky. 1942 ).

Railroad policeman’s power was limited by his special appointment to making arrests for public offenses having some relation to railroad property and although there was sufficient evidence of unlawful arrest or “false imprisonment” where railroad policeman without company’s knowledge went to golf course on ground leased by railroad to a corporate entity separate from the railroad and ordered plaintiff to get into a car and go with him since plaintiff could reasonably have believed that he was under arrest, railroad was not liable as the policeman’s actions were not within the scope of his employment. Louisville & N. R. Co. v. Vinson, 310 Ky. 854 , 223 S.W.2d 89, 1949 Ky. LEXIS 1034 ( Ky. 1949 ).

Opinions of Attorney General.

A railroad could stand as surety on the bonds required of its railroad policemen if approved by the county judge. OAG 71-11 .

Subject to approval by the county judge, the Clinchfield Railroad may become surety on a railroad policeman’s bond. OAG 71-11 .

The bond executed by a railroad policeman with the railroad company as surety would have to follow the requirements of KRS 62.060 . OAG 71-11 .

Railroad policemen may make arrests throughout a county through which the railroad employing them operates and may make such arrests within this limitation either on or off railroad property, but any such arrests may only be made legally for public offenses committed on or about railroad property and in some way connected with railroad property. OAG 73-536 .

In view of the language “so long as I continue a citizen hereof” contained in the oath in Const., § 228, it seems that a railroad policeman who is required by this section to take such oath must be a citizen of Kentucky. OAG 75-166 .

A railroad policeman may serve, off railroad property, an arrest warrant, as a process in a criminal prosecution, for an offense committed on railroad property, if such process is served within a county through which the railroad operates, since the jurisdiction of a railroad policeman, pursuant to subsection (1) of this section, is limited, in part, to “throughout the counties through which the railroad operates, . . . . . for public offenses committed upon or about railroad property.” OAG 93-29 .

A railroad policeman may make an arrest off railroad property, but within a county through which the railroad operates, for a felony, without an arrest warrant, if (1) the offense is a felony, and (2) the arrest is for an offense “committed upon or about railroad property,” and (3) the circumstances specified in KRS 431.005(1)(b) or (c) are present. OAG 93-29 .

Railroad policemen do not have jurisdiction to serve a criminal process and make arrests in counties through which the railroad does not operate. OAG 93-29 .

Research References and Practice Aids

Cross-References.

Private employment and compensation of peace officers and deputies limited, KRS 61.310 .

Sheriffs and constables, powers and liabilities of, KRS Ch. 70.

277.290. Badges of railroad policemen — Insignia of passenger train employees.

  1. Each railroad policeman shall, while on duty, wear a metal badge or shield, with the words “Railroad Police” and the name or initials of the railroad engraved thereon. When acting as a detective in the service of the railroad, he may wear the badge or shield concealed.
  2. Every railroad company shall require a uniform hat or cap and distinguishing badges to be worn by all its employees, other than engineers and firemen, whose duties relate immediately to the transportation of passengers.

History. 779, 779a-4.

277.300. Notice of fatal accident to be given to Transportation Cabinet.

If any accident on a railroad is attended with loss of life, the company operating the road on which the accident occurred shall notify the Kentucky Transportation Cabinet within five (5) days after the accident occurred and shall furnish the cabinet all information requested by it concerning the cause of the accident.

History. 777: amend. Acts 2000, ch. 417, § 14, effective December 1, 2000.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

277.310. Liability of railroads for injury or death of employees.

Every common carrier by railroad, while engaged in commerce in this state, shall be liable in damages to any person suffering injury while he is employed by the carrier in such commerce, and in case of the death of such person shall be liable to his personal representative, for such injury or death as resulted in whole or in part from the negligence of any of the officers, agents or employees of the carrier, or by reason of any defect or insufficiency, due to its negligence, in its track, roadbed, rolling stock, machinery, docks, boats, wharves or other equipment.

History. 820b-1.

NOTES TO DECISIONS

  1. Construction.
  2. Application.
  3. Engaged in Commerce.
  4. Interstate Commerce.
  5. Negligence of Employer.
  6. Evidence.
  7. Jurisdiction.
  8. — Concurrent Actions.
1. Construction.

This section does not increase the legal liability of a railroad company to its employees, or deprive it of any of its common-law defenses, unless its negligence contributes to the employee’s accident. If, however, such negligence on its part contributes to the accident, then it becomes liable even though its negligence may not be the sole proximate cause of the accident — the extent or degree of such liability being fixed by the last sentence of KRS 277.320 . The company is liable, proportionately, if its negligence merely contributes to the accident. Louisville & N. R. Co. v. Chapman's Adm'x, 300 Ky. 835 , 190 S.W.2d 542, 1945 Ky. LEXIS 657 ( Ky. 1945 ).

2. Application.

This section and KRS 277.320 are valid as to carriers engaged in interstate commerce. Idol v. Louisville & N. R. Co., 203 Ky. 81 , 261 S.W. 878, 1924 Ky. LEXIS 851 ( Ky. 1924 ).

This section and KRS 277.320 apply only when carrier and person injured are engaged in commerce. Idol v. Louisville & N. R. Co., 203 Ky. 81 , 261 S.W. 878, 1924 Ky. LEXIS 851 ( Ky. 1924 ).

Where evidence showed that deceased was not employee of railroad, but was merely a licensee at time of death caused by wreck of logging train on which he was riding, this section did not apply and railroad was not liable for mere negligence, in absence of wilful or wanton injury. Selson's Adm'x v. Kitchen Lumber Co., 276 Ky. 3 , 122 S.W.2d 1037, 1938 Ky. LEXIS 536 ( Ky. 1938 ).

This section and KRS 277.230 did not apply to employee of supply company where such company had a licensing agreement for special use of railroad’s siding for unloading operations and supply company did not undertake to perform any service for the railroad and the railroad did not participate in the unloading operation in which the supply company employee was injured. Johnson v. Louisville & N. R. Co., 394 S.W.2d 110, 1965 Ky. LEXIS 173 ( Ky. 1965 ), cert. denied, 384 U.S. 921, 86 S. Ct. 1372, 16 L. Ed. 2d 441, 1966 U.S. LEXIS 1796 (U.S. 1966).

3. Engaged in Commerce.

Machinist setting valves on engine in roundhouse was not engaged in commerce. Idol v. Louisville & N. R. Co., 203 Ky. 81 , 261 S.W. 878, 1924 Ky. LEXIS 851 ( Ky. 1924 ).

Car repairers carrying a trestle to be placed under a loaded car were engaged in commerce. Louisville & N. R. Co. v. Clark, 211 Ky. 315 , 277 S.W. 272, 1925 Ky. LEXIS 872 ( Ky. 1925 ).

Construction crew engaged exclusively in blasting operations in constructing a new track were not engaged in commerce. Louisville & N. R. Co. v. Morgan's Adm'r, 225 Ky. 447 , 9 S.W.2d 212, 1928 Ky. LEXIS 806 ( Ky. 1928 ).

Supply man checking engine tools was engaged in commerce. Chesapeake & O. R. Co. v. McCracken, 249 Ky. 767 , 61 S.W.2d 618, 1933 Ky. LEXIS 595 ( Ky. 1933 ).

4. Interstate Commerce.

Engineer called to make run from Corbin, Ky. to Norton, Va. who appeared at the railroad yards and began making preparations for his trip was engaged in interstate commerce and action for injuries had to be brought under the federal employers’ liability act and where action was brought under state act defendant’s motion for judgment notwithstanding verdict and peremptory instruction were sufficient to raise the interstate question involved. Hines v. Burns' Adm'x, 189 Ky. 761 , 226 S.W. 109, 1920 Ky. LEXIS 511 ( Ky. 1920 ).

5. Negligence of Employer.

In accepting employment, thereby assuming risk of injury ordinarily incident to work, employee does not contract against negligence of the employer as this is prohibited by the Constitution. McDonald v. Louisville & N. R. Co., 232 Ky. 734 , 24 S.W.2d 585, 1930 Ky. LEXIS 70 ( Ky. 1930 ).

Railroad company cannot delegate to another by contract its obligation to furnish its employees a reasonably safe place to work. Luton Mining Co. v. Louisville & N. R. Co., 276 Ky. 321 , 123 S.W.2d 1055, 1938 Ky. LEXIS 551 ( Ky. 1938 ).

Employee was not injured because of negligence of company in permitting coal car to remain in unsafe condition, where in performing customary duty of letting down doors by use of lever attached to chain, he found door would not open, put weight on lever, which struck him in groin upon sudden straightening of kink in chain. Louisville & N. R. Co. v. Smith, 287 Ky. 671 , 155 S.W.2d 28, 1941 Ky. LEXIS 625 ( Ky. 1941 ).

Where hand-operated switch, at point where spur track connected with main line, was replaced by an automatic spring switch, which permitted north-bound trains on main line to continue on the line, and which automatically shunted south-bound trains onto the spur, railroad company had no duty to change the tracks because of the change in the switch, and failure to change tracks was not violation of safety statute and did not constitute negligence contributing to death of operator who had worked at the point prior to change of switch, and on day of accident was working there for first time since change of switch, and who stepped onto spur track directly in front of south-bound train. Louisville & N. R. Co. v. Chapman's Adm'x, 300 Ky. 835 , 190 S.W.2d 542, 1945 Ky. LEXIS 657 ( Ky. 1945 ).

6. Evidence.

In action for death of brakeman who fell from car he was riding and was run over by second car during coupling, evidence was insufficient to make issue for jury as to whether railroad used excessive or unnecessary force in the coupling and verdict should have been directed for the railroad. Chesapeake & O. R. Co. v. Thomason, 70 F.2d 860, 1934 U.S. App. LEXIS 4339 (6th Cir. Ky. 1934 ).

7. Jurisdiction.

A cause of action under the Kentucky employers’ liability act is not to be regarded as one arising under the laws of the United States although based on a duty imposed by the federal safety appliance acts and is properly brought in the district in which the plaintiff resides and in which the defendant does business where there is a diversity of citizenship. Moore v. Chesapeake & O. R. Co., 291 U.S. 205, 54 S. Ct. 402, 78 L. Ed. 755, 1934 U.S. LEXIS 498 (U.S. 1934).

Where complaint stated two causes against railroad, one under federal employers’ liability act and the other under common law or state statute but both sought recovery for alleged wrongful death of plaintiff’s decedent, because of alleged failure to furnish reasonably safe place to work and to furnish safe tools and appliances, though measure of recovery was different, case was not removable. Hall v. Illinois C. R. Co., 152 F. Supp. 549, 1957 U.S. Dist. LEXIS 3438 (D. Ky. 1957 ).

8. — Concurrent Actions.

The fact that an action against railroad, to recover damages for death of employee, brought under this section and KRS 277.320 , was pending in state court, did not require dismissal of action for same purpose brought in federal court under federal employers’ liability act since where no conflict arises over the custody or dominion of specific property, the pendency of a prior action for only a personal judgment in a state court is neither a valid defense to nor ground for abatement of a subsequent suit in a federal court of concurrent jurisdiction although both suits are between the same parties and for the same cause and each court is free to proceed without reference to proceedings in other and whenever a judgment is rendered in one of the courts it may be pleaded in the other and its effect determined under the principles of res adjudicata. Chapman v. Louisville & N. R. Co., 66 F. Supp. 694, 1946 U.S. Dist. LEXIS 2395 (D. Ky. 1946 ).

Research References and Practice Aids

Cross-References.

Actions for wrongful death, Const., § 241; KRS 411.130 .

ALR

Defect in appliance or equipment as proximate cause of injury to railroad employee in repair or investigation thereof. 30 A.L.R.2d 1192.

Assumption of risk as affecting railroad employer’s liability for injury or death of employee, based on failure to furnish assistance to employee. 36 A.L.R.2d 8, 130.

Injury while crossing or walking along railroad or street railway tracks, going to or from work, as arising out of and in the course of employment. 50 A.L.R.2d 363.

Duty of railroad company toward employees with respect to close clearance of objects alongside track. 50 A.L.R.2d 674.

Surface of yard, duty of railroad company to prevent injury of employee due to. 57 A.L.R.2d 493.

Contributory negligence of railroad employee in jumping from moving train or car to avoid collision or other injury. 58 A.L.R.2d 1232.

Application of doctrine of res ipsa loquitur in action under Federal Employers’ Liability Act for injury to or death of employee riding train resulting from sudden stop, start, or jerk of train. 60 A.L.R.2d 642.

277.315. Liability insurance requirement for special passenger excursion trains — Limitation of damages.

  1. As used in this section:
    1. “Nonprofit sponsor” means a corporation whose purpose includes the historic preservation of documents, memorabilia, and equipment associated with the railroad industry, and public education regarding the history, current functions, and future of railroad transportation and which is exclusive to religious, scientific, literary, or educational within the meaning of 26 U.S.C. sec. 501(c)(3) as amended; and
    2. “Special passenger excursion train” means a train offered by a nonprofit sponsor to the public for operation over a common carrier railroad or railroad authority.
  2. Notwithstanding any other statute to the contrary, liability for all claims, whether for compensatory damages or punitive damages arising from a rail incident or accident occurring in the Commonwealth, and made against a nonprofit sponsor of a special passenger excursion train or owner or operator of an excursion train or against the railroad or rail authority over whose tracks the special passenger excursion train was operated when the accident or incident occurred, shall not exceed the valid and collectible liability insurance coverage maintained on the special passenger excursion train. The sponsor of a special passenger excursion train shall maintain or provide evidence of insurance coverage of not less than five million dollars ($5,000,000) per occurrence or per claim. A nonprofit sponsor shall provide evidence of such coverage upon demand of the Transportation Cabinet.

History. Enact. Acts 1994, ch. 306, § 1, effective July 15, 1994.

277.320. Contributory negligence — Assumption of risk.

In any action brought against a common carrier by railroad under KRS 277.310 to recover damages for injury to or death of any employee, the employee shall not be held to have assumed the risk of his employment nor to have been guilty of contributory negligence in any case where the violation by the carrier of any state or federal statute enacted for the safety of employees contributed to the injury or death of the employee. In a case where a safety statute has not been violated, the fact that the employee was guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the employee.

History. 820b-2, 820b-3.

NOTES TO DECISIONS

  1. Use of Defenses.
  2. Federal Safety Appliance Acts.
  3. Assumption of Risk.
  4. — Removal.
  5. Instructions.
1. Use of Defenses.

Defense of contributory negligence or assumption of risk is not withheld unless both carrier and employee are engaged in commerce. Louisville & N. R. Co. v. Morgan's Adm'r, 225 Ky. 447 , 9 S.W.2d 212, 1928 Ky. LEXIS 806 ( Ky. 1928 ).

Unless action is brought under federal or state employers’ liability acts pleas of contributory negligence, negligence of fellow servant and assumption of risk are permissible. McDonald v. Louisville & N. R. Co., 232 Ky. 734 , 24 S.W.2d 585, 1930 Ky. LEXIS 70 ( Ky. 1930 ).

Under federal employers’ liability act defenses of contributory negligence and assumption of risk are available unless railroad violates a federal safety statute, but violation of a state statute is negligence to be compared with negligence of employee under federal doctrine of comparative negligence. Luton Mining Co. v. Louisville & N. R. Co., 276 Ky. 321 , 123 S.W.2d 1055, 1938 Ky. LEXIS 551 ( Ky. 1938 ). But see McDonald v. Louisville & N. R. Co., 232 Ky. 734 , 24 S.W.2d 585, 1930 Ky. LEXIS 70 ( Ky. 1930 ).

If there is no violation of a safety statute, the company may invoke either or both of the defenses of assumption of risk and contributory negligence. And if employee’s negligence was the sole cause of the accident, and not merely a contributing one, there can be no recovery. Louisville & N. R. Co. v. Chapman's Adm'x, 300 Ky. 835 , 190 S.W.2d 542, 1945 Ky. LEXIS 657 ( Ky. 1945 ).

2. Federal Safety Appliance Acts.

The federal safety appliance act was intended to embrace all locomotives, cars, and similar vehicles used on any railroad which is a highway of interstate commerce and the duty to protect employees by prescribed safety appliances exists even though the vehicles and the employee injured through the failure to provide such protection are at the time engaged in intrastate commerce. Moore v. Chesapeake & O. R. Co., 291 U.S. 205, 54 S. Ct. 402, 78 L. Ed. 755, 1934 U.S. LEXIS 498 (U.S. 1934).

The provisions of the federal safety appliance acts for the safety of employees are in effect read into this section. Moore v. Chesapeake & O. R. Co., 291 U.S. 205, 54 S. Ct. 402, 78 L. Ed. 755, 1934 U.S. LEXIS 498 (U.S. 1934).

The federal safety appliance act imposes an absolute duty on employer superseding his common-law duty which cannot be abrogated by state act but the federal safety appliance act leaves the nature and the incidents of the remedy to the laws of the states and the federal courts are bound as those of the state to conform to the remedial procedure adopted by the state. Tipton v. Atchison, T. & S. F. R. Co., 298 U.S. 141, 56 S. Ct. 715, 80 L. Ed. 1091, 1936 U.S. LEXIS 984 (U.S. 1936).

Federal safety appliance acts do not give a right of action for their breach in intrastate commerce but leave the regulation of such action to the law of the states. Tipton v. Atchison, T. & S. F. R. Co., 298 U.S. 141, 56 S. Ct. 715, 80 L. Ed. 1091, 1936 U.S. LEXIS 984 (U.S. 1936). See Summers v. Louisville & N. R. Co., 4 F. Supp. 410, 1933 U.S. Dist. LEXIS 1526 (D. Ky. 1933 ).

Violation of federal safety appliance acts is negligence for which recovery may be had under federal employers’ liability act if breach occurs in interstate commerce or under state employers’ liability act if the breach occurs in intrastate commerce. Summers v. Louisville & N. R. Co., 4 F. Supp. 410, 1933 U.S. Dist. LEXIS 1526 (D. Ky. 1933 ).

Where mining company had contracted to indemnify railroad company against all claims arising from operation of spur track, but denied liability under contract when railroad employee was injured, railroad company was liable under federal employers’ liability act if there was negligence and it could exercise reasonable judgment in settling claim and mining company was obligated to indemnify it. Luton Mining Co. v. Louisville & N. R. Co., 276 Ky. 321 , 123 S.W.2d 1055, 1938 Ky. LEXIS 551 ( Ky. 1938 ).

3. Assumption of Risk.

Defense of assumption of risk is withheld only where negligence consists in failing to observe statutory requirements for safety of employees. Louisville & N. R. Co. v. Morgan's Adm'r, 225 Ky. 447 , 9 S.W.2d 212, 1928 Ky. LEXIS 806 ( Ky. 1928 ). See Chesapeake & O. R. Co. v. Music, 243 Ky. 491 , 49 S.W.2d 311, 1932 Ky. LEXIS 139 ( Ky. 1932 ).

Where servant who was holding a chisel, was struck on the hand by hammer being used by another employee, he assumed risk of injury, and railroad was not liable though work could have been done by air hammer. Cincinnati, N. O. & T. P. R. Co. v. Gossett, 230 Ky. 240 , 18 S.W.2d 986, 1929 Ky. LEXIS 52 ( Ky. 1929 ).

Doctrine of assumed risk is abrogated only where the injury grows out of violation of a federal or state statute enacted for safety of employees in commerce. Cincinnati, N. O. & T. P. R. Co. v. Gossett, 230 Ky. 240 , 18 S.W.2d 986, 1929 Ky. LEXIS 52 ( Ky. 1929 ).

Section hand who was ruptured while unloading crossties from car when notch in one of the ties caught on side of car, and suddenly stopped its movement held to have assumed risk. Chesapeake & O. R. Co. v. Music, 243 Ky. 491, 49 S.W.2d 311, 1932 Ky. LEXIS 139 (Ky. 1932).

When master has failed to provide a safe place to work, assumption of risk applies only when servant knows of the negligence and the danger therefrom is appreciated by him. Luton Mining Co. v. Louisville & N. R. Co., 276 Ky. 321 , 123 S.W.2d 1055, 1938 Ky. LEXIS 551 ( Ky. 1938 ).

Where railroad section hand undertook to handle a heavy switch tie without asking for help, and was ruptured in so doing, he assumed the risk of that injury, there being no safety statute involved, since a man is the best judge of his own strength, and assumes the risk incident to lifting a load heavier than he is able to bear. Louisville & N. R. Co. v. Alexander, 277 Ky. 719 , 127 S.W.2d 395, 1938 Ky. LEXIS 573 ( Ky. 1938 ).

Carpenter working in coach on hot day assumed risk of injury by overheat caused by steam being turned on in coach, where he knew his protests were being ignored and was privileged to leave coach if he found it too hot. Tucker's Adm'r v. Louisville & N. R. Co., 277 Ky. 774 , 127 S.W.2d 842, 1939 Ky. LEXIS 733 ( Ky. 1939 ).

Where employee is directed by his superior to do a certain act immediately, the employee does not assume the risk, although he is aware of the danger, unless the danger is so obvious and imminent that an ordinarily prudent person would have refused to proceed. Wallis v. Illinois C. R. Co., 276 Ky. 436 , 124 S.W.2d 481, 1939 Ky. LEXIS 531 ( Ky. 1939 ).

Failure to give instruction offered by defendant railroad to effect that employee assumed ordinary risks of employment including risk of being burned by sparks from ordinary use of acetylene torch was reversible error, where former opinion was that employee assumed ordinary risks, but did not assume certain other risks, and instructions on retrial did not take into account distinction made in former opinion between risks assumed. Illinois C. R. Co. v. Wallis, 287 Ky. 88 , 152 S.W.2d 288, 1941 Ky. LEXIS 505 ( Ky. 1941 ).

4. — Removal.

Action arising under federal employers’ liability act rather than federal safety appliance act is not removable from state to federal court. Summers v. Louisville & N. R. Co., 4 F. Supp. 410, 1933 U.S. Dist. LEXIS 1526 (D. Ky. 1933 ).

A complaint based on two causes of action (1) to recover under the state law, and (2) to recover under the federal employers’ liability act for the alleged wrongful death because of failure to furnish reasonably safe place to work and safe tools and appliances with which to work could not be removed to the federal court on diversity of citizenship since the federal employer’s liability act prohibits removal. Hall v. Illinois C. R. Co., 152 F. Supp. 549, 1957 U.S. Dist. LEXIS 3438 (D. Ky. 1957 ).

5. Instructions.

Instruction respecting duty of employee using acetylene torch to wear goggles supplied by railroad and to keep them adjusted was properly refused where only evidence was that he was wearing them. Illinois C. R. Co. v. Wallis, 287 Ky. 88 , 152 S.W.2d 288, 1941 Ky. LEXIS 505 ( Ky. 1941 ).

On trial of action by employee for personal injuries instructions should be given that employee assumed all ordinary risks of employment, including risk of being burned by sparks caused by ordinary use of acetylene torch, and that if so injured jury should find for defendant railroad. Illinois C. R. Co. v. Wallis, 287 Ky. 88 , 152 S.W.2d 288, 1941 Ky. LEXIS 505 ( Ky. 1941 ).

Where railroad employee knew the nature of the work which he was performing and inherent dangers connected therewith he assumed the risk of injury and where there was no showing of negligence on the part of the employer and no allegation which would make applicable the provisions of the federal employers’ liability act or the Kentucky employers’ liability act (KRS 277.310 and 277.320 ) common law principles governed and he could not recover for injury sustained. Chesapeake & O. R. Co. v. Lilly, 300 Ky. 100 , 188 S.W.2d 105, 1945 Ky. LEXIS 511 ( Ky. 1945 ).

In action under state employer’s liability act, where railroad signal man, stationed at point where spur connected with main line, was required on certain occasions, after receiving whistle signal from approaching trains on main line, to throw a yellow signal on block, walk to side of track, and hand engineer a message on a hoop, and there was a spring switch at intersection which automatically shunted south-bound trains onto spur track, railroad company was entitled to peremptory instruction in action for death of signal man who, in attempting to deliver message to engineer of south-bound train, walked onto spur track directly in front of train. The evidence being that the train was already several feet onto the spur when the deceased stepped in front of it, there was no basis for claim of any negligence on part of train employees in failing to keep proper lookout or to give a signal or warning before entering upon the spur and employee’s negligence was sole cause of accident and not merely contributing factor. Louisville & N. R. Co. v. Chapman's Adm'x, 300 Ky. 835 , 190 S.W.2d 542, 1945 Ky. LEXIS 657 ( Ky. 1945 ).

Cited:

Hilen v. Hays, 673 S.W.2d 713, 1984 Ky. LEXIS 261 ( Ky. 1984 ).

Research References and Practice Aids

Cross References

Cross-References.

See note to KRS 277.310 under heading “Jurisdiction — Concurrent Actions.” Chapman v. Louisville & N.R.R., 66 F. Supp. 694, 1946 U.S. Dist. LEXIS 2395 (E.D. Ky. 1946 ).

Kentucky Bench & Bar.

Turley, The “New” Doctrine of Comparative Negligence in Kentucky, Volume 49, No. 1, January, 1985 Ky. Bench & B. 8.

Kentucky Law Journal.

Harville, The Burden of Pleading Contributory Negligence, The Burden and Proving Contributory Negligence, 39 Ky. L.J. 186 (1951).

Comments, Negligence — Violation of Safety Regulation as Negligence per se: The Perishable Sanction, 62 Ky. L.J. 254 (1973-1974).

Kentucky Law Survey, Adams, Torts, 73 Ky. L.J. 481 (1984-85).

Collateral References.

ALR

Contributory negligence of railroad employee in jumping from moving train or car to avoid collision or other injury. 58 A.L.R.2d 1232.

277.330. Liability of railroads for killing or injuring cattle — How damages divided.

If cattle are killed or injured by the locomotive or cars of any railroad company on a track adjoining the lands belonging to or occupied by the owner of the cattle, and the owner has not received compensation for fencing his land along the railroad right-of-way, the loss shall be divided between the railroad company and the owner of the cattle, unless the cattle were killed or injured by the negligence of the agents or servants of the railroad company, in which case the company shall pay full damages.

History. 809: amend. Acts 1966, ch. 255, § 225.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Application.
  3. Duties of Railroad Company and Employees.
  4. Amount of Liability.
  5. Pleadings.
  6. Defenses.
  7. Evidence.
  8. — Burden of Proof.
  9. — Circumstantial.
  10. Instructions.
1. Constitutionality.

Provision which imposed a duty upon a railroad company of proving that it was free from negligence in the killing or injury of cattle by its engine or cars is invalid and unconstitutional. Louisville & N. R. Co. v. Faulkner, 307 S.W.2d 196, 1957 Ky. LEXIS 83 ( Ky. 1957 ) (decision prior to 1966 amendment).

2. Application.

Where owner has not been compensated for fencing and if railroad has not constructed a right-of-way fence, its liability for one-half (1/2) the value of stock killed is determined by this section; but if railroad constructs or attempts to construct a right-of-way fence, this section has no application and railroad’s duty and liability are determined by KRS 256.100 to 256.170 . Crawford v. Southern R. in Kentucky, 153 Ky. 812 , 156 S.W. 861, 1913 Ky. LEXIS 923 ( Ky. 1913 ).

3. Duties of Railroad Company and Employees.

Crossing signals required by KRS 277.190 and 278.580 (repealed) are for protection of cattle as well as persons on or near the crossing. Mobile & O. R. Co. v. Roper, 58 S.W. 518, 22 Ky. L. Rptr. 666 , 1900 Ky. LEXIS 697 ( Ky. 1900 ). See Chesapeake & O. R. Co. v. Burton, 156 Ky. 736 , 161 S.W. 1116, 1914 Ky. LEXIS 181 ( Ky. 1914 ); Campbell v. Mobile & O. R. Co., 162 Ky. 58 , 171 S.W. 1002, 1915 Ky. LEXIS 8 ( Ky. 1915 ); Chesapeake & O. R. Co. v. Turley, 192 Ky. 568 , 234 S.W. 188, 1921 Ky. LEXIS 113 ( Ky. 1921 ).

Where horses are killed by train at public crossing, fact that trainmen could not have saved the horses after they were discovered on track does not relieve railroad of liability if crossing signals were not given. Mobile & O. R. Co. v. Roper, 58 S.W. 518, 22 Ky. L. Rptr. 666 , 1900 Ky. LEXIS 697 ( Ky. 1900 ).

Railroads must use ordinary care to discover cattle straying on track. Louisville & N. R. Co. v. Logsdon's Adm'r, 118 Ky. 600 , 81 S.W. 657, 26 Ky. L. Rptr. 457 , 1904 Ky. LEXIS 66 ( Ky. 1904 ). See Troutwine v. Louisville & N. R. Co., 105 S.W. 142, 32 Ky. L. Rptr. 5 (1907).

If horses were on the track and seen by the engineer a quarter of a mile before the train struck them, it was negligence not to have stopped, or attempted to have stopped, the train to avoid the accident. Mobile & O. R. Co. v. Morrow, 97 S.W. 389, 30 Ky. L. Rptr. 83 (1906).

Engineer is not required to know location of fences along right-of-way. Pickett v. Lexington & E. R. Co., 153 Ky. 460 , 155 S.W. 1139, 1913 Ky. LEXIS 859 ( Ky. 1913 ).

Railroad must keep a lookout for stock and sound the alarm or stock whistle when stock are discovered on the track. Cincinnati, N. O. & T. P. R. Co. v. Graves, 165 Ky. 148 , 176 S.W. 974, 1915 Ky. LEXIS 489 ( Ky. 1915 ).

After the peril of stock is discovered, or could have been discovered in the exercise of ordinary care, trainmen are only required to use ordinary care, with the means at their command, consistent with the safety of the train and persons thereon to avoid injuring the stock. Kentucky Traction & Terminal Co. v. Wright, 168 Ky. 493 , 182 S.W. 604, 1916 Ky. LEXIS 575 ( Ky. 1916 ). See Troutwine v. Louisville & N. R. Co., 105 S.W. 142, 32 Ky. L. Rptr. 5 (1907).

Railroad must keep a lookout for stock upon its right-of-way, whether same be inclosed or uninclosed, or whether the adjoining landowner has been compensated for fencing. Louisville, H. & S. L. R. Co. v. Wilson, 181 Ky. 322 , 204 S.W. 72, 1918 Ky. LEXIS 507 ( Ky. 1918 ).

4. Amount of Liability.

Where owner has not been compensated for fencing and railroad attempts to construct a right-of-way fence and fails to construct a lawful fence or to properly maintain it and by reason of such failure stock are injured by its train, it will be liable to the owner for the full amount of the loss, unless the owner by ordinary care could have prevented the stock from straying through the fence, or prevented injury after stock got on right-of-way or he consents to the defective places in the fence, or agrees to the character of fence to be constructed. Crawford v. Southern R. in Kentucky, 153 Ky. 812 , 156 S.W. 861, 1913 Ky. LEXIS 923 ( Ky. 1913 ). See Louisville & N. R. Co. v. Simmons, 85 Ky. 151 , 3 S.W. 10, 8 Ky. L. Rptr. 896 , 1887 Ky. LEXIS 30 ( Ky. 1887 ); Hiens v. Kough, 189 Ky. 806 , 225 S.W. 1082, 1920 Ky. LEXIS 516 ( Ky. 1920 ); Louisville & N. R. Co. v. Calloway, 213 Ky. 235 , 280 S.W. 966, 1926 Ky. LEXIS 487 ( Ky. 1926 ).

Where railroads negligently kill stock with their trains, they are liable for the full value of such stock, whether the right-of-way is inclosed or uninclosed or whether the landowner has been compensated for fencing. Louisville, H. & S. L. R. Co. v. Wilson, 181 Ky. 322 , 204 S.W. 72, 1918 Ky. LEXIS 507 ( Ky. 1918 ).

5. Pleadings.

Under this section petition may seek full damages for value of horse alleged to have been negligently killed, and also allege that plaintiff has not received compensation for fencing and ask for one-half damages if plaintiff cannot recover full damages. Louisville & N. R. Co. v. Kice, 109 Ky. 786 , 60 S.W. 705, 22 Ky. L. Rptr. 1462 , 1901 Ky. LEXIS 37 ( Ky. 1901 ).

6. Defenses.

Where railroad’s charter provided that actions against it for stock killed by its negligence be brought within six (6) months and action was not brought within six (6) months, such statute of limitation was a defense. Louisville & N. R. Co. v. Williams, 103 Ky. 375 , 45 S.W. 229, 20 Ky. L. Rptr. 77 , 1898 Ky. LEXIS 75 ( Ky. 1898 )See further, Acts 1855-56, p. 314, §§ 6, 7; 1 Acts 1857-8, p. 293, § 6Mortimer v. Louisville & N. R. Co., 73 Ky. 485 , 1874 Ky. LEXIS 76 ( Ky. 1874 ).

7. Evidence.
8. — Burden of Proof.

Where testimony of train crew that killing of stock could not be avoided in exercise of ordinary care is unimpeached and uncontradicted, jury must find for railroad on question of negligence. McGhee v. Guyn, 98 Ky. 209 , 32 S.W. 615, 17 Ky. L. Rptr. 794 , 1895 Ky. LEXIS 39 ( Ky. 1895 ). See Felton v. Anderson, 66 S.W. 182, 23 Ky. L. Rptr. 1809 (1902); Mobile & O. R. Co. v. Morrow, 97 S.W. 389, 30 Ky. L. Rptr. 83 (1906); Crawford v. Southern Ry in Kentucky, 150 Ky. 741 , 150 S.W. 990, 1912 Ky. LEXIS 980 ( Ky. 1912 ), rev'd, Crawford v. Southern R. in Kentucky, 153 Ky. 812 , 156 S.W. 861, 1913 Ky. LEXIS 923 ( Ky. 1913 ); Remley v. Illinois C. R. Co., 151 Ky. 796 , 152 S.W. 973, 1913 Ky. LEXIS 584 ( Ky. 1913 ); Cincinnati, N. O. & T. P. R. Co. v. Graves, 165 Ky. 148 , 176 S.W. 974, 1915 Ky. LEXIS 489 ( Ky. 1915 ).

Burden of proof is on the owner to show that killing of stock was by a train. Southern R. Co. v. Forsythe, 64 S.W. 506, 23 Ky. L. Rptr. 942 , 1901 Ky. LEXIS 472 (Ky. Ct. App. 1901).

Where killing of stock is denied by railroad, the burden of proof is upon plaintiff to prove negligence. Hiens v. Kough, 189 Ky. 806 , 225 S.W. 1082, 1920 Ky. LEXIS 516 ( Ky. 1920 ).

9. — Circumstantial.

Where colt was found crippled near the bottom of a 14-foot rocky railroad fill, and tracks on top of the fill indicated the colt had been there, the evidence was not sufficient to show that colt had been struck by train since colt may have been crippled by falling down embankment. Southern R. Co. v. Forsythe, 64 S.W. 506, 23 Ky. L. Rptr. 942 , 1901 Ky. LEXIS 472 (Ky. Ct. App. 1901).

Where physical facts tend to show negligence of railroad, jury is not bound to accept testimony of railroad employees as to absence of negligence, although no other witnesses saw the accident. Illinois C. R. Co. v. Stanley, 96 S.W. 846, 29 Ky. L. Rptr. 1054 (1906). See Louisville & N. R. Co. v. Jones, 52 S.W. 938, 21 Ky. L. Rptr. 749 , 1899 Ky. LEXIS 348 (Ky. Ct. App. 1899); Chesapeake & O. R. Co. v. Howard, 143 Ky. 218 , 136 S.W. 153, 1911 Ky. LEXIS 356 ( Ky. 1911 ).

Jury has a right to find against the railroad on circumstantial evidence, although it may be in conflict with the direct evidence of railroad employees. Cincinnati, N. O. & T. P. R. Co. v. Graves, 165 Ky. 148 , 176 S.W. 974, 1915 Ky. LEXIS 489 ( Ky. 1915 ).

Evidence that stock are found killed by railroad track is sufficient to submit question of negligence of railroad to jury. Louisville, H. & S. L. R. Co. v. Wilson, 181 Ky. 322 , 204 S.W. 72, 1918 Ky. LEXIS 507 ( Ky. 1918 ). See also Louisville & N. R. Co. v. Montgomery, 32 S.W. 738, 17 Ky. L. Rptr. 807 (1895) (prior to 1966 amendment).

10. Instructions.

Peremptory instruction for defendant was erroneous where petition alleged stock was injured by railroad’s wilful negligence in running train and answer denied that negligence was wilful or wanton. Faulkner v. Kean, 32 S.W. 265, 17 Ky. L. Rptr. 654 (1895).

The jury should be instructed to find for plaintiff the reasonable value of stock killed and an amount sufficient to indemnify him for the injury to others unless they believe from the evidence that railroad’s servants exercised ordinary care and diligence in performing their duty to keep a lookout for stock upon the tracks and after its discovery to have used all reasonable precaution, consistent with the safety of the train and the persons thereon, to have avoided injuring the stock and that notwithstanding this the stock was killed and injured. Troutwine v. Louisville & N. R. Co., 105 S.W. 142, 32 Ky. L. Rptr. 5 (1907).

Railroad is not entitled to a peremptory instruction where other witnesses testify that train employees were negligent although train crew testify that killing of stock could not be avoided in exercise of ordinary care. Chesapeake & O. R. Co. v. Grigsby, 131 Ky. 363 , 115 S.W. 237, 1909 Ky. LEXIS 34 ( Ky. 1909 ).

Research References and Practice Aids

Cross-References.

“Cattle,” definition of, KRS 446.010 .

Cruelty to animals in the second degree, KRS 525.130 .

Railroad companies required to build fences as other landowners, KRS 256.100 .

277.340. Appraisal of damage to cattle — Payment or recovery of damages. [Repealed.]

Compiler’s Notes.

This section (810 to 813) was repealed by Acts 1976 (1st Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

277.350. Criminal trespass on railroad property.

  1. It shall be unlawful for any person without the consent of the railroad:
    1. To go upon the track, property, or right-of-way of a railroad, other than to pass over the track, property, or right-of-way at a public or private crossing; or
    2. To willfully ride, drive, or lead any animal or otherwise contrive for any animal to go over the track, property, or right-of-way at a public or private crossing.
  2. The provisions of this section shall not apply to any section of railroad track that has been legally abandoned and is not being used for railroad purposes.
  3. Any person violating this section shall be guilty of criminal trespass in the second degree.

History. Enact. Acts 1994, ch. 306, § 2, effective July 15, 1994; 2005, ch. 165, § 14, effective June 20, 2005.

277.355. Prohibition against damage, disturbance, or disruption of railroads, trains, or tracks — Penalties.

  1. A person shall not knowingly drop or throw any object at, onto, or in the path of any railroad rail or track, locomotive, engine, railroad car, or other vehicle of a railroad company when it is on a railroad track.
  2. An unauthorized person shall not climb upon or into any locomotive, railroad car, or other vehicle of a railroad company when it is on a railroad track.
  3. An unauthorized person shall not disrupt, delay, or prevent the operation of any train or other vehicle of a railroad company when it is on a railroad track.
  4. A person shall not knowingly deface, damage, obstruct, remove, or otherwise impair the operation of any railroad grade crossing warning signal or other protective device, including but not limited to any gate, bell, light, cross buck, stop sign, yield sign, advance warning sign, or advance pavement marking.
  5. Except as provided in subsection (6) of this section, a person who violates any of the provisions of this section shall be guilty of a Class A misdemeanor.
    1. If a violation of this section causes damage to property in excess of one thousand dollars ($1,000) or creates a substantial risk of serious physical injury to a person, as defined in KRS 500.080 , the violator shall be guilty of a Class D felony. (6) (a) If a violation of this section causes damage to property in excess of one thousand dollars ($1,000) or creates a substantial risk of serious physical injury to a person, as defined in KRS 500.080 , the violator shall be guilty of a Class D felony.
    2. If a violation of this section causes physical injury to a person, as defined in KRS 500.080, the violator shall be guilty of a Class C felony.
    3. If a violation of this section causes serious physical injury to a person, as defined in KRS 500.080, the violator shall be guilty of a Class B felony.

History. Enact. Acts 2005, ch. 165, § 13, effective June 20, 2005.

277.360. Prohibition against requiring train crew members to show motor vehicle operator’s license in investigations of train accidents or operation.

In any circumstance involving an accident on a railroad, or any alleged violation of law involving the operation of a train, in which the engineer or any other train crew member is detained by any law enforcement officer investigating the accident or alleged violation of law:

  1. The engineer and other train crew members shall not be required to show the law enforcement officer the person’s operator’s license issued under KRS Chapter 186; and
  2. The law enforcement officer shall be prohibited from requiring an engineer or other train crew member to show the law enforcement officer the person’s operator’s license issued under KRS Chapter 186.

History. Enact. Acts 2000, ch. 497, § 1, effective July 14, 2000.

277.400. Entities eligible to file declaration of state railbanking — Use of property subject to declaration — Claims of aggrieved persons.

  1. Any organization recognized as exempt from federal income taxation under Section 501(c)(3) of the Internal Revenue Code, agency of state government, or political subdivision or city of this state holding or acquiring a railroad corridor may preserve the corridor for future railroad use while utilizing the right-of-way in the interim for nonmotorized public recreational use by filing with the Secretary of State a “Declaration of State Railbanking,” concurrently serving a copy of the declaration on the Transportation Cabinet. The declaration shall contain the name and address of the filing entity, a textual description and map of the railroad corridor being railbanked, a statement that the entity accepts full responsibility for managing the corridor, for any legal liability arising out of the use of the corridor or, if the entity is immune from suit, that the entity agrees to indemnify the railroad for any liability arising out of the use of the corridor, and for the payment of all taxes which may validly be assessed against the corridor, and a declaration that the property is being railbanked in accordance with the provisions of Kentucky law in that the corridor is held open for future restoration of rail service and that this section only grants authority for the corridor to be utilized for nonmotorized public recreational use during the interim.
  2. Any property that is the subject of a declaration of state railbanking, including property held by easement, shall, during the period a declaration of state railbanking remains in force, be deemed to be held for a railroad use and shall not revert to any other form of ownership. Until rail service is restored over the corridor, the declaration of state railbanking shall only authorize the use of the corridor for public, nonmotorized recreational use, with associated infrastructure. However, a declaration of state railbanking shall not preclude any public utility usage of the corridor if that usage is otherwise permitted under other applicable law. For the specific purpose of allowing railbanking under this section, an easement for railroad use shall not be deemed abandoned until the person holding the easement conveys the easement to another person for a nonrailroad use, title to the easement and the underlying estate comes into the hands of the same owner by conveyance, the easement owner files a disclaimer in the office of the county clerk of the county where the property is situated disclaiming all interest in the corridor, or the easement is declared abandoned by judicial decree.
  3. After property is railbanked under this section, the property shall be held available for purchase by any bona fide purchaser for the restoration of rail service over the property. The following requirements shall apply to any transfer of property in contemplation of the restoration of railroad service:
    1. The entity that acquired the right to use the railroad corridor for a railtrail under this section or to whom that right had been subsequently transferred shall be compensated for the fair market value of the corridor together with any improvements erected thereon. Funds received by the entity under this paragraph shall be held in trust for the benefit of the public;
    2. All required federal and state permits and authority to reactivate and operate a railroad over the corridor shall be obtained prior to the transfer of the property for the contemplated railroad service restoration;
    3. Adequate bond with good surety shall be posted ensuring that the railroad will be constructed, with the bond being used to cover the cost of restoring the corridor to its physical condition prior to transfer of the railbanked corridor for the contemplated railroad service restoration; and
    4. The physical infrastructure necessary to operate the railroad, including tracks, ties, frogs, signaling equipment, grade crossings, and the like, shall be in place one (1) year from the date of the transfer. Train service shall be in place and operating two (2) years from the date of the transfer. If these timelines are not met, the corridor and all associate physical improvements thereon shall automatically forfeit to the ownership of the entity responsible for railbanking the corridor under this section.
  4. Any person aggrieved by the act of railbanking a railroad corridor under the provisions of this section shall bring their claims within one (1) year after the declaration of state railbanking has been filed with the Kentucky Secretary of State. Any entity against whom a claim is asserted may utilize as an offset or setoff to the amount of any recovery those amounts in state or local taxes, together with interest and penalties, that have not been paid on the value of the property through which the claimant asserts title.
  5. Any entity which caused a declaration of state railbanking to be filed shall cause the declaration to be vacated on the files of the Secretary of State upon the cessation of use of the corridor as a nonmotorized public use trail or the reactivation of railroad service over the corridor.

History. Enact. Acts 2000, ch. 338, § 2, effective July 14, 2000.

