Brown v. Nichols

• Decision Date: 09 January 1915
• Docket Number: 19,107
• Citation: 93 Kan. 737,145 P. 561
• Parties: OSCAR W. BROWN, Appellant, v. WALTER NICHOLS et al., as the Board of Commissioners of the City of Abilene, Appellees
• Court: Kansas Supreme Court

145 P. 561

93 Kan. 737

OSCAR W. BROWN, Appellant, v. WALTER NICHOLS et al., as the Board of Commissioners of the City of Abilene, Appellees

No. 19,107

Supreme Court of Kansas

January 9, 1915

Decided. January, 1915.

Appeal from Dickinson district court; ROSWELL L. KING, judge.

Petition reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. INJUNCTION -- City Ordinance -- Prohibiting Use of Streets for Certain Business Purposes Invalid. A city ordinance which, in effect, prohibits one who owns and operates a machine shop from using the streets in bringing and taking traction engines and heavy vehicles to and from his shop, and thereby arbitrarily deprives him of an opportunity to carry on his business, is unreasonable and void.

2. SAME--Enjoining Prosecution of Criminal Proceedings. Ordinarily a court will not enjoin the prosecution of a criminal proceeding, but the remedy of injunction may be employed to protect personal and property rights, although it may operate incidentally to restrain a prosecution under an invalid ordinance.

David Ritchie, and G. A. Spencer, both of Salina, for the appellant.

C. S Crawford, of Abilene, for the appellees.

OPINION

JOHNSTON, C. J.

In an injunction proceeding Oscar W. Brown attacked the validity of an ordinance of the city of Abilene which purports to prohibit the driving of "any engine or heavy machinery upon the paved streets of the city of Abilene," and prescribes a fine not exceeding $ 50 for its violation. He also asked a recovery of damages for the loss sustained by reason of being deprived of the use of the streets. In his petition he alleged that he was conducting a machine shop in the city, which was so situated that he is unable to reach the railway station with engines or heavy machinery except by passing over paved streets, and that unless patrons are permitted to use these streets in order to bring in and take from the shop traction engines and other heavy machinery he will be unable to carry on his business; that his machine shop will be a total loss for the purposes for which it was acquired, and that it has already resulted in damage to him to the extent of $ 1000. There was an allegation that since the passage of the ordinance in June, 1913, the officers of the city had forcibly prevented him from taking machinery from the shop across Third street, and that it is impossible for him to reach the depots of the railways in carrying on his business without crossing that street. A demurrer to his petition was sustained by the trial court, and the main question presented on his appeal is whether the ordinance is so unreasonable as to be invalid.

Power is not expressly conferred on cities of the second class to prohibit the use of the streets for any particular kinds of travel and transportation, but under the general welfare clause it is doubtless within the power of the city to make reasonable regulations as to the use of streets and thus provide for the safety and convenience of travel and against unnecessary injury to the streets used. It is competent for the city to regulate the weight of loads that shall pass over the paved streets and to prescribe the width of tires of vehicles carrying heavy loads. It has been determined that municipalities may confine the passage of heavily loaded traffic to certain streets and exclude it from others, but the regulation must not be such as will deprive a citizen of access to his home or business house nor from all use of the streets for any of the recognized means of travel. (Notes, 31 L. R. A., n. s., 682; 45 L.R.A. N.S. 1152; 51 L.R.A. N.S 1203.) In Bogue v. Bennett, 156 Ind. 478, 60 N.E. 143, 83 Am. St. Rep. 212, it was held that a city ordinance prohibiting the running of traction engines or other vehicles not propelled by animal power over the streets and alleys of a city was unreasonable and therefore void. In State v. Boardman, 93 Me. 73, 44 A. 118, 46 L. R. A. 750, the validity of an ordinance which provided that teams with loaded wagons should be confined to a certain part of a street was challenged. The court held that a traveler is not entitled to the whole width of a street for his accommodation but "is entitled to a reasonably safe, convenient and practicable opportunity for travel and passage." (p. 78.) It was there decided that a regulation restricting the travel of heavily loaded vehicles to a part of the street would, in many cases, be both reasonable and salutary, but that if the part of the street open to travel for such vehicles was out of repair or in such a condition as to be impassable for loaded vehicles it...