feiture for such violation be thereby imposed. For either a willful or negligent violation of the statute in question a person thereby injured may recover damages in a civil action. In those jurisdictions where the statute itself gives a right of action only in the case of willful negligence, a different, rule prevails. Odin Coal Co. v. Denman (Ill.) 76 Am. St. Rep., 45. Complaint is made of instruction No. 5, which is as follows: "Although you may believe from the evidence that the defendant failed to provide and furnish to plaintiff the props as required by instruction No. 1, and that by reason of such failure, the place where plaintiff was at work was dangerous, and that plaintiff knew thereof, yet, you should not on that account find against the plaintiff unless you shall believe from the evidence that the defect in the roof of the mine at the place where he was and the dangers therefrom were so obvious as that none but the reckless would have remained therein and proceeded to work thereunder." It will be observed that the foregoing instruction relieves the plaintiff from any negligence in working without the props unless the danger therefrom was so obvious as that none but the reckless would have remained therein and proceeded to work thereunder. Where the master fails to furnish props and the servant nevertheless remains at work, the correct rule is that the master is still liable for any injury caused by lack of props, unless the danger therefrom is not only imminent, but so obvious that an ordinarily careful man would not have worked under the circumstances. Low v. Clear Creek Coal Co., 140 Ky., 754. Recklessness is something more than a failure to exercise ordinary care. It more nearly approaches gross negligence, which is certainly not the standard by which the employee's duty is to be measured. We are, therefore, of the opinion that the instruction did not properly present the law of the case. Plaintiff's own evidence shows that the props should not have been further apart than a man's body. He was working at a place between 8 and 12 feet from the last props. While claiming that he tested the roof and found nothing to indicate that it was likely to fall, defendant's evidence shows that had such a test been made the true condition of the roof would have been disclosed. Notwithstanding this fact he remained at work. The instruction in question presented the only defense the defendant had, yet presented it in such a form as to excuse defendant only in the event that plaintiff was reckless. Under these circumstances we conclude that defendant's substantial rights were prejudiced. Judgment reversed and cause remanded for a new trial consistent with this opinion. Gathright, et al. v. H. M. Byllesby & Company, et al. 1 2. 3. 5. (Decided May 28, 1913.) Appeal from Jefferson Circuit Court Municipal Corporations-Ordinance-When Void.-An ordinance Corporations-Amendment of Ordinances.-Section 2777 of the Kentucky Statutes, whch provides that no ordinance shall be altered or amended in any way except by repealing it, was intended to prevent loose legislation of doubtful meaning rather than to control parties in the exercise of their rights under existing ordinances. 4. Municipal Corporations-Granting of New Franchise Upon Expiration of Original Franchise.-Where a gas franchise expires, and the city is required under section 3037d of the Kentucky Statutes to sell a similar franchise, the owner of the expiring franchise is the only one that can complain if the city offers to sell a new franchise different from the one that has expired. Municipal Corporations-Power to Contract as to Existing Franchise. A municipality cannot, in the absence of express legislative authority, make contracts or pass by-laws which would cede away, control or embarrass its legislative or governmental powers, or which would disable it from performing its public duties; but this rule does not prevent the municipality from contracting with the owner of the franchise to waive a contract right. 6. Municipal Corporations-Power to Contract.-Where, under the charter of a gas company, the city had the right to purchase the plant at the expiration of the charter, the city has the power to grant a new franchise and to postpone the purchase of the plant until the expiration of the new franchise. 7. 8. 9. Municipal Corporations-Power to Contract for Future Maximum Rates for Electricity.-Where a municipality expressly reserves the right to make reasonable regulations of rates for electricity, an ordinance which provides that the city will, in the future, pass an ordinance fixing maximum rates for electricity to which the owner of the franchise to furnish electricity agrees, the ordinance is not illegal upon the ground that it undertakes to commit the General Council, in advance, to certain maximum rates, since the General Council may, at any time, fix other rates provided they be reasonable. Public Policy-How Expressed.—The public policy of a State is expressed in its Constitution and Statutes, and in its common law as found in the opinions of its court of last resort; and if the Constitution or Statutes speak upon a subject, the public policy of the State is fixed to that extent. Municipal Corporations-Contract-Public Policy.-The act of a municipality which has the sanction of law, cannot be against public policy. 10. Trusts-Pools-Subject to Fine Only.-Under the Act of 1906 (Kentucky Statutes section 3941a), known as the "Pooling Statute," and which amended the Act of 1890 (Kentucky Statutes, 3915 to 3941 inclusive) against "Pools, Trusts and Conspiracies," there is no prohibition against the formation of trusts or pools in Kentucky, since the Act of 1906 merely provides a fine against trusts and pools in case they sell their products above or below their real value. 11. Municipal Corporations-Franchise to be Sold After "Due Advertisement."