277.402. Preservation of railroad corridors — Public policy — Preliminary declaration of state railbanking.

  1. It is the public policy of this state to preserve railroad corridors for future railroad use. Toward this end, the Commonwealth recognizes that the salvage of tracks, ties, signaling equipment, ballast, and other items may indicate an intent to maximize return on present investment and not an intent to abandon any underlying easement for railroad or other use and that the obtaining of federal authority to discontinue service over or abandon a corridor does not necessarily indicate an intent to relinquish any property interests under state law. In any civil action to determine the status of a railroad use easement, ambiguity as to intent shall be resolved in favor of continued preservation of the corridor.
  2. Any holder of a railroad corridor held by easement or otherwise may preserve that corridor by filing with the Secretary of State a “Preliminary Declaration of State Railbanking,” concurrently serving a copy of the declaration on the Transportation Cabinet. The declaration shall state the name of the entity holding the corridor, a textual description and map of the land area encompassed by the corridor, and a statement that the entity does not intend to abandon the corridor described in the declaration. The entity filing the declaration may at any later time cause that declaration to be withdrawn from the Secretary of State’s files. While a preliminary declaration of state railbanking is on file with the Secretary of State, the corridor set out in the declaration shall not, regardless of the status or conclusion of any federal regulatory proceeding or the salvage of track and other material from the corridor, be deemed abandoned and shall continue to exist under Kentucky law and the property encompassed by the corridor shall not revert to any other form of ownership.

History. Enact. Acts 2000, ch. 338, § 3, effective July 14, 2000.

277.404. Conservation easement under KRS 382.800 to 382.860 over land adjoining or traversed by a railtrail.

In addition to any other legal right, any person having a legal interest in land adjoining a railtrail or in the land traversed by the railtrail itself may grant to the entity holding the right to maintain a railtrail over the property a conservation easement over all or a portion of the property in accordance with KRS 382.800 to 382.860 . The entity holding the right to maintain a railtrail over the corridor may, if it finds the easement’s terms acceptable, yearly designate for the tax purposes of the party conveying the easement that the entity is holding the corridor pursuant to the authority granted to that entity in the easement as opposed to authority granted in KRS 277.400 or any similar law allowing railbanking under federal law. This designation shall not, however, affect in any way the legal right of that entity to hold the corridor pursuant to a federal or state railbanking law or the operation of those laws, and the right to maintain the railtrail on the land shall not lapse as the result of the extinguishment or modification of the easement. The easement, by its terms, may be limited in duration from year to year or for a set period of years, may extinguish itself upon the happening of a defined contingent future event, or may last in perpetuity.

History. Enact. Acts 2000, ch. 338, § 4, effective July 14, 2000.

277.406. Duty of railroad proposing to discontinue service or to abandon railroad corridor to notify Railtrail Development Office and Department of Parks.

Each railroad proposing to discontinue service over or to obtain federal authority for regulatory abandonment of a railroad corridor in the Commonwealth of Kentucky shall, in addition to those notification requirements set out in federal law, notify the Commonwealth’s Railtrail Development Office in the Department for Local Government and the trails coordinator in the Department of Parks that the railroad is attempting to obtain federal authority to do so.

History. Enact. Acts 2000, ch. 338, § 10, effective July 14, 2000; 2007, ch. 47, § 92, effective June 26, 2007; 2010, ch. 117, § 87, effective July 15, 2010.

277.410. Human trafficking hotline telephone number to be prominently displayed in each passenger train station’s restrooms.

Every passenger train station shall post in all of its restrooms a printed sign in English and Spanish at least eleven (11) inches by fourteen (14) inches in size, with letters at least one (1) inch high, displaying the current telephone hotline number of the National Human Trafficking Resource Center or any federally funded successor entity. The sign shall be:

  1. Created using gender-neutral language supplied by the Office of the Attorney General; and
  2. Posted in a prominent place easily seen by patrons.

HISTORY: 2020 ch. 75, § 4, effective July 15, 2020.

277.990. Penalties.

  1. Any railroad company that violates or permits any of its agents or employees to violate any of the provisions of KRS 277.110 , subsection (1) of 277.160 , 277.170 , 277.180 , 277.210 , 277.230 or 277.300 shall, in addition to subjecting itself to any damages that may be caused by such violation, be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for each offense, to be recovered in the Franklin Circuit Court or in the circuit court of any county through which the railroad operates a line of road.
  2. Any person who violates any of the provisions of subsection (2) of KRS 277.160 shall be fined not less than five dollars ($5) nor more than one hundred dollars ($100) for each offense.
  3. Any railroad company that violates, or permits any of its agents or employees to violate, any of the provisions of KRS 277.190 , shall, in addition to subjecting itself to liability for any damage caused thereby, be fined not less than ten dollars ($10) nor more than fifty dollars ($50) for each offense. Prosecutions under this subsection shall not be commenced after six (6) months from the commission of the offense charged in the prosecution.
  4. Any person who violates any of the provisions of KRS 277.250 shall be fined fifty dollars ($50) or imprisoned for thirty (30) days, or both.
  5. Any owner or operator of a railroad running through or within this state as a common carrier of persons or property or both, for compensation, who either operates for its employees, or who furnishes to its employees for their transportation to or from the place or places where they are required to labor, a rail track motor car that has not been fully equipped as required by KRS 277.245 , shall be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for each offense and each day or part of a day it operates or furnishes each of such rail track motor cars not so equipped as provided in KRS 277.245 to its employees for operation to or from the place or places where they are required to work shall constitute a separate offense.
  6. Any railroad company that violates the provisions of KRS 277.200 shall be fined not less than twenty-five dollars ($25) nor more than one hundred dollars ($100) for each offense. If a grade crossing or drawbridge is obstructed by two (2) or more trains stopping and standing thereon in succession without allowing accumulated highway or water traffic to pass, the obstruction by each such successive train shall constitute a separate offense.

History. 773a-2, 786, 793, 805, 806, 842: amend. Acts 1954, ch. 90; 1964, ch. 158, § 16; 1970, ch. 201, § 2; 2000, ch. 417, § 15, effective December 1, 2000, upon contingency.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

CHAPTER 278 Public Service Commission

Public Utilities Generally

278.010. Definitions for KRS 278.010 to 278.450, 278.541 to 278.544, 278.546 to 278.5462, and 278.990.

As used in KRS 278.010 to 278.450 , 278.541 to 278.544 , 278.546 to 278.5462 , and 278.990 , unless the context otherwise requires:

  1. “Corporation” includes private, quasipublic, and public corporations, and all boards, agencies, and instrumentalities thereof, associations, joint-stock companies, and business trusts;
  2. “Person” includes natural persons, partnerships, corporations, and two (2) or more persons having a joint or common interest;
  3. “Utility” means any person except a regional wastewater commission established pursuant to KRS 65.8905 and, for purposes of paragraphs (a), (b), (c), (d), and (f) of this subsection, a city, who owns, controls, operates, or manages any facility used or to be used for or in connection with:
    1. The generation, production, transmission, or distribution of electricity to or for the public, for compensation, for lights, heat, power, or other uses;
    2. The production, manufacture, storage, distribution, sale, or furnishing of natural or manufactured gas, or a mixture of same, to or for the public, for compensation, for light, heat, power, or other uses;
    3. The transporting or conveying of gas, crude oil, or other fluid substance by pipeline to or for the public, for compensation;
    4. The diverting, developing, pumping, impounding, distributing, or furnishing of water to or for the public, for compensation;
    5. The transmission or conveyance over wire, in air, or otherwise, of any message by telephone or telegraph for the public, for compensation; or
    6. The collection, transmission, or treatment of sewage for the public, for compensation, if the facility is a subdivision collection, transmission, or treatment facility plant that is affixed to real property and is located in a county containing a city of the first class or is a sewage collection, transmission, or treatment facility that is affixed to real property, that is located in any other county, and that is not subject to regulation by a metropolitan sewer district or any sanitation district created pursuant to KRS Chapter 220;
  4. “Retail electric supplier” means any person, firm, corporation, association, or cooperative corporation, excluding municipal corporations, engaged in the furnishing of retail electric service;
  5. “Certified territory” shall mean the areas as certified by and pursuant to KRS 278.017 ;
  6. “Existing distribution line” shall mean an electric line which on June 16, 1972, is being or has been substantially used to supply retail electric service and includes all lines from the distribution substation to the electric consuming facility but does not include any transmission facilities used primarily to transfer energy in bulk;
  7. “Retail electric service” means electric service furnished to a consumer for ultimate consumption, but does not include wholesale electric energy furnished by an electric supplier to another electric supplier for resale;
  8. “Electric-consuming facilities” means everything that utilizes electric energy from a central station source;
  9. “Generation and transmission cooperative” or “G&T” means a utility formed under KRS Chapter 279 that provides electric generation and transmission services;
  10. “Distribution cooperative” means a utility formed under KRS Chapter 279 that provides retail electric service;
  11. “Facility” includes all property, means, and instrumentalities owned, operated, leased, licensed, used, furnished, or supplied for, by, or in connection with the business of any utility;
  12. “Rate” means any individual or joint fare, toll, charge, rental, or other compensation for service rendered or to be rendered by any utility, and any rule, regulation, practice, act, requirement, or privilege in any way relating to such fare, toll, charge, rental, or other compensation, and any schedule or tariff or part of a schedule or tariff thereof;
  13. “Service” includes any practice or requirement in any way relating to the service of any utility, including the voltage of electricity, the heat units and pressure of gas, the purity, pressure, and quantity of water, and in general the quality, quantity, and pressure of any commodity or product used or to be used for or in connection with the business of any utility, but does not include Voice over Internet Protocol (VoIP) service;
  14. “Adequate service” means having sufficient capacity to meet the maximum estimated requirements of the customer to be served during the year following the commencement of permanent service and to meet the maximum estimated requirements of other actual customers to be supplied from the same lines or facilities during such year and to assure such customers of reasonable continuity of service;
  15. “Commission” means the Public Service Commission of Kentucky;
  16. “Commissioner” means one (1) of the members of the commission;
  17. “Demand-side management” means any conservation, load management, or other utility activity intended to influence the level or pattern of customer usage or demand, including home energy assistance programs;
  18. “Affiliate” means a person that controls or that is controlled by, or is under common control with, a utility;
  19. “Control” means the power to direct the management or policies of a person through ownership, by contract, or otherwise;
  20. “CAM” means a cost allocation manual which is an indexed compilation and documentation of a company’s cost allocation policies and related procedures;
  21. “Nonregulated activity” means the provision of competitive retail gas or electric services or other products or services over which the commission exerts no regulatory authority;
  22. “Nonregulated” means that which is not subject to regulation by the commission;
  23. “Regulated activity” means a service provided by a utility or other person, the rates and charges of which are regulated by the commission;
  24. “USoA” means uniform system of accounts which is a system of accounts for public utilities established by the FERC and adopted by the commission;
  25. “Arm’s length” means the standard of conduct under which unrelated parties, each party acting in its own best interest, would negotiate and carry out a particular transaction;
  26. “Subsidize” means the recovery of costs or the transfer of value from one (1) class of customer, activity, or business unit that is attributable to another;
  27. “Solicit” means to engage in or offer for sale a good or service, either directly or indirectly and irrespective of place or audience;
  28. “USDA” means the United States Department of Agriculture;
  29. “FERC” means the Federal Energy Regulatory Commission;
  30. “SEC” means the Securities and Exchange Commission;
  31. “Commercial mobile radio services” has the same meaning as in 47 C.F.R. sec. 20.3 and includes the term “wireless” and service provided by any wireless real time two (2) way voice communication device, including radio-telephone communications used in cellular telephone service, personal communications service, and the functional or competitive equivalent of a radio-telephone communications line used in cellular telephone service, a personal communications service, or a network radio access line; and
  32. “Voice over Internet Protocol” or “VoIP” has the same meaning as in federal law.

History. 3952-1: amend. Acts 1960, ch. 209; 1964, ch. 195, § 1; 1972, ch. 83, § 1; 1974, ch. 118, § 1; 1978, ch. 379, § 1, effective April 1, 1979; 1982, ch. 82, § 1, effective July 15, 1982; 1994, ch. 238, § 1, effective July 15, 1994; 1998, ch. 188, § 1, effective July 15, 1998; 2000, ch. 101, § 5, effective July 14, 2000; 2000, ch. 118, § 1, effective July 14, 2000; 2000, ch. 511, § 1, effective July 14, 2000; 2001, ch. 11, § 1, effective June 21, 2001; 2002, ch. 365, § 15, effective April 24, 2002; 2005, ch. 109, § 2, effective June 20, 2005; 2006, ch. 239, § 5, effective July 12, 2006; 2011, ch. 98, § 20, effective June 8, 2011.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Application.
  3. Authority to Regulate.
  4. Federal Regulation.
  5. Right to Public Utility Service.
  6. Exemption from Regulation.
  7. Service.
  8. Rates.
  9. City Franchise.
  10. “Electric-Consuming Facilities.”
  11. Designation As Public Utility.
1. Constitutionality.

Exemption of water districts from jurisdiction of public service commission is not unconstitutional. Middendorf v. Jameson, 265 Ky. 111 , 95 S.W.2d 1057, 1936 Ky. LEXIS 417 ( Ky. 1936 ) (decision prior to 1964 amendment).

2. Application.

Where three individuals built a private water line from their homes to a water main inside city limits and the city installed meters and charged the individuals the regular city rates and 19 others were allowed to tap into the line each paying the three (3) original builders $100 and signing a contract agreeing not to hold the original builders responsible for loss of service and to share the cost of maintenance the line was not a public utility within the regulation of the public service commission since it was not a distribution of water by the three (3) individuals for compensation. Austin v. Louisa, 264 S.W.2d 662, 1954 Ky. LEXIS 684 ( Ky. 1954 ).

This statute is intended to apply only to persons dealing with water as a commodity. Sanitation Dist. of Campbell & Kenton Counties v. Newport, 335 S.W.2d 908, 1960 Ky. LEXIS 291 ( Ky. 1960 ).

Since sanitation districts are excluded from the provisions of this chapter and consequent Public Service Commission regulation, not only by omission, but by precise placement in another chapter of the KRS (KRS Chapter 220) a sanitation district is not a utility within the context of this chapter. Boone County Water & Sewer Dist. v. PSC, 949 S.W.2d 588, 1997 Ky. LEXIS 61 ( Ky. 1997 ).

Since the Public Service Commission (PSC) lacked jurisdiction to regulate the collection and transmission of sewage, it did not have jurisdiction over complaint by mobile home park that county water and sewer district violated KRS 278.160 requiring utilities to have a tariff on file in order to access a connection fee when it assessed a connection and inspection fee on each lot in the park for the collection and transmission of sewage by the district. While subsection (3) of this section sets the parameters of PSC jurisdiction and describes the movement of products and services it does not mention the movement of sewage but only mentions treatment in connection with sewage. Boone County Water & Sewer Dist. v. PSC, 949 S.W.2d 588, 1997 Ky. LEXIS 61 ( Ky. 1997 ).

3. Authority to Regulate.

The authority to regulate rates of public utilities is primarily a legislative function, and the right is essentially a police power. Southern Bell Tel. & Tel. Co. v. Louisville, 265 Ky. 286 , 96 S.W.2d 695, 1936 Ky. LEXIS 468 ( Ky. 1936 ). See Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

4. Federal Regulation.

Where gas company disposes of its gas direct to two (2) pipeline systems admittedly engaged in interstate commerce and the gas is mingled with other gas the vast bulk of which is destined for consumption outside the state, the federal power commission and not the Kentucky public service commission has full power to regulate even though some of the gas produced is distributed to purchasers within the state as there is no divided authority in the federal regulatory field. Columbian Fuel Corp. v. Public Service Com., 333 S.W.2d 945, 1959 Ky. LEXIS 29 ( Ky. 1959 ).

5. Right to Public Utility Service.

Right to public utility service is not an inherent or natural right but a common-law right subject to change by legislature. Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

6. Exemption from Regulation.

Exemption of subsection (3) of this section that exempts cities from control of public service commission extends to all operations of a municipality whether within or without the territorial boundaries of the city. McClellan v. Louisville Water Co., 351 S.W.2d 197, 1961 Ky. LEXIS 160 ( Ky. 1961 ).

In the operation of a water plant a municipal corporation is not under the jurisdiction of the public service commission. Mt. Vernon v. Banks, 380 S.W.2d 268, 1964 Ky. LEXIS 309 ( Ky. 1964 ) (decision prior to 1964 amendment).

Where the city proposed to issue revenue bonds to construct a natural gas distribution and transmission system which it proposed to lease to a private party to operate and the private party had the power to adjust the rates under certain conditions, the private party was not an “operating facility” of the city and the facility does not fall under the exception from public service commission supervision or regulation. Baird v. Adairville, 426 S.W.2d 124, 1968 Ky. LEXIS 636 ( Ky. 1968 ).

Since a city owned water supply system was not a utility subject to the jurisdiction of the public service commission, the commission was without jurisdiction to resolve a territorial dispute between a city and a private water company where the city undertook to extend its water supply system beyond city limits into a contiguous territory served by the private company. Georgetown v. Public Service Com., 516 S.W.2d 842, 1974 Ky. LEXIS 173 ( Ky. 1974 ).

7. Service.

“Service” relates only to quantity and quality, and does not include facilities for transmission except insofar as they relate to quantity and quality. Benzinger v. Union Light, Heat & Power Co., 293 Ky. 747 , 170 S.W.2d 38, 1943 Ky. LEXIS 698 ( Ky. 1943 ).

Subsection (2) of KRS 278.040 vests exclusive jurisdiction over utility “service,” as defined in subdivision (13) of this section, in the energy regulatory commission; accordingly, regulations adopted by the commission concerning the placement of gas meters preempt the field, and any conflicting city ordinances attempting to restrict the placement of the meters are invalid. Peoples Gas Co. v. Corbin, 625 S.W.2d 848, 1981 Ky. LEXIS 309 ( Ky. 1981 ).

Where the defendant did not generate electricity but rather, received electricity from TVA and distributed that power to its customers, under Kentucky law, the defendant did not manufacture a “product”; it provided a service. G & K Dairy v. Princeton Electric Plant Bd., 781 F. Supp. 485, 1991 U.S. Dist. LEXIS 20439 (W.D. Ky. 1991 ).

8. Rates.

Petition against city electric company for overcharge on ground petitioner was charged commercial rate when it should have been charged the lower residential rate stated no cause of action where it did not plead under what law the city electric company was limited to the rates set out in the petition, that is, whether it was under city ordinance or under this section to KRS 278.450 or how the law limited the city electric company to such rates. Christian Church Widows & Orphans Home v. Louisville Gas & Electric Co., 282 Ky. 463 , 138 S.W.2d 944, 1940 Ky. LEXIS 181 ( Ky. 1940 ).

The power of cities to contract with respect to utility rates does not deprive the state of its police power of regulation; but this power was not exercised before KRS 278.010 to 278.450 were enacted, and therefore contracts made before that date are valid. Union Light, Heat & Power Co. v. Covington, 282 Ky. 558 , 139 S.W.2d 64, 1940 Ky. LEXIS 208 ( Ky. 1940 ).

The Public Service Commission has jurisdiction over the utility companies, and that jurisdiction extends to their poles and the “services” and “rates” generated by pole attachment agreements with cable television companies; such use provides additional revenue to the utilities which must be considered in determining the “rates” it charges its customers for its basic utility services. Kentucky CATV Asso. v. Volz, 675 S.W.2d 393, 1983 Ky. App. LEXIS 378 (Ky. Ct. App. 1983).

The Public Service Commission (PSC) has exclusive jurisdiction over the regulation of utility rates and service which extends to a city contracting for the sale and supply of water to a PSC-regulated county water district. Simpson County Water Dist. v. City of Franklin, 872 S.W.2d 460, 1994 Ky. LEXIS 13 ( Ky. 1994 ).

9. City Franchise.

Failure of legislature to provide in law regarding public service commission for municipality to ask the commission to frame a franchise ordinance containing the terms and conditions upon which a proposed public utility could enter the city and commence operation left the city to pass its own ordinance and to sell a franchise created in the ordinance on the terms specified in the ordinance. Peoples Gas Co. v. Barbourville, 291 Ky. 805 , 165 S.W.2d 567, 1942 Ky. LEXIS 321 ( Ky. 1942 ).

Where water company had a five-year franchise from a city which contained a schedule of rates for fire hydrant service dated one year prior to enactment of this section and six years later purchased a 20-year franchise from the city subject to regulation by public service commission and then sold its plant to a second water company, the fact the rates in effect after the sale were the same as those provided in the five-year franchise did not have the effect of continuing in force obligations of that franchise. Nerren v. Kentucky Water Service Co., 313 Ky. 151 , 230 S.W.2d 615, 1950 Ky. LEXIS 834 ( Ky. 1950 ).

10. “Electric-Consuming Facilities.”

The definition of “electric-consuming facilities” does not limit a facility to being a building, but is broad enough to mean an entire industrial park which will be served from a central station source, even though the park operator or developer may purchase and consume very little electricity and be only one of several actual consumers within the park. Owen County Rural Electric Cooperative Corp. v. Public Service Com., 689 S.W.2d 599, 1985 Ky. App. LEXIS 490 (Ky. Ct. App. 1985).

11. Designation As Public Utility.

The Circuit Court ruled that amendments to this section, which allowed the Public Service Commission to regulate private sewage treatment plants, made the private sanitation company in this case a public utility, and on that basis the court ruled that the trust indenture between the private sanitation company and bank designed to provide a guaranteed backup for the operation of the sewer system if the private company became insolvent, was terminated by the designation of private company as a public utility. Louisville & Jefferson County Metro. Sewer Dist. v. Tarrytowne Sanitation Co., 818 S.W.2d 267, 1991 Ky. App. LEXIS 51 (Ky. Ct. App. 1991).

Cited:

Frankfort Kentucky Natural Gas Co. v. Frankfort, 276 Ky. 199 , 123 S.W.2d 270, 1938 Ky. LEXIS 541 ( Ky. 1938 ); Kentucky Utilities Co. v. Paris, 297 Ky. 440 , 179 S.W.2d 676, 1944 Ky. LEXIS 705 ( Ky. 1944 ); Citizens Tel. Co. v. Anderson, 269 S.W.2d 283, 1954 Ky. LEXIS 1001 ( Ky. 1954 ); Covington v. Board of Comm’rs, 371 S.W.2d 20, 1963 Ky. LEXIS 90 ( Ky. 1963 ); Bardstown v. Louisville Gas & Electric Co., 383 S.W.2d 918, 1964 Ky. LEXIS 68 ( Ky. 1964 ); Electric & Water Plant Bd. v. South Cent. Bell Tel. Co., 805 S.W.2d 141, 1990 Ky. App. LEXIS 143 (Ky. Ct. App. 1990); Commonwealth v. PSC of Ky., — S.W.3d —, 2008 Ky. App. LEXIS 29 (Ky. Ct. App. 2008).

Opinions of Attorney General.

The Kentucky public service commission has no jurisdiction over the rates and service of a community antenna television system. OAG 64-44 .

A city which owns and operates its own water plant is not under the jurisdiction or regulatory authority of the public service commission as to rates and service; however, the rate fixing of the city is subject to court review for reasonableness. OAG 72-678 .

The public service commission has no authority to regulate the rates of a municipally owned, controlled, operated or managed sewage treatment facility. OAG 75-327 .

Although a municipally owned utility is not required to pay interest on service deposits, the deposits must be refunded where they are not used to cover delinquent accounts at the time service is discontinued. OAG 77-353 .

The public service commission has no jurisdiction or control over the operation or management of a municipally owned water system, whether it is operated inside or outside the city limits. OAG 77-410 .

A corporation which intends to establish only sewer collector lines, and not a “sewage treatment” facility as envisioned in subdivision (3)(f) of this section, would not be subject to the regulatory authority of the public service commission. OAG 79-156 . (Decision prior to 1978 amendment.)

Absent some specific provision in an agreement between the city’s utility plant board and its customers that security deposits shall be refunded to the customers prior to discontinuation of service, such deposits need not be refunded prior to discontinuation of service unless customers of the utility plant board can make other suitable arrangements about securing their bills. OAG 80-25 .

In order to promote greater economy, efficiency and improved administration, the governor may, by an executive order clearly designating the order as being one relating to reorganization, merge the energy regulatory commission and the utility regulatory commission into one commission. OAG 80-567 .

There is nothing in this chapter that requires the prior permission of the state energy regulatory commission or utility commission in order for the provisions of KRS 220.530 to be activated upon the annexation of a sanitation district by a city, particularly in view of the provisions of KRS 220.540 detailing the effect of KRS 220.010 to 220.530 on other statutes. OAG 80-639 .

A city seeking control of a utility must request approval from the Public Service Commission. OAG 02-1 .

The Public Service Commission does not necessarily have to approve entrance by a city into an adjacent territory, but when a city contracts with a utility subject to PSC regulation, this exemption is waived. OAG 02-1 .

Research References and Practice Aids

Cross-References.

Passenger vehicles, quarantine by state and local health boards, KRS 214.020 .

Poles and wires of public utilities, when required to be removed from public road, KRS 179.250 .

Relocating of utility facility on public road, cost, paid how, KRS 179.265 .

Rural electric cooperatives subject to provisions of KRS 278.010 to 278.450 , 278.990 , 279.210 .

Taxation of public utilities, KRS Ch. 136.

Utilities in cities, KRS Ch. 96.

Water company supplying city may condemn land or materials, KRS 96.080 .

Kentucky Bench & Bar.

Rogers, Public Utility Rate Applications Practice and Procedure Before the Public Service Commission, Vol. 41, No. 1, Jan. 1977 Ky. Bench & B. 8.

Kentucky Law Journal.

Comments, Procedures for Termination of Utility Service: The Requirements of Due Process, 64 Ky. L.J. 180 (1975-1976).

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

Public Utility Takeovers in Kentucky: A Rare Breed Gets Rarer, 78 Ky. L.J. 181 (1989-90).

278.012. Water association subject to Public Service Commission — Exceptions.

Notwithstanding any other provisions of the Kentucky Revised Statutes, any water association formed for the purpose of furnishing water or sewer services to the general public pursuant to KRS Chapter 273 is deemed to be and shall be a public utility and shall be subject to the jurisdiction of the Public Service Commission in the same manner and to the same extent as any other utility as defined in KRS 278.010 , except:

  1. As provided in KRS 278.023 ; or
  2. When a wholesale supplier selling water or providing sewage treatment to a water association increases its rates, the water association shall have the authority to increase its rates commensurate with the wholesale supplier without prior approval by the commission.

Within twenty (20) days after any such increase in rates, the association shall file its revised tariffs with the commission, together with a copy of the notice from its wholesale supplier showing the increase in the rate charged to the utility, and a statement of the volume of purchased water used or sewage treated to calculate the increase in rates. The commission shall approve the filing or establish revised rates by order no later than thirty (30) days after the above documents are filed with it. Prior to or at the time of the first billing of the new rates, the district shall give notice to its customers of the increase.

History. Enact. Acts 1972, ch. 310, § 1; 1978, ch. 379, § 2, effective April 1, 1979; 1982, ch. 82, § 2, effective July 15, 1982; 1986, ch. 495, § 1, effective July 15, 1986; 1988, ch. 12, § 2, effective July 15, 1988; 1992, ch. 276, § 2, effective July 14, 1992.

Opinions of Attorney General.

Since KRS 74.012 and this section when read together simply reflect the legislative intent to bring private corporations furnishing water to the general public within the regulatory power of the public service commission, regulation as applied to a private water utility did not convert the utility into a governmental agency as envisioned by KRS 42.330 (11) (now repealed); and therefore a water system organized under KRS Chapter 273 could not qualify under KRS 42.330 (now repealed) to use the Coal Severance Economic Aid Fund since it was not one of the beneficiary agencies listed in KRS 42.330. OAG 77-524 . (Opinion prior to 1978 amendment.)

278.015. Water district; combined water, gas, or sewer district; or water commission a public utility subject to Public Service Commission — Exceptions.

Notwithstanding any of the provisions of KRS Chapter 74, any water district; combined water, gas, or sewer district; or water commission, except a joint commission created under the provisions of KRS 74.420 to 74.520 , shall be a public utility and shall be subject to the jurisdiction of the Public Service Commission in the same manner and to the same extent as any other utility as defined in KRS 278.010 , except:

  1. As provided in KRS 278.023 ; or
  2. When a wholesale supplier selling water or providing sewage treatment to a water district; combined water, gas, or sewer district; or water commission increases its rates, the water district or combined water, gas, or sewer district shall have the authority to increase its rates commensurate with the wholesale supplier without prior approval by the commission.

Within twenty (20) days after any such increase in rates, the district shall file its revised tariffs with the commission, together with a copy of the notice from its wholesale supplier showing the increase in the rate charged to the utility, and a statement of the volume of purchased water used or sewage treated to calculate the increase in rates. The commission shall approve the filing or establish revised rates by order no later than thirty (30) days after the above documents are filed with it. Prior to or at the time of the first billing of the new rates, the district shall give notice to its customers of the increase.

History. Enact. Acts 1964, ch. 195, § 2; 1978, ch. 379, § 3, effective April 1, 1979; 1982, ch. 82, § 3, effective July 15, 1982; 1986, ch. 495, § 2, effective July 15, 1986; 1988, ch. 12, § 1, effective July 15, 1988; 1992, ch. 276, § 1, effective July 14, 1992; 1996, ch. 122, § 10, effective July 15, 1996.

NOTES TO DECISIONS

1. Arrearages.
2. — Pass to Ratepayers.

This section and 807 KAR 5:068 permit a water district to automatically pass through to its ratepayers sums agreed to in settlement when those sums represent arrearages in water costs accrued over the 19 months preceding the district’s filing with the Public Service Commission (PSC) for the automatic increases. The allowance of the pass-through for this accumulated arrearage does no violence to the intent of this section, to the statutory framework of which this section is a part, or to the fiscal responsibility of the various water districts. Kentucky Public Service Com. v. Cumberland Falls Highway Water Dist., 834 S.W.2d 726, 1992 Ky. App. LEXIS 184 (Ky. Ct. App. 1992).

278.0152. Water utility permitted to charge a tapping fee for installing service to customer.

  1. Any utility subject to this chapter which is engaged in the distributing or furnishing of water to or for the public, for compensation, may, subject to the approval of the commission, make a charge or “tapping fee” for installing service to its customers.
  2. The “tapping fee” shall include charges for a service tap, meter, meter vault, and installation thereof.

History. Enact. Acts 1988, ch. 8, § 1, effective July 15, 1988.

Opinions of Attorney General.

A water district’s regulations, concerning water and sewage, can extend only to its own water and sewage facilities. OAG 69-562 .

278.016. Commonwealth to be divided into geographical service areas.

It is hereby declared to be in the public interest that, in order to encourage the orderly development of retail electric service, to avoid wasteful duplication of distribution facilities, to avoid unnecessary encumbering of the landscape of the Commonwealth of Kentucky, to prevent the waste of materials and natural resources, for the public convenience and necessity and to minimize disputes between retail electric suppliers which may result in inconvenience, diminished efficiency and higher costs in serving the consumer, the state be divided into geographical areas, establishing the areas within which each retail electric supplier is to provide the retail electric service as provided in KRS 278.016 to 278.020 and, except as otherwise provided, no retail electric supplier shall furnish retail electric service in the certified territory of another retail electric supplier.

History. Enact. Acts 1972, ch. 83, § 2.

NOTES TO DECISIONS

Cited:

Owen County Rural Electric Cooperative Corp. v. Public Service Com., 689 S.W.2d 599, 1985 Ky. App. LEXIS 490 (Ky. Ct. App. 1985).

278.017. Establishing boundaries of certified areas.

  1. Except as otherwise provided in this section, the boundaries of the certified territory of each retail electric supplier are hereby set as a line or lines substantially equidistant between its existing distribution lines and the nearest existing distribution lines of any other retail electric supplier in every direction, with the result that there is hereby certified to each retail electric supplier such area which in its entirety is located substantially in closer proximity to one of its existing distribution lines than to the nearest existing distribution line of any other retail electric supplier.
  2. On or before one hundred twenty (120) days after June 16, 1972, or, when requested in writing by a retail electric supplier and for good cause shown, such further time as the commission may fix by order, each retail electric supplier shall file with the commission a map or maps showing all of its existing distribution lines. The commission shall prepare or cause to be prepared within one hundred twenty (120) days thereafter a map or maps of uniform scale to show, accurately and clearly, the boundaries of the certified territory of each retail electric supplier as established under subsection (1) of this section, and shall issue such map or maps of certified territory to each retail electric supplier. Any retail electric supplier who feels itself aggrieved by reason of a certification of territory pursuant to this section may protest the certification of territory within a one hundred twenty day period after issuance of the map of certified territory by the commission; and the commission shall have the power, after hearing, to revise or vacate such certified territories or portions thereof.
  3. In such hearing, the commission shall be guided by the following conditions as they existed on June 16, 1972:
    1. The proximity of existing distribution lines to such certified territory.
    2. Which supplier was first furnishing retail electric service, and the age of existing facilities in the area.
    3. The adequacy and dependability of existing distribution lines to provide dependable, high quality retail electric service at reasonable costs.
    4. The elimination and prevention of duplication of electric lines and facilities supplying such territory. In its determination of such protest, the commission hearing shall be de novo; and neither supplier shall bear the burden of proof.
  4. In each area, where the commission shall determine that the existing distribution lines of two or more retail electric suppliers are so intertwined or located that subsection (1) of this section cannot reasonably be applied, the commission shall, after hearing, certify the service territory or territories for the retail electric suppliers under the provisions of subsection (3) of this section.

History. Enact. Acts 1972, ch. 83, § 3; 1978, ch. 379, § 4, effective April 1, 1979; 1982, ch. 82, § 4, effective July 15, 1982.

NOTES TO DECISIONS

  1. Purpose.
  2. Industrial Park.
1. Purpose.

The legislature explicitly granted the right to the Public Service Commission to establish boundaries of certified areas by its enactment of this section, and granted the right to serve certified territories by the enactment of KRS 278.018(1). Florence v. Owen Electric Coop., Inc., 832 S.W.2d 876, 1992 Ky. LEXIS 72 ( Ky. 1992 ).

2. Industrial Park.

The Public Service Commission correctly modified the boundary line between the certified territories of two (2) electric suppliers where the original boundary divided a proposed industrial park, even though the modification took one supplier’s territory away, where the modification avoided duplication of services, conserved resources, materials and site space, and eliminated the need to establish additional specified high voltage lines. Owen County Rural Electric Cooperative Corp. v. Public Service Com., 689 S.W.2d 599, 1985 Ky. App. LEXIS 490 (Ky. Ct. App. 1985).

278.018. Right to serve certified territory.

  1. Except as otherwise provided herein, each retail electric supplier shall have the exclusive right to furnish retail electric service to all electric-consuming facilities located within its certified territory, and shall not furnish, make available, render or extend its retail electric service to a consumer for use in electric-consuming facilities located within the certified territory of another retail electric supplier; provided that any retail electric supplier may extend its facilities through the certified territory of another retail electric supplier, if such extension is necessary for such supplier to connect any of its facilities or to serve its consumers within its own certified territory. In the event that a new electric-consuming facility should locate in two (2) or more adjacent certified territories, the commission shall determine which retail electric supplier shall serve said facility based on criteria in KRS 278.017(3).
  2. Except as provided in subsections (3) and (5) of this section, any new electric-consuming facility located in an area which has not as yet been included in a map issued by the commission, pursuant to KRS 278.017(2), or certified, pursuant to KRS 278.017(4), shall be furnished retail electric service by the retail electric supplier which has an existing distribution line in closer proximity to such electric-consuming facility than is the nearest existing distribution line of any other retail electric supplier. Any disputes under this subsection shall be resolved by the commission.
  3. The commission may, after a hearing had upon due notice, make such findings as may be supported by proof as to whether any retail electric supplier operating in a certified territory is rendering or proposes to render adequate service to an electric-consuming facility and in the event the commission finds that such retail electric supplier is not rendering or does not propose to render adequate service, the commission may enter an order specifying in what particulars such retail electric supplier has failed to render or propose to render adequate service and order that such failure be corrected within a reasonable time, such time to be fixed in such order. If the retail electric supplier so ordered to correct such failure fails to comply with such order, the commission may authorize another retail electric supplier to furnish retail electric service to such facility.
  4. Except as provided in subsection (3) of this section, no retail electric supplier shall furnish, make available, render or extend retail electric service to any electric-consuming facility to which such service is being lawfully furnished by another retail electric supplier on June 16, 1972, or to which retail electric service is lawfully commenced thereafter in accordance with this section by another retail electric supplier.
  5. The provisions of KRS 278.016 to 278.020 shall not preclude any retail electric supplier from extending its service after June 16, 1972, to property and facilities owned and operated by said retail electric supplier.
  6. Notwithstanding the effectuation of certified territories established by or pursuant to KRS 278.016 to 278.020 , and the exclusive right to service within such territory, a retail electric supplier may contract with another retail electric supplier for the purpose of allocating territories and consumers between such retail electric suppliers and designating which territories and consumers are to be served by which of said retail electric suppliers. Notwithstanding any other provisions of law, a contract between retail electric suppliers as herein provided when approved by the commission shall be valid and enforceable. The commission shall approve such a contract if it finds that the contract will promote the purposes of KRS 278.016 and will provide adequate and reasonable service to all areas and consumers affected thereby.

History. Enact. Acts 1972, ch. 83, § 4; 1978, ch. 379, § 5, effective April 1, 1979.

NOTES TO DECISIONS

  1. Purpose.
  2. Industrial Park.
1. Purpose.

The legislature explicitly granted the right to the Public Service Commission to establish boundaries of certified areas by its enactment of KRS 278.017 , and granted the right to serve certified territories by the enactment of subsection (1) of this section. Florence v. Owen Electric Coop., Inc., 832 S.W.2d 876, 1992 Ky. LEXIS 72 ( Ky. 1992 ).

2. Industrial Park.

The Public Service Commission correctly modified the boundary line between the certified territories of two electric suppliers where the original boundary divided a proposed industrial park, even though the modification took one supplier’s territory away, where the modification avoided duplication of services, conserved resources, materials and site space, and eliminated the need to establish additional specified high voltage lines. Owen County Rural Electric Cooperative Corp. v. Public Service Com., 689 S.W.2d 599, 1985 Ky. App. LEXIS 490 (Ky. Ct. App. 1985).

A Public Service Commission order which took part of an electric supplier’s territory and awarded it to another in order to have unified service at a proposed industrial park was not confiscating a valuable property right without compensation, where the supplier had made no investment in the territory, and the second supplier was taking no income or equipment. This section provided a statutory mechanism for modifying such territorial boundaries. Owen County Rural Electric Cooperative Corp. v. Public Service Com., 689 S.W.2d 599, 1985 Ky. App. LEXIS 490 (Ky. Ct. App. 1985).

278.020. Certificate of convenience and necessity required for construction provision of utility service or of utility — Exceptions — Approval required for acquisition or transfer of ownership — Public hearing on proposed transmission line — Limitations upon approval of application to transfer control of utility or to abandon or cease provision of services — Hearing — Severability of provisions.

    1. No person, partnership, public or private corporation, or combination thereof shall commence providing utility service to or for the public or begin the construction of any plant, equipment, property, or facility for furnishing to the public any of the services enumerated in KRS 278.010 , except: (1) (a) No person, partnership, public or private corporation, or combination thereof shall commence providing utility service to or for the public or begin the construction of any plant, equipment, property, or facility for furnishing to the public any of the services enumerated in KRS 278.010 , except:
      1. Retail electric suppliers for service connections to electric-consuming facilities located within its certified territory;
      2. Ordinary extensions of existing systems in the usual course of business; or
      3. A water district created under KRS Chapter 74 or a water association formed under KRS Chapter 273 that undertakes a waterline extension or improvement project if the water district or water association is a Class A or B utility as defined in the uniform system of accounts established by the commission according to KRS 278.220 and:
        1. The water line extension or improvement project will not cost more than five hundred thousand dollars ($500,000); or
        2. The water district or water association will not, as a result of the water line extension or improvement project, incur obligations requiring commission approval as required by KRS 278.300 .
    2. Upon the filing of an application for a certificate, and after any public hearing which the commission may in its discretion conduct for all interested parties, the commission may issue or refuse to issue the certificate, or issue it in part and refuse it in part, except that the commission shall not refuse or modify an application submitted under KRS 278.023 without consent by the parties to the agreement.
    3. The commission, when considering an application for a certificate to construct a base load electric generating facility, may consider the policy of the General Assembly to foster and encourage use of Kentucky coal by electric utilities serving the Commonwealth.
    4. The commission, when considering an application for a certificate to construct an electric transmission line, may consider the interstate benefits expected to be achieved by the proposed construction or modification of electric transmission facilities in the Commonwealth.
    5. Unless exercised within one (1) year from the grant thereof, exclusive of any delay due to the order of any court or failure to obtain any necessary grant or consent, the authority conferred by the issuance of the certificate of convenience and necessity shall be void, but the beginning of any new construction or facility in good faith within the time prescribed by the commission and the prosecution thereof with reasonable diligence shall constitute an exercise of authority under the certificate.
  1. For the purposes of this section, construction of any electric transmission line of one hundred thirty-eight (138) kilovolts or more and of more than five thousand two hundred eighty (5,280) feet in length shall not be considered an ordinary extension of an existing system in the usual course of business and shall require a certificate of public convenience and necessity. However, ordinary extensions of existing systems in the usual course of business not requiring such a certificate shall include:
    1. The replacement or upgrading of any existing electric transmission line; or
    2. The relocation of any existing electric transmission line to accommodate construction or expansion of a roadway or other transportation infrastructure; or
    3. An electric transmission line that is constructed solely to serve a single customer and that will pass over no property other than that owned by the customer to be served.
  2. Prior to granting a certificate of public convenience and necessity to construct facilities to provide the services set forth in KRS 278.010(3)(f), the commission shall require the applicant to provide a surety bond, or a reasonable guaranty that the applicant shall operate the facilities in a reasonable and reliable manner for a period of at least five (5) years. The surety bond or guaranty shall be in an amount sufficient to ensure the full and faithful performance by the applicant or its successors of the obligations and requirements of this chapter and of all applicable federal and state environmental requirements. However, no surety bond or guaranty shall be required for an applicant that is a water district or water association or for an applicant that the commission finds has sufficient assets to ensure the continuity of sewage service.
  3. No utility shall exercise any right or privilege under any franchise or permit, after the exercise of that right or privilege has been voluntarily suspended or discontinued for more than one (1) year, without first obtaining from the commission, in the manner provided in subsection (1) of this section, a certificate of convenience and necessity authorizing the exercise of that right or privilege.
  4. No utility shall apply for or obtain any franchise, license, or permit from any city or other governmental agency until it has obtained from the commission, in the manner provided in subsection (1) of this section, a certificate of convenience and necessity showing that there is a demand and need for the service sought to be rendered.
  5. No person shall acquire or transfer ownership of, or control, or the right to control, any utility under the jurisdiction of the commission by sale of assets, transfer of stock, or otherwise, or abandon the same, without prior approval by the commission. The commission shall grant its approval if the person acquiring the utility has the financial, technical, and managerial abilities to provide reasonable service.
  6. No individual, group, syndicate, general or limited partnership, association, corporation, joint stock company, trust, or other entity (an “acquirer”), whether or not organized under the laws of this state, shall acquire control, either directly or indirectly, of any utility furnishing utility service in this state, without having first obtained the approval of the commission. Any acquisition of control without prior authorization shall be void and of no effect. As used in this subsection, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a utility, whether through the ownership of voting securities, by effecting a change in the composition of the board of directors, by contract or otherwise. Control shall be presumed to exist if any individual or entity, directly or indirectly, owns ten percent (10%) or more of the voting securities of the utility. This presumption may be rebutted by a showing that ownership does not in fact confer control. Application for any approval or authorization shall be made to the commission in writing, verified by oath or affirmation, and be in a form and contain the information as the commission requires. The commission shall approve any proposed acquisition when it finds that the same is to be made in accordance with law, for a proper purpose and is consistent with the public interest. The commission may make investigation and hold hearings in the matter as it deems necessary, and thereafter may grant any application under this subsection in whole or in part and with modification and upon terms and conditions as it deems necessary or appropriate. The commission shall grant, modify, refuse, or prescribe appropriate terms and conditions with respect to every such application within sixty (60) days after the filing of the application therefor, unless it is necessary, for good cause shown, to continue the application for up to sixty (60) additional days. The order continuing the application shall state fully the facts that make continuance necessary. In the absence of that action within that period of time, any proposed acquisition shall be deemed to be approved.
  7. Subsection (7) of this section shall not apply to any acquisition of control of any:
    1. Utility which derives a greater percentage of its gross revenue from business in another jurisdiction than from business in this state if the commission determines that the other jurisdiction has statutes or rules which are applicable and are being applied and which afford protection to ratepayers in this state substantially equal to that afforded such ratepayers by subsection (7) of this section;
    2. Utility by an acquirer who directly, or indirectly through one (1) or more intermediaries, controls, or is controlled by, or is under common control with, the utility, including any entity created at the direction of such utility for purposes of corporate reorganization; or
    3. Utility pursuant to the terms of any indebtedness of the utility, provided the issuance of indebtedness was approved by the commission.
  8. In a proceeding on an application filed pursuant to this section, any interested person, including a person over whose property the proposed transmission line will cross, may request intervention, and the commission shall, if requested, conduct a public hearing in the county in which the transmission line is proposed to be constructed, or, if the transmission line is proposed to be constructed in more than one county, in one of those counties. The commission shall issue its decision no later than ninety (90) days after the application is filed, unless the commission extends this period, for good cause, to one hundred twenty (120) days. The commission may utilize the provisions of KRS 278.255(3) if, in the exercise of its discretion, it deems it necessary to hire a competent, qualified and independent firm to assist it in reaching its decision. The issuance by the commission of a certificate that public convenience and necessity require the construction of an electric transmission line shall be deemed to be a determination by the commission that, as of the date of issuance, the construction of the line is a prudent investment.
  9. The commission shall not approve any application under subsection (6) or (7) of this section for the transfer of control of a utility described in KRS 278.010(3)(f) unless the commission finds, in addition to findings required by those subsections, that the person acquiring the utility has provided evidence of financial integrity to ensure the continuity of sewage service in the event that the acquirer cannot continue to provide service.
  10. The commission shall not accept for filing an application requesting authority to abandon facilities that provide services as set forth in KRS 278.010(3)(f) or to cease providing services unless the applicant has provided written notice of the filing to the following:
    1. Kentucky Division of Water;
    2. Office of the Attorney General; and
    3. The county judge/executive, mayor, health department, planning and zoning commission, and public sewage service provider of each county and each city in which the utility provides utility service.
  11. The commission may grant any application requesting authority to abandon facilities that provide services as set forth in KRS 278.010(3)(f) or to cease providing services upon terms and conditions as the commission deems necessary or appropriate, but not before holding a hearing on the application and no earlier than ninety (90) days from the date of the commission’s acceptance of the application for filing, unless the commission finds it necessary for good cause to act upon the application earlier.
  12. If any provision of this section or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this section which can be given effect without the invalid provision or application, and to that end the provisions are declared to be severable.

In either case, the water district or water association shall not, as a result of the water line extension or improvement project, increase rates to its customers;

until that person has obtained from the Public Service Commission a certificate that public convenience and necessity require the service or construction.

HISTORY: 3952-25: amend. Acts 1972, ch. 83, § 5; 1974, ch. 388, § 3; 1978, ch. 379, § 6, effective April 1, 1979; 1982, ch. 82, § 5, effective July 15, 1982; 1982, ch. 130, § 1, effective July 15, 1982; 1986, ch. 368, § 1, effective July 15, 1986; 1988, ch. 12, § 3, effective July 15, 1988; 1988, ch. 22, § 5, effective July 15, 1988; 1988, ch. 335, § 1, effective July 15, 1988; 1992, ch. 102, § 2, effective July 14, 1992; 1994, ch. 144, § 1, effective July 15, 1994; 1998, ch. 388, § 1, effective July 15, 1998; 2001, ch. 35, § 1, effective June 21, 2001; 2004, ch. 75, § 1, effective July 13, 2004; 2006, ch. 137, § 1, effective July 12, 2006; 2016 ch. 50, § 1, effective April 8, 2016; 2018 ch. 171, § 9, effective April 14, 2018; 2018 ch. 207, § 9, effective April 27, 2018; 2019 ch. 66, § 1, effective June 27, 2019.

NOTES TO DECISIONS

  1. In General.
  2. Duty of Commission.
  3. Private Use.
  4. Ordinary Extensions.
  5. Determination of Convenience and Necessity.
  6. — Exception Under 10 Percent Rule.
  7. Duplication.
  8. Proof of Financial Ability.
  9. Bidding for Franchises.
  10. Interested Parties.
  11. Exemption from Regulation.
  12. Transmission Lines.
1. In General.

Natural Resources and Environmental Protection Department (now Cabinet) properly deferred to the Energy Regulatory Commission’s (now Public Service Commission’s) interpretation of this section in determining the need for a certificate of convenience and necessity before a utility could seek preconstruction air pollution approval to build a power plant. Western Kraft Paper Group v. Department for Natural Resources Environmental Protection, 632 S.W.2d 454, 1981 Ky. App. LEXIS 323 (Ky. Ct. App. 1981).

2. Duty of Commission.

Duty of public service commission is to prevent ruinous competition between entities in the public service field. Cold Spring v. Campbell County Water Dist., 334 S.W.2d 269, 1960 Ky. LEXIS 223 ( Ky. 1960 ), overruled, Georgetown v. Public Service Com., 516 S.W.2d 842, 1974 Ky. LEXIS 173 ( Ky. 1974 ).

3. Private Use.

Where a private corporation constructed a transmission line in order to be able to obtain electric service from a power company, it was not required to obtain a certificate because it did not construct the line to serve the public and did not intend to serve the public. Cumberland Valley Rural Electric Cooperative Corp. v. Public Service Com., 433 S.W.2d 103, 1968 Ky. LEXIS 254 ( Ky. 1968 ).

4. Ordinary Extensions.

A proposed expansion by a water district was not an ordinary extension of an existing system in the usual course of business where the original plant cost $1,000,000 and the expansion would cost $424,000 and would double the capacity. Covington v. Board of Comm'rs, 371 S.W.2d 20, 1963 Ky. LEXIS 90 ( Ky. 1963 ), overruled, Georgetown v. Public Service Com., 516 S.W.2d 842, 1974 Ky. LEXIS 173 ( Ky. 1974 ).

Under any normal circumstances, if a utility has been rendering service to a tract of land owned as a single boundary, extension of the service lines to any point in the boundary to serve an owner or tenant would reasonably be considered to be an ordinary extension in the usual course of business. Cumberland Valley Rural Electric Cooperative Corp. v. Public Service Com., 433 S.W.2d 103, 1968 Ky. LEXIS 254 ( Ky. 1968 ).

5. Determination of Convenience and Necessity.

Public service commission cannot by issuing certificate to city, authorize city to maintain waterworks system for distribution of water outside city limits, where the law does not otherwise give city such power. Smith v. Raceland, 258 Ky. 671 , 80 S.W.2d 827, 1935 Ky. LEXIS 218 ( Ky. 1935 ). But see McClellan v. Louisville Water Co., 351 S.W.2d 197, 1961 Ky. LEXIS 160 ( Ky. 1961 ); Flemingsburg v. Public Service Com., 411 S.W.2d 920, 1966 Ky. LEXIS 28 ( Ky. 1966 ).

This section limits the authority of the commission to the determination of whether there is a need and demand for the public service in question, and if it determines that there is such need and demand it must issue a certificate to all parties seeking a right to bid upon the franchises to be offered by political subdivisions. Public Service Com. v. Blue Grass Natural Gas Co., 303 Ky. 310 , 197 S.W.2d 765, 1946 Ky. LEXIS 847 ( Ky. 1946 ).

A determination of public convenience and necessity requires both a finding of the need for a new service system or facility from the standpoint of service requirements, and an absence of wasteful duplication resulting from the construction of the new system or facility. Kentucky Utilities Co. v. Public Service Com., 252 S.W.2d 885, 1952 Ky. LEXIS 1039 ( Ky. 1952 ).

In a determination of the public service commission to issue a certificate of convenience and necessity to construct a steam generating plant and transmission lines for the purpose of supplying electric energy to the distribution systems of the local rural electric cooperative corporations throughout the state to the East Kentucky rural electric cooperative under KRS 278.020 where the application was opposed by companies engaged in supplying electric energy to the coops and to other distribution systems in the state, the question was not whether “more” service was required but rather whether a “new service system” or a “new service facility” was required which should be based on a showing of substantial inadequacy of existing service due to substantial deficiency of service facilities and an absence of wasteful duplication. Kentucky Utilities Co. v. Public Service Com., 252 S.W.2d 885, 1952 Ky. LEXIS 1039 ( Ky. 1952 ).

The demand and need for service is to be gauged from the point of view of the consumers and narrows almost to the determination of whether there are any customers in the area. Public Service Com. v. Paris, 299 S.W.2d 811, 1957 Ky. LEXIS 432 ( Ky. 1957 ).

Where telephone company had acquired from its predecessor a 20-year franchise issued by city and currently owned the existing facilities (admittedly antiquated) and had provided a needed service to the people in the area and at the time of hearing had a firm offer for adequate financing to modernize the system it was in the public interest for the commission to issue the company a certificate of convenience and necessity and the commission acted unlawfully and unreasonably in failing to do so. Blue Grass State Tel. Co. v. Public Service Com., 382 S.W.2d 81, 1964 Ky. LEXIS 332 ( Ky. 1964 ).

The granting of a certificate of convenience and necessity to a rural electric cooperative for the building of a generating plant and construction of allied facilities was authorized on the basis of a finding supported by evidence that the existing service in the area was inadequate because ordinary extensions of existing systems in the area would not supply the deficiency. Kentucky Utilities Co. v. Public Service Com., 390 S.W.2d 168, 1965 Ky. LEXIS 343 ( Ky. 1965 ).

A municipal water company is not required to obtain a certificate from the public service commission for new construction. Flemingsburg v. Public Service Com., 411 S.W.2d 920, 1966 Ky. LEXIS 28 ( Ky. 1966 ).

This section is not ambiguous; subsection (1) of this section applies to certificates of public convenience and necessity for new utility construction and does not prohibit a utility from applying first to other governmental agencies for other needed authority; however, subsection (3) of this section applies to certificates of convenience and necessity for franchises, licenses or other permits for utility service granted by a municipality or other governmental agency, and prohibits a utility from applying to a city or other agency for authority to serve customers before going to the Energy Regulatory Commission (now Public Service Commission) for authority to construct. Western Kraft Paper Group v. Department for Natural Resources Environmental Protection, 632 S.W.2d 454, 1981 Ky. App. LEXIS 323 (Ky. Ct. App. 1981).

There is a statutory distinction between subsection (1) as to construction, and subsection (3) of this section as to service; they are two different subjects, requiring consideration of different standards and different findings and resulting in certificates for different purposes. Western Kraft Paper Group v. Department for Natural Resources Environmental Protection, 632 S.W.2d 454, 1981 Ky. App. LEXIS 323 (Ky. Ct. App. 1981).

A utility proposing construction is not required to obtain a certificate of convenience and necessity pursuant to subsection (3) of this section before it can make application to the Natural Resources and Environmental Protection Department (now Energy and Environment Cabinet) for air increment review. Western Kraft Paper Group v. Department for Natural Resources Environmental Protection, 632 S.W.2d 454, 1981 Ky. App. LEXIS 323 (Ky. Ct. App. 1981).

Utilities company was not required to have a final non-appealable certificate of public convenience and necessity before initiating condemnation proceedings; moreover, the mere filing of an appeal did not stay the legal effectiveness of an order of the Kentucky Public Service Commission regarding the certificate under KRS 278.390 . Jent v. Ky. Utils. Co., 332 S.W.3d 102, 2010 Ky. App. LEXIS 76 (Ky. Ct. App. 2010).

Condemnation proceedings instituted by a utilities company were not premature because there was a reasonable assurance that the construction of the power lines would have proceeded; the company already obtained a certificate of public convenience and necessity from the Kentucky Public Service Commission. Although the award of that certificate was being appealed, the order of the Commission remained in effect. Jent v. Ky. Utils. Co., 332 S.W.3d 102, 2010 Ky. App. LEXIS 76 (Ky. Ct. App. 2010).

6. — Exception Under 10 Percent Rule.

Where a telephone company sought authority to increase its intrastate rates and two (2) security and alarm system businesses objected on the basis that the telephone company had embarked on sizable construction projects without first applying for and receiving certificates of public convenience and necessity pursuant to this section, the application by the Utility Regulatory Commission of a 10% rule, under which a new construction project of less than 10% of the net investment of the utility would not be required to have a certificate, was not unreasonable or unlawful by clear and satisfactory evidence as required by KRS 278.430 in order to set aside the order. American Dist. Tel. Co. v. Utility Regulatory Com., 619 S.W.2d 504, 1981 Ky. App. LEXIS 268 (Ky. Ct. App. 1981).

7. Duplication.

In order to constitute a “duplication” one faculty should constitute an adequate substitute for the other. Covington v. Board of Comm'rs, 371 S.W.2d 20, 1963 Ky. LEXIS 90 ( Ky. 1963 ), overruled, Georgetown v. Public Service Com., 516 S.W.2d 842, 1974 Ky. LEXIS 173 ( Ky. 1974 ).

8. Proof of Financial Ability.

The commission has authority to deny the certificate if the company does not prove its financial ability. Public Service Com. v. Mt. Vernon Tel. Co., 300 S.W.2d 796, 1956 Ky. LEXIS 53 ( Ky. 1956 ).

9. Bidding for Franchises.

The legislature has not authorized the commission to determine who shall and who shall not be entitled to bid for franchises. Public Service Com. v. Blue Grass Natural Gas Co., 303 Ky. 310 , 197 S.W.2d 765, 1946 Ky. LEXIS 847 ( Ky. 1946 ).

10. Interested Parties.

Owners of lands over which would pass the transmission lines for which certificate of convenience and necessity was applied for by utilities company were not “parties interested” within the meaning of this section, and therefore they were not entitled to notice of hearing, where the question of what particular lands the proposed transmission line would cross was not in issue before the public service commission, and when the application for certificate was being considered the owners had not been determined. Satterwhite v. Public Service Com., 474 S.W.2d 387, 1971 Ky. LEXIS 113 ( Ky. 1971 ).

The Attorney General was a proper party to proceedings on an application for a certificate of public convenience and necessity where the record indicated that the consumer protection division of the Attorney General’s office intervened in the case and was an active participant in the administrative proceedings beginning with the public hearing. Energy Regulatory Com. v. Kentucky Power Co., 605 S.W.2d 46, 1980 Ky. App. LEXIS 367 (Ky. Ct. App. 1980).

11. Exemption from Regulation.

Since a city owned water supply system was not a utility subject to the jurisdiction of the Public Service Commission, the commission was without jurisdiction to resolve a territorial dispute between a city and a private water company where the city undertook to extend its water supply system beyond city limits into a contiguous territory served by the private company. Georgetown v. Public Service Com., 516 S.W.2d 842, 1974 Ky. LEXIS 173 ( Ky. 1974 ).

12. Transmission Lines.

Transmission lines are extensions in the ordinary course of business and, under subsection (1) of this section, do not require a certificate of convenience and necessity. Duerson v. East Kentucky Power Coop., Inc., 843 S.W.2d 340, 1992 Ky. App. LEXIS 238 (Ky. Ct. App. 1992).

Cited:

Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 59 S. Ct. 366, 83 L. Ed. 543, 1939 U.S. LEXIS 973 (1939), overruled in part, Bond v. United States, — U.S. —, 131 S. Ct. 2355, 180 L. Ed. 2d 269, 2011 U.S. LEXIS 4558 (U.S. 2011), overruled in part as stated, Bond v. United States, — U.S. —, 131 S. Ct. 2355, 180 L. Ed. 2d 269, 2011 U.S. LEXIS 4558 (U.S. 2011); Western Kentucky Gas Co. v. Public Service Com., 300 Ky. 281 , 188 S.W.2d 458, 1945 Ky. LEXIS 538 ( Ky. 1945 ); H-F-C Rural Tel. Co-op. Corp. v. Public Service Com., 269 S.W.2d 231, 1954 Ky. LEXIS 972 ( Ky. 1954 ); Corbin v. Kentucky Utilities Co., 447 S.W.2d 356, 1969 Ky. LEXIS 82 ( Ky. 1969 ); Lexington-Fayette Urban County Gov’t v. Lexhl, L.P., 315 S.W.3d 331, 2009 Ky. App. LEXIS 218 (Ky. Ct. App. 2009).

Opinions of Attorney General.

Since a water district is obligated to serve all inhabitants within its geographical area of service as fixed under KRS 74.010 and as defined by the certificate of convenience and necessity, the water district cannot refuse water service to individuals who request it for houses constructed within the district and who tender the usual rates and comply with the usual contractual terms. OAG 75-719 .

Where an order of a county court has authorized a water district to annex territory of another water district which has transacted no business since the organizing procedures were completed but which has not been dissolved according to statutory provisions, the acquiring water district would have to satisfy the requirements of this section to obtain a certificate of convenience and necessity before beginning the construction of any plant or facility for furnishing water to the public. OAG 76-285 .

A city seeking control of a utility must request approval from the Public Service Commission. OAG 02-1 .

Contractual transactions between cities and utilities to provide a service fall within the jurisdiction of the Public Service Commission. OAG 02-1 .

Research References and Practice Aids

Cross-References.

Certificate not required for municipal electric plant, KRS 96.880 .

Utility franchises, Const., §§ 3, 163, 164; KRS 96.010 to 96.030 .

Kentucky Law Journal.

Kentucky Law Survey, Bratt and Brown, Environmental Law, 70 Ky. L.J. 455 (1981-82).

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

Public Utility Takeovers in Kentucky: A Rare Breed Gets Rarer, 78 Ky. L.J. 181 (1989-90).

278.021. Receivership for abandoned utility — Criteria for finding of abandonment — Consolidation of actions — Powers and duties of receiver — Temporary receivership — Commission’s discretion to approve or decline to approve applications.

  1. If the commission, after notice and hearing, enters an order in which it finds that a utility is abandoned, the commission may bring an action in the Franklin Circuit Court for an order attaching the assets of the utility and placing those assets under the sole control and responsibility of a receiver.
  2. For purposes of this section, a utility shall be considered abandoned if it:
    1. Disclaims, renounces, relinquishes, or surrenders all property interests or all rights to utility property, real or personal, necessary to provide service;
    2. Notifies the commission of its intent to abandon the operation of the facilities used to provide service;
    3. Fails to comply with an order of the commission in which the commission determined that the utility is not rendering adequate service, specified the actions necessary for the utility to render adequate service, and fixed a reasonable time for the utility to perform such actions, and the failure of the utility to comply with the order presents a serious and imminent threat to the health or safety of a significant portion of its customers; or
    4. Fails to meet its financial obligations to its suppliers and is unable or unwilling to take necessary actions to correct the failure after receiving reasonable notice from the commission, and the failure poses an imminent threat to the continued availability of gas, water, electric, or sewer utility service to its customers.
  3. Within twenty (20) days after commencing an action in Franklin Circuit Court, the commission shall file a certified copy of the record of the administrative proceeding in which the commission entered its finding of abandonment.
  4. Any action brought pursuant to KRS 278.410 for review of an order of the commission containing a finding that a utility is abandoned shall be consolidated with any action brought pursuant to subsection (1) of this section and based upon the same order.
  5. Any receiver appointed by the court shall file a bond in an amount fixed by the court. The receiver shall operate the utility to preserve its assets, to restore or maintain a reasonable level of service, and to serve the best interests of its customers.
  6. During the pendency of any receivership, the receiver may bring or defend any cause of action on behalf of the utility and generally perform acts on behalf of the utility as the court may authorize.
  7. The receiver shall control and manage the assets and operations of the utility until the Franklin Circuit Court, after reasonable notice and hearing, orders the receiver to return control of those assets to the utility or to liquidate those assets as provided by law.
    1. Notwithstanding subsection (1) of this section, the commission may petition the Franklin Circuit Court to appoint temporarily a receiver to operate and manage the assets of an abandoned utility. After notice to the utility and a hearing, the court may grant a petition, upon terms and conditions as it deems appropriate, upon a showing by a preponderance of the evidence: (8) (a) Notwithstanding subsection (1) of this section, the commission may petition the Franklin Circuit Court to appoint temporarily a receiver to operate and manage the assets of an abandoned utility. After notice to the utility and a hearing, the court may grant a petition, upon terms and conditions as it deems appropriate, upon a showing by a preponderance of the evidence:
      1. That a utility has been abandoned;
      2. That the abandonment is an immediate threat to the public health, safety, or the continued availability of service to the utility’s customers; and
      3. That the delay required for the commission to conduct a hearing would place the public health, safety, or continued utility service at unnecessary risk.
    2. Sixty (60) days after its entry, the order of temporary receivership shall terminate and control and responsibility for the assets and operations of the utility shall revert to the utility without further action of the court unless the commission brings an action under subsection (1) of this section.
  8. Nothing contained in this section shall be construed as requiring the commission to approve an application made pursuant to KRS 278.020(6) for authority to abandon a utility or other assets of a utility or to cease the provision of utility service.

History. Enact. Acts 1994, ch. 145, § 1, effective July 15, 1994; 2011, ch. 7, § 1, effective June 8, 2011; 2016 ch. 50, § 2, effective April 8, 2016.

278.022. Utility to notify commission upon receipt of notice of discontinuance or termination from supplier.

  1. If a gas, water, electric, or sewer utility receives notice of discontinuance or termination of service from one (1) or more of its suppliers for breach or default under the terms of the service contract or tariff, and the discontinuance or termination will prevent the provision of gas, water, electric, or sewer utility service to its customers, the utility shall, within one (1) business day of receipt of the notice:
    1. Notify the commission in writing of the supplier’s notice of discontinuance or termination; and
    2. Furnish a copy of the supplier’s notice of discontinuance or termination to the commission.
  2. Any gas, water, electric, or sewer utility that intends to terminate service to another utility that is subject to the jurisdiction of the commission shall not terminate service without notifying the commission in writing of its intent to terminate service at least thirty (30) days prior to the date of termination.

History. Enact. Acts 2011, ch. 7, § 2, effective June 8, 2011.

278.023. Approval of federally-funded construction projects — Commission review of agreement and supporting documents — Surcharge.

  1. The provisions of this section shall apply to any construction project undertaken by a water association, commission, district, or combined water, gas or sewer district formed under KRS Chapter 74 or 273, which is financed in whole or in part under the terms of an agreement between the water utility and the United States Department of Agriculture or the United States Department of Housing and Urban Development. Because federal financing of such projects entails prior review and oversight by the federal agency and obligates the utility to certain actions, and because conflicting requirements by the federal agency and the Public Service Commission may place the water utility in an untenable position and delay or jeopardize such projects, it is declared to be the policy of the Commonwealth that such agreements shall be accepted by the Public Service Commission, and that the commission shall not prohibit a water utility from fulfilling its obligations under such an agreement.
  2. No agreement between a water utility and federal agency under this section shall take effect until thirty (30) days after such agreement, together with necessary applications and documentation, is filed with the commission, unless the commission acts within a lesser time. The commission in its administrative regulations shall list the specific documents required to be filed under this subsection.
  3. The commission shall review the project and the agreement, may recommend changes to the utility and the federal agency, but shall not modify or reject any portion of the agreement on its own authority. The commission shall issue a certificate of necessity and convenience and such other orders as may be required to implement the terms of the agreement no later than thirty (30) days after filing.
  4. The commission shall not prohibit the inclusion of any cost or the use of any accounting procedure in reviewing or setting the rates of the utility if such cost or procedure is required as a condition for federal financing of a construction project under an approved agreement between the water utility and federal agency.
  5. If the federal agency approves a surcharge to the water bills of customers who receive service through an extension of water facilities under this section, which is in lieu of an assessment against the customer for the cost of the extension, then the Public Service Commission shall allow collection of the surcharge to continue for the period of years for which the surcharge was established.

History. Enact. Acts 1988, ch. 12, § 4, effective July 15, 1988; 1992, ch. 388, § 2, effective July 14, 1992; 1994, ch. 158, § 1, effective July 15, 1994.

278.025. Certificate of environmental compatibility — Requirements. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 388, § 1; 1978, ch. 265, § 1, effective June 17, 1978; 1978, ch. 379, § 7, effective April 1, 1979; 1982, ch. 82, § 6, effective July 15, 1982) was repealed by Acts 2002, ch. 365, § 16, effective April 24, 2002. For present law, see KRS 278.027 .

278.027. Application for certificate — Publishing notice of hearing.

When application required by KRS 278.020 is made to the commission for a certificate that public convenience and necessity require the construction of a new electric transmission line of four hundred (400) kilovolts or more, during the thirty (30) days immediately preceding the public hearing on such application provided for in KRS 278.020 (1), the commission shall, on at least four (4) days, publish notice of such hearing in a newspaper or newspapers of general circulation in the counties and municipalities within which such transmission facility is proposed to be located in whole or in part. The commission shall not issue such a certificate for a new electric transmission line of four hundred (400) kilovolts or more unless the commission shall first determine that the proposed route of the line will reasonably minimize adverse impact on the scenic and environmental assets of the general area concerned, consistent with engineering and other technical and economic factors appropriate for consideration in determining the route of the line. At the said public hearing provided for in KRS 278.020(1), all persons residing on or owning property affected by the proposed transmission facility may be heard.

History. Enact. Acts 1974, ch. 388, § 2.

NOTES TO DECISIONS

1. Transmission Lines.

The Eminent Domain Act did not require a certificate of environmental compatibility for the erection of electric transmission lines. Duerson v. East Kentucky Power Coop., Inc., 843 S.W.2d 340, 1992 Ky. App. LEXIS 238 (Ky. Ct. App. 1992).

278.030. Rates, classifications and service of utilities to be just and reasonable — Service to be adequate — Utilities prohibited from energizing power to electrical service where seal is not present.

  1. Every utility may demand, collect and receive fair, just and reasonable rates for the services rendered or to be rendered by it to any person.
  2. Every utility shall furnish adequate, efficient and reasonable service, and may establish reasonable rules governing the conduct of its business and the conditions under which it shall be required to render service.
  3. Every utility may employ in the conduct of its business suitable and reasonable classifications of its service, patrons and rates. The classifications may, in any proper case, take into account the nature of the use, the quality used, the quantity used, the time when used, the purpose for which used, and any other reasonable consideration.
  4. Notwithstanding the provisions of subsection (2) of this section, no utility shall energize power to an electrical service in a manufactured home or mobile home where the certified installer’s seal is not present pursuant to KRS 227.570 .
  5. Notwithstanding the provisions of subsection (2) of this section, no utility shall energize power to an electrical service in a previously owned manufactured home or previously owned mobile home where the Class B1 seal is not present pursuant to KRS 227.600 .

History. 3952-28, 3952-29: amend. Acts 1976, ch. 88, § 1, effective March 29, 1976; 2008, ch. 118, § 3, effective January 1, 2009.

NOTES TO DECISIONS

  1. Authority of Commission.
  2. Increase in Rates.
  3. Adequate Service.
  4. Quality of Service.
  5. Reduction in Rates.
  6. Instructions.
  7. Variable Rates.
  8. Factors Considered.
  9. Liability.
1. Authority of Commission.

The legislative grant of power to regulate rates will be strictly construed and will neither be interpreted by implication nor inference. In fixing rates, the commission must give effect to all factors which are prescribed by the legislative body, but may not act on a matter which the legislature has not established. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

An order by the Public Service Commission approving a utility’s request for rate incentives and discounts was unlawful because it violated the specific mandates of KRS 278.170 . KRS 278.170 contained exclusive language regarding discounted rates, and the PSC could not utilize another statute to render the plain language of that statute a nullity; therefore, the interpretation of KRS 278.030(3) espoused by the PSC and adopted by the Circuit Court in affirming the application was contrary to the letter of the law. Commonwealth v. PSC of Ky., 2008 Ky. App. LEXIS 29 (Ky. Ct. App. Feb. 1, 2008), rev'd, 320 S.W.3d 660, 2010 Ky. LEXIS 217 ( Ky. 2010 ).

Prior to the enactment of KRS 278.509 , the Public Service Commission had no authority to approve a utility company’s Accelerated Main Replacement Program (AMRP) Riders because the PSC could not authorize the imposition of a surcharge for the company’s gas main replacement program without specific statutory authorization, and KRS 278.030 and 278.040 did not confer authority upon the PSC to approve the AMRP Rider. Ky. PSC v. Commonwealth ex rel. Stumbo, 2008 Ky. App. LEXIS 348 (Ky. Ct. App. Nov. 7, 2008), aff'd in part and rev'd in part, 324 S.W.3d 373, 2010 Ky. LEXIS 257 ( Ky. 2010 ).

Defendant state commission could not require unbundling of facilities and services the Federal Communications (FCC) had determined no longer needed to be unbundled under 47 U.S.C.S. § 251 and 47 U.S.C.S. § 271(d)(2)(B), (d)(6), and KRS 278.030 , 278.040 , did not give the state commission authority to enforce § 271, thus, plaintiff incumbent local exchange carrier’s challenge was proper; the FCC’s regulation barred rates other than the open-market rate, thus, any state commission price regulation created a conflict and the preemptive force came from § 271 and the accompanying regulations, not 47 U.S.C.S. § 253. BellSouth Telecomms., Inc. v. Ky. PSC, 669 F.3d 704, 2012 FED App. 0019P, 2012 U.S. App. LEXIS 1264 (6th Cir. Ky. 2012 ).

2. Increase in Rates.

Gas company should have been allowed a hearing on the merits of its petition for a review of the commission’s refusal to allow an increase in rates without having allowed a hearing and having merely stated that it felt the increase would be inflationary given considerations of wartime stabilization policies. Western Kentucky Gas Co. v. Public Service Com., 300 Ky. 281 , 188 S.W.2d 458, 1945 Ky. LEXIS 538 ( Ky. 1945 ).

3. Adequate Service.

In ordinary circumstances an indictment would not lie under this section for inadequate telephone service unless the commission had first held such service to be inadequate and ordered the company to improve same but court had jurisdiction of indictment for “unlawfully, wilfully and unreasonably failing to keep a switchboard operator on the company’s switchboard for great and unreasonable lengths of time.” Dees v. Commonwealth, 314 S.W.2d 514, 1958 Ky. LEXIS 293 ( Ky. 1958 ).

The duty of a public utility is to render adequate, efficient, and reasonable service within the scope or area of service provided for in its certificate of convenience and necessity. Bardstown v. Louisville Gas & Electric Co., 383 S.W.2d 918, 1964 Ky. LEXIS 68 ( Ky. 1964 ).

The commission’s authority to regulate rates and service of utilities and to enforce statutory provisions does not include the authority to compel a utility to furnish service over and above what is adequate and reasonable, or to forego the use of reasonable classifications as to service and rates. Marshall County v. South Cent. Bell Tel. Co., 519 S.W.2d 616, 1975 Ky. LEXIS 176 ( Ky. 1975 ).

4. Quality of Service.

The quality of service is not germane to the normal, time-tested factors that go into the determination of a proper rate for the services rendered by a utility. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

Absent legislation to the contrary, the question of rates should be kept separate from the question of service. The commission acted beyond the scope of its statutory authority when, in a rate hearing, it imposed a rate reduction penalty against a telephone utility for alleged poor service. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

5. Reduction in Rates.

Where the commission established a rate which, in its opinion, gave the utility a fair rate of return and then assessed a penalty against the utility by reducing the rate granted on the grounds of the poor quality of service, such action was illegal because it violated the statutory rate-making scheme. Accordingly, the issuance of an injunction against enforcement of the rate reduction eliminated an illegal act of the commission and reinstated the original rate as determined by the commission, not by the courts, and the court’s action was not rate-making. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

6. Instructions.

Where president and general manager of telephone company was convicted on an indictment charging him with unlawfully, wilfully and unreasonably failing and refusing to furnish adequate, efficient and reasonable service within 12 months prior to the indictment judgment was reversed on ground instruction should have told the jury the switchboard service required of telephone company was that required of like or similar telephone companies operating in like or similar territory as it is well known that a rural telephone company or one operated in a small town and surrounding territory does not give the same character of service as that given by a metropolitan telephone system. Dees v. Commonwealth, 314 S.W.2d 514, 1958 Ky. LEXIS 293 ( Ky. 1958 ).

7. Variable Rates.

Imposition of a variable rate for the use of electricity upon aluminum smelters based on the fluctuating world price of aluminum was not a statutory violation and any resulting discrimination was either too uncertain or was within acceptable limits. National-Southwire Aluminum Co. v. Big Rivers Electric Corp., 785 S.W.2d 503, 1990 Ky. App. LEXIS 9 (Ky. Ct. App. 1990).

8. Factors Considered.

In setting rates for a public electric utility, the Public Service Commission was not required to base the rates on the value of only those assets of the utility which were “used and useful”; a determination of what is used and useful is only one of many factors which should be considered when establishing rates. National-Southwire Aluminum Co. v. Big Rivers Electric Corp., 785 S.W.2d 503, 1990 Ky. App. LEXIS 9 (Ky. Ct. App. 1990).

9. Liability.

Under existing statutory law governing utility rates and the filed rate doctrine, a customer of a utility is not prevented from suing a person or an entity that the customer claims has injured the utility and the customer. Big Rivers Elec. Corp. v. Thorpe, 921 F. Supp. 460, 1996 U.S. Dist. LEXIS 6365 (W.D. Ky. 1996 ).

Cited:

American Dist. Tel. Co. v. Utility Regulatory Com., 619 S.W.2d 504, 1981 Ky. App. LEXIS 268 (Ky. Ct. App. 1981).

Opinions of Attorney General.

If a utility is not municipally owned and operated, then the utility would have to petition the Public Service Commission for any rate increases, regardless of whether it is operating under a franchise from local government. OAG 77-200 .

Research References and Practice Aids

Cross-References.

Municipal water or electric plant entitled to earn fair return, KRS 96.535 .

Newspapers to receive equal facilities, KRS 365.230.

Rural electric cooperative corporation, public utility must furnish electric energy to, KRS 279.150 .

Kentucky Bench & Bar.

Eversole and Crosby, “Plain Meaning,” Necessarily Implied Authority, and the Public Service, Commission: The Kentucky Supreme Court Restores an Agency’s Discretion, Vol. 76, No. 5, September 2012, Ky. Bench & Bar 9.

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

278.035. Prohibition against preferential retail rates for utility services for certain publicly-funded entities — Exception.

Any entity receiving public funds from the Commonwealth of Kentucky, or any political subdivision thereof, for the purpose of offsetting at least fifty percent (50%) of its operational expenses shall not be entitled to preferential retail rates for services provided by utilities subject to the provisions of KRS Chapter 278. This section shall not prohibit the provision of free or reduced rate service under KRS 278.170(3).

History. Enact. Acts 1990, ch. 357, § 3, effective July 13, 1990; 1996, ch. 141, § 1, effective July 15, 1996.

278.040. Public Service Commission — Jurisdiction — Regulations.

  1. The Public Service Commission shall regulate utilities and enforce the provisions of this chapter. The commission shall be a body corporate, with power to sue and be sued in its corporate name. The commission may adopt a seal bearing the name “Public Service Commission of Kentucky,” which seal shall be affixed to all writs and official documents, and to such other instruments as the commission directs, and all courts shall take judicial note of the seal.
  2. The jurisdiction of the commission shall extend to all utilities in this state. The commission shall have exclusive jurisdiction over the regulation of rates and service of utilities, but with that exception nothing in this chapter is intended to limit or restrict the police jurisdiction, contract rights or powers of cities or political subdivisions.
  3. The commission may adopt, in keeping with KRS Chapter 13A, reasonable regulations to implement the provisions of KRS Chapter 278 and investigate the methods and practices of utilities to require them to conform to the laws of this state, and to all reasonable rules, regulations and orders of the commission not contrary to law.

History. 3952-2, 3952-12, 3952-13, 3952-27: amend. Acts 1976, ch. 88, § 2, effective March 29, 1976; 1978, ch. 379, § 8, effective April 1, 1979; 1982, ch. 82, § 7, effective July 15, 1982.

NOTES TO DECISIONS

  1. Construction.
  2. Jurisdiction of Commission.
  3. — Interstate Commerce.
  4. — Contract Rights.
  5. Rules and Regulations.
  6. Findings and Orders.
  7. Illegal Rate Reduction.
  8. Powers of Cities.
  9. Adequate and Reasonable Service.
  10. Equal Service.
  11. Separate Questions.
1. Construction.

The public service commission law would be unconstitutional if it was construed to deprive cities of the right to regulate the manner of installing transmission facilities in the public streets. Benzinger v. Union Light, Heat & Power Co., 293 Ky. 747 , 170 S.W.2d 38, 1943 Ky. LEXIS 698 ( Ky. 1943 ).

2. Jurisdiction of Commission.

The public service commission is an administrative body only, and cannot authorize the doing of an act prohibited by any fundamental principle of law. Smith v. Raceland, 258 Ky. 671 , 80 S.W.2d 827, 1935 Ky. LEXIS 218 ( Ky. 1935 ).

Jurisdiction to fix rates, establish service regulations, alter such regulations, and make investigations as to changes is exclusively and primarily in commission, subject to review or rehearing by courts. Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

Jurisdiction of the public service commission to pass upon sales of utility systems is implied necessarily from the statutory powers of the commission to regulate the service of utilities. Public Service Com. v. Southgate, Highland Heights, 268 S.W.2d 19, 1954 Ky. LEXIS 888 ( Ky. 1954 ).

The power of the Public Service Commission to determine whether a proposed purchaser of a utility system is ready, willing and able to provide adequate service is necessarily implied from the statutes. Public Service Com. v. Southgate, Highland Heights, 268 S.W.2d 19, 1954 Ky. LEXIS 888 ( Ky. 1954 ).

Public Service Commission had no jurisdiction of dispute between city and rural electric cooperative corporation over which one would serve a proposed subdivision. Warren Rural Electric Co-op. Corp. v. Electric Plant Board, 331 S.W.2d 117, 1959 Ky. LEXIS 1 ( Ky. 1959 ).

Where the city proposes to finance and build a natural gas distribution and transmission system which it will lease to a private party to operate and the private party has power to adjust the rates under certain conditions, the facility is subject to supervision and regulation of the Public Service Commission. Baird v. Adairville, 426 S.W.2d 124, 1968 Ky. LEXIS 636 ( Ky. 1968 ).

The legislative grant of power to regulate rates will be strictly construed and will neither be interpreted by implication nor inference. In fixing rates, the commission must give effect to all factors which are prescribed by the legislative body, but may not act on a matter which the legislature has not established. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

Where a public telephone utility customer actually had two (2) separate claims in his complaint against the utility, one regarding the type and quality of service he was provided, while the other was a breach of contract claim seeking compensatory and punitive damages for the utility’s failure to provide the telephone service that he had contracted for, the subject matter jurisdiction over the two (2) claims was divided, with the public service commission having exclusive jurisdiction over the first claim while the Circuit Court had jurisdiction over the breach of contract claim. Carr v. Cincinnati Bell, Inc., 651 S.W.2d 126, 1983 Ky. App. LEXIS 290 (Ky. Ct. App. 1983).

The Public Service Commission has jurisdiction over the utility companies, and that jurisdiction extends to their poles and the “services” and “rates” generated by pole attachment agreements with cable television companies; such use provides additional revenue to the utilities which must be considered in determining the “rates” it charges its customers for its basic utility services. Kentucky CATV Asso. v. Volz, 675 S.W.2d 393, 1983 Ky. App. LEXIS 378 (Ky. Ct. App. 1983).

The Public Service Commission (PSC) has exclusive jurisdiction over the regulation of utility rates and service which extends to a city contracting for the sale and supply of water to a PSC-regulated county water district. Simpson County Water Dist. v. City of Franklin, 872 S.W.2d 460, 1994 Ky. LEXIS 13 ( Ky. 1994 ).

Prior to the enactment of KRS 278.509 , the Public Service Commission had no authority to approve a utility company’s Accelerated Main Replacement Program (AMRP) Riders because the PSC could not authorize the imposition of a surcharge for the company’s gas main replacement program without specific statutory authorization, and KRS 278.030 and 278.040 did not confer authority upon the PSC to approve the AMRP Rider. Ky. PSC v. Commonwealth ex rel. Stumbo, 2008 Ky. App. LEXIS 348 (Ky. Ct. App. Nov. 7, 2008), aff'd in part and rev'd in part, 324 S.W.3d 373, 2010 Ky. LEXIS 257 ( Ky. 2010 ).

Defendant state commission could not require unbundling of facilities and services the Federal Communications (FCC) had determined no longer needed to be unbundled under 47 U.S.C.S. § 251 and 47 U.S.C.S. § 271(d)(2)(B), (d)(6), and KRS 278.030 , 278.040 , did not give the state commission authority to enforce § 271, thus, plaintiff incumbent local exchange carrier’s challenge was proper; the FCC’s regulation barred rates other than the open-market rate, thus, any state commission price regulation created a conflict and the preemptive force came from § 271 and the accompanying regulations, not 47 U.S.C.S. § 253. BellSouth Telecomms., Inc. v. Ky. PSC, 669 F.3d 704, 2012 FED App. 0019P, 2012 U.S. App. LEXIS 1264 (6th Cir. Ky. 2012 ).

Utility customer’s action that alleged the utility had engaged in improper billing practices was properly dismissed for lack of subject matter jurisdiction because the customer had failed to comply with a discovery order of the Kentucky Public Service Commission (PSC) and then had subsequently failed to appeal the PSC’s dismissal of the case. Allowing the customer to bring its case before the court in the present action would usurp the PSC’s exclusive jurisdiction to resolve billing issues. Bulldog's Enters. v. Duke Energy, 412 S.W.3d 210, 2013 Ky. App. LEXIS 147 (Ky. Ct. App. 2013).

3. — Interstate Commerce.

Local activities within Kentucky of company engaged predominantly in transportation of gas in interstate commerce were not subject to regulation by public service commission, though some of the gas originated and was sold in Kentucky. Kentucky Natural Gas Corp. v. Public Service Com., 28 F. Supp. 509, 1939 U.S. Dist. LEXIS 2631 (D. Ky. 1939 ), aff'd, 119 F.2d 417, 1941 U.S. App. LEXIS 3727 (6th Cir. Ky. 1941 ).

4. — Contract Rights.

Although prior approval of a contract of sale of water and ice company did not estop it from subsequently changing rates therein when necessary for public interest, annual payment for a term of 20 years was an essential item of consideration for the sale of ice and water plants and was not a rate and therefore was not subject to change by the commission during that term. Fern Lake Co. v. Public Service Com., 357 S.W.2d 701, 1962 Ky. LEXIS 137 ( Ky. 1962 ).

Where the operator of a sewage treatment plant which serviced two Jefferson County schools applied to the Commission for a rate increase, despite the fact that neither he nor the board of education had attempted to renegotiate the rates or submit the rate increase to arbitration, as required by the parties’ contract, the Commission had the right to regulate the rates pursuant to subsection (2) of this section, regardless of the provisions of the contract, and, once the matter had been presented to the Commission and decided by it, appeal could only be taken to the Franklin Circuit Court, pursuant to KRS 278.410 , rather than to the Jefferson Circuit Court. Board of Education v. William Dohrman, Inc., 620 S.W.2d 328, 1981 Ky. App. LEXIS 281 (Ky. Ct. App. 1981).

5. Rules and Regulations.

Rules and regulations of commission duly adopted pursuant to this section have the force and effect of law but a rule of the commission requiring a public utility to give notice of rate increase was invalid as a substantial alteration of KRS 278.180 . Union Light, Heat & Power Co. v. Public Service Com., 271 S.W.2d 361, 1954 Ky. LEXIS 1042 ( Ky. 1954 ).

Where a statute lays down general standards, the administrative agency may implement the statute by filling in the necessary details, but where the statute in itself prescribes the exact rules and regulations of procedure the administrative agency may not add to or subtract from such provision. Union Light, Heat & Power Co. v. Public Service Com., 271 S.W.2d 361, 1954 Ky. LEXIS 1042 ( Ky. 1954 ).

Subsection (2) of this section vests exclusive jurisdiction over utility “service,” as defined in KRS 278.010(13), in the energy regulatory commission; accordingly, regulations adopted by the commission concerning the placement of gas meters preempt the field, and any conflicting city ordinances attempting to restrict the placement of the meters are invalid. Peoples Gas Co. v. Corbin, 625 S.W.2d 848, 1981 Ky. LEXIS 309 ( Ky. 1981 ).