—Under section 164 of the Constitution, which provides that a municipality can only sell a franchise "after due advertisement," the court cannot question the good faith of the council in fixing the length of the advertisement at not less than two weeks, and in two different newspapers. 12. Municipal Corporations-Sale of Franchise-Highest and Best Bidder. Under section 164 of the Constitution, which requires all franchises granted by a municipality to be sold publicly to the highest and best bidder, an ordinance which is so drawn as to confine the bidding to one person is invalid. 13. Municipal Corporations-Sale of Franchise-Exclusive Bidder.The mere fact, however, that one bidder has, by reason of his ownership of an existing franchise, or his capital, an advantage over other bidders, does not make him an exclusive bidder within the rule above laid down. 14. Municipal Corporations-Franchise May be Confined to Territory Already Occupied.-The fact that an ordinance for the sale of a gas or electric franchise is drawn so as to cover only territory already occupied by the pipes or wires of an existing company, will not invalidate the ordinance. 15. Municipal Corporations-May Waive Franchise Provision.—A provision in the franchise of an electric company prohibiting it from selling out to a competitor may be waived by an agreement be tween the owner of the franchise and the municipality that granted it. 16. Municipal Corporations-Waiver of Franchise-Exclusive Bidder. -Where the franchise of an electric company prohibited it from selling out to a competitor, and the municipality offered to sell a natural gas franchise, and agreed to waive the prohibition in favor of the competitor of the electric company in case it should buy the natural gas franchise, the ordinance offering the natural gas franchise for sale did not violate the rule against exclusiveness in public bidding, since the waiver merely put the competitor upon an equal footing with other bidders. WEHLE & WEHLE, W. W. THUM, C. C. HIEATT, JOHN H. CHANDLER and HENRY M. JOHNSON for plaintiffs. PENDLETON C. BECKLEY, J. W. S. CLEMENTS and STUART CHEVALIER for City of Louisville, et al. O'DOHERTY & YONTS for Kentucky Heating Company. A. J. CARROLL for Kentucky Electric Company. HUMPHREY, MIDDLETON & HUMPHREY for H. M. Byllesby & Company, et al. OPINION BY JUDGE MILLER-Dissolving Injunction. This injunction suit was brought by J. B. Gathright and fourteen other citizens and taxpayers of the city of Louisville, against "H. M. Byllesby & Company," incorporated, the Louisville Gas Company, the Kentucky Heating Company, the Kentucky Fuel Gas Company, the Louisville Lighting Company, the Kentucky Electric Company, the city of Louisville, W. O. Head, Mayor of the city of Louisville, Pendleton Beckley, attorney for said city, and John D. Wakefield, M. W. Neal, and James G. Caldwell, constituting the Board of Public Works of the city of Louisville, to enjoin the sale of a franchise for furnishing natural gas, manufactured gas and mixed gas to the city of Louisville and its citizens as provided by an ordinance of the city of Louisville approved March 29, 1913, and for other ancillary relief. An understanding of the case requires a somewhat extended statement of the facts upon which the action is based. Two ordinances were passed by the General Council of the city of Louisville, the first on March 27, 1913, and the other on March 28, 1913. Both were approved by the Mayor on March 29th. One ordinance provides for the sale of a franchise for furnishing natural gas, manufactured gas and mixed gas to the people of Louisville, while the other ordinance provides for the execution of a contract between the city of Louisville and "H. M. Byllesby & Company," which controls and operates certain companies engaged in the furnishing of gas and electricity in said city. The proposed contract, among other things, requires H. M. Byllesby & Company to bring natural gas into the city of Louisville; fixes maximum rates to be charged therefor, and defines certain rights of the city with reference to said companies. As above stated, this action seeks to prevent, by injunctive process, the carrying out of the plan contemplated by said ordinances. Pendleton Beckley, attorney for the city of Louisville, is also made a defendant, and an injunction is sought against him to prevent a dismissal of the case of the city of Louisville against the Kentucky Electric Company now pending in the Jefferson Circuit Court and which will hereinafter be noticed. The chancellor granted the relief asked, and enjoined further action under said ordinances; whereupon the defendant entered a motion before me, one of the judges of the Court of Appeals, to dissolve that injunction, as is provided by the Civil Code of Practice. On account of the importance of the questions involved, the case was heard by five of the judges of the court, in order that the decision might be the decision of the court rather than the opinion of a single judge thereof. The injunction is asked upon the ground that the General Council of the city of Louisville was without authority to pass said two ordinances, or at least one of them. Preliminary, however, to a discussion of the law of the case, it may be profitable, if not necessary, to consider the gas and electric light situation in Louisville. At present there are two gas companies and two electric light companies operating in Louisville. The Louisville Gas Company was chartered in 1838, for a period of thirty years. A new charter was granted it in 1868, for a period of twenty years; and in 1888 it obtained a third charter extending its existence for a term of thirty years. Its present charter will, therefore, expire on January 1st, 1919, and the city will then have the right to buy the gas plant if it should then conclude to take over the plant and to go into the business of furnishing D |