6. Findings and Orders.

A finding and order of the commission, while not a judgment with the attributes of a final judgment or decree of a judicial tribunal, has the effect of a legislative act as to the parties to the proceeding and is very far reaching in its operation. It is conclusive when made within the scope of its authority and binding on all parties subject to review by the courts. Frankfort Kentucky Natural Gas Co. v. Frankfort, 276 Ky. 199 , 123 S.W.2d 270, 1938 Ky. LEXIS 541 ( Ky. 1938 ).

7. Illegal Rate Reduction.

Where the commission established a rate which, in its opinion, gave the utility a fair rate of return and then assessed a penalty against the utility by reducing the rate granted on the grounds of the poor quality of service, such action was illegal because it violated the statutory rate-making scheme. Accordingly, the issuance of an injunction against enforcement of the rate reduction eliminated an illegal act of the commission and reinstated the original rate as determined by the commission, not by the courts, and the court’s action was not rate-making. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

8. Powers of Cities.

The provision of Const., § 201 permitting the consolidation of competing telephone companies with the consent of the railroad commission and of the city in which they operate was intended to authorize cities to attach conditions to consolidation of utilities which would deprive the state of its inherent power to regulate rates. Southern Bell Tel. & Tel. Co. v. Louisville, 265 Ky. 286 , 96 S.W.2d 695, 1936 Ky. LEXIS 468 ( Ky. 1936 ).

The law creating the Public Service Commission divested cities of the power to regulate rates and reposed that power in the commission. Southern Bell Tel. & Tel. Co. v. Louisville, 265 Ky. 286 , 96 S.W.2d 695, 1936 Ky. LEXIS 468 ( Ky. 1936 ).

The reservation of the powers of cities contained in subsection (2) of this section is an express limitation upon the powers of the Public Service Commission. Peoples Gas Co. v. Barbourville, 291 Ky. 805 , 165 S.W.2d 567, 1942 Ky. LEXIS 321 ( Ky. 1942 ).

City may require light and power company to place its wires underground. Benzinger v. Union Light, Heat & Power Co., 293 Ky. 747 , 170 S.W.2d 38, 1943 Ky. LEXIS 698 ( Ky. 1943 ).

Cities are not deprived of jurisdiction over utilities except with respect to rates and service. “Service” relates only to quantity and quality, and cities may regulate the manner of installing transmission facilities so long as such regulation does not affect the quantity or quality of service. Benzinger v. Union Light, Heat & Power Co., 293 Ky. 747 , 170 S.W.2d 38, 1943 Ky. LEXIS 698 ( Ky. 1943 ). But see McClellan v. Louisville Water Co., 351 S.W.2d 197, 1961 Ky. LEXIS 160 ( Ky. 1961 ); Flemingsburg v. Public Service Com., 411 S.W.2d 920, 1966 Ky. LEXIS 28 ( Ky. 1966 ).

9. Adequate and Reasonable Service.

The commission’s authority to regulate rates and service of utilities and to enforce statutory provisions does not include the authority to compel a utility to furnish services over and above what is adequate and reasonable, or to forego the use of reasonable classifications as to service and rates. Marshall County v. South Cent. Bell Tel. Co., 519 S.W.2d 616, 1975 Ky. LEXIS 176 ( Ky. 1975 ).

10. Equal Service.

The commission has authority to require that a utility provide an advanced quality of service to a particular area with the cost borne system-wide rather than by the patrons of the particular area, if the utility is furnishing a similarly advanced quality of service to comparable areas and spreading the cost system-wide. Marshall County v. South Cent. Bell Tel. Co., 519 S.W.2d 616, 1975 Ky. LEXIS 176 ( Ky. 1975 ).

11. Separate Questions.

Absent legislation to the contrary, the question of rates should be kept separate from the question of service. The commission acted beyond the scope of its statutory authority when, in a rate hearing, it imposed a rate reduction penalty against a telephone utility for alleged poor service. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

Cited:

American Dist. Tel. Co. v. Utility Regulatory Com., 619 S.W.2d 504, 1981 Ky. App. LEXIS 268 (Ky. Ct. App. 1981); South Cent. Bell Tel. Co. v. Public Service Com., 702 S.W.2d 447, 1985 Ky. App. LEXIS 717 (Ky. Ct. App. 1985); Telamarketing Communications, Inc. v. Liberty Partners, 798 S.W.2d 462, 1990 Ky. LEXIS 109 ( Ky. 1990 ); North Shelby Water Co. v. Shelbyville Municipal Water & Sewer Com., 803 F. Supp. 15, 1992 U.S. Dist. LEXIS 20585 (E.D. Ky. 1992 ); Big Rivers Elec. Corp. v. Thorpe, 921 F. Supp. 460, 1996 U.S. Dist. LEXIS 6365 (W.D. Ky. 1996 ); Boone County Water & Sewer Dist. v. PSC, 949 S.W.2d 588, 1997 Ky. LEXIS 61 ( Ky. 1997 ).

Opinions of Attorney General.

Municipal utilities are exempt from the jurisdiction of both the energy regulatory commission and the utility regulatory commission. OAG 79-474 .

In order to promote greater economy, efficiency and improved administration, the governor may, by an executive order clearly designating the order as being one relating to reorganization, merge the energy regulatory commission and the utility regulatory commission into one commission. OAG 80-567 .

Research References and Practice Aids

Cross-References.

Duty to assist in valuation of electric plant to be acquired by municipality, KRS 96.580 .

Commission has no power over rates and service of municipal electric plants, KRS 96.880 .

Regulation of utilities by cities, KRS Ch. 96.

Rural electric cooperatives subject to jurisdiction of commission, KRS 279.210 .

Kentucky Bench & Bar.

Eversole and Crosby, “Plain Meaning,” Necessarily Implied Authority, and the Public Service, Commission: The Kentucky Supreme Court Restores an Agency’s Discretion, Vol. 76, No. 5, September 2012, Ky. Bench & Bar 9.

Kentucky Law Journal.

Comments, Procedures for Termination of Utility Service: The Requirements of Due Process, 64 Ky. L.J. 180 (1975-1976).

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

Public Utility Takeovers in Kentucky: A Rare Breed Gets Rarer, 78 Ky. L.J. 181 (1989-90).

278.042. Service adequacy and safety standards for electric utilities — National Electrical Safety Code.

  1. For the purposes of this section, “NESC” means the National Electrical Safety Code as published by the Institute of Electrical and Electronics Engineers, Inc.
  2. Except as otherwise provided by law, the commission shall, in enforcing service adequacy and safety standards for electric utilities, ensure that each electric utility constructs and maintains its plant and facilities in accordance with accepted engineering practices as set forth in the commission’s administrative regulations and orders and in the most recent edition of the NESC.

History. Enact. Acts 2003, ch. 84, § 1, effective June 24, 2003.

278.045. Transfer of functions of electrical inspection. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 74, Art. V, § 21) was repealed by Acts 1980, ch. 188, § 310, effective July 15, 1980.

278.046. Annual reports by municipally owned electric utilities. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 88, § 14, effective March 29, 1976; 1978, ch. 379, § 9, effective April 1, 1979; 1982, ch. 82, § 8, effective July 15, 1982) was repealed by Acts 1986, ch. 300, § 5, effective July 15, 1986.

278.047. Rate increase for municipally owned electric utilities — Rates to be uniform. [Renumbered as KRS 96.534.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 88, § 15, effective March 29, 1976; 1976 (1st Ex. Sess.), ch. 5, § 1; 1978, ch. 379, § 10, effective April 1, 1979) was renumbered as KRS 96.534 by the Reviser of Statutes under authority of KRS 7.136 as KRS 96.534 .

278.050. Membership of Public Service Commission — Appointment — Terms — Chairman — Vacancies.

  1. The Public Service Commission shall consist of three (3) members appointed by the Governor with the advice and consent of the Senate. If the Senate is not in session when a term expires or a vacancy occurs, the Governor shall make the appointment to take effect at once, subject to the approval of the Senate when convened. Appointments to the Public Service Commission made more than ninety (90) days prior to a regular session of the General Assembly shall be subject to confirmation by the Joint Interim Committee on Energy. Each of the three (3) members of the commission shall be appointed on or before the first day of July, 1982, for staggered terms as follows: one (1) shall serve until the first day of July, 1983, one (1) until the first day of July, 1984, and one (1) until the first day of July, 1985, and thereafter for a term of four (4) years and until a successor is appointed and qualified. Each member of the commission shall be a full-time employee as defined in KRS 18A.005(17).
  2. The Governor shall appoint one (1) of the commissioners on the commission to act as chairman thereof and the chairman shall be the chief executive officer of the commission. The Governor shall designate one (1) of the commissioners on the commission to serve as vice chairman thereof and act for the chairman in the latter’s absence.
  3. Vacancies for unexpired terms shall be filled in the same manner as original appointments, but the appointee shall hold office only to the end of the unexpired term.

History. 3952-3, 3952-3a: amend. Acts 1956, ch. 91, § 1; 1972, ch. 47, § 1; 1976, ch. 88, § 3, effective March 29, 1976; 1978, ch. 379, § 11, effective April 1, 1979; 1982, ch. 82, § 9, effective July 15, 1982; 2002, ch. 58, § 1, effective July 15, 2002; 2004, ch. 127, § 4, effective July 13, 2004.

Compiler’s Notes.

The provisions in this section which authorize an interim legislative committee to advise and consent on certain appointments to the Public Service Commission were declared unconstitutional in Legislative Research Comm’n ex rel. Prather v. Brown, 664 S.W.2d 907 ( Ky. 1984 ).

NOTES TO DECISIONS

1. Constitutionality.

The provisions in this section which authorize the interim legislative committee to advise and consent on certain appointments to the Public Service Commission are invalid as an impermissible incursion into the appointment power of the executive branch of government. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

278.060. Qualifications of commissioners — Oath — Restrictions on conduct.

  1. Each commissioner shall be a resident and qualified voter of this state, not less than twenty-five (25) years of age at the time of his appointment and qualification, and shall have resided in this state for at least three (3) years prior to his appointment and qualification. Each commissioner shall take and subscribe to the constitutional oath of office, which shall be recorded in the office of the Secretary of State.
  2. No person shall be appointed to or hold the office of commissioner who holds any official relationship to any utility, or who owns any stocks or bonds thereof, or who has any pecuniary interest therein.
  3. No commissioner shall receive any rebate, pass, percentage of contract or other thing of value from any utility.
  4. In addition to the restrictions on members of the commission set forth in KRS 278.050(1), no commissioner shall engage in any occupation or business inconsistent with his duties as such commissioner.
  5. If any commissioner becomes a member of any political party committee, his office as commissioner shall be thereby vacated.
  6. In making appointments to the commission, the Governor shall consider the various kinds of expertise relevant to utility regulation and the varied interests to be protected by the commission, including those of consumers as well as utility investors, and no more than two (2) members shall be of the same occupation or profession.

History. 3952-3, 3952-4: amend. Acts 1956, ch. 91, § 2; 1960, ch. 68, Art. XII; 1976, ch. 88, § 4, effective March 29, 1976; 1978, ch. 379, § 12, effective April 1, 1979; 1982, ch. 82, § 10, effective July 15, 1982.

Compiler’s Notes.

This section has been reprinted to correct an error in the historical citation appearing in the bound volume.

Opinions of Attorney General.

The Governor should consider the occupation or profession of a potential appointee to the Public Service Commission at the time of the consideration and not what the individual may have once done or is legally capable of doing; accordingly, where an individual had a law degree but had not otherwise engaged in the occupation or practice of law, that individual could be appointed to the Commission without violating subsection (6) of this section, even though the other two (2) members of the commission were actively engaged in the practice of law just prior to being appointed. OAG 84-238 .

Research References and Practice Aids

Cross-References.

Bonds of commissioners, amount and conditions, KRS 62.160 , 62.180 .

Incompatible offices, KRS 61.070 .

278.070. Removal of commissioners.

The Governor may remove any commissioner for cause, after giving him a copy of the charges against him and an opportunity of being publicly heard in person or by counsel in his own defense upon not less than ten (10) days’ notice. If a commissioner is removed, the Governor shall file in the office of the Secretary of State a complete statement of all charges against the commissioner and his findings thereon, and a complete record of the proceedings. Any commissioner so removed may bring action in the proper court to determine whether or not he was legally removed in accordance with this section.

History. 3952-5.

Research References and Practice Aids

Cross-References.

Power of governor to remove appointees, KRS 63.080 .

278.080. Quorum — Performance of functions by less than a majority of commissioners or by hearing examiners.

A majority of the commissioners shall constitute a quorum for the transaction of any business, for the performance of any duty, or for the exercise of any power of the commission. No vacancy in the commission shall impair the right of the remaining commissioners to exercise all of the powers of the commission. Any investigation, inquiry, or hearing that the commission has power to undertake or hold may be undertaken or held, and the evidence therein taken, by any one (1) or more commissioners or a hearing examiner designated for that purpose by the commission, and every finding, opinion or order made by the commissioner or commissioners or hearing examiner so designated shall, when approved or confirmed by the commission, become the finding, opinion or order thereof.

History. 3952-6: amend. Acts 1972, ch. 47, § 2; 1976, ch. 88, § 5, effective March 29, 1976; 1978, ch. 379, § 13, effective April 1, 1979; 1982, ch. 82, § 11, effective July 15, 1982.

278.090. Office and hours — Meetings.

  1. The principal office of the commission shall be located at the state capital, and it shall be kept open during the usual business hours.
  2. The commission shall hold meetings at its principal office and at such other convenient places in the state as are expedient or necessary for the proper performance of its duties.

History. 3952-7: amend. Acts 1978, ch. 379, § 14, effective April 1, 1979; 1982, ch. 82, § 12, effective July 15, 1982.

278.100. Executive director.

The commission shall appoint an executive director, who shall hold office during its pleasure and shall devote his entire time to the duties of his office. The executive director shall be selected on the basis of experience and training demonstrating capacity to deal with the problems of management and governmental regulation and knowledge relatable to utility regulation. The executive director shall be the chief administrative officer for the commission and shall be responsible for implementing the programs, directing the staff, and maintaining the official records of commission proceedings, including all approved orders.

History. 3952-8: amend. Acts 1976, ch. 88, § 6, effective March 29, 1976; 1978, ch. 379, § 15, effective April 1, 1979; 1982, ch. 82, § 13, effective July 15, 1982; 1986, ch. 221, § 1, effective July 15, 1986.

NOTES TO DECISIONS

1. Record of Proceedings.

Where proceedings in rate case were regular, and proper record was kept as required by this section and KRS 278.360 , commission had power to sign and record order nunc pro tunc as of date of decision, and could be compelled to do so by mandamus. Frankfort Kentucky Natural Gas Co. v. Frankfort, 276 Ky. 199 , 123 S.W.2d 270, 1938 Ky. LEXIS 541 ( Ky. 1938 ).

278.110. Additional employees.

The commission acting through the executive director may employ such clerks, stenographers, rate experts, agents, special agents, engineers, accountants, auditors, inspectors, lawyers, hearing examiners, experts and other classified service employees and the commission may contract for services of persons in a professional or scientific capacity to make or conduct a hearing or a temporary or special inquiry, investigation or examination as it deems necessary to carry out the provisions of this chapter, or to perform the duties and exercise the powers conferred by law upon the commission.

History. 3952-10: amend. Acts 1976, ch. 88, § 7, effective March 29, 1976; 1978, ch. 379, § 16, effective April 1, 1979; 1982, ch. 82, § 14, effective July 15, 1982.

278.115. Commission to establish internal organization of its offices.

The commission shall establish the internal organization of its offices and shall divide the commission into such offices or divisions as the commission may deem necessary to perform the functions, powers and duties of the commission, subject to the provisions of KRS Chapter 12.

History. Enact. Acts 1976, ch. 88, § 9, effective March 29, 1976; 1978, ch. 379, § 17, effective April 1, 1979; 1982, ch. 52, § 3, effective July 15, 1982; 1982, ch. 82, § 15, effective July 15, 1982; 1982, ch. 448, § 71, effective July 15, 1982; 1986, ch. 245, § 1, effective July 15, 1986.

278.120. Compensation and expenses of commissioners, executive director, and employees.

  1. The chairman and the other two (2) members of the commission shall be paid a salary fixed under KRS 64.640 to be paid monthly.
  2. The executive director of the commission shall be paid a salary to be fixed by the commission, with the approval of the Governor.
  3. The commissioners, the executive director, and employees of the commission are entitled to all expenses, including hotel bills, incurred in traveling on business of the commission.
  4. The salaries and expenses provided for by this section, and all other expenses of the commission incurred in the administration of this chapter, shall be paid out of appropriations as provided by law out of the general expenditure fund.

History. 3952-3, 3952-8, 3952-11, 3952-58: amend. Acts 1956, ch. 91, § 3; 1968, ch. 152, § 134; 1972, ch. 47, § 3; 1976, ch. 88, § 8, effective March 29, 1976; 1978, ch. 379, § 18, effective April 1, 1979; 1982, ch. 82, § 16, effective July 15, 1982; 1994, ch. 166, § 1, effective July 15, 1994.

278.130. Assessments against utilities — Applications for adjustment.

  1. For the purpose of maintaining the commission, including the payment of salaries and all other expenses, and the cost of regulation of the utilities subject to its jurisdiction, the Department of Revenue shall each year assess the utilities in proportion to their earnings or receipts derived from intrastate business in Kentucky for the preceding calendar year as modified by KRS 278.150 , and shall notify each utility on or before July 1 of the amount assessed against it. The total amount so assessed shall not in any year exceed two (2) mills on intrastate receipts as so modified, which shall be deposited into the State Treasury to the credit of the general fund. The sum by each utility shall not be less than fifty dollars ($50) in any one (1) year.
  2. The assessments provided for in this section shall be in lieu of all other fees or assessments levied by any city or other political subdivision for the control or regulation of utilities.
  3. The commission, upon application by a utility, shall authorize the utility to adjust its rates to recover, within not more than one (1) year, any change in the annual assessment and any costs imposed by commission order for the fees and expenses of consultants. The application, and any hearing or other proceedings thereon, shall be limited to the amount of such adjustment.

History. 3952-53 to 3952-55, 3952-60: amend. Acts 1952, ch. 46, § 1; 1960, ch. 206, § 1; 1964, ch. 195, § 3; 1972, ch. 47, § 4; 1976, ch. 88, § 10, effective March 29, 1976; 1978, ch. 379, § 19, effective April 1, 1979; 1982, ch. 82, § 17, effective July 15, 1982; 1982, ch. 197, § 2, effective July 15, 1982; 1988, ch. 229, § 1, effective July 15, 1988; 2005, ch. 85, § 671, effective June 20, 2005.

NOTES TO DECISIONS

1. Interstate Commerce.

Commission was without authority to make assessments against company engaged predominantly in transportation of gas in interstate commerce, though some of the gas originated and was sold in Kentucky. Kentucky Natural Gas Corp. v. Public Service Com., 28 F. Supp. 509, 1939 U.S. Dist. LEXIS 2631 (D. Ky. 1939 ), aff'd, 119 F.2d 417, 1941 U.S. App. LEXIS 3727 (6th Cir. Ky. 1941 ).

Opinions of Attorney General.

A city is without authority to levy an occupational license tax on the operations of Southern Bell Telephone & Telegraph Company within the corporate limits of the city. OAG 62-644 .

A city is without authority to levy an occupational license tax on the operations of an electric power company within the corporate limits of the city. OAG 63-592 .

In view of the exclusive assessment power against public utilities contained in subsection (2) of this section, a city may not levy an occupational license tax on a public utility operating in that city. OAG 82-93 .

Research References and Practice Aids

Cross-References.

Taxation of utilities, KRS Ch. 136.

278.140. Report of gross earnings from intrastate business.

To ascertain the amount of the assessment provided for in KRS 278.130 , each utility shall, on or before March 31 of each year, file with the commission a report of its gross earnings or receipts derived from intrastate business for the preceding calendar year.

History. 3952-55: amend. Acts 1978, ch. 379, § 20, effective April 1, 1979; 1982, ch. 82, § 18, effective July 15, 1982.

278.150. Payment of assessments — Certification of deduction by commission — Administration of funds collected.

  1. The commission shall, on or before June 1, certify to the Department of Revenue and the Finance and Administration Cabinet the amount of intrastate business of each utility in the state subject to its jurisdiction during the previous calendar year. The commission shall, when certifying the intrastate sales of retail electric suppliers, deduct from such sales one-half (1/2) of the applicable wholesale power costs, provided the utility from which such wholesale power purchases were made pays assessment on the full wholesale value of its gross intrastate sales in Kentucky. When certifying the intrastate sales of retail electric suppliers not subject to the jurisdiction of the commission for rates, the commission shall deduct one-half (1/2) of their actual intrastate sales. All utilities classified as retail electric suppliers shall pay assessments based on the amount of intrastate sales less deductions as certified by the commission.
  2. The Finance and Administration Cabinet shall, on or before June 10, establish the assessment rate and give written notification thereof to the Department of Revenue and the commission. The Department of Revenue shall collect and pay the assessment into the State Treasury to the credit of the general expenditure fund. All such assessments shall be paid into the State Treasury through the Department of Revenue on or before July 31 of the year in which the assessments are made.
  3. If any amount in the special fund for the maintenance of the commission remains unexpended at the end of any fiscal year, that amount shall not lapse, but shall remain credited to the account of the commission and may be used during any succeeding year.

History. 3952-53, 3952-56, 3952-57: amend. Acts 1972, ch. 47, § 5; 1974, ch. 74, Art. II, § 9(1); 1978, ch. 233, § 25, effective June 17, 1978; 1978, ch. 379, § 21, effective April 1, 1979; 1982, ch. 82, § 19, effective July 15, 1982; 1982, ch. 197, § 1, effective July 15, 1982; 2005, ch. 85, § 672, effective June 20, 2005.

Opinions of Attorney General.

In viewing the statutory history of this section, the 1978 amendment (Ch. 379, § 21) makes it abundantly clear that the original concept expressed in the original version of this section (prior to the 1972 amendment) as to the nonlapse feature of the appropriations to the commissions was to be restored, which means that: The assessments go into the state treasury to the credit of the general fund; the general fund appropriations to the commissions are calculated, in the budgetary process, to be equivalent to the total assessments collected from the regulated utilities; and any amount in the general fund appropriation to the commissions remaining unexpended at the end of any fiscal year shall not lapse, but shall remain credited to the commissions’ account and may be used by the commissions during any succeeding year. OAG 79-481 .

Notwithstanding the general lapsing statute, former KRS 45.230 (see now KRS 45.229 ), the general fund appropriations of the commissions do not lapse, since this section is an express exception to the general statute. OAG 79-481 .

Since under 1978 state budget, the energy regulatory and utility regulatory commissions are being funded out of general fund appropriations, the designation of “special fund,” as it appears in subsection (2) of this section, has no practical implication at this stage. OAG 79-481 .

Research References and Practice Aids

Cross-References.

Lapsing of appropriations, KRS 45.229 .

Revolving fund accounts, KRS 45.253 .

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, E, 7, (1) at 876.

278.160. Utilities to file and display general schedules of rates and conditions for service — Adherence to schedules — Exclusion from disclosure of confidential or proprietary provisions in special contracts.

  1. Under rules prescribed by the commission, each utility shall file with the commission, within such time and in such form as the commission designates, schedules showing all rates and conditions for service established by it and collected or enforced. The utility shall keep copies of its schedules open to public inspection under such rules as the commission prescribes.
  2. No utility shall charge, demand, collect, or receive from any person a greater or less compensation for any service rendered or to be rendered than that prescribed in its filed schedules, and no person shall receive any service from any utility for a compensation greater or less than that prescribed in such schedules.
  3. The provisions of this section do not require disclosure or publication of a provision of a special contract that contains rates and conditions of service not filed in a utility’s general schedule if such provision would otherwise be entitled to be excluded from the application of KRS 61.870 to 61.884 under the provisions of KRS 61.878(1)(c)1.

History. 3952-30, 3952-31: amend. Acts 1978, ch. 379, § 22, effective April 1, 1979; 1982, ch. 82, § 20, effective July 15, 1982; 1986, ch. 300, § 1, effective July 15, 1986; 2000, ch. 138, § 1, effective July 14, 2000.

NOTES TO DECISIONS

  1. Recovery of Excess Rate.
  2. Recovery of Underbilling.
  3. Liability.
  4. Violation.
1. Recovery of Excess Rate.

In action to recover amount paid for electricity in excess of legal rate, petition failing to plead under what law defendant was limited to rates set out in petition or how the law limited the rates was fatally defective. Christian Church Widows & Orphans Home v. Louisville Gas & Electric Co., 282 Ky. 463 , 138 S.W.2d 944, 1940 Ky. LEXIS 181 ( Ky. 1940 ).

2. Recovery of Underbilling.

The defense of equitable estoppel was not available to a customer in Kentucky to defeat the claim of a utility to recover the amount of an underbilling. Boone County Sand & Gravel Co. v. Owen County Rural Electric Cooperative Corp., 779 S.W.2d 224, 1989 Ky. App. LEXIS 94 (Ky. Ct. App. 1989).

3. Liability.

Under existing statutory law governing utility rates and the filed rate doctrine, a customer of a utility is not prevented from suing a person or an entity that the customer claims has injured the utility and the customer. Big Rivers Elec. Corp. v. Thorpe, 921 F. Supp. 460, 1996 U.S. Dist. LEXIS 6365 (W.D. Ky. 1996 ).

4. Violation.

Since the Public Service Commission (PSC) lacked jurisdiction to regulate the collection and transmission of sewage, it did not have jurisdiction over complaint by mobile home park that county water and sewer district violated this section’s requirement that utilities have a tariff on file in order to access a connection fee when it assessed a connection and inspection fee on each lot in the park for the collection and transmission of sewage by the district. While KRS 278.010(3) sets the parameters of PSC jurisdiction and describes the movement of products and services it does not mention the movement of sewage but only mentions treatment in connection with sewage. Boone County Water & Sewer Dist. v. PSC, 949 S.W.2d 588, 1997 Ky. LEXIS 61 ( Ky. 1997 ).

Cited:

Cincinnati Bell Tel. Co. v. Ky. P.S.C., 223 S.W.3d 829, 2007 Ky. App. LEXIS 36 (Ky. Ct. App. 2007); Bowers v. Windstream Ky. E., LLC, 709 F. Supp. 2d 526, 2010 U.S. Dist. LEXIS 45076 (W.D. Ky. 2010 ).

278.170. Discrimination as to rates or service — Free or reduced rate services.

  1. No utility shall, as to rates or service, give any unreasonable preference or advantage to any person or subject any person to any unreasonable prejudice or disadvantage, or establish or maintain any unreasonable difference between localities or between classes of service for doing a like and contemporaneous service under the same or substantially the same conditions.
  2. Any utility may grant free or reduced rate service to its officers, agents, or employees, and may exchange free or reduced rate service with other utilities for the benefit of the officers, agents, and employees of both utilities. Any utility may grant free or reduced rate service to the United States, to charitable and eleemosynary institutions, and to persons engaged in charitable and eleemosynary work, and may grant free or reduced rate service for the purpose of providing relief in case of flood, epidemic, pestilence, or other calamity. The terms “officers” and “employees,” as used in this subsection, include furloughed, pensioned, and superannuated officers and employees, and persons who have become disabled or infirm in the service of the utility. Notice must be given to the commission and its agreement obtained for such reduced rate service except in case of an emergency, in which case the commission shall be notified at least five (5) days after the service is rendered.
  3. Upon obtaining commission approval of a tariff setting forth terms and conditions of service the commission deems necessary, a utility as defined in KRS 278.010(3)(d) may grant free or reduced rate service for the purpose of fighting fires or training firefighters to any city, county, urban-county, charter county, fire protection district, or volunteer fire protection district. Any tariff under this section shall require the water user to maintain estimates of the amount of water used for fire protection and training, and to report this water usage to the utility on a regular basis.
  4. The commission may determine any question of fact arising under this section.

History. 3952-32: amend. Acts 1976, ch. 88, § 11, effective March 29, 1976; 1978, ch. 379, § 23, effective April 1, 1979; 1982, ch. 82, § 21, effective July 15, 1982; 1996, ch. 141, § 2, effective July 15, 1996.

NOTES TO DECISIONS

  1. Applicability.
  2. Evidence.
  3. Equality of Service.
  4. Variable Rates.
  5. Liability.
1. Applicability.

An order by the Public Service Commission approving a utility’s request for rate incentives and discounts was unlawful because it violated the specific mandates of KRS 278.170 . KRS 278.170 contained exclusive language regarding discounted rates, and the PSC could not utilize another statute to render the plain language of that statute a nullity; therefore, the interpretation of KRS 278.030(3) espoused by the PSC and adopted by the Circuit Court in affirming the application was contrary to the letter of the law. Commonwealth v. PSC of Ky., 2008 Ky. App. LEXIS 29 (Ky. Ct. App. Feb. 1, 2008), rev'd, 320 S.W.3d 660, 2010 Ky. LEXIS 217 ( Ky. 2010 ).

2. Evidence.

Where telephone subscribers sought a public service commission order requiring telephone company to provide toll-free extended area service from subscribers’ community to an economic center, subscribers failed to produce evidence showing the maintenance of similar service for other comparable localities and thus subscribers failed to establish discrimination which would support such an order. Marshall County v. South Cent. Bell Tel. Co., 519 S.W.2d 616, 1975 Ky. LEXIS 176 ( Ky. 1975 ).

3. Equality of Service.

The public service commission had the authority to require the cost of a particular kind of service in a particular area to be borne system-wide rather than by the patrons of the particular area and to require the utility to provide an advanced quality of service to a particular area, if the area, as compared to other fully comparable areas, was spreading the cost system-wide and was furnishing the advanced quality of service, since the utility must employ reasonable classifications under KRS 278.030 and, under this section must not engage in discrimination by establishing or maintaining any unreasonable difference between localities or between classes of service for doing a like and contemporaneous service under the same or substantially the same conditions. Marshall County v. South Cent. Bell Tel. Co., 519 S.W.2d 616, 1975 Ky. LEXIS 176 ( Ky. 1975 ).

4. Variable Rates.

Imposition of a variable rate for the use of electricity upon aluminum smelters based on the fluctuating world price of aluminum was not a statutory violation and any resulting discrimination was either too uncertain or was within acceptable limits. National-Southwire Aluminum Co. v. Big Rivers Electric Corp., 785 S.W.2d 503, 1990 Ky. App. LEXIS 9 (Ky. Ct. App. 1990).

5. Liability.

Under existing statutory law governing utility rates and the filed rate doctrine, a customer of a utility is not prevented from suing a person or an entity that the customer claims has injured the utility and the customer. Big Rivers Elec. Corp. v. Thorpe, 921 F. Supp. 460, 1996 U.S. Dist. LEXIS 6365 (W.D. Ky. 1996 ).

Cited:

Louisville Gas & Electric Co. v. Dulworth, 279 Ky. 309 , 130 S.W.2d 753, 1939 Ky. LEXIS 271 ( Ky. 1939 ); PSC of Ky. v. Commonwealth, 320 S.W.3d 660, 2010 Ky. LEXIS 217 ( Ky. 2010 ).

Opinions of Attorney General.

Since a water district is under an obligation to serve all inhabitants within its geographical area of service as fixed under KRS 74.010 and as defined by the certificate of convenience and necessity, the water district cannot refuse water service to individuals who request it for houses constructed within the district and who tender the usual rates and comply with the usual contractual terms. OAG 75-719 .

Since a water district organized and functioning under the provisions of KRS Chapter 74 is a public utility subject to the jurisdiction of the Public Service Commission, this section is applicable; while a utility may grant free or reduced rates to charitable and eleemosynary institutions, a fire district organized under KRS Chapter 75 is not such an institution. Thus, there is no authority for requiring the water district to furnish water free of charge to a fire protection district. OAG 84-147 .

Research References and Practice Aids

Cross-References.

Free or reduced rate transportation for public officers forbidden, Const., § 197.

Newspapers to receive equal facilities, KRS 365.230.

278.172. Rate classification for certain entities.

Every utility which serves a volunteer fire department or other entity eligible for aid under KRS 95A.262 , shall supply such service at the lowest rate available under its tariffs to customers with comparable consumption amounts, including residential or farm rates.

History. Enact. Acts 1990, ch. 149, § 3, effective July 13, 1990; 1992, ch. 381, § 11, effective July 14, 1992.

278.180. Changes in rates, how made.

  1. Except as provided in subsection (2) of this section, no change shall be made by any utility in any rate except upon thirty (30) days’ notice to the commission, stating plainly the changes proposed to be made and the time when the changed rates will go into effect. However, the commission may, in its discretion, based upon a showing of good cause in any case, shorten the notice period from thirty (30) days to a period of not less than twenty (20) days. The commission may order a rate change only after giving an identical notice to the utility. The commission may order the utility to give notice of its proposed rate increase to that utility’s customers in the manner set forth in its regulations.
  2. The commission, upon application of any utility, may prescribe a less time within which a reduction of rates may be made.

History. 3952-15: amend. Acts 1976, ch. 88, § 12, effective March 29, 1976; 1978, ch. 379, § 24, effective April 1, 1979; 1982, ch. 82, § 22, effective July 15, 1982; 1982, ch. 242, § 1, effective July 15, 1982; 1986, ch. 300, § 2, effective July 15, 1986.

NOTES TO DECISIONS

  1. Application.
  2. Notice.
1. Application.

A sewer district could put into effect a change of rates without first submitting the change to the Public Service Commission for its approval under this section since it is not a public utility as defined by KRS 278.010 . Sanitation Dist. of Campbell & Kenton Counties v. Newport, 335 S.W.2d 908, 1960 Ky. LEXIS 291 ( Ky. 1960 ) (decision prior to 1964 amendment of KRS 278.010 ).

2. Notice.

A rule of the Public Service Commission relative to giving of notice by a public utility of a rate increase was invalid for the reason that it undertook to materially alter this section. Union Light, Heat & Power Co. v. Public Service Com., 271 S.W.2d 361, 1954 Ky. LEXIS 1042 ( Ky. 1954 ).

Cited:

Commonwealth ex rel. Stephens v. South Cent. Bell Tel. Co., 545 S.W.2d 927, 1976 Ky. LEXIS 142 ( Ky. 1976 ); Cincinnati Bell Tel. Co. v. Ky. P.S.C., 223 S.W.3d 829, 2007 Ky. App. LEXIS 36 (Ky. Ct. App. 2007).

Research References and Practice Aids

Kentucky Bench & Bar.

Eversole and Crosby, “Plain Meaning,” Necessarily Implied Authority, and the Public Service, Commission: The Kentucky Supreme Court Restores an Agency’s Discretion, Vol. 76, No. 5, September 2012, Ky. Bench & Bar 9.

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

278.183. Surcharge to recover costs of compliance with environmental requirements for coal combustion wastes and by-products — Environmental compliance plan, review and adjustment.

  1. Notwithstanding any other provision of this chapter, effective January 1, 1993, a utility shall be entitled to the current recovery of its costs of complying with the Federal Clean Air Act as amended and those federal, state, or local environmental requirements which apply to coal combustion wastes and by-products from facilities utilized for production of energy from coal in accordance with the utility’s compliance plan as designated in subsection (2) of this section. These costs shall include a reasonable return on construction and other capital expenditures and reasonable operating expenses for any plant, equipment, property, facility, or other action to be used to comply with applicable environmental requirements set forth in this section. Operating expenses include all costs of operating and maintaining environmental facilities, income taxes, property taxes, other applicable taxes, and depreciation expenses as these expenses relate to compliance with the environmental requirements set forth in this section.
  2. Recovery of costs pursuant to subsection (1) of this section that are not already included in existing rates shall be by environmental surcharge to existing rates imposed as a positive or negative adjustment to customer bills in the second month following the month in which costs are incurred. Each utility, before initially imposing an environmental surcharge pursuant to this subsection, shall thirty (30) days in advance file a notice of intent to file said plan and subsequently submit to the commission a plan, including any application required by KRS 278.020(1), for complying with the applicable environmental requirements set forth in subsection (1) of this section. The plan shall include the utility’s testimony concerning a reasonable return on compliance-related capital expenditures and a tariff addition containing the terms and conditions of a proposed surcharge as applied to individual rate classes. Within six (6) months of submittal, the commission shall conduct a hearing upon the request of a party, and shall, regardless of whether or not a hearing is requested:
    1. Consider and approve the plan and rate surcharge if the commission finds the plan and rate surcharge reasonable and cost-effective for compliance with the applicable environmental requirements set forth in subsection (1) of this section;
    2. Establish a reasonable return on compliance-related capital expenditures; and
    3. Approve the application of the surcharge.
  3. The amount of the monthly environmental surcharge shall be filed with the commission ten (10) days before it is scheduled to go into effect, along with supporting data to justify the amount of the surcharge which shall include data and information as may be required by the commission. At six (6) month intervals, the commission shall review past operations of the environmental surcharge of each utility, and after hearing, as ordered, shall, by temporary adjustment in the surcharge, disallow any surcharge amounts found not just and reasonable and reconcile past surcharges with actual costs recoverable pursuant to subsection (1) of this section. Every two (2) years the commission shall review and evaluate past operation of the surcharge, and after hearing, as ordered, shall disallow improper expenses, and to the extent appropriate, incorporate surcharge amounts found just and reasonable into the existing base rates of each utility.
  4. The commission may employ competent, qualified independent consultants to assist the commission in its review of the utility’s plan of compliance as specified in subsection (2) of this section. The cost of any consultant shall be included in the surcharge approved by the commission.
  5. The commission shall retain all jurisdiction granted by this section and KRS 278.020 to review the environmental surcharge authorized by this section and any complaints as to the amount of any environmental surcharge or the incorporation of any environmental surcharge into the existing base rate of any utility.

History. Enact. Acts 1992, ch. 102, § 1, effective July 14, 1992; 2019 ch. 66, § 2, effective June 27, 2019.

Compiler’s Notes.

The Federal Clean Air Act referred to in subsection (1) of this section is compiled as 42 USCS §§ 7401 et seq.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Protestant’s Rights.
  3. Retroactive Application.
  4. Costs of Affliates.
1. Constitutionality.

This section allows a balancing of interests of investors and ratepayers and, therefore, does not violate due process. Kentucky Indus. Util. Customers, Inc. v. Kentucky Utils. Co., 983 S.W.2d 493, 1998 Ky. LEXIS 165 ( Ky. 1998 ).

This section is not invalid special legislation since it is uniform upon the class to which it applies, the class in question is that of electric utilities and not utility costs, and the section does not single out any utility for special treatment. Kentucky Indus. Util. Customers, Inc. v. Kentucky Utils. Co., 983 S.W.2d 493, 1998 Ky. LEXIS 165 ( Ky. 1998 ).

2. Protestant’s Rights.

Protestants received their due process rights where (1) public notice was given, (2) they intervened in the action and conducted a vigorous examination of every aspect of the surcharge application at issue, and (3) they were permitted discovery, full participation in the hearing, the use of expert witnesses and to cross-examine the utility’s witnesses, as well as to file comprehensive and cogent briefs. Kentucky Indus. Util. Customers, Inc. v. Kentucky Utils. Co., 983 S.W.2d 493, 1998 Ky. LEXIS 165 ( Ky. 1998 ).

3. Retroactive Application.

This section was applied retroactively in violation of KRS 446.080(3) by a Public Service Commission order which allowed a utility company to recover environmental expenditures incurred before January 1, 1993. Kentucky Indus. Util. Customers, Inc. v. Kentucky Utils. Co., 983 S.W.2d 493, 1998 Ky. LEXIS 165 ( Ky. 1998 ).

4. Costs of Affliates.

Under KRS 278.183 , a Kentucky electric utility, which had a federally approved power pooling agreement with out-of-state affiliates, could recover through an environmental surcharge its share of the environmental compliance equipment costs incurred by those affiliates; the Kentucky Public Service Commission’s determination that those were “its costs” was not unreasonable. Commonwealth ex rel. Stumbo v. Ky. Pub. Serv. Comm'n, 243 S.W.3d 374, 2007 Ky. App. LEXIS 478 (Ky. Ct. App. 2007).

Cited:

Kentucky PSC v. Commonwealth Ex Rel. Stumbo, — S.W.3d —, 2008 Ky. App. LEXIS 348 (Ky. Ct. App. 2008).

278.185. Notification to customers of proposed rate change by sewerage corporations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 82, § 1, effective March 29, 1976; 1978, ch. 379, § 25, effective April 1, 1979; 1982, ch. 82, § 23, effective July 15, 1982) was repealed by Acts 2014 ch. 49, § 1, effective July 15, 2014.

278.190. Procedure when new schedule of rates filed — Suspension of new rate schedule — Burden of proof — Refunds.

  1. Whenever any utility files with the commission any schedule stating new rates, the commission may, upon its own motion, or upon complaint as provided in KRS 278.260 , and upon reasonable notice, hold a hearing concerning the reasonableness of the new rates.
  2. Pending the hearing and the decision thereon, and after notice to the utility, the commission may, at any time before the schedule becomes effective, suspend the operation of the schedule and defer the use of the rate, charge, classification, or service, but not for a longer period than five (5) months beyond the time when it would otherwise go into effect if an historical test period is used, or longer than six (6) months if a forward-looking test period is used, pursuant to KRS 278.192 ; and after such hearing, either completed before or after the rate, charge, classification, or service goes into effect, the commission may make those orders with reference thereto as it deems proper in the matter. If the proceeding has not been concluded and an order made at the expiration of five (5) months, or six (6) months, as appropriate, the utility may place the proposed change of rate, charge, classification, or service in effect at the end of that period after notifying the commission, in writing, of its intention so to do. Where increased rates or charges are thus made effective, the commission may, by order, require the interested utility or utilities to maintain their records in a manner as will enable them, or the commission, or any of its customers, to determine the amounts to be refunded and to whom due in the event a refund is ordered, and upon completion of the hearing and decision may, by further order, require such utility or utilities to refund to the persons in whose behalf the amounts were paid that portion of the increased rates or charges as by its decision shall be found unreasonable. Provided, however, if the commission, at any time, during the suspension period, finds that the company’s credit or operations will be materially impaired or damaged by the failure to permit the rates to become effective during the period, the commission may, after any hearing or hearings, permit all or a portion of the rates to become effective under terms and conditions as the commission may, by order, prescribe.
  3. At any hearing involving the rate or charge sought to be increased, the burden of proof to show that the increased rate or charge is just and reasonable shall be upon the utility, and the commission shall give to the hearing and decision of such questions preference over other questions pending before it and decide the same as speedily as possible, and in any event not later than ten (10) months after the filing of such schedules.
  4. If the commission, by order, directs any utility to make a refund, as hereinabove provided, of all or any portion of the increased rates or charges, the utility shall make the refund within sixty (60) days after a final determination of the proceeding by an order of the court or commission with or without interest in the discretion of the commission. If the utility fails to make the refund within sixty (60) days after the final determination, any party entitled to a refund may, after ten (10) days’ written demand, bring an action in any court of competent jurisdiction of this state, and may recover, in addition to the amount of the refund due, legal interest, court costs, and reasonable attorney’s fees. No such action may be maintained unless instituted within one (1) year after the final determination. Any number of persons entitled to refunds may join in as plaintiffs in a single action and the court shall render a judgment severally for each plaintiff as his interest may appear.

History. 3952-16: amend. Acts 1952, ch. 46, § 2; 1978, ch. 379, § 26, effective April 1, 1979; 1982, ch. 82, § 24, effective July 15, 1982; 1982, ch. 242, § 2, effective July 15, 1982; 1984, ch. 111, § 123, effective July 13, 1984; 1992, ch. 308, § 2, effective July 14, 1992.

NOTES TO DECISIONS

  1. Refund of Excess Rates.
  2. Interest on Refunds.
  3. Federal Court Jurisdiction.
1. Refund of Excess Rates.

A utility need not make refund of excess rates collected until after the final termination of the litigation. Commonwealth ex rel. Stephens v. South Cent. Bell Tel. Co., 545 S.W.2d 927, 1976 Ky. LEXIS 142 ( Ky. 1976 ).

2. Interest on Refunds.

The determination as to whether interest is allowed on a refund is within the sound discretion of the commission. The amount of that interest must also be within the sound discretion of the agency. Commonwealth ex rel. Beshear v. Kentucky Utilities Co., 648 S.W.2d 535, 1982 Ky. App. LEXIS 288 (Ky. Ct. App. 1982).

Where the commission in 1974 ordered an electric power company to pay 6% interest on its refunds to its customers of excessive rates collected during 1974, and the company appealed that decision until 1981 when the appellate court ruled in favor of the commission, the commission did not abuse its discretion in ordering the company to pay 6% interest on the overcollections for 1974, and 10% interest on the money it improperly withheld from its customers from 1974 to 1981, where the evidence showed that the prime rate of interest had risen from over 6% in 1974 to over 20% in 1980 and the company’s long-term bonds were earning an average of 10% over the same time span. Commonwealth ex rel. Beshear v. Kentucky Utilities Co., 648 S.W.2d 535, 1982 Ky. App. LEXIS 288 (Ky. Ct. App. 1982).

3. Federal Court Jurisdiction.

Fact that state law denies injunctive relief from enforcement of rate-making commission’s order allowing an increase in rates substantially below those sought by the telephone utility company pending a review of the commission’s order does not mean the utility lacks a “plain, speedy and efficient remedy” sufficient to confer jurisdiction on the federal courts. South Cent. Bell Tel. Co. v. PSC, 420 F. Supp. 376, 1976 U.S. Dist. LEXIS 13069 (E.D. Ky. 1976 ).

Cited:

Kentucky CATV Asso. v. Volz, 675 S.W.2d 393, 1983 Ky. App. LEXIS 378 (Ky. Ct. App. 1983); Kentucky Am. Water Co. v. Commonwealth, 847 S.W.2d 737, 1993 Ky. LEXIS 24 ( Ky. 1993 ); Cincinnati Bell Tel. Co. v. Ky. P.S.C., 223 S.W.3d 829, 2007 Ky. App. LEXIS 36 (Ky. Ct. App. 2007).

Research References and Practice Aids

Kentucky Bench & Bar.

Rogers, Public Utility Rate Applications Practice and Procedure Before the Public Service Commission, Vol. 41, No. 1, Jan. 1977 Ky. Bench & B. 8.

Mapother, Attorneys’ Fees Recoverable in Kentucky Litigation, Vol. 44, No. 4, October 1980, Ky. Bench & Bar 28.

Eversole and Crosby, “Plain Meaning,” Necessarily Implied Authority, and the Public Service, Commission: The Kentucky Supreme Court Restores an Agency’s Discretion, Vol. 76, No. 5, September 2012, Ky. Bench & Bar 9.

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

278.192. Test period for proposed rate increase.

  1. For the purpose of justifying the reasonableness of a proposed general increase in rates, the commission shall allow a utility to utilize either an historical test period of twelve (12) consecutive calendar months, or a forward-looking test period corresponding to the first twelve (12) consecutive calendar months the proposed increase would be in effect after the maximum suspension provided in KRS 278.190(2).
    1. Any application utilizing a forward-looking test period shall include a base period to be filed with the application, which begins not more than nine (9) months prior to the date of filing, consisting of not less than six (6) months of actual historical data and not more than six (6) months of estimated data at the time of filing. (2) (a) Any application utilizing a forward-looking test period shall include a base period to be filed with the application, which begins not more than nine (9) months prior to the date of filing, consisting of not less than six (6) months of actual historical data and not more than six (6) months of estimated data at the time of filing.
    2. Actual results for the estimated months of the base period shall be filed no later than forty-five (45) days after the last day of the base period.
    3. Upon the filing of an application for a proposed increase in rates based on either a historical or a forward-looking test period, any intervening party in opposition to such application shall have the right to examine all data, including individual invoices, which comprise the actual expenditures of the utility incurred for ratemaking purposes for the preceding twelve (12) month period immediately prior to the filing date.

History. Enact. Acts 1992, ch. 308, § 1, effective July 14, 1992.

278.200. Power to regulate rates and service standards fixed by agreement with city.

The commission may, under the provisions of this chapter, originate, establish, change, promulgate and enforce any rate or service standard of any utility that has been or may be fixed by any contract, franchise or agreement between the utility and any city, and all rights, privileges and obligations arising out of any such contract, franchise or agreement, regulating any such rate or service standard, shall be subject to the jurisdiction and supervision of the commission, but no such rate or service standard shall be changed, nor any contract, franchise or agreement affecting it abrogated or changed, until a hearing has been had before the commission in the manner prescribed in this chapter.

History. 3952-27: amend. Acts 1978, ch. 379, § 27, effective April 1, 1979; 1982, ch. 82, § 25, effective July 15, 1982.

NOTES TO DECISIONS

  1. Originate and Establish.
  2. Contracts Prior to Act.
  3. Nonexempt Utilities.
  4. Water District.
1. Originate and Establish.

The words “originate” and “establish” in this section refer to the power of the commission to institute proceedings on its own motion, and do not mean that the commission has the power to fix rates and service standards in the initial granting of a franchise by a city. Peoples Gas Co. v. Barbourville, 291 Ky. 805 , 165 S.W.2d 567, 1942 Ky. LEXIS 321 ( Ky. 1942 ).

2. Contracts Prior to Act.

The power of cities to contract with respect to utility rates does not deprive the state of its police power of regulation; but this power was not exercised before June 14, 1934, when KRS 278.010 to 278.450 were enacted, and therefore contracts made before that date are valid. Union Light, Heat & Power Co. v. Covington, 282 Ky. 558 , 139 S.W.2d 64, 1940 Ky. LEXIS 208 ( Ky. 1940 ).

3. Nonexempt Utilities.

Cities have been divested of the power to regulate rates of nonexempt utilities and that power is now in the commission. Southern Bell Tel. & Tel. Co. v. Louisville, 265 Ky. 286 , 96 S.W.2d 695, 1936 Ky. LEXIS 468 ( Ky. 1936 ).

Cities are not authorized under Const., § 201 to attach conditions to the consolidation of utility companies which will deprive the state of its inherent power to regulate rates of nonexempt utilities. Southern Bell Tel. & Tel. Co. v. Louisville, 265 Ky. 286 , 96 S.W.2d 695, 1936 Ky. LEXIS 468 ( Ky. 1936 ).

When a city seeks a change in rates of a nonexempt public utility, it must follow the procedure prescribed by KRS 278.260 , the same as other permitted to file complaints. Southern Bell Tel. & Tel. Co. v. Louisville, 265 Ky. 286 , 96 S.W.2d 695, 1936 Ky. LEXIS 468 ( Ky. 1936 ).

A city, in granting a public utility franchise, whether an entirely new franchise or a renewal of a prior one, has the right to prescribe the character of service to be rendered and the rates to be charged at the beginning; thereafter the exclusive power to regulate the rates and service is vested in the commission. Peoples Gas Co. v. Barbourville, 291 Ky. 805 , 165 S.W.2d 567, 1942 Ky. LEXIS 321 ( Ky. 1942 ).

Where the city proposed to issue revenue bonds to construct a natural gas distribution and transmission system which it proposed to lease to a private party to operate and the private party had the power to adjust the rates under certain conditions, the facility is a nonexempt “utility” and the commission has power to regulate rates fixed by it. Baird v. Adairville, 426 S.W.2d 124, 1968 Ky. LEXIS 636 ( Ky. 1968 ).

4. Water District.

The Public Service Commission (PSC) has exclusive jurisdiction over the regulation of utility rates and service which extends to a city contracting for the sale and supply of water to a PSC-regulated county water district. Simpson County Water Dist. v. City of Franklin, 872 S.W.2d 460, 1994 Ky. LEXIS 13 ( Ky. 1994 ).

Cited:

Daugherty v. Lexington, 249 S.W.2d 755, 1952 Ky. LEXIS 857 ( Ky. 1952 ); Bobinchuck v. Levitch, 380 S.W.2d 233, 1964 Ky. LEXIS 292 ( Ky. 1964 ).

Opinions of Attorney General.

A water district is subject to the jurisdiction of the utility regulatory commission and its contract or agreement with a city may be changed by the commission, pursuant to this section, in connection with any rate or service standard that may have been established by such contract or agreement and the commission’s power to regulate rates authorizes it to change or modify rates fixed by contract and its power to do so cannot be limited by provisions in the contract between the regulated utility and the city; also, generally such a contract is voidable only in that it cannot stand against a properly enacted modification of the commission. OAG 81-44 .

Research References and Practice Aids

Cross-References.

Regulation of utilities by cities, KRS Ch. 96.

278.210. Examination and testing of meters and meter-testing devices.

  1. The commission may provide instruments for, and carry on, the examination and testing of any meter or appliance used to measure the product or service of any utility, and the examination and testing of any instrument used by a utility to test the accuracy of any meter or appliance used to measure its products or services.
  2. Any patron of a utility may, upon request and payment of the fees fixed by the commission, have a test made of the meter or appliance by which his use of the products or services of the utility is measured.
  3. The commission may establish reasonable fees for testing such meters and appliances at the request of a patron of a utility. If the appliance is found to be commercially defective or inaccurate to the extent of more than two percent (2%) to the disadvantage of the patron, the fees shall be repaid to the patron and paid by the utility.
  4. If a utility demonstrates through sample testing that no statistically significant number of its meters over-register above the limits set out in subsection (3) of this section, the meter testing frequency shall be that which is determined by the utility to be cost effective. This determination by the utility shall be based on established scientific, engineering, and economic methods and shall be documented in an application properly filed with the commission.

History. 3952-26: amend. Acts 1978, ch. 379, § 28, effective April 1, 1979; 1982, ch. 82, § 26, effective July 15, 1982; 1998, ch. 218, § 1, effective July 15, 1998.

278.212. Filing of plans for electrical interconnection with merchant electric generating facility — Costs of upgrading existing grid.

  1. No utility shall begin the construction or installation of any property, equipment, or facility to establish an electrical interconnection with a merchant electric generating facility in excess of ten megawatts (10MW) until the plans and specifications for the electrical interconnection have been filed with the commission.
  2. Notwithstanding any other provision of law, any costs or expenses associated with upgrading the existing electricity transmission grid, as a result of the additional load caused by a merchant electric generating facility, shall be borne solely by the person constructing the merchant electric generating facility and shall in no way be borne by the retail electric customers of the Commonwealth.

History. Enact. Acts 2002, ch. 365, § 11, effective April 24, 2002.

278.214. Curtailment of service by utility or generation and transmission cooperative.

When a utility or generation and transmission cooperative engaged in the transmission of electricity experiences on its transmission facilities an emergency or other event that necessitates a curtailment or interruption of service, the utility or generation and transmission cooperative shall not curtail or interrupt retail electric service within its certified territory, or curtail or interrupt wholesale electric energy furnished to a member distribution cooperative for retail electric service within the cooperative’s certified territory, except for customers who have agreed to receive interruptable service, until after service has been interrupted to all other customers whose interruption may relieve the emergency or other event.

History. Enact. Acts 2002, ch. 365, § 12, effective April 24, 2002.

NOTES TO DECISIONS

1. Constitutionality.

KRS 278.214 was not preempted by federal law, because KRS 278.214 was complementary and sequential to Federal Energy Regulatory Commission Order 888, 61 Fed. Reg. 21,540, and the applicable open access nondiscriminatory transmission tariffs; the federal laws regulated curtailments effectuated by the transmission providers, and the state law regulated the curtailments effectuated by transmission owners. Ky. Power Co. v. Huelsmann, 352 F. Supp. 2d 777, 2005 U.S. Dist. LEXIS 1339 (E.D. Ky. 2005 ).

KRS 278.214 is unconstitutional as it violates the dormant Commerce Clause, U.S. Const. art. I, § 8, by providing curtailment preference only to Kentucky customers and disadvantaging all similarly situated customers located outside Kentucky borders. Ky. Power Co. v. Huelsmann, 352 F. Supp. 2d 777, 2005 U.S. Dist. LEXIS 1339 (E.D. Ky. 2005 ).

278.216. Site compatibility certificate — Site assessment report — Commission action on application.

  1. Except for a utility as defined under KRS 278.010(9) that has been granted a certificate of public convenience and necessity prior to April 15, 2002, no utility shall begin the construction of a facility for the generation of electricity capable of generating in aggregate more than ten megawatts (10MW) without having first obtained a site compatibility certificate from the commission.
  2. An application for a site compatibility certificate shall include the submission of a site assessment report as prescribed in KRS 278.708(3) and (4), except that a utility which proposes to construct a facility on a site that already contains facilities capable of generating ten megawatts (10MW) or more of electricity shall not be required to comply with setback requirements established pursuant to KRS 278.704(3). A utility may submit and the commission may accept documentation of compliance with the National Environmental Policy Act (NEPA) rather than a site assessment report.
  3. The commission may deny an application filed pursuant to, and in compliance with, this section. The commission may require reasonable mitigation of impacts disclosed in the site assessment report including planting trees, changing outside lighting, erecting noise barriers, and suppressing fugitive dust, but the commission shall, in no event, order relocation of the facility.
  4. The commission may also grant a deviation from any applicable setback requirements on a finding that the proposed facility is designed and located to meet the goals of this section and KRS 224.10-280 , 278.010 , 278.212 , 278.214 , 278.218 , and 278.700 to 278.716 at a distance closer than those provided by the applicable setback requirements.
  5. Nothing contained in this section shall be construed to limit a utility’s exemption provided under KRS 100.324 .
  6. Unless specifically stated otherwise, for the purposes of this section, “utility” has the same meaning as in KRS 278.010(3)(a) or (9).

History. Enact. Acts 2002, ch. 365, § 13, effective April 24, 2002; 2003, ch. 150, § 3, effective June 24, 2003.

278.218. Approval of commission for change in ownership or control of assets owned by utility.

  1. No person shall acquire or transfer ownership of or control, or the right to control, any assets that are owned by a utility as defined under KRS 278.010(3)(a) without prior approval of the commission, if the assets have an original book value of one million dollars ($1,000,000) or more and:
    1. The assets are to be transferred by the utility for reasons other than obsolescence; or
    2. The assets will continue to be used to provide the same or similar service to the utility or its customers.
  2. The commission shall grant its approval if the transaction is for a proper purpose and is consistent with the public interest.

History. Enact. Acts 2002, ch. 365, § 14, effective April 24, 2002.

278.220. Uniform system of accounts for utilities.

The commission may establish a system of accounts to be kept by utilities subject to its jurisdiction, or may classify utilities and establish a system of accounts for each class, and may prescribe the manner in which such accounts shall be kept. The system established shall conform as nearly as practicable to the uniform system of accounts prescribed by the National Association of Regulatory Utility Commissioners, except that the system established for telephone and telegraph companies shall conform as nearly as practicable to the system adopted or approved by the Federal Communications Commission and the system established for gas and electric companies shall conform as nearly as practicable to the system adopted or approved by the Federal Energy Regulatory Commission.

History. 3952-22: amend. Acts 1978, ch. 379, § 29, effective April 1, 1979; 1982, ch. 82, § 27, effective July 15, 1982; 1986, ch. 300, § 3, effective July 15, 1986.

NOTES TO DECISIONS

Cited:

Public Service Com. v. Continental Tel. Co., 692 S.W.2d 794, 1985 Ky. LEXIS 240 ( Ky. 1985 ); South Cent. Bell Tel. Co. v. Public Service Com., 702 S.W.2d 447, 1985 Ky. App. LEXIS 717 (Ky. Ct. App. 1985); Public Service Com. v. Dewitt Water Dist., 720 S.W.2d 725, 1986 Ky. LEXIS 314 ( Ky. 1986 ).

278.2201. Prohibition against subsidy of nonregulated activity — Separate accounting.

A utility shall not subsidize a nonregulated activity provided by an affiliate or by the utility itself. The commission shall require all utilities providing nonregulated activities, either directly or through an affiliate, to keep separate accounts and allocate costs in accordance with procedures established by the commission. The commission may promulgate administrative regulations that will assist the commission in enforcing this section.

History. Enact. Acts 2000, ch. 511, § 2, effective July 14, 2000.

278.2203. Cost allocation of regulated and nonregulated activity.

  1. A utility that engages in a nonregulated activity shall identify all costs of the nonregulated activity and report the costs in accordance with the guidelines in the USoA and the cost allocation methods described in subsection (2) of this section.
  2. In allocating costs between regulated and nonregulated activities, a utility shall utilize one (1) of the following cost allocation methods:
    1. The fully distributed cost method; or
    2. A cost allocation method recognized or mandated by the rules of the SEC promulgated pursuant to 15 U.S.C. sec. 79 , et seq., or promulgated by the FERC or by the USDA.
  3. A utility’s compliance with federal cost allocation methods shall constitute compliance with the provisions of KRS 278.010 to 278.450 .
  4. Notwithstanding subsections (1) to (3) of this section, a utility may report an incidental nonregulated activity as a regulated activity if:
    1. The revenue from the aggregate total of the utility’s nonregulated incidental activities does not exceed the lesser of two percent (2%) of the utility’s total revenue or one million dollars ($1,000,000) annually; and
    2. The nonregulated activity is reasonably related to the utility’s regulated activity.
  5. Nothing contained in this section shall be construed as requiring a utility to violate any cost allocation methods required to be employed under any service agreement validly existing as of July 14, 2000, for the term of the existing agreement, except where the commission makes the determination that a service agreement was executed for the purpose of avoiding provisions of KRS 278.010 to 278.450 .

History. Enact. Acts 2000, ch. 511, § 3, effective July 14, 2000.

278.2205. Cost allocation manual for nonregulated activity — Contents — Maintenance.

  1. Any utility that engages in a nonregulated activity whose revenue exceeds the amount provided for incidental nonregulated activities under KRS 278.2203(4)(a), shall develop and maintain a CAM as described in subsections (2) to (5) of this section.
  2. A CAM shall contain the following information for a utility’s jurisdictional operations in the Commonwealth:
    1. A list of regulated and nonregulated divisions within the utility;
    2. A list of all regulated and nonregulated affiliates of the utility to which the utility provides services or products and where the affiliates provide nonregulated activities as defined in KRS 278.010(21);
    3. A list of services and products provided by the utility, an identification of each as regulated or nonregulated, and the cost allocation method generally applicable to each category;
    4. A list of incidental, nonregulated activities that are subject to the provisions of KRS 278.2203 (4);
    5. A description of the nature of transactions between the utility and the affiliate; and
    6. For each USoA account and subaccount, a report that identifies whether the account contains costs attributable to regulated operations and nonregulated operations. The report shall also identify whether the costs are joint costs that cannot be directly identified. A description of the methodology used to apportion each of these cost shall be included and the allocation methodology shall be consistent with the provisions of KRS 278.2203 .
  3. Within two hundred seventy (270) days of July 14, 2000, the utility shall file:
    1. A statement with the commission that certifies the CAM has been developed and will be adopted by the management, effective with the beginning of the next calendar year. The statement shall be signed by an officer of the utility; and
    2. One (1) copy of the CAM.
  4. Within sixty (60) days of any material change in matters required to be listed in the CAM, the utility shall amend the CAM to reflect the change.
  5. The CAM shall be available for public inspection at the utility and at the commission.
  6. The CAM shall be filed as part of the initial filing requirement in a proceeding involving an application for an adjustment in rates pursuant to KRS 278.190 .

History. Enact. Acts 2000, ch. 511, § 4, effective July 14, 2000.

278.2207. Transactions between utility and affiliate — Pricing requirements — Request for deviation.

  1. The terms for transactions between a utility and its affiliates shall be in accordance with the following:
    1. Services and products provided to an affiliate by the utility pursuant to a tariff shall be at the tariffed rate, with nontariffed items priced at the utility’s fully distributed cost but in no event less than market, or in compliance with the utility’s existing USDA, SEC, or FERC approved cost allocation methodology.
    2. Services and products provided to the utility by an affiliate shall be priced at the affiliate’s fully distributed cost but in no event greater than market or in compliance with the utility’s existing USDA, SEC, or FERC approved cost allocation methodology.
  2. A utility may file an application with the commission requesting a deviation from the requirements of this section for a particular transaction or class of transactions. The utility shall have the burden of demonstrating that the requested pricing is reasonable. The commission may grant the deviation if it determines the deviation is in the public interest.
  3. Nothing in this section shall be construed to interfere with the commission’s requirement to ensure fair, just, and reasonable rates for utility services.

History. Enact. Acts 2000, ch. 511, § 5, effective July 14, 2000.

278.2209. Documentation regarding cost allocation.

In any formal commission proceeding in which cost allocation is at issue, a utility shall provide sufficient information to document that its cost allocation procedures and affiliate transaction pricing are consistent with the provisions of this chapter.

History. Enact. Acts 2000, ch. 511, § 6, effective July 14, 2000.

278.2211. Remedies for noncompliance utility and affiliate — Access to records — Disallowance of costs — Audit.

  1. If the commission finds that a utility has not complied with any provision of this chapter for any transaction between a utility and its affiliate, or if a utility has failed to provide sufficient evidence of its compliance, then the commission may:
    1. Access the books and records of a utility’s nonregulated affiliate; and
    2. Order that the costs attached to any transactions be disallowed from rates.
  2. If, after inspecting an affiliate’s books and records, the commission finds that a utility has not complied with any provision of KRS 278.010 to 278.450 , the commission may perform a financial audit of the utility’s affiliate to the extent necessary to ensure compliance with KRS 278.010 to 278.450 .

History. Enact. Acts 2000, ch. 511, § 7, effective July 14, 2000.

278.2213. Separate recordkeeping for utility and affiliate — Prohibited business practices — Confidentiality of information — Notice of service available from competitor.

The provisions of this section shall govern a public utility company’s activities related to the sharing of information, databases, and resources between its employees or an affiliate involved in the marketing or the provision of nonregulated activities and its employees or an affiliate involved in the provision of regulated activities.

  1. A utility and its affiliate shall be separate corporate entities and maintain separate books and records. If a utility and nonregulated affiliate have common officers, directors, or employees, the fees, compensation, and expenses of the individuals involved shall be subject to the cost allocation requirements set forth in KRS 278.2203 and 278.2207 . Any utility that provides nonregulated activities shall separately account for all investments, revenues, and expenses in accordance with its filed cost allocation manual.
  2. A utility shall not provide advertising space in its billing envelope to its affiliates or for its nonregulated activities unless it offers the same to competing service providers on the same terms it provides to its affiliates. This subsection applies to nonregulated activities only.
  3. A utility shall not attempt to persuade customers to do business with its affiliates by offering rebates or discounts on tariffed services.
  4. All utility company employees engaged in the merchant function shall abide by all standards promulgated by applicable FERC orders and regulations.
  5. No utility employee shall share any confidential customer information with the utility’s affiliates unless the customer has consented in writing, or the information is publicly available or is simultaneously made publicly available.
  6. All dealings between a utility and a nonregulated affiliate shall be at arm’s length.
  7. Employees transferring from the utility to an affiliate shall not disclose to the affiliate confidential information or take with them any competitively sensitive materials.
  8. Neither a utility nor its employees or agents shall solicit business on behalf of an affiliate or for its nonutility services.
  9. A utility that carries out any research and development or joint marketing and promotion with its affiliate for its nonregulated activities shall be subject to the cost allocation requirements set forth in KRS 278.2203 .
  10. Except as provided in subsection (5) of this section, if a utility is engaged in a nonregulated activity, marketing employees for the nonregulated activity shall not have access to the customer information provided to the utility when the customer places an order for regulated service.
  11. A utility shall not provide any type of undue preferential treatment to a nonregulated affiliate to the detriment of a competitor.
  12. A utility shall notify the customer that competing suppliers of a nonregulated service exist if:
    1. The utility receives a request for a recommendation from a customer seeking a specific service which is offered by the utility’s affiliate or by the utility itself; and
    2. The utility mentions itself or its affiliate when making the recommendation to the customer.
  13. The utility’s name, trademark, brand, or logo shall not be used by a nonregulated affiliate in any type of visual or audio media without a disclaimer. The commission shall develop specifications for the disclaimer. The disclaimer shall be approved by the commission prior to use in any advertisement by the utility’s affiliate.
  14. A utility shall not enter into any arrangements for financing nonregulated activities through an affiliate that would permit a creditor upon default to have recourse to the assets of the utility.
  15. A utility shall inform the commission of all new nonregulated activities begun by itself or by the utility’s affiliate within a time to be set by the commission.
  16. Start-up costs associated with the formation of a nonregulated affiliate shall not be included in the utility’s rate base.
  17. The commission may require the utility to file annual reports of information related to affiliate transactions when necessary to monitor compliance with these guidelines.

History. Enact. Acts 2000, ch. 511, § 8, effective July 14, 2000.

278.2215. Exemptions.

The provisions of KRS 278.2201 to 278.2213 and KRS 278.2215 and 278.2219 shall not apply to telecommunications utilities, telecommunications services, nonprofit water or sewer utilities, or water districts.

History. Enact. Acts 2000, ch. 511, § 9, effective July 14, 2000; 2006, ch. 114, § 3, effective July 12, 2006.

278.2219. Waiver or deviation from requirements of KRS 278.2201 to 278.2213.

  1. Notwithstanding any provisions in KRS 278.2201 to the contrary, a utility may apply to the commission for a waiver or deviation from any or all provisions of KRS 278.2201 to 278.2213 .
  2. The utility’s application to the commission shall:
    1. Demonstrate the basis of the utility’s need to be granted a waiver or deviation; and
    2. Contain, if appropriate, documentation regarding the costs and benefits of compliance with the provisions of KRS 278.2201 to 278.2213 .
  3. The commission shall grant a waiver or deviation if the commission finds that compliance with the provisions of KRS 278.2201 to 278.2213 is impracticable or unreasonable. The findings of the commission shall be a final appealable order.

History. Enact. Acts 2000, ch. 511, § 10, effective July 14, 2000.

278.225. Time limitation on billing — Liability for unbilled service.

All service supplied by a utility shall be billed within two (2) years of the service. No customer shall be liable for unbilled service after two (2) years from the date of the service, unless the customer obtained the service through fraud, theft, or deception.

History. Enact. Acts 1994, ch. 143, § 1, effective July 15, 1994.

278.230. Access to property, books and records of utilities — Reports and information may be required.

  1. The commissioners and the officers and employees of the commission may, during all reasonable hours, enter upon the premises of any utility subject to its jurisdiction for the purpose of examining any books or records, or for making any examination or test, or for exercising any power provided for in this chapter, and may set up and use on such premises apparatus and appliances necessary for any such examination or test. The utility shall have the right to be represented at the making of any such examination, test or inspection.
  2. The books, accounts, papers and records of the utility shall be available to the commission for inspection and examination. If the books, accounts, papers and records are not within the state, the commission may, by notice and order, require their production or the production of verified copies at such time and place as it designates, any expense incurred to be borne by the utility so ordered.
  3. Every utility, when required by the commission, shall file with it any reports, schedules, classifications or other information that the commission reasonably requires. The commission shall prepare and distribute to the utilities blank forms for any information required under this chapter. All such reports shall be under oath when required by the commission.

History. 3952-13, 3952-20, 3952-23: amend. Acts 1978, ch. 379, § 30, effective April 1, 1979; 1982, ch. 82, § 28, effective July 15, 1982.

NOTES TO DECISIONS

  1. Companies Engaged in Interstate Commerce.
  2. Enforcement of Orders.
1. Companies Engaged in Interstate Commerce.

Though local activities of gas transportation company were not subject to state regulation because company was primarily engaged in interstate commerce, commission could require company to disclose information as to its relations with wholesale customers. Kentucky Natural Gas Corp. v. Public Service Com., 28 F. Supp. 509, 1939 U.S. Dist. LEXIS 2631 (D. Ky. 1939 ), aff'd, 119 F.2d 417, 1941 U.S. App. LEXIS 3727 (6th Cir. Ky. 1941 ).

2. Enforcement of Orders.

Federal injunction would not lie to restrain Public Service Commission from enforcing order for investigation of rates charged by natural gas pipeline company, since cost of $25,000 in preparing and presenting company’s case before commission would not constitute irreparable injury justifying equitable intervention. Petroleum Exploration, Inc. v. Public Service Com., 304 U.S. 209, 58 S. Ct. 834, 82 L. Ed. 1294, 1938 U.S. LEXIS 1077 (U.S. 1938).

Federal court would not enjoin commission from enforcing order for investigation of rates charged by pipeline company, since commission cannot compel obedience of order except by action in state court where company’s rights would be protected. Petroleum Exploration, Inc. v. Public Service Com., 21 F. Supp. 254, 1937 U.S. Dist. LEXIS 1365 (D. Ky. 1937 ), aff'd, 304 U.S. 209, 58 S. Ct. 834, 82 L. Ed. 1294, 1938 U.S. LEXIS 1077 (U.S. 1938).

Cited:

Christian Church Widows & Orphans Home v. Louisville Gas & Electric Co., 282 Ky. 463 , 138 S.W.2d 944, 1940 Ky. LEXIS 181 ( Ky. 1940 ); Stansbury v. Maupin, 599 S.W.2d 170, 1980 Ky. LEXIS 218 ( Ky. 1980 ).

278.240. Certified copies of commission’s records — Use as evidence.

Copies of official documents and orders filed or deposited according to law in the office of the commission, certified by a commissioner, or by the executive director under the seal of the commission, to be true copies of the originals, shall be evidence in like manner as the originals in all matters before the commission and in courts of competent jurisdiction.

History. 3952-41: amend. Acts 1978, ch. 379, § 31, effective April 1, 1979; 1982, ch. 82, § 29, effective July 15, 1982; 1994, ch. 166, § 2, effective July 15, 1994.

278.250. Investigation of condition of utility.

Whenever it is necessary in the performance of its duties, the commission may investigate and examine the condition of any utility subject to its jurisdiction. In conducting such investigation, the commission may proceed with or without a hearing as it deems best, but shall make no order without giving a hearing to the parties affected thereby.

History. 3952-21: amend. Acts 1978, ch. 379, § 32, effective April 1, 1979; 1982, ch. 82, § 30, effective July 15, 1982.

278.255. Periodic management and operation audits.

  1. The commission shall provide for periodic management and operation audits of each utility with annual intra-Kentucky assessable revenue as of December 31, 1983, under KRS 278.150(1) not less than one hundred million dollars ($100,000,000) to investigate management effectiveness and operating efficiency. The commission shall complete or provide for a full and comprehensive audit of each such utility prior to January 1, 1990. After the initial audit of any utility, the commission may order a subsequent audit of that utility focusing on issues disclosed by the initial audit. A full and comprehensive audit of any utility initiated prior to July 13, 1984, may be deemed to satisfy the requirements of this subsection if the audit was required and directed by the commission and completed after July 1, 1983.
  2. The commission may provide for management or operations audits, or both, of any utility under its jurisdiction on a regular or irregular schedule to investigate all or any portion of the management and operating procedures or any other internal workings of the utility.
  3. Audits provided under this section may, at the discretion of the commission, be performed by the commission staff or by a competent, qualified and independent firm. When the commission orders an audit to be performed by an independent firm, the commission shall select the audit firm, which shall work for and under the direction of the commission, with the cost to be borne by the utility. The commission shall include the cost of conducting any audits required in this section in the cost of service of the utility for ratemaking purposes.
  4. The commission shall adopt rules and regulations setting forth the scope and application of audits, and procedures for the conduct of management and operations audits. The audit procedures shall provide the utility being audited the opportunity to comment at various stages of the audit, including an opportunity to comment on the initial work plan and the opportunity to review and comment on preliminary audit drafts prior to issuance of a final document. The results of all audits shall be filed with the commission and shall be open to public inspection.

History. Enact. Acts 1984, ch. 46, § 1, effective July 13, 1984.

NOTES TO DECISIONS

1. Cost of Feasibility Study.

The Public Service Commission has no authority, under this section, to impose the cost for a merger feasibility study on utilities who are the subject of the study, undertaken pursuant to KRS 74.361 . Public Serv. Comm'n v. Attorney Gen. of Commonwealth, 860 S.W.2d 296, 1993 Ky. App. LEXIS 111 (Ky. Ct. App. 1993).

278.260. Jurisdiction over complaints as to rates or service — Investigations — Hearing.

  1. The commission shall have original jurisdiction over complaints as to rates or service of any utility, and upon a complaint in writing made against any utility by any person that any rate in which the complainant is directly interested is unreasonable or unjustly discriminatory, or that any regulation, measurement, practice or act affecting or relating to the service of the utility or any service in connection therewith is unreasonable, unsafe, insufficient or unjustly discriminatory, or that any service is inadequate or cannot be obtained, the commission shall proceed, with or without notice, to make such investigation as it deems necessary or convenient. The commission may also make such an investigation on its own motion. No order affecting the rates or service complained of shall be entered by the commission without a formal public hearing.
  2. The commission shall fix the time and place for each hearing held by it, and shall serve notice thereof upon the utility and the complainant not less than twenty (20) days before the time set for the hearing. The commission may dismiss any complaint without a hearing if, in its opinion, a hearing is not necessary in the public interest or for the protection of substantial rights.
  3. The complainant and the person complained of shall be entitled to be heard in person or by an attorney and to introduce evidence.

History. 3952-33: amend. Acts 1978, ch. 379, § 33, effective April 1, 1979; 1982, ch. 242, § 3, effective July 15, 1982.

NOTES TO DECISIONS

  1. Jurisdiction of Commission.
  2. Jurisdiction of Courts.
  3. Complaint of Individual.
  4. Formal Public Hearing.
  5. Cities.
  6. Quality of Service.
  7. Separate Determinations.
  8. Illegal Rate Reduction.
  9. Liability.
1. Jurisdiction of Commission.

Commission has primary jurisdiction over public utilities with respect to tolls, schedules, rates, and service generally, but it does not have exclusive jurisdiction of complaints, such as of an individual seeking restoration of service. Louisville Gas & Electric Co. v. Dulworth, 279 Ky. 309 , 130 S.W.2d 753, 1939 Ky. LEXIS 271 ( Ky. 1939 ).

The legislative grant of power to regulate rates will be strictly construed and will neither be interpreted by implication nor inference. In fixing rates, the commission must give effect to all factors which are prescribed by the legislative body, but may not act on a matter which the legislature has not established. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

Where a public telephone utility customer actually had two (2) separate claims in his complaint against the utility, one regarding the type and quality of service he was provided, while the other was a breach of contract claim seeking compensatory and punitive damages for the utility’s failure to provide the telephone service that he had contracted for, the subject matter jurisdiction over the two (2) claims was divided, with the public service commission having exclusive jurisdiction over the first claim while the Circuit Court had jurisdiction over the breach of contract claim. Carr v. Cincinnati Bell, Inc., 651 S.W.2d 126, 1983 Ky. App. LEXIS 290 (Ky. Ct. App. 1983).

Since the Public Service Commission (PSC) lacked jurisdiction to regulate the collection and transmission of sewage, it did not have jurisdiction over complaint by mobile home park that county water and sewer district violated KRS 278.160 requiring utilities to have a tariff on file in order to access a connection fee when it assessed a connection and inspection fee on each lot in the park for the collection and transmission of sewage by the district. While KRS 278.010(3) sets the parameters of PSC jurisdiction and describes the movement of products and services it does not mention the movement of sewage but only mentions treatment in connection with sewage. Boone County Water & Sewer Dist. v. PSC, 949 S.W.2d 588, 1997 Ky. LEXIS 61 ( Ky. 1997 ).

2. Jurisdiction of Courts.

Court cannot pass on reasonableness of charges or service, or compel utility to furnish service to complainant, until complainant has applied to commission for relief. Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

Federal injunction would not lie to restrain Public Service Commission from enforcing order for investigation of rates charged by natural gas pipeline company, since cost of $25,000 in preparing and presenting company’s case before commission would not constitute irreparable injury justifying equitable intervention. Petroleum Exploration, Inc. v. Public Service Com., 304 U.S. 209, 58 S. Ct. 834, 82 L. Ed. 1294, 1938 U.S. LEXIS 1077 (U.S. 1938).

Federal court would not enjoin commission from enforcing order for investigation of rates charged by pipeline company, since commission cannot compel obedience of order except by action in state court where company’s rights would be protected. Petroleum Exploration, Inc. v. Public Service Com., 21 F. Supp. 254, 1937 U.S. Dist. LEXIS 1365 (D. Ky. 1937 ), aff'd, 304 U.S. 209, 58 S. Ct. 834, 82 L. Ed. 1294, 1938 U.S. LEXIS 1077 (U.S. 1938).

The Circuit Court has jurisdiction of proceeding to compel utility to restore service to customer, and application to the commission for relief is not a prerequisite. Louisville Gas & Electric Co. v. Dulworth, 279 Ky. 309 , 130 S.W.2d 753, 1939 Ky. LEXIS 271 ( Ky. 1939 ).

Although Public Service Commission has jurisdiction over questions concerning rates and services generally, nevertheless, when a question arises which is peculiar to individual complainant, courts will assume jurisdiction and hear the matter. Bee's Old Reliable Shows, Inc. v. Kentucky Power Co., 334 S.W.2d 765, 1960 Ky. LEXIS 230 ( Ky. 1960 ).

Utility customer’s action that alleged the utility had engaged in improper billing practices was properly dismissed for lack of subject matter jurisdiction because the customer had failed to comply with a discovery order of the Kentucky Public Service Commission (PSC) and then had subsequently failed to appeal the PSC’s dismissal of the case. Allowing the customer to bring its case before the court in the present action would usurp the PSC’s exclusive jurisdiction to resolve billing issues. Bulldog's Enters. v. Duke Energy, 412 S.W.3d 210, 2013 Ky. App. LEXIS 147 (Ky. Ct. App. 2013).

3. Complaint of Individual.

The legislature is authorized to fix number of complainants at ten before commission is required to act on complaint, and to make it discretionary with the commission as to whether it will act on complaint of single person since that person still has right to appeal to courts if commission does not act on his complaint. Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

The commission may, upon its own motion, hear and determine the complaint of an individual, but is not required to do so. Louisville Gas & Electric Co. v. Dulworth, 279 Ky. 309 , 130 S.W.2d 753, 1939 Ky. LEXIS 271 ( Ky. 1939 ).

4. Formal Public Hearing.

A “formal hearing” is analogous to a common-law hearing and includes the right to reasonably know the charges, the right to meet such charges by competent evidence, and the right to be heard by counsel upon the probative force of the evidence adduced by both sides and the law applicable thereto and a “public hearing” means a completed public hearing, therefore an order of continuance of the commission constituted a determination by the commission that the hearing was not completed and it could not grant an order for reduction of rates before it completed the hearing. Mayfield Gas Co. v. Pyblic Service Com., 259 S.W.2d 8, 1953 Ky. LEXIS 901 ( Ky. 1953 ).

The determination of when a hearing is or is not completed rests exclusively with the commission, and the right of judicial review is limited by KRS 278.410 to a consideration or whether its order is unlawful or unreasonable. Mayfield Gas Co. v. Pyblic Service Com., 259 S.W.2d 8, 1953 Ky. LEXIS 901 ( Ky. 1953 ).

5. Cities.

When cities seek a change in public utility rates for franchised utilities, they must follow the procedure prescribed by this section, the same as others permitted to file complaints. Southern Bell Tel. & Tel. Co. v. Louisville, 265 Ky. 286 , 96 S.W.2d 695, 1936 Ky. LEXIS 468 ( Ky. 1936 ).

6. Quality of Service.

The quality of service is not germane to the normal, time-tested factors that go into the determination of a proper rate for the services rendered by a utility. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

7. Separate Determinations.

Absent legislation to the contrary, the question of rates should be kept separate from the question of service. The commission acted beyond the scope of its statutory authority when, in a rate hearing, it imposed a rate reduction penalty against a telephone utility for alleged poor service. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

8. Illegal Rate Reduction.

Where the commission established a rate which, in its opinion, gave the utility a fair rate of return and then assessed a penalty against the utility by reducing the rate granted on the grounds of the poor quality of service, such action was illegal because it violated the statutory rate-making scheme. Accordingly, the issuance of an injunction against enforcement of the rate reduction eliminated an illegal act of the commission and reinstated the original rate as determined by the commission, not by the courts, and the court’s action was not rate-making. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

9. Liability.

Under existing statutory law governing utility rates and the filed rate doctrine, a customer of a utility is not prevented from suing a person or an entity that the customer claims has injured the utility and the customer. Big Rivers Elec. Corp. v. Thorpe, 921 F. Supp. 460, 1996 U.S. Dist. LEXIS 6365 (W.D. Ky. 1996 ).

Cited:

Kentucky CATV Asso. v. Volz, 675 S.W.2d 393, 1983 Ky. App. LEXIS 378 (Ky. Ct. App. 1983).

Opinions of Attorney General.

The reasonableness of action by the board of commissioners of a water district in deciding whether to extend its system to an entirely new section within its certificated area can be measured in terms of the certificated area, the new area to be served, the need and cost of such extension, the financial impact of the extension upon the public service company, and the impact upon the total service available to the general public of the certificated area. OAG 75-719 .

In the absence of fraud, corruption, or arbitrary action, the judgment of the board of commissioners of a water district as to extensions of the system to an entirely new section within its certificated area is beyond judicial control, since the commissioners of the district exercise a discretionary function in deciding whether to extend its system. OAG 75-719 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

278.270. Orders by commission as to rates.

Whenever the commission, upon its own motion or upon complaint as provided in KRS 278.260 , and after a hearing had upon reasonable notice, finds that any rate is unjust, unreasonable, insufficient, unjustly discriminatory or otherwise in violation of any of the provisions of this chapter, the commission shall by order prescribe a just and reasonable rate to be followed in the future.

History. 3952-14: amend. Acts 1978, ch. 379, § 34, effective April 1, 1979; 1982, ch. 82, § 31, effective July 15, 1982.

NOTES TO DECISIONS

  1. Application.
  2. Enforcement of Orders.
  3. Clerical Error.
  4. Factors Considered.
  5. Separate Determinations.
  6. Illegal Rate Reduction.
  7. Liability.
  8. Retroactive Rate Reduction.
1. Application.

KRS 96.530 and this section are not inconsistent, the former applying only to utility plants operated by cities and this section to utility plants operated by private persons. Vanceburg v. Plummer, 275 Ky. 713 , 122 S.W.2d 772, 1938 Ky. LEXIS 502 ( Ky. 1938 ), overruled, Flemingsburg v. Public Service Com., 411 S.W.2d 920, 1966 Ky. LEXIS 28 ( Ky. 1966 ). See McClellan v. Louisville Water Co., 351 S.W.2d 197, 1961 Ky. LEXIS 160 ( Ky. 1961 ).

2. Enforcement of Orders.

Court cannot pass on reasonableness of charges or service, or compel utility to furnish service to complainant, until complainant has applied to commission for relief. Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

The sole authority for making commission’s orders coercively effective rests with court in which mandamus proceedings or action to recover penalties is instituted. Petroleum Exploration, Inc. v. Public Service Com., 21 F. Supp. 254, 1937 U.S. Dist. LEXIS 1365 (D. Ky. 1937 ), aff'd, 304 U.S. 209, 58 S. Ct. 834, 82 L. Ed. 1294, 1938 U.S. LEXIS 1077 (U.S. 1938).

Commission has primary jurisdiction over public utilities with respect to tolls, schedules, rates, and service generally, but it does not have exclusive jurisdiction of complaints, such as of an individual seeking restoration of service. Louisville Gas & Electric Co. v. Dulworth, 279 Ky. 309 , 130 S.W.2d 753, 1939 Ky. LEXIS 271 ( Ky. 1939 ).

The Circuit Court has jurisdiction of proceeding to compel utility to restore service to customer, and application to the commission for relief is not a prerequisite. Louisville Gas & Electric Co. v. Dulworth, 279 Ky. 309 , 130 S.W.2d 753, 1939 Ky. LEXIS 271 ( Ky. 1939 ).

The determination of when a hearing is or is not completed rests exclusively with the commission, and the right of judicial review is limited by KRS 278.410 to a consideration of whether its order is unlawful or whether its order is unlawful or unreasonable. Mayfield Gas Co. v. Pyblic Service Com., 259 S.W.2d 8, 1953 Ky. LEXIS 901 ( Ky. 1953 ).

3. Clerical Error.

A nunc pro tunc order correcting a clerical error is not a new rate order requiring notice and hearing under this section. Mike Little Gas Co. v. Public Service Com., 574 S.W.2d 926, 1978 Ky. App. LEXIS 640 (Ky. Ct. App. 1978).

4. Factors Considered.

The legislative grant of power to regulate rates will be strictly construed and will neither be interpreted by implication nor inference. In fixing rates, the commission must give effect to all factors which are prescribed by the legislative body, but may not act on a matter which the legislature has not established. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

In setting rates for a public electric utility, the Public Service Commission was not required to base the rates on the value of only those assets of the utility which were “used and useful”; a determination of what is used and useful is only one (1) of many factors which should be considered when establishing rates. National-Southwire Aluminum Co. v. Big Rivers Electric Corp., 785 S.W.2d 503, 1990 Ky. App. LEXIS 9 (Ky. Ct. App. 1990).

5. Separate Determinations.

Absent legislation to the contrary, the question of rates should be kept separate from the question of service. The commission acted beyond the scope of its statutory authority when, in a rate hearing, it imposed a rate reduction penalty against a telephone utility for alleged poor service. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

6. Illegal Rate Reduction.

Where the commission established a rate which, in its opinion, gave the utility a fair rate of return and then assessed a penalty against the utility by reducing the rate granted on the grounds of the poor quality of service, such action was illegal because it violated the statutory rate-making scheme. Accordingly, the issuance of an injunction against enforcement of the rate reduction eliminated an illegal act of the commission and reinstated the original rate as determined by the commission, not by the courts, and the court’s action was not rate-making. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

7. Liability.

Under existing statutory law governing utility rates and the filed rate doctrine, a customer of a utility is not prevented from suing a person or an entity that the customer claims has injured the utility and the customer. Big Rivers Elec. Corp. v. Thorpe, 921 F. Supp. 460, 1996 U.S. Dist. LEXIS 6365 (W.D. Ky. 1996 ).

8. Retroactive Rate Reduction.

Public Service Commission (PSC) erred in requiring a local exchange carrier that was a Bell Operating Company to refund sums that exceeded the proper rate as prescribed by the Federal Communications Commission in its Wisconsin Order of 2002. The Wisconsin Order did not require carriers to seek adjustment of their filed rates on their own, but to await action by a state commission; the rate that had been approved by the PSC in 1999 remained the “filed rate” and under KRS 278.270 could not be altered retroactively by the PSC. Cincinnati Bell Tel. Co. v. Ky. P.S.C., 223 S.W.3d 829, 2007 Ky. App. LEXIS 36 (Ky. Ct. App. 2007).

Cited:

Bobinchuck v. Levitch, 380 S.W.2d 233, 1964 Ky. LEXIS 292 ( Ky. 1964 ).

278.271. Allowable recovery of costs not recovered in existing utility rates — Conditions — Duration of cost recovery.

Notwithstanding any provision of law to the contrary, upon application by a regulated utility, the commission may allow recovery of costs which are not recovered in the existing rates of the utility for the purchase of electric power from a biomass energy facility that has received a certificate from the Kentucky State Board on Electric Generation and Transmission Siting pursuant to KRS 278.700 to 278.716 . No recovery shall be allowed unless the full costs of the purchase power agreement over the full term of the agreement, which shall be included as part of the application, have been found by the commission to be fair, just, and reasonable. In determining whether the agreement is fair, just, and reasonable, the commission may consider the policy set forth by the General Assembly in KRS 154.27-020 (2). The commission’s approval of cost recovery under this section shall be valid for the entire initial term of the agreement.

History. Enact. Acts 2013, ch. 3, § 1, effective March 5, 2013.

NOTES TO DECISIONS

1. Generally.

Court of Appeals of Kentucky agrees with the Kentucky Public Service Commission that the inclusion of Ky. Rev. Stat. Ann. § 154.27-020 (2) in Ky. Rev. Stat. Ann. § 278.271 allows the Commission, at its option, to consider that one of the Commonwealth's goals is to offer incentives to induce the location of innovative energy-related businesses in the Commonwealth. The Court of Appeals also agrees with the Commission that an agreement for biomass energy does not have to be the least cost effective alternative to be deemed fair, just, and reasonable. Ky. Indus. Util. Customers, Inc. v. Ky. PSC, 504 S.W.3d 695, 2016 Ky. App. LEXIS 126 (Ky. Ct. App. 2016).

Fact that a contract is for the purchase of biomass energy does not make it, per se, reasonable. Ky. Rev. Stat. Ann. § 278.271 is clear that the Kentucky Public Service Commission must still assess the reasonableness of a proposed biomass agreement even if that agreement meets the goals of Ky. Rev. Stat. Ann. § 154.27-020 (2). While the fact that an agreement meets the goals of § 154.27-020 (2) is a factor the Commission may consider, it is not the determinative factor. Fairness, justness, and reasonableness remain the determinative considerations. Ky. Indus. Util. Customers, Inc. v. Ky. PSC, 504 S.W.3d 695, 2016 Ky. App. LEXIS 126 (Ky. Ct. App. 2016).

Court of Appeals of Kentucky believes that the General Assembly's intent was for Ky. Rev. Stat. Ann. § 278.271 to inject another factor into the Kentucky Public Service Commission's reasonableness calculus when dealing with biomass energy. The Court of Appeals cannot accept that the General Assembly intended for the policy goals of Ky. Rev. Stat. Ann. § 154.27-020 (2) to obviate the Commission's need to consider cost and necessity or to excuse a lack of evidence indicating that the agreement provides some benefit to the consumers that will ultimately bear its cost. Likewise, the Court of Appeals does not believe the statutes should be construed as standing for the proposition that all contracts with innovative energy-related businesses will necessarily have a net benefit to the public in terms of job creation and the expansion of the tax base. Ky. Indus. Util. Customers, Inc. v. Ky. PSC, 504 S.W.3d 695, 2016 Ky. App. LEXIS 126 (Ky. Ct. App. 2016).

278.272. Consideration of natural gas purchasing transactions in determining just and reasonable rates — Limitation of authorized rate of return for natural gas operations.

In determining just and reasonable rates, the commission shall investigate and review natural gas purchasing transactions of a utility, whose rates for retail sales of natural gas are regulated by the commission, from an affiliate. The commission shall limit the authorized rate of return of the utility for its natural gas operations to a level which, when considered with the level of profit or return the affiliate earns on natural gas transactions to such utility, is just and reasonable.

History. Enact. Acts 1984, ch. 38, § 1, effective July 13, 1984.

278.274. Review of natural gas utility’s purchasing practices in determining reasonableness of proposed rates — Reduction of rates by commission.

  1. In determining whether proposed natural gas utility rates are just and reasonable, the commission shall review the utility’s gas purchasing practices. The commission may disallow any costs or rates which are deemed to result from imprudent purchasing practices on the part of the utility.
  2. When proposing new rates, the utility shall be required to prove that the proposal is just and reasonable in accordance with the requirements of this section.
  3. It shall be presumed that natural gas purchases from affiliated companies are not conducted at arm’s length.
    1. For purposes of this subsection, affiliated companies shall be defined as those in which one (1) or more of the owners control or have the right to control the business affairs of all affected companies.
    2. In instances in which a utility purchases natural gas from an intrastate affiliate, the commission shall assume jurisdiction of the affiliated company as though it were a utility as defined in KRS 278.010 . The commission’s jurisdiction shall extend to that extent necessary to ensure that the rates charged the utility and ultimately to the consumer are just and reasonable.
    3. If the commission determines that the rates charged by the utility are not just and reasonable in that the cost of natural gas purchased from the affiliated company is unjust or unreasonable, the commission may reduce the purchased gas component of the utility’s rates by the amount deemed to be unjust or unreasonable.
    4. The commission may also reduce the rate charged by the affiliated company by the same amount.

History. Enact. Acts 1984, ch. 40, § 1, effective July 13, 1984.

278.280. Orders by commission as to service — Extension of service.

  1. Whenever the commission, upon its own motion or upon complaint as provided in KRS 278.260 , and after a hearing had upon reasonable notice, finds that the rules, regulations, practices, equipment, appliances, facilities or service of any utility subject to its jurisdiction, or the method of manufacture, distribution, transmission, storage or supply employed by such utility, are unjust, unreasonable, unsafe, improper, inadequate or insufficient, the commission shall determine the just, reasonable, safe, proper, adequate or sufficient rules, regulations, practices, equipment, appliances, facilities, service or methods to be observed, furnished, constructed, enforced or employed, and shall fix the same by its order, rule or regulation.
  2. The commission shall prescribe rules for the performance of any service or the furnishing of any commodity of the character furnished or supplied by the utility, and, on proper demand and tender of rates, the utility shall furnish the commodity or render the service within the time and upon the conditions provided in the rules.
  3. Any person or group of persons may come before the commission and by petition ask that any utility subject to its jurisdiction be compelled to make any reasonable extension. The commission shall hear and determine the reasonableness of the extension, and sustain or deny the petition in whole or in part.

History. 3952-18, 3952-25: amend. Acts 1978, ch. 379, § 35, effective April 1, 1979; 1982, ch. 82, § 32, effective July 15, 1982.

NOTES TO DECISIONS

  1. Service.
  2. — Extension.
  3. — Restoration.
  4. Mandatory Rule Change.
  5. Illegal Rate Reduction.
  6. Jurisdiction of Courts.
  7. Complaint of Individual.
1. Service.
2. — Extension.

A public utility can be compelled to release any reasonable extension of its service facilities within its certificated scope or area of service. Bardstown v. Louisville Gas & Electric Co., 383 S.W.2d 918, 1964 Ky. LEXIS 68 ( Ky. 1964 ).

3. — Restoration.

Commission has primary jurisdiction over public utilities with respect to tolls, schedules, rates, and service generally, but it does not have exclusive jurisdiction of complaints, such as of an individual seeking restoration of service. Louisville Gas & Electric Co. v. Dulworth, 279 Ky. 309 , 130 S.W.2d 753, 1939 Ky. LEXIS 271 ( Ky. 1939 ).

The Circuit Court has jurisdiction of proceeding to compel utility to restore service to customer, and application to the commission for relief is not a prerequisite. Louisville Gas & Electric Co. v. Dulworth, 279 Ky. 309 , 130 S.W.2d 753, 1939 Ky. LEXIS 271 ( Ky. 1939 ).

4. Mandatory Rule Change.

While the public service commission has the power to make appropriate findings and order change in a rule, and such a change may result in ordering transfer of a gas entitlement, the commission could not order transfer of a manufacturer’s gas entitlement in violation of utility’s no-transfer rule, without following the appropriate procedure and ordering a change in the rule. Croke v. Public Service Com., 573 S.W.2d 927, 1978 Ky. App. LEXIS 613 (Ky. Ct. App. 1978).

5. Illegal Rate Reduction.

Absent legislation to the contrary, the question of rates should be kept separate from the question of service. The commission acted beyond the scope of its statutory authority when, in a rate hearing, it imposed a rate reduction penalty against a telephone utility for alleged poor service. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

Where the commission established a rate which, in its opinion, gave the utility a fair rate of return and then assessed a penalty against the utility by reducing the rate granted on the grounds of the poor quality of service, such action was illegal because it violated the statutory rate-making scheme. Accordingly, the issuance of an injunction against enforcement of the rate reduction eliminated an illegal act of the commission and reinstated the original rate as determined by the commission, not by the courts, and the court’s action was not rate-making. South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ).

6. Jurisdiction of Courts.

Court cannot pass on reasonableness of charges or service, or compel utility to furnish service to complainant, until complainant has applied to commission for relief. Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

7. Complaint of Individual.

The commission may, upon its own motion, hear and determine the complaint of an individual, but is not required to do so. Louisville Gas & Electric Co. v. Dulworth, 279 Ky. 309 , 130 S.W.2d 753, 1939 Ky. LEXIS 271 ( Ky. 1939 ).

Cited:

Western Kentucky Gas Co. v. Public Service Com., 300 Ky. 281 , 188 S.W.2d 458, 1945 Ky. LEXIS 538 ( Ky. 1945 ); North Shelby Water Co. v. Shelbyville Municipal Water & Sewer Com., 803 F. Supp. 15, 1992 U.S. Dist. LEXIS 20585 (E.D. Ky. 1992 ).

Research References and Practice Aids

Cross-References.

Order as to extension of service by municipal electric plant, KRS 96.880 .

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

278.285. Demand-side management plans — Review and approval of proposed plans and mechanisms — Assignment of costs — Home energy assistance programs.

  1. The commission may determine the reasonableness of demand-side management plans proposed by any utility under its jurisdiction. Factors to be considered in this determination include, but are not limited to, the following:
    1. The specific changes in customers’ consumption patterns which a utility is attempting to influence;
    2. The cost and benefit analysis and other justification for specific demand-side management programs and measures included in a utility’s proposed plan;
    3. A utility’s proposal to recover in rates the full costs of demand-side management programs, any net revenues lost due to reduced sales resulting from demand-side management programs, and incentives designed to provide positive financial rewards to a utility to encourage implementation of cost-effective demand-side management programs;
    4. Whether a utility’s proposed demand-side management programs are consistent with its most recent long-range integrated resource plan;
    5. Whether the plan results in any unreasonable prejudice or disadvantage to any class of customers;
    6. The extent to which customer representatives and the Office of the Attorney General have been involved in developing the plan, including program design, cost recovery mechanisms, and financial incentives, and if involved, the amount of support for the plan by each participant, provided however, that unanimity among the participants developing the plan shall not be required for the commission to approve the plan;
    7. The extent to which the plan provides programs which are available, affordable, and useful to all customers; and
    8. Next-generation residential utility meters that can provide residents with amount of current utility usage, its cost, and can be capable of being read by the utility either remotely or from the exterior of the home.
  2. A proposed demand-side management mechanism including:
    1. Recover the full costs of commission-approved demand-side management programs and revenues lost by implementing these programs;
    2. Obtain incentives designed to provide financial rewards to the utility for implementing cost-effective demand-side management programs; or
    3. Both of the actions specified
  3. The commission shall assign the cost of demand-side management programs only to the class or classes of customers which benefit from the programs. The commission shall allow individual industrial customers with energy intensive processes to implement cost-effective energy efficiency measures in lieu of measures approved as part of the utility’s demand-side management programs if the alternative measures by these customers are not subsidized by other customer classes. Such individual industrial customers shall not be assigned the cost of demand-side management programs.
  4. Home energy assistance programs may be part of a demand-side management program. In considering a home energy assistance program, the commission shall only utilize the criteria set forth in subsections (1)(f) and (3) of this section.

may be reviewed and approved by the commission as part of a proceeding for approval of new rate schedules initiated pursuant to KRS 278.190 or in a separate proceeding initiated pursuant to this section which shall be limited to a review of demand-side management issues and related rate-recovery issues as set forth in subsection (1) of this section and in this subsection.

History. Enact. Acts 1994, ch. 238, § 2, effective July 15, 1994; 2001, ch. 11, § 2, effective June 21, 2001; 2008, ch. 139, § 19, effective July 15, 2008; repealed and reenact., Acts 2010, ch. 5, § 18, effective February 25, 2010.

Legislative Research Commission Note.

(2/25/2010). 2010 Ky. Acts ch. 5, sec. 28, provides that the repeal and reenactment of this section in that Act “shall apply retroactively to July 15, 2008.”

278.287. Voluntary energy cost assistance fund — Customer contributions — Time of and eligibility for disbursements — Biennial reports — Administration costs.

  1. As used in this section:
    1. “Voluntary energy cost assistance fund” means a fund that shall:
      1. Be administered by a utility or provider for the purpose of receiving voluntary contributions from customers and disbursing subsidies to customers;
      2. Be administered in coordination with one (1) or more community action agencies that assist the Cabinet for Health and Family Services in administering federal Low-Income Home Energy Assistance Program (LIHEAP) funding; and
      3. Be maintained in trust and separate from any customer assistance program otherwise implemented by the utility or provider;
    2. “Provider” means any person or persons, excluding an electric power system owned and operated by a municipality, that provide service to retail customers and that own, control, operate, or manage any facility used or to be used for or in connection with any activity described in KRS 278.010(3)(a) or (b) but are not regulated by KRS Chapter 278; and
    3. “Fund” means a voluntary energy cost assistance fund.
  2. Any utility as defined in KRS 278.010(3)(a) or (b) that provides service to retail customers and that does not already administer an energy assistance program prior to July 12, 2006, may establish a fund.
  3. Any provider that does not already administer an energy assistance program prior to July 12, 2006,  may establish a fund.
  4. A customer’s voluntary monthly contribution amount to the fund shall be:
    1. An amount equal to the difference of the customer’s monthly bill and the amount of the next highest whole dollar; or
    2. A standard amount not to exceed one dollar ($1).
  5. A customer may make a special contribution to the fund at any time in any amount.
  6. Annual disbursements from the fund may be made in November and December of each year by the utility or provider upon the recommendation of a community action agency for the purpose of providing a utility or provider bill subsidy for residential customers who:
    1. Use electricity or natural or manufactured gas as a principal source of home energy;
    2. Are responsible for their home heating costs either directly or indirectly as an undesignated portion of the rent;
    3. Have a total household income that is at or below one hundred ten percent (110%) of the federal poverty guidelines as defined in KRS 205.5621 ;
    4. Have liquid monetary resources that do not exceed one thousand five hundred dollars ($1,500) if those liquid monetary resources are not used for the medical and living expenses of a household member with a catastrophic illness;
    5. Have liquid monetary resources that do not exceed four thousand dollars ($4,000) if those liquid monetary resources are used for the medical and living expenses of a household member with a catastrophic illness; and
    6. Are customers of the utility or provider.
  7. If available, additional disbursements from the fund may be made from January 1 through March 15 of each year by the utility or provider upon the recommendation of a community action agency for the purpose of providing a utility or provider bill subsidy for residential customers who:
    1. Use electricity or natural or manufactured gas as a principal source of home energy;
    2. Are responsible for their home heating costs either directly or indirectly as an undesignated portion of the rent;
    3. Have a total household income that is at or below one hundred ten percent (110%) of the federal poverty guidelines as defined in KRS 205.5621 ;
    4. Have liquid monetary resources that do not exceed one thousand five hundred dollars ($1,500) if those liquid monetary resources are not used for the medical and living expenses of a household member with a catastrophic illness;
    5. Have liquid monetary resources that do not exceed four thousand dollars ($4,000) if those liquid monetary resources are used for the medical and living expenses of a household member with a catastrophic illness; and
    6. Are utility or provider customers who:
      1. Have received a disconnect notice from the utility or provider;
      2. Are within four (4) days of running out of fuel oil, propane, kerosene, wood, or coal; or
      3. Have received an eviction notice for nonpayment of rent, when heat is included as an undesignated portion of the rent.
  8. If available, additional summer cooling disbursements from the fund may be made on a one (1) time basis from May through August of each year by the utility or provider upon the recommendation of a community action agency for the purpose of providing an air-conditioning unit to residential customers who:
    1. Are responsible for their home heating costs either directly or indirectly as an undesignated portion of the rent;
    2. Have a total household income that is at or below one hundred ten percent (110%) of the federal poverty guidelines as defined in KRS 205.5621 ;
    3. Have liquid monetary resources that do not exceed one thousand five hundred dollars ($1,500) if those liquid monetary resources are not used for the medical and living expenses of a household member with a catastrophic illness;
    4. Have liquid monetary resources that do not exceed four thousand dollars ($4,000) if those liquid monetary resources are used for the medical and living expenses of a household member with a catastrophic illness;
    5. Are customers of the utility or provider;
    6. Do not have access to an air conditioner; and
    7. Have a household member who:
      1. Has a health condition or disability that requires cooling to prevent further deterioration as verified by a physician’s statement;
      2. Is sixty-five (65) years of age or older; or
      3. Is under the age of six (6).
  9. For the six (6) month period from January 1 to June 30 of each year, each utility or provider that administers a fund shall provide a detailed report of costs in administering the fund and a detailed report of receipts to and disbursements from the fund to the commission no later than July 31, and for the six (6) month period from July 1 to December 31, no later than January 31 of the following year. Any balances remaining in the fund at the end of a year shall remain in the fund for use in succeeding years.
  10. The commission shall require all utilities as defined in KRS 278.010(3)(a) and (b) that administer a fund and provide service to retail customers in Kentucky to develop and implement a mechanism for soliciting and receiving contributions to the fund. The mechanism and format shall be approved by the commission and may include but shall not be limited to a check-the-box format. Contributions shall be made as described in subsections (4) and (5) of this section.
  11. Any provider that administers a fund shall comply with the requirements to implement a mechanism for soliciting and receiving contributions to the fund as provided in subsection (10) of this section.
  12. Those utilities and providers that are already administering an energy assistance program prior to July 12, 2006, shall not be subject to subsections (9), (10), and (11) of this section.
  13. All contributions to the fund shall be voluntary and shall be uniformly assessed monthly, except in the case of a special contribution, which can be made in any amount at any time, for all customers of the utility or provider. A customer shall not be subject to making contributions until such time as his or her intent is submitted to the applicable utility in a manner prescribed by the commission. A customer who no longer wishes to contribute to the fund shall be exempted from making further contributions to the fund once his or her intent is submitted to the applicable utility in a manner prescribed by the commission.
  14. Contributions received by utilities or providers, together with any interest accruing thereon, shall be transferred to the fund immediately upon receipt.
  15. A utility or provider that administers a fund may recover up to three percent (3%) of each contribution received for its costs in administering the fund. The commission shall allow any additional, reasonable cost a utility incurs in administering the receipt and disbursement of contributions to the fund in the cost of service of the utility for ratemaking purposes.

History. Enact. Acts 2006, ch. 231, § 1, effective July 12, 2006.

278.290. Valuation of utility property in connection with rates, service or issuance of securities — Unit rate base.

  1. Subject to the provisions of subsection (2) of this section, the commission may ascertain and fix the value of the whole or any part of the property of any utility in so far as the value is material to the exercise of the jurisdiction of the commission, and may make revaluations from time to time and ascertain the value of all new construction, extensions and additions to the property of the utility. In fixing the value of any property under this subsection, the commission shall give due consideration to the history and development of the utility and its property, original cost, cost of reproduction as a going concern, capital structure, and other elements of value recognized by the law of the land for rate-making purposes.
  2. The commission shall not value or revalue the property of any utility unless the valuation or revaluation is necessary or advisable in order to determine the legality or reasonableness of any rate or service or of the issuance of securities, and then only after an investigation affecting the rate, service or securities has been instituted by the commission upon complaint or application or upon its own motion, and a hearing has been held on reasonable notice.
  3. In any rate investigation where the utility serves two (2) or more municipalities, the commission may, in computing the rate of return on the property used and useful, take as the base for the computation the valuation of the system as a whole, but may make a differential in the case of an individual municipality in proportion to the increased cost of service, if the utility can show that such a differential should be allowed.

History. 3952-17, 3952-19: amend. Acts 1952, ch. 46, § 3; 1978, ch. 379, § 36, effective April 1, 1979; 1982, ch. 82, § 33, effective July 15, 1982.

NOTES TO DECISIONS

  1. Rate Base.
  2. Depreciation Expense.
  3. Factors Considered.
1. Rate Base.

It is net operating income that is related to the rate base in determining what will constitute a reasonable rate of return and where company was crediting interest back as income other than operating income, which did not have the effect of reducing the net operating income requirements commission properly refused to include plant under construction in the rate base. Citizens Tel. Co. v. Public Service Com., 247 S.W.2d 510, 1952 Ky. LEXIS 709 ( Ky. 1952 ).

Commission properly refused to include the cost of over-adequate facilities in the rate base. Fern Lake Co. v. Public Service Com., 357 S.W.2d 701, 1962 Ky. LEXIS 137 ( Ky. 1962 ).

2. Depreciation Expense.

Depreciation expense on a publicly-owned water district plant that has been purchased by federal grants and contributions and/or customer tap-on fees should be allowed in the revenue requirement because the water district has no private investor capital and its rates do not generate a return on rate base. Public Service Com. v. Dewitt Water Dist., 720 S.W.2d 725, 1986 Ky. LEXIS 314 ( Ky. 1986 ).

The proper rate-making treatment for depreciation expense of contributed property of publicly held water districts is to allow depreciation on contributed plant as an operating expense; the fact that the utility did not make an investment in the plant is of no consequence in the context of publicly-owned facilities. Public Service Com. v. Dewitt Water Dist., 720 S.W.2d 725, 1986 Ky. LEXIS 314 ( Ky. 1986 ).

The Public Service Commission’s disallowance of rate of recovery for depreciation expense on contributed property of the publicly held water district was arbitrary, capricious and confiscatory. Public Service Com. v. Dewitt Water Dist., 720 S.W.2d 725, 1986 Ky. LEXIS 314 ( Ky. 1986 ).

The purpose of depreciation expense as applied to nonprofit water districts does not relate to a recoupment of investment; the overriding statutory concept is renewal and replacement. Public Service Com. v. Dewitt Water Dist., 720 S.W.2d 725, 1986 Ky. LEXIS 314 ( Ky. 1986 ).

Water districts are entitled to take depreciation expense on contributed property even though this state is an original value state, because original cost is only one factor to be considered in valuing the utility’s property, and the Public Service Commission must consider various factors, including cost of reproduction as a going concern. Public Service Com. v. Dewitt Water Dist., 720 S.W.2d 725, 1986 Ky. LEXIS 314 ( Ky. 1986 ).

3. Factors Considered.

In setting rates for a public electric utility, the Public Service Commission was not required to base the rates on the value of only those assets of the utility which were “used and useful”; a determination of what is used and useful is only one (1) of many factors which should be considered when establishing rates. National-Southwire Aluminum Co. v. Big Rivers Electric Corp., 785 S.W.2d 503, 1990 Ky. App. LEXIS 9 (Ky. Ct. App. 1990).

There is no clear reason from the definition of a co-op “system” in KRS 279.010 which requires an interpretation that the Public Service Commission must value only property used and useful in setting utility rates, especially with the concept that only that property which is fully utilized may be valued. National-Southwire Aluminum Co. v. Big Rivers Electric Corp., 785 S.W.2d 503, 1990 Ky. App. LEXIS 9 (Ky. Ct. App. 1990).

This section appears to afford the Public Service Commission broad discretion in factors to be considered in ratemaking. It is certainly broad enough to consider such things as replacement cost, debt retirement, operating cost, and at least some excess capacity in order to insure continuation of adequate service during periods of high demand and some potential for growth and expansion. It also allows for consideration of whether expansion investments were prudently or imprudently made, and whether a particular utility is investor owned or a cooperative operation. National-Southwire Aluminum Co. v. Big Rivers Electric Corp., 785 S.W.2d 503, 1990 Ky. App. LEXIS 9 (Ky. Ct. App. 1990).

Research References and Practice Aids

Cross-References.

Assistance in appraisal of electric plant proposed to be purchased by municipality, KRS 96.580 .

278.300. Issuance or assumption of securities by utilities.

  1. No utility shall issue any securities or evidences of indebtedness, or assume any obligation or liability in respect to the securities or evidences of indebtedness of any other person until it has been authorized so to do by order of the commission.
  2. Application for authority to issue or assume securities or evidences of indebtedness shall be made in such form as the commission prescribes. Every such application shall be made under oath, and shall be signed and filed on behalf of the utility by its president, or by a vice president, auditor, comptroller, or other executive officer having knowledge of the matters set forth and duly designated by the utility. Every such application shall be placed at the head of the docket of the commission and disposed of promptly within sixty (60) days after it is filed with the commission, unless it is necessary for good cause to continue the application for longer time than sixty (60) days, in which case the order making the continuance shall state fully the facts that make it necessary.
  3. The commission shall not approve any issue or assumption unless, after investigation of the purposes and uses of the proposed issue and the proceeds thereof, or of the proposed assumption of obligation or liability, the commission finds that the issue or assumption is for some lawful object within the corporate purposes of the utility, is necessary or appropriate for or consistent with the proper performance by the utility of its service to the public and will not impair its ability to perform that service, and is reasonably necessary and appropriate for such purpose.
  4. The commission may grant or deny the application in whole or in part, or may grant it with such modifications and upon such terms and conditions as the commission deems necessary or appropriate. The order of the commission shall specify that the securities or evidences of indebtedness, or the proceeds thereof, shall be used only for the lawful purposes specified in the application, and both the application of the utility and the order of the commission shall state in general terms the purpose of the issuance or assumption.
  5. A copy of any order made and entered by the commission under this section, duly certified by the executive director of the commission, shall be sufficient evidence for all purposes of full and complete compliance by the utility with all procedural and other matters required precedent to the entry of the order.
  6. Securities and evidences of indebtedness issued and obligations and liabilities assumed by a utility, for which, under the provisions of this section, the authorization of the commission is required, shall comply with the terms and conditions of the order of authorization entered prior to the issue or assumption, and where the order has been fully complied with the validity of the issue or assumption shall not be affected by a failure to comply with any provision of this section or rule of the commission relating to procedure or other matters preceding the entry of the order of authorization or order supplemental thereto.
  7. The commission may require periodical or special reports from the utility issuing any security or evidence of indebtedness. The report shall show, in such detail as the commission requires, the disposition made of such securities or evidences of indebtedness, and the application of the proceeds thereof.
  8. This section does not apply to notes issued by a utility, for proper purposes and not in violation of law, that are payable at periods of not more than two (2) years from the date thereof, or to like notes, payable at a period of not more than two (2) years from date thereof, that are issued to pay or refund in whole or in part any such notes, or to renewals of such notes from time to time, not exceeding in the aggregate six (6) years from the date of the issue of the original notes so renewed or refunded.
  9. Nothing in this section implies any guarantee of securities or evidences of indebtedness by the state, or any obligation on the part of the state with respect thereto, and nothing in this section limits the power of any court having jurisdiction to authorize or cause receiver’s certificates or debentures to be issued according to the rules and practice obtaining in receivership proceedings in courts of equity.
  10. This section does not apply in any instance where the issuance of securities or evidences of indebtedness is subject to the supervision or control of the federal government or any agency thereof, but the commission may appear as a party to any proceeding filed or pending before any federal agency if the issuance of the securities or evidences of indebtedness will materially affect any utility over which the commission has jurisdiction.
  11. This section also does not apply to the issuance of securities or evidence of indebtedness by a utility principally engaged in transportation of gas by pipeline in interstate commerce and subject to the supervision, control or jurisdiction of the federal government or any agency, board or commission thereof.

History. 3952-24: amend. Acts 1972, ch. 9; 1978, ch. 379, § 37, effective April 1, 1979; 1982, ch. 82, § 34, effective July 15, 1982; 1994, ch. 166, § 3, effective July 15, 1994.

NOTES TO DECISIONS

Cited:

Lexington Tel. Co. v. Public Service Com., 311 Ky. 584 , 224 S.W.2d 423, 1949 Ky. LEXIS 1150 ( Ky. 1949 ), overruled, Stephens v. Kentucky Utilities Co., 569 S.W.2d 155, 1978 Ky. LEXIS 382 ( Ky. 1978 ), overruled in part, Stephens v. Kentucky Utilities Co., 569 S.W.2d 155, 1978 Ky. LEXIS 382 ( Ky. 1978 ); Public Service Com. v. Mt. Vernon Tel. Co., 300 S.W.2d 796, 1956 Ky. LEXIS 53 ( Ky. 1956 ).

Research References and Practice Aids

Cross-References.

Blue sky law, KRS Ch. 292.

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

278.310. Rules for hearings and investigations.

All hearings and investigations before the commission or any commissioner shall be governed by rules adopted by the commission, and in the conduct thereof neither the commission nor the commissioner shall be bound by the technical rules of legal evidence.

History. 3952-34: amend. Acts 1978, ch. 379, § 38, effective April 1, 1979; 1982, ch. 82, § 35, effective July 15, 1982; 1982, ch. 242, § 4, effective July 15, 1982.

Legislative Research Commission Note.

This section was amended by two 1982 Acts which do not appear to be in conflict and have been compiled together.

278.320. Process.

The commission and each of the commissioners may issue subpoenas, subpoenas duces tecum, and all necessary process in proceedings brought before or initiated by the commission, and such process shall extend to all parts of the state. Service of process in all proceedings brought before or initiated by the commission may be made by certified mail, return receipt requested or by registered mail, or in the same manner as other process in civil cases, as the commission directs.

History. 3952-37: amend. Acts 1974, ch. 315, § 43; 1978, ch. 379, § 39, effective April 1, 1979; 1980, ch. 114, § 65, effective July 15, 1980; 1982, ch. 82, § 36, effective July 15, 1982.

278.330. Witnesses.

The commission and each of the commissioners, for the purposes mentioned in the preceding sections of this chapter, may administer oaths, examine witnesses, and certify official acts. If any person fails to comply with any lawful order of the commission or of any commissioner, or with process, or if any witness refuses to testify concerning any matter on which he may lawfully be interrogated, any Circuit Judge, on application of the commission or of a commissioner, may compel obedience by proceedings for contempt as in the case of disobedience of a subpoena issued from the circuit court or a refusal to testify therein. Witnesses summoned before the commission, and witnesses whose depositions are taken pursuant to the provisions of the preceding sections of this chapter, and the officer taking the depositions, shall be entitled to the same fees as are paid for like services in circuit courts, the fees to be paid by the party in whose behalf the witness is subpoenaed.

History. 3952-38: amend. Acts 1978, ch. 379, § 40, effective April 1, 1979; 1982, ch. 82, § 37, effective July 15, 1982.

NOTES TO DECISIONS

Cited:

Stansbury v. Maupin, 599 S.W.2d 170, 1980 Ky. LEXIS 218 ( Ky. 1980 ).

Research References and Practice Aids

Cross-References.

Criminal mischief, KRS 512.020 to 512.040 .

Evidence, how produced, KRS 421.110 to 421.150 .

278.340. Depositions.

The commission itself may take depositions, or grant deposition rights at its discretion to any party in a proceeding before the commission. Depositions in commission proceedings shall be taken in accordance with the Rules of Civil Procedure.

History. 3952-39: amend. Acts 1978, ch. 379, § 41, effective April 1, 1979; 1982, ch. 82, § 38, effective July 15, 1982; 1990, ch. 215, § 1, effective July 13, 1990.

278.350. Incriminating evidence — Immunity of witnesses.

No person shall be excused from testifying or from producing any book, paper or account at any inquiry by, or hearing before, the commission or any commissioner, upon the ground that the testimony or the book, paper or account required of him may tend to incriminate him or subject him to penalty or forfeiture. No person shall be prosecuted or subjected to any forfeiture or penalty for, or on account of, anything concerning which he was compelled to testify under oath or to produce documentary evidence, except that no person so testifying shall be exempt from prosecution or punishment for perjury committed by him in his testimony.

History. 3952-40: amend. Acts 1978, ch. 379, § 42, effective April 1, 1979; 1982, ch. 82, § 39, effective July 15, 1982.

278.360. Record of contested proceedings on formal hearing.

A full and complete record shall be kept of all contested proceedings had before the commission or any commissioner on any formal hearing and may, at the commission’s discretion, be made in videotape or other format in accordance with the Kentucky Rules of Civil Procedure. A stenographic transcript shall not be required. However, a party to a proceeding may, by motion to the commission made prior to the hearing, request that a stenographic transcript be made by a reporter approved by the commission. The commission shall not deny the motion except for a finding of good cause.

History. 3952-43: amend. Acts 1978, ch. 379, § 43, effective April 1, 1979; 1982, ch. 82, § 40, effective July 15, 1982; 2003, ch. 83, § 1, effective June 24, 2003.

NOTES TO DECISIONS

1. Order Nunc Pro Tunc.

Where proceedings in rate case were regular, and proper record was kept as required by this section and KRS 278.100 , commission had power to sign and record order nunc pro tunc as of date of decision, and could be compelled to do so by mandamus. Frankfort Kentucky Natural Gas Co. v. Frankfort, 276 Ky. 199 , 123 S.W.2d 270, 1938 Ky. LEXIS 541 ( Ky. 1938 ).

Cited:

Union Light, Heat & Power Co. v. Public Service Com., 271 S.W.2d 361, 1954 Ky. LEXIS 1042 ( Ky. 1954 ); Inter-County Rural Electric Co-operative Corp. v. Public Service Com., 407 S.W.2d 127, 1966 Ky. LEXIS 139 ( Ky. 1966 ).

278.370. Recording of order, finding, authorization or certificate — How proved to be in effect.

Every order, finding, authorization or certificate issued or approved by the commission under any of the preceding provisions of this chapter shall be in writing and shall be entered on the records of the commission. A certificate under the seal of the commission that any such order, finding, authorization or certificate has not been modified, stayed, suspended or revoked shall be received as evidence in any proceeding as to the facts stated therein.

History. 3952-42: amend. Acts 1978, ch. 379, § 44, effective April 1, 1979; 1982, ch. 82, § 41, effective July 15, 1982.

NOTES TO DECISIONS

1. Order.

Where commission failed to enter an order waiving noncompliance by utility company with any requirements of rule of commission there was no waiver since the commission speaks and acts only through written orders. Union Light, Heat & Power Co. v. Public Service Com., 271 S.W.2d 361, 1954 Ky. LEXIS 1042 ( Ky. 1954 ).

278.380. Delivery of orders by electronic transmission or mail.

The commission shall deliver a certified copy of any order issued by it to each party to the proceeding in which the order was made, and to an officer or agent of the utility affected thereby. Notwithstanding any statute to the contrary, the commission may deliver its orders by means of electronic transmission rather than by mail. The commission, however, shall deliver its orders by mail to any party that requests and demonstrates good cause for that means of delivery. When service of a commission order is by electronic transmission, mailing shall be deemed to have occurred on the date the transmission of the order is completed. For purposes of this section, electronic transmission of a commission order includes the sending of an electronic mail message that contains an electronic version of the commission order or a hyperlink that enables the recipient to access, view, and download an electronic copy of the commission order from the commission’s Web site.

History. 3952-35: amend. Acts 1978, ch. 379, § 45, effective April 1, 1979; 1982, ch. 82, § 42, effective July 15, 1982; 1998, ch. 120, § 32, effective July 15, 1998; 2014, ch. 45, § 1, effective July 15, 2014.

NOTES TO DECISIONS

Cited:

Frankfort Kentucky Natural Gas Co. v. Frankfort, 276 Ky. 199 , 123 S.W.2d 270, 1938 Ky. LEXIS 541 ( Ky. 1938 ).

278.390. Enforcement of orders.

The commission may compel obedience to its lawful orders by mandamus, injunction or other proper proceedings in the Franklin Circuit Court or any other court of competent jurisdiction, and such proceedings shall have priority over all pending cases. Every order entered by the commission shall continue in force until the expiration of the time, if any, named by the commission in the order, or until revoked or modified by the commission, unless the order is suspended, or vacated in whole or in part, by order or decree of a court of competent jurisdiction.

History. 3952-13: amend. Acts 1978, ch. 379, § 46, effective April 1, 1979; 1982, ch. 82, § 43, effective July 15, 1982.

NOTES TO DECISIONS

  1. Construction.
  2. Court Sole Authority for Enforcement.
  3. Duration of Order.
1. Construction.

This section clearly provides that the Public Service Commission retains authority to modify its orders until they are suspended or vacated by a court of competent jurisdiction. Mike Little Gas Co. v. Public Service Com., 574 S.W.2d 926, 1978 Ky. App. LEXIS 640 (Ky. Ct. App. 1978).

2. Court Sole Authority for Enforcement.

The sole authority for making commission’s orders coercively effective rests with court in which mandamus proceedings or action to recover penalties is instituted. Petroleum Exploration, Inc. v. Public Service Com., 21 F. Supp. 254, 1937 U.S. Dist. LEXIS 1365 (D. Ky. 1937 ), aff'd, 304 U.S. 209, 58 S. Ct. 834, 82 L. Ed. 1294, 1938 U.S. LEXIS 1077 (U.S. 1938).

3. Duration of Order.

An order of the Public Service Commission fixing rates for a telephone utility continues in force until revoked or modified by the commission or unless suspended or vacated in whole or in part by the circuit court. Commonwealth ex rel. Stephens v. South Cent. Bell Tel. Co., 545 S.W.2d 927, 1976 Ky. LEXIS 142 ( Ky. 1976 ).

Utilities company was not required to have a final non-appealable certificate of public convenience and necessity before initiating condemnation proceedings; moreover, the mere filing of an appeal did not stay the legal effectiveness of an order of the Kentucky Public Service Commission regarding the certificate under KRS 278.390 . Jent v. Ky. Utils. Co., 332 S.W.3d 102, 2010 Ky. App. LEXIS 76 (Ky. Ct. App. 2010).

Condemnation proceedings instituted by a utilities company were not premature because there was a reasonable assurance that the construction of the power lines would have proceeded; the company already obtained a certificate of public convenience and necessity from the Kentucky Public Service Commission. Although the award of that certificate was being appealed, the order of the Commission remained in effect. Jent v. Ky. Utils. Co., 332 S.W.3d 102, 2010 Ky. App. LEXIS 76 (Ky. Ct. App. 2010).

Cited:

South Cent. Bell Tel. Co. v. Utility Regulatory Com., 637 S.W.2d 649, 1982 Ky. LEXIS 290 ( Ky. 1982 ); Cincinnati Bell Tel. Co. v. Ky. P.S.C., 223 S.W.3d 829, 2007 Ky. App. LEXIS 36 (Ky. Ct. App. 2007).

278.400. Rehearing.

After a determination has been made by the commission in any hearing, any party to the proceedings may, within twenty (20) days after the service of the order, apply for a hearing with respect to any of the matters determined. Service of a commission order is complete three (3) days after the date the order is mailed. The application shall specify the matters on which a rehearing is sought. The commission shall either grant or deny the application for rehearing within twenty (20) days after it is filed, and failure of the commission to act upon the application within that period shall be deemed a denial of the application. Notice of the hearing shall be given in the same manner as notice of an original hearing. Upon the rehearing any party may offer additional evidence that could not with reasonable diligence have been offered on the former hearing. Upon the rehearing, the commission may change, modify, vacate or affirm its former orders, and make and enter such order as it deems necessary.

History. 3952-36: amend. Acts 1978, ch. 379, § 47, effective April 1, 1979; 1982, ch. 82, § 44, effective July 15, 1982; 1994, ch. 142, § 1, effective July 15, 1994.

278.410. Action to review order of commission — Institution — Answer — Injunction.

  1. Any party to a commission proceeding or any utility affected by an order of the commission may, within thirty (30) days after service of the order, or within twenty (20) days after its application for rehearing has been denied by failure of the commission to act, or within twenty (20) days after service of the final order on rehearing, when a rehearing has been granted, bring an action against the commission in the Franklin Circuit Court to vacate or set aside the order or determination on the ground that it is unlawful or unreasonable. Service of a commission order is complete three (3) days after the date the order is mailed. Notice of the institution of such action shall be given to all parties of record before the commission.
  2. The answer of the commission shall be served and filed within twenty (20) days after service of the complaint. The action shall then be at issue and stand ready for trial upon ten (10) days’ notice to either party, on the equity side of the docket of the court. The answer need not deny verbatim the allegations of the petition, but a general denial thereof on behalf of the commission shall be sufficient.
  3. Injunctive relief may be granted by the Circuit Court in the manner and upon the terms provided by law.

History. 3952-44, 3952-45, 3952-46: amend. Acts 1952, ch. 46, § 4; 1976, ch. 88, § 13, effective March 29, 1976; 1978, ch. 379, § 48, effective April 1, 1979; 1994, ch. 142, § 2, effective July 15, 1994.

NOTES TO DECISIONS

  1. Final Order.
  2. Burden of Proof.
  3. Introduction of Evidence.
  4. Refusal of Commission to Act.
  5. Action in Circuit Court.
  6. —Exclusive Jurisdiction.
  7. — Time for Filing.
  8. — Judgment.
  9. Injunctive Relief.
  10. Notice to Parties.
  11. Interested Parties.
  12. Standard of Review.
1. Final Order.

Order of the Public Service Commission is conclusive when made within the scope of its authority and binding upon all parties except a review thereof may be had by the courts. Frankfort Kentucky Natural Gas Co. v. Frankfort, 276 Ky. 199 , 123 S.W.2d 270, 1938 Ky. LEXIS 541 ( Ky. 1938 ).

The determination of when a hearing is or is not completed rests exclusively with the public service commission and the right of judicial review is limited by this section to a consideration of whether its order is unlawful or unreasonable and where the commission through its order of continuance has determined the hearing was not completed the court is precluded from considering the question of whether or not the hearing could have been considered a completed hearing had the commission denied motion for continuance. Mayfield Gas Co. v. Pyblic Service Com., 259 S.W.2d 8, 1953 Ky. LEXIS 901 ( Ky. 1953 ).

Letter written by commission, which found that charges by electric power company for installation, removal, connecting and disconnecting service for a carnival were not unreasonable, and stating that letter could be used by carnival as a refusal of commission to take any further action was not a final order which carnival could appeal to circuit court, and carnival had no obligation to attempt an appeal from commission’s refusal to act. Bee's Old Reliable Shows, Inc. v. Kentucky Power Co., 334 S.W.2d 765, 1960 Ky. LEXIS 230 ( Ky. 1960 ).

2. Burden of Proof.

An appeal from commission is from an administrative and quasi-legislative body and it is only necessary that complaining party show by clear and convincing proof that the ruling toward which complaint is directed is either unlawful or unreasonable. Lexington Tel. Co. v. Public Service Com., 311 Ky. 584 , 224 S.W.2d 423, 1949 Ky. LEXIS 1150 ( Ky. 1949 ), overruled, Stephens v. Kentucky Utilities Co., 569 S.W.2d 155, 1978 Ky. LEXIS 382 ( Ky. 1978 ).

3. Introduction of Evidence.

A water district had the right to a meaningful opportunity to be heard as to the issue of the allowability of depreciation expense on contributed property, and nothing contained in the provisions of KRS 278.440 or this section changed that conclusion; accordingly, the Circuit Court did not err in remanding the case back to the Public Service Commission in order that both parties might introduce evidence on that issue. Public Service Com. v. Warren County Water Dist., 642 S.W.2d 594, 1982 Ky. App. LEXIS 266 (Ky. Ct. App. 1982).

4. Refusal of Commission to Act.

If commission, in its discretion, refuses to act upon complaint brought by one person, he may still appeal to the courts. Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

5. Action in Circuit Court.

Kentucky Rules of Civil Procedure applied to an action seeking review of a Public Service Commission order; while a builder seeking review of a commission order erred by directing service of process to incorrect parties, the summonses nevertheless issued in good faith, and since the action was otherwise timely commenced, a trial court’s dismissal of the action was improper and was reversed. Arlinghaus Builders v. Ky. PSC, 142 S.W.3d 693, 2003 Ky. App. LEXIS 342 (Ky. Ct. App. 2003).

6. —Exclusive Jurisdiction.

Where the operator of a sewage treatment plant which serviced two (2) Jefferson County schools applied to the Commission for a rate increase, despite the fact that neither he nor the board of education had attempted to renegotiate the rates or submit the rate increase to arbitration, as required by the parties’ contract, the Commission had the right to regulate the rates pursuant to subsection (2) of KRS 278.040 , regardless of the provisions of the contract, and, once the matter had been presented to the Commission and decided by it, appeal could only be taken to the Franklin Circuit Court pursuant to this section rather than the Jefferson Circuit Court. Board of Education v. William Dohrman, Inc., 620 S.W.2d 328, 1981 Ky. App. LEXIS 281 (Ky. Ct. App. 1981).

Utility customer’s action that alleged the utility had engaged in improper billing practices was properly dismissed for lack of subject matter jurisdiction because the customer had failed to comply with a discovery order of the Kentucky Public Service Commission (PSC) and then had subsequently failed to appeal the PSC’s dismissal of the case. Allowing the customer to bring its case before the court in the present action would usurp the PSC’s exclusive jurisdiction to resolve billing issues. Bulldog's Enters. v. Duke Energy, 412 S.W.3d 210, 2013 Ky. App. LEXIS 147 (Ky. Ct. App. 2013).

7. — Time for Filing.

This section provides exclusive method by which order of commission can be reviewed by Circuit Court, and to obtain review it is necessary that action be filed against commission, an indispensable party, within 20-day period. Kentucky Utilities Co. v. Farmers Rural Electric Cooperative Corp., 361 S.W.2d 300, 1962 Ky. LEXIS 242 ( Ky. 1962 ).

8. — Judgment.

Judgment of Circuit Court that commission had jurisdiction to determine merits of application for order and confirming the order was res adjudicata of the validity of the order. Williamson v. Public Service Com., 295 Ky. 376 , 174 S.W.2d 526, 1943 Ky. LEXIS 245 ( Ky. 1943 ).

9. Injunctive Relief.

A utility company is entitled to temporary injunctive relief from the order of the rate-making commission only if it establishes that there is a reasonable probability that it will succeed on final hearing in proving that the rate set by the commission is confiscatory, in the constitutional sense of being unjust and unreasonable. Commonwealth ex rel. Stephens v. South Cent. Bell Tel. Co., 545 S.W.2d 927, 1976 Ky. LEXIS 142 ( Ky. 1976 ).

10. Notice to Parties.

The minimum requirement for notice is service of a copy of the complaint on all parties of record before the commission and this section requires the giving of notice, that is actual notice, at least the receipt of a letter. Energy Regulatory Com. v. Kentucky Power Co., 605 S.W.2d 46, 1980 Ky. App. LEXIS 367 (Ky. Ct. App. 1980).

Where the consumer protection division of the Attorney General’s office became a party to proceedings on an application for a certificate at the administrative level and as such was a necessary party in the reviewing process it was the responsibility of those seeking review to give notice by means of the issuance of summons of process, or to demonstrate by other concrete evidence the receipt of notice, so that all proper parties are fully apprised before the reviewing court and in position to participate in the entire appellate proceedings; a certificate or affidavit of sending notice was not sufficient to provide such notices. Energy Regulatory Com. v. Kentucky Power Co., 605 S.W.2d 46, 1980 Ky. App. LEXIS 367 (Ky. Ct. App. 1980).

11. Interested Parties.

This section does not limit the participating parties to the commission and the applicant; the commission is an indispensable party but that does not rule out other parties. Energy Regulatory Com. v. Kentucky Power Co., 605 S.W.2d 46, 1980 Ky. App. LEXIS 367 (Ky. Ct. App. 1980).

Kentucky Public Service Commission (Commission) was entitled to a writ of prohibition as to a trial court hearing an interlocutory appeal of the Commission’s order denying real parties in interest intervention in a rate-making case because (1) the parties had no such right, as the parties could only request intervention, (2) whether to grant intervention was solely within the Commission’s discretion, (3) ordering the Commission to grant intervention interfered with the Commission’s proceedings, exceeded the court’s jurisdiction, and did not meet the collateral order rule, (4) the rule of civil procedure on intervention did not apply, as the Commission’s regulation controlled, and (5) the court had no Declaratory Judgment Act jurisdiction, so the court’s orders were void ab initio. PSC of Ky. v. Shepherd, 2019 Ky. App. LEXIS 31 (Ky. Ct. App. Mar. 6, 2019), rev'd, 2020 Ky. Unpub. LEXIS 37 (Ky. May 28, 2020).

12. Standard of Review.

An order of the PSC can be vacated or set aside only if it is unlawful or unreasonable. To be unlawful, an order must violate a state or federal statute or a constitutional provision. To be unreasonable, an order must be unsupported by substantial evidence and it must be determined that the evidence presented leaves no room for difference of opinion among reasonable minds. Commonwealth v. PSC of Ky., 2008 Ky. App. LEXIS 29 (Ky. Ct. App. Feb. 1, 2008), rev'd, 320 S.W.3d 660, 2010 Ky. LEXIS 217 ( Ky. 2010 ).

Cited:

South Cent. Bell Tel. Co. v. PSC, 420 F. Supp. 376, 1976 U.S. Dist. LEXIS 13069 (E.D. Ky. 1976 ); Western Kentucky Gas Co. v. Public Service Com., 300 Ky. 281 , 188 S.W.2d 458, 1945 Ky. LEXIS 538 ( Ky. 1945 ); Goodwin v. Louisville, 309 Ky. 11 , 215 S.W.2d 557, 1948 Ky. LEXIS 1013 ( Ky. 1948 ); Citizens Tel. Co. v. Public Service Com., 247 S.W.2d 510, 1952 Ky. LEXIS 709 ( Ky. 1952 ); Kentucky Utilities Co. v. Farmers Rural Electric Cooperative Corp., 362 S.W.2d 498, 1962 Ky. LEXIS 260 ( Ky. 1962 ); American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Com., 379 S.W.2d 450, 1964 Ky. LEXIS 240 ( Ky. 1964 ); Bobinchuck v. Levitch, 380 S.W.2d 233, 1964 Ky. LEXIS 292 ( Ky. 1964 ); Inter-County Rural Electric Co-operative Corp. v. Public Service Com., 407 S.W.2d 127, 1966 Ky. LEXIS 139 ( Ky. 1966 ); Kentucky Power Co. v. Energy Regulatory Com., 623 S.W.2d 904, 1981 Ky. LEXIS 295 ( Ky. 1981 ); Carr v. Cincinnati Bell, Inc., 651 S.W.2d 126, 1983 Ky. App. LEXIS 290 (Ky. Ct. App. 1983); National-Southwire Aluminum Co. v. Big Rivers Electric Corp., 785 S.W.2d 503, 1990 Ky. App. LEXIS 9 (Ky. Ct. App. 1990); Forest Hills Developers v. PSC, 936 S.W.2d 94, 1996 Ky. App. LEXIS 9 8 (Ky. Ct. App. 1996); Kentucky PSC v. Shadoan, — S.W.3d —, 2008 Ky. App. LEXIS 382 (Ky. Ct. App. 2008).

Research References and Practice Aids

Kentucky Bench & Bar.

Rogers, Public Utility Rate Applications Practice and Procedure Before the Public Service Commission, Vol. 41, No. 1, Jan. 1977 Ky. Bench & B. 8.

Eversole and Crosby, “Plain Meaning,” Necessarily Implied Authority, and the Public Service, Commission: The Kentucky Supreme Court Restores an Agency’s Discretion, Vol. 76, No. 5, September 2012, Ky. Bench & Bar 9.

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

278.420. Designation and filing of record — Cost.

  1. In any action filed against the commission because of its order in a proceeding before it, the commission shall file a certified copy of the designated record and evidence with the court in which the action is pending.
  2. Unless an agreed statement of the record is filed with the court, the filing party shall designate, within ten (10) days after an action is filed, the portions of the record necessary to determine the issues raised in the action. Within ten (10) days after the service of the designation or within ten (10) days after the court enters an order permitting any other party to intervene in the action, whichever occurs last, any other party to the action may designate additional portions for filing. The court may enlarge the ten (10) day period where cause is shown. Additionally, the court may require or permit subsequent corrections or additions to the record.
  3. The cost of preparing and certifying the record shall be taxed and paid to the commission as directed by the court upon final determination of the action. As a part of this determination, the court may tax a party for the cost of preparing portions of the record not deemed reasonably necessary to the disposition of the action. Copies of the designated record shall be furnished at cost to any party to the action.

History. 3952-48: amend. Acts 1978, ch. 379, § 49, effective April 1, 1979; 1982, ch. 82, § 45, effective July 15, 1982; 1990, ch. 149, § 1, effective July 13, 1990; 1990, ch. 354, § 2, effective July 13, 1990.

Legislative Research Commission Note.

(7/13/90). This section was amended by identical amendments in two 1990 Acts, which have been compiled together.

NOTES TO DECISIONS

  1. Designation of Issues.
  2. Excusable Neglect.
  3. Compliance Shown.
1. Designation of Issues.

This section requires that a party filing a complaint designate the portions of the record necessary to resolve the issues. In this case the plaintiff did not designate any portion of the record within ten (10) days of filing the complaint. The plaintiff maintained in its complaint that the commission’s dismissal of its application was unlawful and unreasonable, and further set forth its argument that the commission’s orders preceding the dismissal were inconsistent and contradictory. Accordingly, the designation of those orders would have been necessary in order for the trial court to resolve the issues raised. Forest Hills Developers v. PSC, 936 S.W.2d 94, 1996 Ky. App. LEXIS 98 (Ky. Ct. App. 1996).

Property owners satisfied the requirements of KRS 278.420 regarding the designation of the record when they attached to their complaint a copy of an order denying them a rehearing regarding the Kentucky Public Service Commission’s (PSC) dismissal for lack of jurisdiction of a proceeding on a communication company’s application for construction of a cellular tower; no evidentiary record had been developed before the PSC because the only issue decided was the jurisdictional one, and in that instance, the Circuit Court’s ruling that the order supplied by the owners was the only document necessary for review was not improper. Kentucky PSC v. Shadoan, 2008 Ky. App. LEXIS 382 (Ky. Ct. App. 2008).

Circuit court did not have jurisdiction to adjudicate aggrieved property owners’ action challenging the grant of utilities’ application for a certificate for construction of an electric power transmission line because the owners’ motion for enlargement of time to file the record was filed after the expiration of the ten-day period in KRS 278.420(2). Louisville Gas & Elec. Co. v. Hardin & Meade County Prop. Owners ex rel. Co-Location, 319 S.W.3d 397, 2010 Ky. LEXIS 209 ( Ky. 2010 ).

2. Excusable Neglect.

Excusable neglect under CR 6.02 equates with cause shown under KRS 278.420(2). Hardin & Meade County v. PSC of Ky., 2007 Ky. App. LEXIS 495 (Ky. Ct. App. Dec. 14, 2007), rev'd, 319 S.W.3d 397, 2010 Ky. LEXIS 209 ( Ky. 2010 ).

Because the opposing parties did not suffer any prejudice due to the delay, judicial economy suffered no discernible prejudice as litigation was impeded far more by the time consumed in recourse to the appeal than it was in the delay in designation of a record that all parties agreed had to be reviewed, the reasons for the delay were neither willful nor contrived, and there was absolutely no evidence that the omission was a deliberate attempt to delay the litigation, the court should have allowed an enlargement of time to allow the property owners to designate the record in regard to their appeal of a Public Service Commission decision based on excusable neglect. Hardin & Meade County v. PSC of Ky., 2007 Ky. App. LEXIS 495 (Ky. Ct. App. Dec. 14, 2007), rev'd, 319 S.W.3d 397, 2010 Ky. LEXIS 209 ( Ky. 2010 ).

Although the landowners only attached, as an appendix to the complaint and petition they filed for administrative review, the order denying their motion for rehearing filed with the commission, the inclusion of that order was sufficient to designate the record for review pursuant to KRS 278.420 . Whether the order denying the motion was properly granted was the only issue which the landowners wanted the trial court to review. Ky. PSC v. Shadoan, 2008 Ky. App. LEXIS 193 (Ky. Ct. App. June 20, 2008), op. withdrawn, sub. op., 2008 Ky. App. LEXIS 382 (Ky. Ct. App. Dec. 31, 2008).

3. Compliance Shown.

In a case where owners argued that issues relating to the siting and construction of a proposed cellular antenna tower lied with the Kentucky Public Service Commission (PSC), compliance with KRS 278.420(2) was established. While two owners did not file a separate document specifically entitled a “Designation of Record,” they did file in the record the actual document from the administrative proceedings disposing of the sole issue before the PSC; in so doing, they served notice of the only portion of the administrative record necessary and relevant to the issue on appeal. Ky. PSC v. Shadoan, 325 S.W.3d 360, 2010 Ky. LEXIS 278 ( Ky. 2010 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Eversole and Crosby, “Plain Meaning,” Necessarily Implied Authority, and the Public Service, Commission: The Kentucky Supreme Court Restores an Agency’s Discretion, Vol. 76, No. 5, September 2012, Ky. Bench & Bar 9.

278.430. Burden of proof.

In all trials, actions or proceedings arising under the preceding provisions of this chapter or growing out of the commission’s exercise of the authority or powers granted to it, the party seeking to set aside any determination, requirement, direction or order of the commission shall have the burden of proof to show by clear and satisfactory evidence that the determination, requirement, direction or order is unreasonable or unlawful.

History. 3952-49: amend. Acts 1978, ch. 379, § 50, effective April 1, 1979; 1982, ch. 82, § 46, effective July 15, 1982.

NOTES TO DECISIONS

  1. Unreasonable or Unlawful.
  2. Injunctive Relief.
  3. Scope of Review.
  4. Question for Trier of Fact.
  5. Evidence.
  6. — Sufficiency.
  7. — Burden of Proof.
1. Unreasonable or Unlawful.

Where the public service commission determined that city purchasing sister city’s water system was ready, willing, and able to continue providing adequate water service, such determination was neither unreasonable nor unlawful and was therefore not set aside by the court. Catlettsburg v. Public Service Com., 486 S.W.2d 62, 1972 Ky. LEXIS 110 ( Ky. 1972 ).

The term unreasonable can be applied to an administrative agency’s decision only when it is determined that the evidence presented leaves no room for difference of opinion among reasonable minds. Energy Regulatory Com. v. Kentucky Power Co., 605 S.W.2d 46, 1980 Ky. App. LEXIS 367 (Ky. Ct. App. 1980).

Where a telephone company sought authority to increase its intrastate rates and two security and alarm system businesses objected on the basis that the telephone company had embarked on sizable construction projects without first applying for and receiving certificates of public convenience and necessity pursuant to KRS 278.020 , the application by the Utility Regulatory Commission of a 10% rule, under which a new construction project of less than 10% of the net investment of the utility would not be required to have a certificate, was not unreasonable or unlawful by clear and satisfactory evidence as required by this section to set aside the order. American Dist. Tel. Co. v. Utility Regulatory Com., 619 S.W.2d 504, 1981 Ky. App. LEXIS 268 (Ky. Ct. App. 1981).

2. Injunctive Relief.

A utility company is entitled to temporary injunctive relief from the order of the rate-making commission only if it establishes that there is a reasonable probability that it will succeed on final hearing in proving that the rate set by the commission is confiscatory, in the constitutional sense of being unjust and unreasonable. Commonwealth ex rel. Stephens v. South Cent. Bell Tel. Co., 545 S.W.2d 927, 1976 Ky. LEXIS 142 ( Ky. 1976 ).

3. Scope of Review.

In a public utility regulatory case the complaining party must show by clear and convincing proof that the ruling was unlawful or unreasonable; hence, the scope of judicial review of administrative action is very limited. Energy Regulatory Com. v. Kentucky Power Co., 605 S.W.2d 46, 1980 Ky. App. LEXIS 367 (Ky. Ct. App. 1980).

Where the Circuit Court reviewed the evidence and made its own findings, without demonstrating that the decision of the commission was unreasonable when measured by the clear and convincing standard, the circuit court applied an erroneous standard of review and the circuit judge’s de novo review of the record and the substitution of his own findings for those of the agency were improper. Energy Regulatory Com. v. Kentucky Power Co., 605 S.W.2d 46, 1980 Ky. App. LEXIS 367 (Ky. Ct. App. 1980).

4. Question for Trier of Fact.

Where the circuit judge ruled that the energy regulatory commission was required to come forward with an affirmative case whenever the applicant made what might be termed a prima facie case before the agency, the Circuit Court committed reversible error because it thereby would shift the burden of proof from the applicant to the commission; the commission had no duty to refute evidence submitted to it by an applicant who had the burden of proof and the better rule to be employed by the Circuit Court in its review of the commission’s decision was that when all the evidence has been heard and reasonable men differ in the conclusion to be drawn, the question should be left to the trier of fact. Energy Regulatory Com. v. Kentucky Power Co., 605 S.W.2d 46, 1980 Ky. App. LEXIS 367 (Ky. Ct. App. 1980).

5. Evidence.
6. — Sufficiency.

Without presenting to the trial court the orders which the plaintiff maintained were inconsistent, contradictory, unlawful and unreasonable, there existed no evidence, much less clear and satisfactory evidence, that the commission had exceeded its authority. Forest Hills Developers v. PSC, 936 S.W.2d 94, 1996 Ky. App. LEXIS 98 (Ky. Ct. App. 1996).

7. — Burden of Proof.

Attorney General showed by clear and satisfactory proof that the Public Service Commission lacked authority to grant a utility’s request for rate incentives and discounts in that the PSC’s order was unlawful as it violated the specific mandates of KRS 278.170 , and the Circuit Court erred in affirming the order. Commonwealth v. PSC of Ky., 2008 Ky. App. LEXIS 29 (Ky. Ct. App. Feb. 1, 2008), rev'd, 320 S.W.3d 660, 2010 Ky. LEXIS 217 ( Ky. 2010 ).

Cited:

Lexington Tel. Co. v. Public Service Com., 311 Ky. 584 , 224 S.W.2d 423, 1949 Ky. LEXIS 1150 ( Ky. 1949 ), overruled, Stephens v. Kentucky Utilities Co., 569 S.W.2d 155, 1978 Ky. LEXIS 382 ( Ky. 1978 ), overruled in part, Stephens v. Kentucky Utilities Co., 569 S.W.2d 155, 1978 Ky. LEXIS 382 ( Ky. 1978 ); Cumberland Valley Rural Electric Cooperative Corp. v. Public Service Com., 433 S.W.2d 103, 1968 Ky. LEXIS 254 ( Ky. 1968 ); Public Service Com. v. Continental Tel. Co., 692 S.W.2d 794, 1985 Ky. LEXIS 240 ( Ky. 1985 ); Forest Hills Developers v. PSC, 936 S.W.2d 94, 1996 Ky. App. LEXIS 98 (Ky. Ct. App. 1996); Kentucky PSC v. Commonwealth Ex Rel. Stumbo, — S.W.3d —, 2008 Ky. App. LEXIS 348 (Ky. Ct. App. 2008); PSC of Ky. v. Commonwealth, 320 S.W.3d 660, 2010 Ky. LEXIS 217 ( Ky. 2010 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

278.440. Evidence to be heard by court — Remand.

Any action brought under KRS 278.410 shall be heard and decided by the court upon the evidence submitted to the commission as shown by the record, and no other evidence shall be received. If any party satisfies the court that evidence has been discovered since the hearing before the commission that could not have been obtained for use at that hearing by the exercise of reasonable diligence and will materially affect the merits of the case, the court may remand the record and proceedings to the commission, with directions to take the newly-discovered evidence, and after consideration thereof, enter and file a proper order, which may be reviewed in the same manner as any other final order of the commission.

History. 3952-47, 3952-50: amend. 1990, ch. 149, § 2, effective July 13, 1990; 1990, ch. 354, § 3, effective July 13, 1990.

Legislative Research Commission Note.

(7/13/90). This section was amended by identical amendments in two 1990 Acts, which have been compiled together.

NOTES TO DECISIONS

  1. Remand to Commission.
  2. Appealability of Court Order.
  3. Evidence.
1. Remand to Commission.

Refusal of judge to remand case on ground that motion, coming after the case was submitted for judgment, was too late is not an abuse of discretion. Kentucky Utilities Co. v. Public Service Com., 252 S.W.2d 885, 1952 Ky. LEXIS 1039 ( Ky. 1952 ).

Where evidence before Public Service Commission fails to furnish any satisfactory basis for determining whether harmful duplication might result if certificate of convenience and necessity were issued court should remand case to Public Service Commission for a further hearing addressed to the question of duplication from the standpoint of an excessive investment in relation to efficiency and from the standpoint of inconvenience to the public generally and economic loss that might result from multiple sets of rights of ways and a cluttering of the land with poles and wires. Kentucky Utilities Co. v. Public Service Com., 252 S.W.2d 885, 1952 Ky. LEXIS 1039 ( Ky. 1952 ).

Where a utility company had unsuccessfully applied to the energy regulatory commission for a rehearing, alleging that the new rates prescribed by the commission would produce an increase of only $3,571,260, rather than the intended increase of $7,020,366, it was proper for the Circuit Court to remand the matter to the commission for the purpose of entertaining further evidence on whether the prescribed rates would produce the intended results; the purpose of the remand was in keeping with this section in that it directed the commission to hear new evidence that could not have been obtained prior to the original hearing. Kentucky Power Co. v. Energy Regulatory Com., 623 S.W.2d 904, 1981 Ky. LEXIS 295 ( Ky. 1981 ).

A water district had the right to a meaningful opportunity to be heard as to the issue of the allowability of depreciation expense on contributed property, and nothing contained in the provisions of KRS 278.410 or this section changed that conclusion; accordingly, the Circuit Court did not err in remanding the case back to the Public Service Commission in order that both parties might introduce evidence on that issue. Public Service Com. v. Warren County Water Dist., 642 S.W.2d 594, 1982 Ky. App. LEXIS 266 (Ky. Ct. App. 1982).

2. Appealability of Court Order.

Where the trial court does not order a new trial on newly discovered evidence, but the order dictates a different trial on new evidence in complete disregard of the legislative mandate for judicial review, the order is appealable and is erroneous. Stephens v. Kentucky Utilities Co., 569 S.W.2d 155, 1978 Ky. LEXIS 382 ( Ky. 1978 ).

3. Evidence.

The trial court is to hear and decide the action only on the transcript of evidence heard by the commission. Stephens v. Kentucky Utilities Co., 569 S.W.2d 155, 1978 Ky. LEXIS 382 ( Ky. 1978 ).

This section merely establishes that there shall be no de novo trial before the Circuit Court of matters heard by the commission, and it does not prohibit a remand for the taking of additional evidence by the Public Service Commission. Utility Regulatory Com. v. Kentucky Water Service Co., 642 S.W.2d 591, 1982 Ky. App. LEXIS 265 (Ky. Ct. App. 1982).

Cited:

Middleton’s Adm’x v. Middleton, 297 Ky. 109 , 179 S.W.2d 227, 1944 Ky. LEXIS 692 ( Ky. 1944 ); Energy Regulatory Com. v. Kentucky Power Co., 605 S.W.2d 46, 1980 Ky. App. LEXIS 367 (Ky. Ct. App. 1980).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

278.450. Judgment of Circuit Court — Appeal to Court of Appeals.

Upon final submission of any action brought under KRS 278.410 , the Circuit Court shall enter a judgment either sustaining the order of the commission or setting it aside or vacating it in whole or in part, or modifying it, or remanding it to the commission with instructions. Any final order of the commission, on remand of the proceedings, shall be subject to court review in the same manner as any other final order of the commission. Either party to the action may appeal from the judgment of the Circuit Court to the Court of Appeals in accordance with the Rules of Civil Procedure.

History. 3952-50, 3952-51: amend. Acts 1952, ch. 46, § 5; 1960, ch. 104, § 18; 1976, ch. 62, § 111.

NOTES TO DECISIONS

Cited:

South Cent. Bell Tel. Co. v. PSC, 420 F. Supp. 376, 1976 U.S. Dist. LEXIS 13069 (E.D. Ky. 1976 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Murrell and Dexter, Utility Law, 70 Ky. L.J. 483 (1981-82).

278.455. Reduction of operating expenses by G&T or distribution cooperative — Effect on rates — Authority for administrative regulations.

  1. Notwithstanding any other statute to the contrary, a G&T or distribution cooperative may at any time decrease regulated operating revenues by an amount to be determined solely by the cooperative utility. If the revenue reduction is allocated among and within the consumer classes on a proportional basis that will result in no change in the rate design currently in effect, the revised rates and tariffs shall be authorized and made permanent on the proposed effective date.
  2. Notwithstanding any other statute, any revenue increase authorized by the Public Service Commission or any revenue decrease authorized in subsection (1) of this section that is to flow through the effects of an increase or decrease in wholesale rates may, at the distribution cooperative’s discretion, be allocated to each class and within each tariff on a proportional basis that will result in no change in the rate design currently in effect. In the event of an increase in the wholesale rates and tariffs of the wholesale supplier by the Public Service Commission, the rates and tariffs of the distribution cooperative that have been revised on a proportional basis to result in no change in the rate design shall be authorized and shall become effective on the same date as those of the wholesale supplier. In those cases where an interim increase in the power supplier’s wholesale rates is authorized, the distribution cooperative’s flow through rates shall be interim. The distribution cooperative’s permanent rates and tariffs shall become effective on the date that the wholesale supplier’s permanent rates become effective as ordered by the commission.
  3. Any rate increase or decrease as provided for in subsections (1) and (2) of this section shall not apply to special contracts under which the rates are subject to change or adjustment only as stipulated in the contract.
  4. The Public Service Commission shall promulgate administrative regulations pursuant to KRS Chapter 13A to establish filing requirements and notice requirements to the commission, the Attorney General, and the public under this section.

History. Enact. Acts 1998, ch. 188, § 2, effective July 15, 1998.

278.457. Commission’s duty to transmit information concerning abandonment of railroad corridor to Department of Parks and Railtrail Development Office.

The Public Service Commission shall immediately transmit to the Department of Parks and to the Commonwealth’s Railtrail Development Office in the Department for Local Government any information received from a railroad or other person having an ownership interest in a railroad corridor pertaining to a proposed or pending action or proceeding to obtain federal authority for the regulatory abandonment of that railroad corridor.

History. Enact. Acts 2000, ch. 338, § 11, effective July 14, 2000; 2007, ch. 47, § 93, effective June 26, 2007; 2010, ch. 117, § 88, effective July 15, 2010.

Interest on Deposits with Public Utilities

278.460. Utilities to pay interest on deposits required of patrons — Commission to calculate interest rate annually — Interest rates for water districts and water associations — Administrative regulations.

  1. Except as provided in subsection (2) of this section, a utility, including an electric cooperative organized under KRS Chapter 279, shall pay interest on amounts required to be deposited by patrons to secure utility service. The commission shall calculate the interest rate on an annual basis by averaging the one (1) year constant maturity treasury rate from September, October, and November, and shall notify utilities in December of each year of the interest rate to be paid by utilities for the following calendar year.
  2. No water district organized under KRS Chapter 74 nor water association organized under KRS Chapter 273 shall pay interest that exceeds the rate it receives in interest, nor shall the interest payable to the customer at any time exceed six percent (6%) annually on amounts required to be deposited by patrons to secure water accounts.
  3. The commission may promulgate administrative regulations in accordance with the provisions of KRS Chapter 13A to implement this section.

History. 2223-1: amend. 1994, ch. 221, § 1, effective July 15, 1994; 2012, ch. 22, § 1, effective July 12, 2012.

NOTES TO DECISIONS

  1. Payment at End of Year on Demand.
  2. Criminal Liability.
1. Payment at End of Year on Demand.

Utility companies must pay or credit bill of customer with interest at the end of each year from date of deposit, providing demand is made by the customer for payment or credit. In the absence of such demand interest continues to run, but the company may voluntarily credit the bill with interest. Commonwealth v. Kentucky Power & Light Co., 257 Ky. 66 , 77 S.W.2d 395, 1934 Ky. LEXIS 522 ( Ky. 1934 ).

2. Criminal Liability.

No criminal liability is incurred by the company unless it refuses to pay or credit the interest at the end of the year on demand therefor made by the customer. Commonwealth v. Kentucky Power & Light Co., 257 Ky. 66 , 77 S.W.2d 395, 1934 Ky. LEXIS 522 ( Ky. 1934 ).

Opinions of Attorney General.

This section would apply to both privately and municipally owned utilities. OAG 60-432 .

Although there is no specific statute requiring municipally owned utilities to refund service deposits, it would appear that such deposits must be refunded with interest under the general principle cited in Commonwealth v. Kentucky Power & Light Co., 257 Ky. 66 , 77 S.W.2d 395, 1934 Ky. LEXIS 522 (1934), provided it is not necessary to use the deposits to cover delinquent accounts at the time service is discontinued, and this would apply to deposits required by a city’s municipal utilities regardless of the length of time with which the person did business with the utility. OAG 78-449 ; 80-25.

This section, requiring the public utility to pay interest on deposits required of patrons, is not applicable to municipally owned utilities under the terms of KRS 278.010(3). OAG 78-449 ; 80-25.

The making of a deposit by a customer of a municipal utility on which a fixed rate of interest must be paid creates a debtor and creditor relationship between the utility and the customer-depositor and in absence of an express provision restricting the utility’s use of the funds so deposited, the utility may use the money to suit its own convenience although the funds deposited take the form of a demand loan at all times. OAG 79-418 .

This section requiring the public utility to pay interest on deposits required of patrons is not applicable to municipally owned utilities under the terms of KRS 278.010(3). OAG 79-418 .

While a municipal utility may require a reasonable and nondiscriminatory service deposit from its customers, it must pay interest on the deposit and must refund the deposit with interest when the customer ceases to be a patron of the utility, when so requested by the customer, provided it is not necessary to use the deposit to cover a delinquent account. OAG 79-418 .

Absent some specific provision in an agreement between the city’s utility plant board and its customers that security deposits shall be refunded to the customers prior to discontinuation of service, such deposits need not be refunded prior to discontinuation of service unless customers of the utility plant board can make other suitable arrangements about securing their bills. OAG 80-25 .

While the utility is permitted to require a deposit from its customers for its protection, it is manifestly clear that, for the time period the company holds that deposit, the customer must be compensated by way of interest, the deposit representing a debt. OAG 83-224 .

Since this section requires that six percent (6%) interest be paid annually, interest would be accrued on an annual basis in the event that this annual interest is not remitted to the customer, and assuming the deposit is kept longer than one (1) year, each yearly accrual of interest would become the property of the customer, in addition to the deposit, and a requirement would arise that interest accrued to that new debt as well as to the deposit itself so that compounding of interest would occur. OAG 83-224 .

Net Metering of Electricity

278.465. Definitions for KRS 278.465 to 278.468.

As used in KRS 278.465 to 278.468 :

  1. “Eligible customer-generator” means a customer of a retail electric supplier who owns and operates an electric generating facility that is located on the customer’s premises, for the primary purpose of supplying all or part of the customer’s own electricity requirements;
  2. “Eligible electric generating facility” means an electric generating facility that:
    1. Is connected in parallel with the electric distribution system;
    2. Generates electricity using:
      1. Solar energy;
      2. Wind energy;
      3. Biomass or biogas energy; or
      4. Hydro energy; and
    3. Has a rated capacity of not greater than forty-five (45) kilowatts; and
  3. “Kilowatt hour” means a measure of electricity defined as a unit of work of energy, measured as one (1) kilowatt of power expended for one (1) hour;
  4. “Net metering” means the difference between the:
    1. Dollar value of all electricity generated by an eligible customer-generator that is fed back to the electric grid over a billing period and priced as prescribed in KRS 278.466 ; and
    2. Dollar value of all electricity consumed by the eligible customer-generator over the same billing period and priced using the applicable tariff of the retail electric supplier.

HISTORY: Enact. Acts 2004, ch. 193, § 1, effective July 13, 2004; 2008, ch. 138, § 1, effective July 15, 2008; 2019 ch. 101, § 1, effective January 1, 2020.

278.466. Availability of net metering — Type, expense, and installation of meter — Compensation to eligible customer-generators for electricity fed back into grid — Commission to set compensation rate — Excess generation credits nonrefundable — Twenty-five year cap on preexisting new metering tariff provisions — Safety and power quality standards — Transferability of installation at same premises.

  1. Each retail electric supplier shall make net metering available to any eligible customer-generator that the supplier currently serves or solicits for service. If the cumulative generating capacity of net metering systems reaches one percent (1%) of a supplier’s single hour peak load during a calendar year, the supplier shall have no further obligation to offer net metering to any new customer-generator at any subsequent time.
  2. Each retail electric supplier serving a customer with eligible electric generating facilities shall use a standard kilowatt-hour meter capable of registering the flow of electricity in two (2) directions. Any additional meter, meters, or distribution upgrades needed to monitor the flow in each direction shall be installed at the customer-generator’s expense. If additional meters are installed, the net metering calculation shall yield the same result as when a single meter is used.
  3. A retail electric supplier serving an eligible customer-generator shall compensate that customer for all electricity produced by the customer’s eligible electric generating facility that flows to the retail electric supplier, as measured by the standard kilowatt-hour metering prescribed in subsection (2) of this section. The rate to be used for such compensation shall be set by the commission using the ratemaking processes under this chapter during a proceeding initiated by a retail electric supplier or generation and transmission cooperative on behalf of one (1) or more retail electric suppliers.
  4. Each billing period, compensation provided to an eligible customer-generator shall be in the form of a dollar-denominated bill credit. If an eligible customer-generator’s bill credit exceeds the amount to be billed to the customer in a billing period, the amount of the credit in excess of the customer’s bill shall carry forward to the customer’s next bill. Excess bill credits shall not be transferable between customers or premises. If an eligible customer-generator closes his or her account, no cash refund for accumulated credits shall be paid.
  5. Using the ratemaking process provided by this chapter, each retail electric supplier shall be entitled to implement rates to recover from its eligible customer-generators all costs necessary to serve its eligible customer-generators, including but not limited to fixed and demand-based costs, without regard for the rate structure for customers who are not eligible customer-generators.
  6. For an eligible electric generating facility in service prior to the effective date of the initial net metering order by the commission in accordance with subsection (3) of this section, the net metering tariff provisions in place when the eligible customer-generator began taking net metering service, including the one-to-one (1:1) kilowatt-hour denominated energy credit provided for electricity fed into the grid, shall remain in effect at those premises for a twenty-five (25) year period, regardless of whether the premises are sold or conveyed during that twenty-five (25) year period. For any eligible customer-generator to whom this subsection applies, each net metering contract or tariff under which the customer takes service shall be identical, with respect to energy rates, rate structure, and monthly charges, to the contract or tariff to which the same customer would be assigned if the customer were not an eligible customer-generator.
  7. Electric generating systems and interconnecting equipment used by eligible customer-generators shall meet all applicable safety and power quality standards established by the National Electrical Code (NEC), Institute of Electrical and Electronics Engineers (IEEE), and accredited testing laboratories such as Underwriters Laboratories.
  8. An eligible customer-generator installation is transferable to other persons at the same premises upon notification to the retail electric supplier and verification that the installation is in compliance with the applicable safety and power quality standards in KRS 278.467 and in subsection (7) of this section.
  9. Any upgrade of the interconnection between the retail electric supplier and the customer-generator that is required by commission-approved tariffs for the purpose of allowing net metering shall be made at the expense of the customer-generator.

HISTORY: Enact. Acts 2004, ch. 193, § 2, effective July 13, 2004; 2008, ch. 138, § 2, effective July 15, 2008; 2019 ch. 101, § 2, effective January 1, 2020.

278.467. Jurisdiction over disputes — Guidelines — Forms — Posting on Website.

  1. The commission shall have original jurisdiction over any dispute between a retail electric supplier and an eligible customer-generator, regarding net metering rates, service, standards, performance of contracts, and testing of net meters.
  2. No later than one hundred eighty (180) days from July 15, 2008, the Public Service Commission shall develop interconnection and net metering guidelines for all retail electric suppliers operating in the Commonwealth. The guidelines shall meet the requirements of KRS 278.466(7).
  3. No later than ninety (90) days from the issuance by the Public Service Commission of the guidelines required under subsection (2) of this section, each retail electric supplier shall file with the commission a net metering tariff and application forms to comply with those guidelines. All retail electric suppliers shall make their net metering tariff and interconnection practices easily available to the public by posting the tariff and practices on their Web sites.

HISTORY: Enact. Acts 2004, ch. 193, § 3, effective July 13, 2004; 2008, ch. 138, § 3, effective July 15, 2008; 2019 ch. 101, § 3, effective January 1, 2020.

278.468. KRS 278.465 to 278.468 not applicable to certain United States agencies or instrumentalities.

Nothing in KRS 278.465 to 278.468 shall apply to a United States corporate agency or instrumentality of the United States government, or a distributor of electric power primarily supplied by such a corporate agency or instrumentality of the United States government.

History. Enact. Acts 2004, ch. 193, § 4, effective July 13, 2004.

Oil and Gas Pipelines and Related Facilities

278.470. Companies transporting oil or gas by pipeline are common carriers.

Every company receiving, transporting or delivering a supply of oil or natural gas for public consumption is declared to be a common carrier, and the receipt, transportation and delivery of natural gas into, through and from a pipeline operated by any such company is declared to be a public use.

History. 3766b-1b.

NOTES TO DECISIONS

  1. Duties of Pipeline Company.
  2. Refusal to Accept Oil for Transportation.
  3. Public Consumption.
  4. Pipeline Owner Not Subject to Strict Liability.
1. Duties of Pipeline Company.

Neither this section declaring a pipeline company to be a common carrier, nor the common law, imposes upon a pipeline company the duty of a supplier or wholesaler and, such duty, if it exists, must be found in KRS 278.010 to 278.450 governing public utilities generally and providing for their regulation by the public service commission. Bardstown v. Louisville Gas & Electric Co., 383 S.W.2d 918, 1964 Ky. LEXIS 68 ( Ky. 1964 ).

2. Refusal to Accept Oil for Transportation.

Pipeline company operating as a pipeline is bound to accept oil for transportation to the extent of its reasonable facilities and to deliver it upon the order of the consignor unless prevented by court order, and may be subject to damages or perhaps a criminal penalty for refusal. Cumberland Pipe Line Co. v. Commonwealth, 258 Ky. 90 , 79 S.W.2d 366, 1934 Ky. LEXIS 575 ( Ky. 1934 ).

3. Public Consumption.

This section and KRS 278.490 apply only to companies engaged in the transportation of gas “for public consumption” — that is, for ultimate use by Kentucky customers; thus, those regulatory statutes did not apply to a gas producer which sold its gas only through interstate pipelines, which it owned, to another interstate pipeline company. In re Langford, 32 B.R. 746, 1982 Bankr. LEXIS 5436 (Bankr. W.D. Ky. 1982 ).

4. Pipeline Owner Not Subject to Strict Liability.

Since the transmission of natural gas through pipelines is a public service as provided by this section, defendant owner of natural gas pipeline could not be held to strict liability in action for injuries resulting from plaintiff’s hitting above ground natural gas pipeline while operating a bulldozer as he attempted to extinguish a forest fire. Workman v. Columbia Natural Resources, 864 F. Supp. 638, 1994 U.S. Dist. LEXIS 15047 (E.D. Ky. 1994 ).

Cited:

Texas Co. v. Commonwealth, 303 Ky. 590 , 198 S.W.2d 316, 1946 Ky. LEXIS 906 ( Ky. 1946 ).

278.480. Pipeline companies may deliver oil or gas on order of person in possession.

Any common carrier of crude petroleum or gas by pipeline may accept for transportation any oil or gas offered to it for that purpose by a person in possession, and shall redeliver it upon the order of the consignor unless prevented by order of a court of competent jurisdiction, and shall not be liable therefor to a true owner out of possession, except from the time that the order of court is served upon it in the same manner as a summons in a civil action.

History. 3766b-1a.

NOTES TO DECISIONS

1. Liability of Carrier.

Law providing that pipeline companies could transport and deliver oil for persons in possession and not be liable to the true owner thereof except when served with a court order in the manner of summons in a civil action changed the common-law rule of liability relating to acceptance and redelivery of oil by pipeline companies and did not affect liability for oil transported before the law was passed. Hall v. Cumberland Pipe Line Co., 193 Ky. 728 , 237 S.W. 405, 1922 Ky. LEXIS 69 ( Ky. 1922 ).

278.485. Gas pipeline company to furnish gas — When — Rates — Duty of person applying for gas service and gas pipeline company — Abandonment of gas wells — Discontinuance of service — Right to tap a gathering line.

Every gas pipeline company obtaining gas from producing wells located within this state, upon the request of the owner of the property on or over which any producing well or gas gathering pipeline is located or the owner of real estate whose property and point of desired service is located within one-half (1/2) air-mile of said company’s producing gas well or gas gathering pipeline, shall furnish gas service to such owner and applicant, subject to and upon the following terms, conditions, and provisions, to-wit:

  1. The gas service shall be furnished at rates and minimum monthly charges determined by the Public Service Commission.
  2. The applicant for such gas service shall construct or cause to be constructed, and shall maintain and keep in good repair, the service lines, and shall provide and install or cause to be installed, and keep in good repair, the necessary automatic gas regulators, and shall pay the entire cost thereof. The company, at its own expense, shall provide, install, and maintain the necessary gas meters.
  3. The construction of each service line; the installation, type, and number of automatic gas regulators and gas meter or meters, and the connection thereof with the gas producing well or pipeline shall be under the supervision of the Public Service Commission or an agent thereof; and shall conform to such standards of safety, location, and convenience as may be prescribed by said commission.
  4. Neither the gas producer nor the gas pipeline company shall be responsible for maintaining any fixed or specified gas pressure. Neither the gas producer nor the gas pipeline company shall be liable for any accident or accidental injuries or damages which may result from any defect or failure of any automatic gas regulator or for any leakage or other defect or failure of any service line installed or constructed by the applicant.
  5. Nothing in this section shall be construed as requiring any gas pipeline company to serve any such owner of property or applicant from any line or lines that have been held to be subject to federal jurisdiction by order of the Federal Energy Regulatory Commission or a court of competent jurisdiction. The provisions of this section shall apply only to producing gas wells and to gas pipelines commonly known as gathering lines.
  6. Nothing in this section shall be construed to restrict the right of any gas pipeline company to abandon any gas well or any gathering pipeline, or any part thereof, and to remove any such abandoned pipeline or lines. If service to any customer is terminated because of lack of gas for a period of six (6) months in a pipeline or line which served him, the company shall remove a portion of the main line so as to render it inoperable.
  7. Subject to the rules and regulations of the Public Service Commission, any service may be disconnected and discontinued by the company for failure of the customer to pay any bill as and when due and payable.
  8. Every gas pipeline company obtaining gas from producing wells within the state shall offer each surface owner the right of a tap or hookup for natural gas from any gathering line which crosses the surface owner’s property. The cost of the tap or hookup shall be borne by the consumer.

History. Enact. Acts 1952, ch. 160; 1956, ch. 49; 1978, ch. 379, § 51, effective April 1, 1979; 1982, ch. 82, § 47, effective July 15, 1982; 1982, ch. 242, § 5, effective July 15, 1982; 1984, ch. 212, § 1, effective July 13, 1984; 1992, ch. 399, § 2, effective July 14, 1992.

NOTES TO DECISIONS

  1. Bankruptcy.
  2. Quality of Gas.
  3. Regulatory Responsibility.
  4. Diversion of Interstate Gas.
  5. Federal Law Controls.
1. Bankruptcy.

Trustee in bankruptcy of pipeline company cannot be compelled by property owner to furnish oil and gas service as required by this section without the consent of the bankruptcy court. Price v. Williamson, 305 S.W.2d 276, 1956 Ky. LEXIS 11 ( Ky. 1956 ).

2. Quality of Gas.

Where gas companies which had been furnishing gas to persons entitled thereto under this section sought to discontinue gas service because the gas in the gathering pipelines contained a harmful impurity, the commission had no authority to allow discontinuance of service since the commission was without power to regulate or control the quality of gas furnished. Public Service Com. v. Kentucky West Virginia Gas Co., 531 S.W.2d 491, 1975 Ky. LEXIS 36 ( Ky. 1975 ).

Although the commission has no authority to regulate the quality of gas furnished pursuant to this section, a sensible interpretation of the statute would limit its application to gas that is commercially usable and not unreasonably dangerous to the health and safety of the user. Public Service Com. v. Kentucky West Virginia Gas Co., 531 S.W.2d 491, 1975 Ky. LEXIS 36 ( Ky. 1975 ).

3. Regulatory Responsibility.

The Federal Natural Gas Act assigns to the Federal Energy Regulatory Commission exclusive regulatory responsibility for transportation of an interstate pipeline company’s natural gas from wellheads through gathering lines; that responsibility includes the power to prohibit deliveries of natural gas for which no certificate of public convenience and necessity has been issued. Public Service Com. v. Federal Energy Regulatory Com., 610 F.2d 439, 1979 U.S. App. LEXIS 9750 (6th Cir. 1979).

4. Diversion of Interstate Gas.

The states may not, without federal authorization, divert from the interstate market supplies of natural gas for the use of state residents only. Public Service Com. v. Federal Energy Regulatory Com., 610 F.2d 439, 1979 U.S. App. LEXIS 9750 (6th Cir. 1979).

5. Federal Law Controls.

Inasmuch as this section seeks to reserve a supply of natural gas to certain state residents, it, independent of federal regulatory control, denies to consumers outside of Kentucky and to Kentuckians whose real estate lies beyond one-half (1/2) mile of wellheads and gathering lines the equal access that they otherwise would enjoy to Kentucky natural gas; and if pursued by many or all producing states in times of extraordinary scarcity, the Kentucky policy would impede, if not prohibit altogether, accomplishment of the congressional desire to provide an adequate supply of natural gas for the entire nation; therefore, this section is in conflict with the federal regulatory scheme and is unenforceable. Public Service Com. v. Federal Energy Regulatory Com., 610 F.2d 439, 1979 U.S. App. LEXIS 9750 (6th Cir. 1979).

Transportation through gathering lines and sales to local residents by an interstate pipeline company under this section are subject to federal jurisdiction. Public Service Com. v. Federal Energy Regulatory Com., 610 F.2d 439, 1979 U.S. App. LEXIS 9750 (6th Cir. 1979).

278.490. Transportation of oil or gas received from connecting lines.

Each company engaged in the receipt, transportation or delivery of oil or natural gas for public consumption shall at all reasonable times receive, for transportation and delivery, from such pipes as may be connected up with any main or tributary line, all oil or gas that may be held and stored or ready for delivery, if the main or tributary line has the means or capacity to receive, transport or deliver the oil or gas that is offered. If the main or tributary line is operating to such capacity that it is impossible or impracticable to receive or transport all the oil or gas offered from the connecting lines, the company operating the main or tributary line shall receive and transport the oil or gas that is offered on a proportionate basis, based on the daily production of each producer whose oil or gas is offered for transportation.

History. 3766b-1c, 3766b-1d.

NOTES TO DECISIONS

  1. Construction.
  2. Public Consumption.
1. Construction.

This section imposes upon the company only the duty of a carrier or transporter and not the duty of a wholesaler or supplier. Bardstown v. Louisville Gas & Electric Co., 383 S.W.2d 918, 1964 Ky. LEXIS 68 ( Ky. 1964 ).

2. Public Consumption.

KRS 278.470 and this section apply only to companies engaged in the transportation of gas “for public consumption” — that is, for ultimate use by Kentucky customers; thus, those regulatory statutes did not apply to a gas producer which sold its gas only through interstate pipelines, which it owned, to another interstate pipeline company. In re Langford, 32 B.R. 746, 1982 Bankr. LEXIS 5436 (Bankr. W.D. Ky. 1982 ).

278.495. Authority to regulate safety aspects of natural gas facilities.

  1. As used in this section:
    1. “Carbon dioxide transmission pipeline” means the in-state portion of a pipeline, including appurtenant facilities, property rights, and easements, that is used exclusively for the purpose of transporting carbon dioxide to a point of sale, storage, or other carbon management applications; and
    2. “Master meter system” means a pipeline system for distributing gas within a definable area, such as, but not limited to, a mobile home park, housing project, or apartment complex, where the operator purchases metered gas from an outside source for resale through a gas distribution pipeline system. The gas distribution pipeline system supplies the ultimate consumer, who either purchases the gas directly through a meter or by other means, such as through rents.
  2. Notwithstanding any other provision of law, the commission shall have the authority to regulate the safety of natural gas facilities which are:
    1. Owned or operated by any public utility, county, or city, and used to distribute natural gas at retail; or
    2. Comprising a master meter system.

The commission may exercise this authority in conjunction with, and pursuant to, its authority to enforce any minimum safety standard adopted by the United States Department of Transportation pursuant to 49 U.S.C. sec. 60101 et seq., or any amendments thereto, and may promulgate administrative regulations consistent with federal pipeline safety laws in accordance with provisions of KRS Chapter 13A as are necessary to promote pipeline safety in the Commonwealth. In exercising this authority, however, the commission shall consider the impact of any action it takes on small businesses engaged in the installation and servicing of gas lines, master meter systems, or related equipment and shall act so as to ensure that no unfair competitive advantage is given to utilities over such small businesses.

History. Enact. Acts 1994, ch. 152, § 1, effective July 15, 1994; 2000, ch. 249, § 1, effective July 14, 2000; 2011, ch. 82, § 4, effective June 8, 2011.

278.500. Condemnation of property for pipe line. [Repealed.]

Compiler’s Notes.

This section (3766b-1) was repealed by Acts 1948, ch. 184, § 1 and Acts 1948, ch. 186, § 1.

278.501. Condemnation for oil or gas pipeline storage facilities used in connection therewith. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 184, § 1; 1954, ch. 230, § 1) was repealed by Acts 1966, ch. 255, § 283.

278.502. Condemnation for pipelines and related facilities, including rights of ingress and egress.

Any corporation or partnership organized for the purpose of, and any individual engaged in or proposing to engage in, constructing, maintaining, or operating oil or gas wells or pipelines for transporting or delivering oil or gas, including oil and gas products, in public service may, if it is unable to contract or agree with the owner after a good faith effort to do so, condemn the lands and material or the use and occupation of the lands that are necessary for constructing, maintaining, drilling, utilizing, and operating pipelines, underground oil or gas storage fields, and wells giving access thereto and all necessary machinery, equipment, pumping stations, appliances, and fixtures, including tanks and telephone lines, and other communication facilities, for use in connection therewith, and the necessary rights of ingress and egress to construct, examine, alter, repair, maintain, operate, or remove such pipelines or underground gas storage fields, to drill new wells and utilize existing wells in connection therewith, and remove pipe, casing, equipment, and other facilities relating to such underground storage fields and access wells. The proceedings for condemnation shall be as provided in the Eminent Domain Act of Kentucky.

History. Enact. Acts 1948, ch. 186, § 1; 1966, ch. 255, § 226; 1976, ch. 140, § 112; 1992, ch. 399, § 1, effective July 14, 1992.

Compiler’s Notes.

The Eminent Domain Act of Kentucky, referred to herein, is compiled as KRS 416.540 to 416.680 .

NOTES TO DECISIONS

  1. Necessity.
  2. Ingress and Egress.
  3. Condemnor’s Right to Possession.
  4. Valuation.
  5. Court of Appeals.
  6. Types of Pipelines.
  7. Good Faith.
  8. Notice of Public Right to Use.
  9. Rights of Lessee.
  10. Franchise Tax.
  11. Eminent Domain Authority.
1. Necessity.

The “necessity” which must exist in order that a natural gas company may condemn land for the laying of pipe is a reasonable and practicable necessity as opposed to absolute necessity at the one extreme and mere convenience of location at the other. Petroleum Exploration v. Hensley, 308 Ky. 103 , 213 S.W.2d 262, 1948 Ky. LEXIS 850 ( Ky. 1948 ).

2. Ingress and Egress.

Instructions to jury to assess damages for probable injury in the event an emergency should arise which would necessitate condemnor using land as a means of ingress and egress to its right-of-way was erroneous since the happening of such an emergency would be so remote that it would be impossible for the jury, within reason, either to anticipate its happening or to determine in advance the extent of the damage in case it should occur. Rogers v. Tennessee Gas & Transmission Co., 304 Ky. 863 , 202 S.W.2d 737, 1947 Ky. LEXIS 750 ( Ky. 1947 ) (decided under prior law).

The right to traverse and enter the land of another at any point and at any time is an infringement on the dominion; it is a right which might be called an estate carved out of a fee and such rights are appurtenant to each and every portion of a farm and no matter into how many tracts it may be divided and sold, the burdens imposed will run with the land of each and every tract. Tennessee Gas Transmission Co. v. Igo, 314 Ky. 146 , 234 S.W.2d 149, 1950 Ky. LEXIS 1006 ( Ky. 1950 ).

3. Condemnor’s Right to Possession.

Condemnor’s right to enter into possession of property upon the payment of the compensation fixed by the commissioners under KRS 416.270 (now repealed) does not violate Const., §§ 13 and 242. Linn v. Bryan, 312 Ky. 203 , 226 S.W.2d 959, 1950 Ky. LEXIS 626 ( Ky. 1950 ).

4. Valuation.

Opinions as to values without facts to support them, or based on facts that were more or less speculative or remote, as well as somewhat fanciful, were of little value, and could have been in a large measure ignored. Calor Oil & Gas Co. v. Wither's Adm'r, 141 Ky. 489 , 133 S.W. 210, 1911 Ky. LEXIS 27 ( Ky. 1911 ). See Cincinnati Gas Transp. Co. v. Cartee, 149 Ky. 89 , 147 S.W. 925, 1912 Ky. LEXIS 576 ( Ky. 1912 ); Warfield Natural Gas Co. v. Laferty, 232 Ky. 248 , 22 S.W.2d 611, 1929 Ky. LEXIS 433 ( Ky. 1929 ); Warfield Natural Gas Co. v. Shepherd, 233 Ky. 254 , 25 S.W.2d 397, 1930 Ky. LEXIS 540 ( Ky. 1930 ) (decided under prior law).

Where evidence showed condemnor had been required to dig ditches for drainage purposes in the careful maintenance of a 24-inch pipeline right-of-way and in so doing had cast surface waters unnaturally upon adjacent property it was sufficient for jury to anticipate the same result would occur in the ditching and draining of the right-of-way and since such incidental damages reasonably could have been anticipated and the injuries resulting therefrom would have been continuous and permanent it was proper for the court to instruct the jury on this element and allow one recovery for all. Rogers v. Tennessee Gas & Transmission Co., 304 Ky. 863 , 202 S.W.2d 737, 1947 Ky. LEXIS 750 ( Ky. 1947 ) (decided under prior law).

The basic measure of damages in a condemnation proceeding must of necessity be anchored to the fair or reasonable market value of the land being taken, and if no lease is involved, the proper measure of damages is the difference in the fair market value of the land before and after the taking. Gulf Interstate Gas Co. v. Garvin, 368 S.W.2d 309, 1963 Ky. LEXIS 40 ( Ky. 1963 ).

Where a gas company sought to condemn a pipeline easement through land containing a vein of fire clay, owners of a leasehold interest in the land will be entitled to damages to the extent that the lease decreased the market value of the land prior to the taking, as this decrease will establish the percentage of ownership interest of the lessees in the land. Gulf Interstate Gas Co. v. Garvin, 368 S.W.2d 309, 1963 Ky. LEXIS 40 ( Ky. 1963 ).

Where the petition to condemn an easement for gas pipeline was over a 129-acre tract, and the landowners did not by pleading seek to include in the assessment of damages any part of their other land and made no claim of entity or unity of the tracts except in their instructions to the jury which were refused, damage to land other than the 129-acres could not be considered in determining incidental damages to remainder of tract. Central Kentucky Natural Gas Co. v. Long, 312 S.W.2d 894, 1958 Ky. LEXIS 242 ( Ky. 1958 ).

Evidence of the valuation placed on their property by the landowners for tax purposes was an important factor which the jury should have been permitted to consider in arriving at a proper verdict consequently the exclusion of it was prejudicial. Texas Gas Transmission Corp. v. Rose, 365 S.W.2d 332, 1963 Ky. LEXIS 220 ( Ky. 1963 ).

Easement was properly granted to a gathering pipeline operator because there was no requirement that a private company obtain an appraisal; therefore, there was no error in making a cash offer based upon an amount offered for the same easements previously. Milam v. Viking Energy Holdings, LLC, 370 S.W.3d 530, 2012 Ky. App. LEXIS 99 (Ky. Ct. App. 2012).

5. Court of Appeals.

Court of Appeals will not exercise original jurisdiction in the absence of a showing that an inferior court is acting without jurisdiction, or is acting within its jurisdiction but erroneously and in such a manner that great and irreparable injury will follow therefrom and the petitioner is without adequate remedy. Linn v. Bryan, 312 Ky. 203 , 226 S.W.2d 959, 1950 Ky. LEXIS 626 ( Ky. 1950 ).

6. Types of Pipelines.

Easement was properly granted to a gathering pipeline operator across property because the definition of a public service under KRS 278.502 was met; despite the regulatory treatment of different types of pipelines, there was no authority to extend the difference to KRS 278.502 . Milam v. Viking Energy Holdings, LLC, 370 S.W.3d 530, 2012 Ky. App. LEXIS 99 (Ky. Ct. App. 2012).

7. Good Faith.

Easement was properly granted to a gathering pipeline operator because the operator engaged in good faith negotiations prior to filing a condemnation petition; the proper corporate entity conducted the negotiations, and good faith negotiations were undertaken based on the written correspondence. Milam v. Viking Energy Holdings, LLC, 370 S.W.3d 530, 2012 Ky. App. LEXIS 99 (Ky. Ct. App. 2012).

8. Notice of Public Right to Use.

Owner of pipeline had no right of condemnation without giving notice that public generally would have the right to the use of the pipeline. Producers Pipe Line Co. v. Martin, 22 F. Supp. 44, 1938 U.S. Dist. LEXIS 2354 (D. Ky. 1938 ) (decided under prior law).

9. Rights of Lessee.

A lease giving an exclusive right to cross lands by pipelines being against public policy, the holder of the right was not entitled to compensation for the invasion of its exclusive right in condemnation proceedings by another of a similar right of way across the same lands. Calor Oil & Gas Co. v. Franzell, 128 Ky. 715 , 109 S.W. 328, 33 Ky. L. Rptr. 98 , 1908 Ky. LEXIS 95 ( Ky. 1908 ) (decided under prior law).

10. Franchise Tax.

Although company had never exercised power of eminent domain it was liable for franchise tax under KRS 136.120 where it conveyed gas or oil through pipeline and sold it to companies who resold to consumers. Martin v. Producers Pipe Line Co., 113 F.2d 817, 1940 U.S. App. LEXIS 3466 (6th Cir. 1940), cert. denied, Producers Pipeline Co. v. Martin, 311 U.S. 715, 61 S. Ct. 397, 85 L. Ed. 465, 1940 U.S. LEXIS 12 (1940), cert. denied, Producers Pipeline Co. v. Martin, 311 U.S. 715, 61 S. Ct. 397, 85 L. Ed. 465, 1940 U.S. LEXIS 12 (1940) (decided under prior law).

Company conveying gas or oil through pipeline and selling to companies reselling to consumers performed public service and had power of eminent domain and was subject to franchise tax imposed by KRS 136.120 . State Tax Com. v. Petroleum Exploration, 253 Ky. 119 , 68 S.W.2d 777, 1933 Ky. LEXIS 977 ( Ky. 1933 ) (decided under prior law).

11. Eminent Domain Authority.

Pipeline company lacked the power to invoke eminent domain under Ky. Rev. Stat. Ann. § 278.502 as the legislature only intended to delegate eminent domain power to companies regulated by the Public Service Commission, and the natural gas liquids were not reaching Kentucky consumers. Bluegrass Pipeline Co., LLC v. Kentuckians United to Restrain Eminent Domain, Inc., 478 S.W.3d 386, 2015 Ky. App. LEXIS 73 (Ky. Ct. App. 2015).

Cited:

Barker v. Lannert, 310 Ky. 843 , 222 S.W.2d 659, 1949 Ky. LEXIS 1022 ( Ky. 1949 ); Gulf Interstate Gas Co. v. Garvin, 303 S.W.2d 260, 1957 Ky. LEXIS 236 ( Ky. 1957 ); Central Kentucky Natural Gas Co. v. Long, 312 S.W.2d 894, 1958 Ky. LEXIS 242 ( Ky. 1958 ); Texas Gas Transmission Corp. v. Rose, 365 S.W.2d 332, 1963 Ky. LEXIS 220 ( Ky. 1963 ).

Opinions of Attorney General.

Oil and gas companies cannot condemn public property. OAG 79-346 .

Research References and Practice Aids

Cross-References.

Pipeline excavations crossing public road, duty of pipeline company concerning, KRS 179.260 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Condemnation (Eminent Domain), § 307.00.

Natural Gas

278.504. Definitions for KRS 278.505 to 278.507.

As used in KRS 278.505 to 278.507 , unless the context requires otherwise:

  1. “Intrastate pipeline” means any utility or any other person engaged in natural gas transportation in intrastate commerce, for compensation, to or for another person or to or for the public, but shall not include any part of any pipeline dedicated to storage or gathering or low pressure distribution of natural gas;
  2. “Interstate pipeline” means any person engaged in natural gas transportation subject to the jurisdiction of the Federal Energy Regulatory Commission under the Natural Gas Act or the Natural Gas Policy Act of 1978;
  3. “Local distribution company” means any utility or any other person, other than an interstate pipeline or an intrastate pipeline, engaged in transportation or local distribution of natural gas and the sale of natural gas for ultimate consumption, but shall not include any part of any pipeline primarily used for storage or gathering or low pressure distribution of natural gas;
  4. “Intrastate commerce” includes the production, gathering, treatment, processing, transportation and delivery of natural gas entirely within the Commonwealth which is not subject to the jurisdiction of the Federal Energy Regulatory Commission under the Natural Gas Act or the Natural Gas Policy Act of 1978;
  5. “Transportation” includes exchange, backhaul, displacement or other means of transportation; and
  6. “Person” includes natural persons, partnerships, corporations, and two (2) or more persons having a joint or common interest.

History. Enact. Acts 1984, ch. 39, § 1, effective July 13, 1984.

Compiler’s Notes.

The Natural Gas Act, referred to in subdivisions (2) and (4) of this section, is compiled as 15 USCS § 717f. The Natural Gas Policy Act of 1978, referred to in subdivisions (2) and (4) of this section, is compiled as 15 USCS §§ 3301 et seq.

278.505. Transportation of natural gas in intrastate commerce by pipelines or local distribution companies with unused excess capacity.

  1. The Public Service Commission may, by rule or order, authorize and require the transportation of natural gas in intrastate commerce by intrastate pipelines, or by local distribution companies with unused or excess capacity not needed to meet existing obligations of the pipeline or distribution company, for any person for one or more uses, as defined by the commission by rule, in the case of:
    1. Natural gas sold by a producer, pipeline or other seller to such person; or
    2. Natural gas produced by such person.
  2. The rates and charges of any intrastate pipeline or local distribution company with respect to any transportation authorized and required under this section shall be fair and reasonable.
  3. Nothing in this section is intended to relieve any intrastate pipeline of further obligations as a common carrier under KRS 278.470 , 278.480 , and 278.490 .

History. Enact. Acts 1984, ch. 39, § 2, effective July 13, 1984.

278.506. Gas to meet pipeline quality standards — Delivery and curtailment provisions.

All natural gas, authorized and required to be transported pursuant to KRS 278.505 shall:

  1. Be of the same quality and meet the same specifications as that natural gas being purchased by the intrastate pipeline or local distribution company as contained in the Federal Energy Regulatory Commission tariff applicable to the intrastate pipeline or local distribution company’s natural gas supplier;
  2. Be delivered to the intrastate pipeline or local distribution company by the person for whom the natural gas is to be transported at a point in the system technically capable of receiving gas at the proposed delivery rate and proper pressure;
  3. Be transported pursuant to a written contract between the parties setting forth specific arrangements as to volumes to be transported, points of delivery, method of metering, timing of receipts and deliveries of gas and other matters relating to individual customer circumstances;
  4. Not be transported if the performance of this service would detrimentally affect the ability of the intrastate pipeline or local distribution company to supply regular gas service to its customers;
  5. Be subject to curtailment and interruption when in the judgment of the intrastate pipeline or local distribution company, said curtailment or interruption is necessary to enable the maintenance of deliveries to residential and other high priority customers or to respond to an emergency.

History. Enact. Acts 1984, ch. 39, § 3, effective July 13, 1984.

278.507. Public Service Commission’s policy to facilitate greater use of natural gas produced in Kentucky — Commission’s duties and prohibited activities.

  1. It shall be the policy of the Public Service Commission to facilitate greater utilization of the natural gas produced or available for production within the state, where this can be done without detriment to the customers of utilities under jurisdiction of the commission.
  2. This policy may be implemented by requiring the transportation of natural gas in intrastate commerce for persons who own or have purchased gas, as provided in KRS 278.505 .
  3. The commission shall maintain at its offices for public inspection all rates and charges for natural gas transportation which are filed with the commission, and copies of federal or state rules which govern transportation of natural gas.
  4. The commission may implement this policy by gathering and maintaining, for public inspection, various information concerning natural gas markets. Such information may include, but not by way of limitation:
    1. Lists of producers of undedicated natural gas, together with such descriptions of available quantity, location or price as may be available to the commission;
    2. Lists of persons seeking a supply of natural gas, together with such descriptions as may be available to the commission;
    3. Sources of legal or technical expertise in natural gas procurement or marketing, which may be available to the commission;
    4. Transportation contracts filed with the commission, except to the extent that the parties to such contracts have requested that portions of these contracts be treated as confidential.
  5. The commission may adopt or develop model contracts or forms if it determines that such models would simplify negotiations between parties in the direct sale of natural gas.
  6. The commission shall not implement this policy by engaging directly in the procurement or marketing of natural gas as an agent of any person.
  7. The commission shall not regulate contracts between producers and purchasers of natural gas except to the extent that any party or parties to the contract are otherwise subject to commission regulation and commission review of contracts under this chapter.

History. Enact. Acts 1984, ch. 39, § 4, effective July 13, 1984.

278.508. Exemption of sale of natural gas used as a motor vehicle fuel from regulation — Regulation of transportation, distribution, or delivery of natural gas used as a motor vehicle fuel.

  1. Notwithstanding any other provisions of this chapter, the rates, terms, and conditions of service for the sale of natural gas to a compressed natural gas fuel station, retailer, or to any end-user for use as a motor vehicle fuel, shall not be subject to regulation by the Kentucky Public Service Commission. Any utility provider of such a nonregulated service shall keep separate records and books of account adequate to allow the commission to allocate costs and revenues and to perform other acts that will assist the commission in enforcing this section.
  2. The transportation, distribution, or delivery of natural gas to any compressed natural gas fuel station, retailer, or any end-user for use as a motor vehicle fuel, shall continue to be subject to regulation by the Kentucky Public Service Commission. Upon request by the utility, the commission shall set flexible rates which provide a fair opportunity to compete with other motor fuels. Price adjustment pursuant to these flexible rates are not rate changes for purposes of this chapter.
  3. The sales or transportation transactions described in this section shall not adversely affect the regulated utility’s cost or costs, or the availability of natural gas to its utility sales customers.

History. Enact. Acts 1992, ch. 273, § 1, effective July 14, 1992.

278.5085. Presumption of reasonableness of supply contract for natural gas produced from coal through gasification process.

If a gas distribution utility as defined in KRS 278.010(3)(b) enters into a twenty (20) year supply contract with any person for pipeline quality synthetic natural gas produced from coal through a gasification process, the commission shall find the transaction reasonable and shall allow the utility to recover the cost of the synthetic natural gas if:

  1. The only coal used in the gasification process is coal subject to the tax imposed under KRS 143.020 ;
  2. The price per million British thermal units (BTU) is no greater than the long-term market price derived from the simple average of the Henry Hub monthly futures prices for natural gas as reported by the New York Mercantile Exchange (NYMEX) for the sixty (60) months immediately following the effective date of the contract, adjusted annually based upon the change in the Annual Consumer Price Index for All Urban Consumers for the Midwest Region as published in April by the United States Department of Labor, Bureau of Labor Statistics, or a suitable Consumer Price Index calculation if this Consumer Price Index is not available. The total price adjustment over the life of the contract shall not exceed one dollar and fifty cents ($1.50) per million BTU; and
  3. The utility’s aggregate long-term supply contracts for the purchase of synthetic natural gas produced from coal through the gasification process do not exceed twenty five-percent (25%) of the annual system supply requirements of the utility, by volume, as measured in thousand cubic foot units (Mcf) at the time the utility enters into the contract.

History. Enact. Acts 2006, ch. 55, § 1, effective July 12, 2006.

Legislative Research Commission Note.

(7/12/2006). A reference to “million cubic foot units (Mcf)” in subsection (3) of 2006 Ky. Acts ch. 55 has been changed in codification by the reviser of statutes to correct a drafting error to read “thousand cubic foot units (Mcf)” to conform with the U. S. Census Bureau’s Harmonized Commodity Description and Coding System which collects information based on the metric standard.

278.509. Recovery of costs for investment in natural gas pipeline replacement programs.

Notwithstanding any other provision of law to the contrary, upon application by a regulated utility, the commission may allow recovery of costs for investment in natural gas pipeline replacement programs which are not recovered in the existing rates of a regulated utility. No recovery shall be allowed unless the costs shall have been deemed by the commission to be fair, just, and reasonable.

History. Enact. Acts 2005, ch. 148, § 2, effective June 20, 2005.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Authority of Commission.
1. Constitutionality.

KRS 278.509 is not an unconstitutional violation of the title and single-subject provisions of Ky. Const. § 51; KRS 278.509 is sufficiently embraced within the term “gas delivery systems” to comply with Ky. Const., § 51, and although no other provision in the bill containing the present version KRS 278.509, HB 440, related to utility rates, a fraud was not committed, and the General Assembly did not title the Act to deceive the public. Ky. PSC v. Commonwealth ex rel. Stumbo, 2008 Ky. App. LEXIS 348 (Ky. Ct. App. Nov. 7, 2008), aff'd in part and rev'd in part, 324 S.W.3d 373, 2010 Ky. LEXIS 257 ( Ky. 2010 ).

2. Authority of Commission.

Prior to the enactment of KRS 278.509 , the Public Service Commission had no authority to approve a utility company’s Accelerated Main Replacement Program (AMRP) Riders because the PSC could not authorize the imposition of a surcharge for the company’s gas main replacement program without specific statutory authorization, and KRS 278.030 and 278.040 did not confer authority upon the PSC to approve the AMRP Rider. Ky. PSC v. Commonwealth ex rel. Stumbo, 2008 Ky. App. LEXIS 348 (Ky. Ct. App. Nov. 7, 2008), aff'd in part and rev'd in part, 324 S.W.3d 373, 2010 Ky. LEXIS 257 ( Ky. 2010 ).

The Public Service Commission has authority to approve a utility company’s Accelerated Main Replacement Program (AMRP) Riders after the enactment of KRS 278.509 ; although the 2005 amendment to KRS 278.509 did not apply to AMRP Riders approved prior to its effective date, that did not preclude the recovery of those same costs through a general rate increase. “Costs” as used in KRS 278.509 included the recovery of the company’s return on investment, and a return on investment was a “cost” recognized in the common usage of the term and in the statutory scheme applicable to the regulation of public utilities. Ky. PSC v. Commonwealth ex rel. Stumbo, 2008 Ky. App. LEXIS 348 (Ky. Ct. App. Nov. 7, 2008), aff'd in part and rev'd in part, 324 S.W.3d 373, 2010 Ky. LEXIS 257 ( Ky. 2010 ).

Kentucky Public Service Commission had plenary authority to allow a utility to adjust its rates by imposing a surcharge or accelerated main replacement program rider so long as the rates established by the utility were fair, just, and reasonable and even in the absence of specific statutory authority provided under KRS 278.509 . Ky. PSC v. Commonwealth ex rel. Conway, 324 S.W.3d 373, 2010 Ky. LEXIS 257 ( Ky. 2010 ).

Telephone and Telegraph Companies

278.510. Consolidation of telephone lines. [Repealed]

History. 4679e-1, 4679e-2, 4679e-4: amend. Acts 1978, ch. 379, § 52, effective April 1, 1979; 1982, ch. 82, § 48, effective July 15, 1982; repealed by 2019 ch. 66, § 3, effective June 27, 2019.

278.512. Legislative findings — Exemption of telecommunications product or service from regulation.

  1. The legislature finds and determines that:
    1. Competition and innovation have become commonplace in the provision of certain telecommunications services in Kentucky and the United States;
    2. Flexibility in the regulation of the rates of providers of telecommunications service is essential to the well-being of this state, its economy, and its citizens; and
    3. The public interest requires that the Public Service Commission be authorized and encouraged to formulate and adopt rules and policies that will permit the commission, in the exercise of its expertise, to regulate and control the provision of telecommunications services to the public in a changing environment, giving due regard to the interests of consumers, the public, the providers of the telecommunications services, and the continued availability of good telecommunications service.
  2. Notwithstanding any other statute to the contrary, the commission may, on its own motion or upon motion of a telecommunications utility, after notice and opportunity for comment, and hearing if requested, exempt to the extent it deems reasonable, services or products related to telecommunications utilities or persons who provide telecommunications services or products from any or all of the provisions of this chapter, or may adopt alternative requirements for establishing rates and charges for any service by a method other than that which is specified in this chapter, if the commission finds by clear and satisfactory evidence that it is in the public interest. No exemption shall be granted under this statute which preempts, without notice and without hearing, if requested, the existing rights and obligations of a local exchange company to serve a territory under a tariff approved by the Public Service Commission. Any party which seeks an exemption shall certify to the commission at the time of the filing that he has notified the affected local exchange company by registered mail of the filing of a petition for exemption, and of the right of the local exchange company to request a hearing within thirty (30) days of the notification.
  3. In determining public interest, the commission shall consider the following:
    1. The extent to which competing telecommunications services are available from competitive providers in the relevant market;
    2. The existing ability and willingness of competitive providers to make functionally equivalent or substitute services readily available;
    3. The number and size of competitive providers of service;
    4. The overall impact of the proposed regulatory change on the continued availability of existing services at just and reasonable rates;
    5. The existence of adequate safeguards to assure that rates for services regulated pursuant to this chapter do not subsidize exempted services;
    6. The impact of the proposed regulatory change upon efforts to promote universal availability of basic telecommunications services at affordable rates and upon the need of telecommunications companies subject to the jurisdiction of the commission to respond to competition;
    7. Whether the exercise of commission jurisdiction inhibits a regulated utility from competing with unregulated providers of functionally similar telecommunications services or products;
    8. The overall impact on customers of a proposed change to streamline regulatory treatment of small or nonprofit carriers; and
    9. Any other factors the commission may determine are in the public interest.
  4. When the commission exempts a telecommunications product or service from all of the provisions of this chapter, the investment, revenues, and expenses associated with the service or product shall not be considered by the commission in setting rates for the telecommunications company’s regulated services. This provision shall only apply to telecommunication products or services which the commission exempts after July 14, 1992. Nothing herein shall prohibit the commission from having access to and from examining the books and records of the exempted product or service in order to determine compliance with the commission’s rules respecting allocation of cost when setting rates for the telecommunications company’s regulated services.
  5. The Public Service Commission shall retain jurisdiction over persons and services which are exempted from regulation under this section, or for which alternative regulatory requirements have been established pursuant to this section. The commission, on its own motion, or upon the motion of any person, after notice and hearing, if requested, may vacate or modify any orders granting an exemption or establishing alternative requirements if it determines by clear and satisfactory evidence that the findings upon which the order was based are no longer valid, or that the exemption or modifications are no longer in the public interest.
  6. In granting or vacating exemptions, the Public Service Commission shall not be discriminatory or preferential but may treat services and utilities differently if reasonable and not detrimental to the public interest.
  7. The provisions of KRS 367.150(8) and 367.160, concerning the role of the Attorney General, shall apply to all proceedings under this section.

History. Enact. Acts 1992, ch. 306, § 1, effective July 14, 1992.

278.514. Exempted service not to be subsidized by nonexempted, regulated telecommunications services.

  1. Revenues derived from nonexempted, regulated telecommunications services, whether essential or nonessential, shall not be used to subsidize or otherwise give advantage to any person providing an exempted service. The commission shall require a provider of any exempted service to keep separate accounts, to allocate cost in accordance with procedures established by the commission, and may require other acts that will assist the commission in enforcing this section. Any person requesting an exemption or providing a service exempted pursuant to KRS 278.512 shall have the burden of proof to show compliance with this requirement.
    1. Except as provided in subsection (2)(b) of this section, any telecommunications utility that willfully violates subsection (1) of this section shall be subject to a penalty no greater than the revenue requirement effect of moneys determined to have been misallocated in the violation. For the purpose of calculating the penalty under this section, the commission shall not use a period longer than five (5) years. (2) (a) Except as provided in subsection (2)(b) of this section, any telecommunications utility that willfully violates subsection (1) of this section shall be subject to a penalty no greater than the revenue requirement effect of moneys determined to have been misallocated in the violation. For the purpose of calculating the penalty under this section, the commission shall not use a period longer than five (5) years.
    2. A local exchange carrier with fewer than thirty-five thousand (35,000) access lines who willfully violates subsection (1) of this section shall be subject to the penalties prescribed in KRS 278.990(1).

History. Enact. Acts 1992, ch. 306, § 2, effective July 14, 1992.

278.516. Alternative regulation process for small telephone utilities — Findings — Definitions — Procedures — Withdrawal.

  1. The legislature finds and determines that:
    1. Small telephone utilities lack the resources to fully participate in the existing regulatory processes, particularly under traditional rate of return and certificate of public convenience and necessity regulation;
    2. Regulation, if not tailored specifically to the needs of small telephone utilities, can retard the growth and development of small telephone utilities by requiring the expenditure of excessive time and money responding to and addressing regulatory processes instead of devoting those resources to customer service and more productive business concerns and issues; and
    3. It is in the public interest to provide regulatory flexibility to small telephone utilities to better enable them to adjust to the competition and innovation that has come and is coming to the telecommunications industry as found and determined by the legislature at KRS 278.512(1).
  2. In addition to the definitions set forth at KRS 278.010 , the following definitions shall apply to this section:
    1. “Telephone utility” means a telephone utility as defined at KRS 278.010 (3)(e) except that it includes local exchange carriers only;
    2. “Local exchange carrier” means a traditional wireline telephone utility which provides its subscribers with access to the national public switched telephone network;
    3. “Traditional wireline telephone utility” means one whose delivery of its telephone utility services is characterized by the predominant use of wire or wireline connections carrying communications transmissions between the subscriber of the utility and the national public switched telephone network;
    4. “Small telephone utility” means a local exchange carrier providing telephone utility service and having not more than fifty thousand (50,000) access lines in Kentucky;
    5. “Largest telephone utility” means the local exchange carrier providing telephone utility service in Kentucky and having the greatest number of access lines in Kentucky;
    6. “Access lines” mean the telephone lines provided by a local exchange carrier. In calculating the number of access lines provided by a local exchange carrier, the number of access lines provided by all telephone utilities under common ownership or control, as defined in KRS 278.020(7), with that telephone utility shall be counted;
    7. “GDP” means the real Gross Domestic Product Price Index, as it may be amended from time to time, as it is published by the Bureau of Economic Analysis of the United States Department of Commerce;
    8. “Annual percent change in the GDP” means, for any given calendar year, the annul percentage change in the GDP as it is calculated by the Bureau of Economic Analysis of the United States Department of Commerce;
    9. “Basic business rate” and “basic residential rate” mean the total rates or charges which must be paid by a business or residential subscriber, respectively, to a local exchange carrier in order to receive, outside of a standard metropolitan statistical area, telephone utility service within a specified geographic area for local calling and for which tariffed rates or charges are assessed, regardless of the amount of use of local calling;
    10. “Standard metropolitan statistical area” means any area in Kentucky designated as such, or as a part thereof, pursuant to 44 U.S.C. sec. 3504(d)(3) and 31 U.S.C. sec. 1104(d) , as they may be amended, by the Office of Management and Budget of the Executive Office of the President of the United States; provided, however, that for purposes of this section, “standard metropolitan statistical area” shall include only the two (2) largest, as measured by population, standard metropolitan statistical areas, regardless of whether that area is located wholly or partially in Kentucky;
    11. “Basic business service” or “basic residential service” means the service for which basic business rates or basic residential rates are charged;
    12. “Average basic business or residential rate, including zone charges,” means the total revenues which should be produced by the imposition of those rates or charges divided by the number of access lines to which those rates or charges are applicable;
    13. “Zone charges” mean mileage or zone charges and are the charges assessed by a telephone utility on the basis of a subscriber’s distance from a central office in order that the subscriber may receive basic business or residential services;
    14. “Subscriber” means the person or entity legally and financially responsible for the bill rendered by a telephone utility for its services;
    15. “Intrastate access charges” mean the charges assessed for use of the telecommunications facilities of one telephone utility by another person or entity in order to deliver to the public for compensation telephone messages originating and terminating within Kentucky;
    16. “Interstate access charges” mean the charges assessed for use of the telecommunications facilities of one (1) telephone utility by another person or entity in order to deliver to the public for compensation telephone messages originating or terminating, but not both, in Kentucky; and
    17. “Pic charges” are charges assessed by a local exchange carrier in order to implement a change in a subscriber’s long distance carrier.
    1. If a small telephone utility elects to be regulated as provided in subsection (7) of this section, a small telephone utility once during any twenty-four (24) month period may adjust or implement each of the following rates or charges: basic business rate; basic residential rate; zone charges; or installation charges for basic business or basic residential services by an amount not to exceed the sum of the annual percentage changes in the GDP for the immediately preceding two (2) calendar years multiplied by the existing rate or charge to be adjusted. However, in no event shall a small telephone utility so adjust: (3) (a) If a small telephone utility elects to be regulated as provided in subsection (7) of this section, a small telephone utility once during any twenty-four (24) month period may adjust or implement each of the following rates or charges: basic business rate; basic residential rate; zone charges; or installation charges for basic business or basic residential services by an amount not to exceed the sum of the annual percentage changes in the GDP for the immediately preceding two (2) calendar years multiplied by the existing rate or charge to be adjusted. However, in no event shall a small telephone utility so adjust:
      1. Its basic business rate, including zone charges, if the resulting average basic business rate, including zone charges, would thereby exceed the average basic business rate, including zone charges, of the largest telephone utility;
      2. Its basic residential rate, including zone charges, if the resulting average basic residential rate would thereby exceed the average basic residential rate including zone charges, of the largest telephone utility; or
      3. If its average basic business rate, including zone charges, its average basic residential rate, including zone charges, or its installation charges for basic business or basic residential services would be increased by more than twenty percent (20%).
    2. At least sixty (60) calendar days before the effective date of such an adjustment of its rates or charges, a small telephone utility shall file a copy of its revised rates and tariffs with the commission and shall mail notice of the proposed rate adjustment to each affected subscriber and the commission. The notice shall state:
      1. The GDP for the preceding two (2) calendar years;
      2. The amount by which any of the small telephone utility’s rates or charges identified in subsection (3)(a) of this section will be adjusted; and
      3. The right of subscribers to object to the adjustment and request commission review by filing a letter or petition with the commission.
    3. If by the forty-fifth calendar day following the date of the notice to subscribers of such a proposed adjustment to its rates or charges, the commission has received letters or petitions requesting commission review of the adjustment signed by at least five hundred (500) subscribers or five percent (5%) of subscribers, whichever is greater, the commission shall immediately notify the small telephone utility of this fact, and the proposed rate adjustment shall not become effective as scheduled. The small telephone utility may withdraw the proposed rate or charge adjustment, or if it decides to proceed, the commission shall review the proposed rate adjustment as though no election had been made pursuant to subsection (7) of this section.
  3. Any other provision of this chapter notwithstanding, a small telephone utility which has elected to be regulated pursuant to this section may adjust any of its rates, charges, or tariffs, except for:
    1. Its basic business rate;
    2. Its basic residential rate;
    3. Its zone charges;
    4. Its installation charges for basic business or basic residential services;
    5. Its access charges; or
    6. Its pic charges,
  4. A small telephone utility which has elected to be regulated pursuant to this section shall not:
    1. Adjust its intrastate access charges if the adjustment requires the small telephone utility’s access charge customers, including interexchange carriers, to pay intrastate access charges at levels exceeding the small telephone utility’s interstate access charge levels; or
    2. Adjust its intrastate pic charges if the adjustment requires the small telephone utility’s customers to pay intrastate pic charges at levels exceeding the small telephone utility’s interstate pic charge levels.
  5. The rates, charges, earnings, or revenues of a small telephone utility which has elected to be regulated pursuant to this section and is in compliance with the provisions of this section shall be deemed by the commission to be in compliance with KRS 278.030(1).
  6. A small telephone utility may elect, at any time, to be regulated by the provisions, in their entirety only, of this section by filing a verified resolution of the utility’s board of directors, or other governing body, so electing with the commission. An election shall be effective immediately upon filing with the commission and shall remain effective until withdrawn by the filing with the commission of a verified resolution of the small telephone utility’s board of directors or other governing body; provided, however, that all resolutions of election or withdrawal shall remain in effect for at least one (1) year from the date of their filing with the commission. A resolution electing to be regulated by the provisions of this section shall mean that the small telephone utility so electing shall be regulated by this section and shall not be regulated by KRS 278.020(1) and 278.300 . Nothing in this section, however, shall be construed to alter the applicability of KRS 278.020(5) or 278.030(2) to small telephone utilities electing to be regulated by the provisions of this section.
  7. A small telephone utility which has elected to be regulated pursuant to this section may file an application with the commission pursuant to KRS 278.020(1), and, if a utility does so, that application shall be deemed to have been granted unless within thirty (30) calendar days following the filing of the application, the commission denies the application. If the application is denied or none is filed, the small telephone utility electing to be regulated pursuant to this section may engage in the construction of the plant or facilities, or the purchase of equipment or properties, to provide the services described in KRS 278.010(3)(e). However, if the small telephone utility subsequently files a resolution of withdrawal under subsection (7) of this section, the increased value of property that resulted from any construction project denied approval by the commission or not submitted to the commission for approval may be excluded from the small utility’s rate base for rate making purposes if the cost of construction exceeded one million dollars ($1,000,000) or five percent (5%) of the value of the small telephone utility’s property as reflected in the utility’s most recent annual report filed with the commission.

without regard to the effect on its revenues, by filing its proposed rates, charges, or tariffs with the commission and by notifying its subscribers, both at least thirty (30) calendar days prior to the effective date of its proposed rates, charges, or tariffs.

The small telephone utility may decrease its intrastate access charges or intrastate pic charges to any level without restriction. Adjustments to intrastate access charge rates or intrastate pic charges shall be effective thirty (30) calendar days following the filing of access charge tariffs or pic charge tariffs with the commission.

History. Enact. Acts 1996, ch. 71, § 1, effective July 15, 1996; 2004, ch. 75, § 2, effective July 13, 2004; 2016 ch. 50, § 3, effective April 8, 2016.

278.520. Transmission of long distance messages from other telephone lines.

Telephone companies operating exchanges in different cities shall receive and transmit each other’s messages without unreasonable delay or discrimination. The telephone exchange receiving any message from the exchange in which the message originat