C. & O. Ry. Co. v. Harmon
| Decision Date | 09 May 1913 |
| Citation | 153 Ky. 669 |
| Court | Kentucky Court of Appeals |
| Parties | Chesapeake & Ohio Railway Co. v. D. O. Harmon, Police Judge. |
Appeal from Floyd Circuit Court.
HARKINS & HARKINS, WORTHINGTON, COCHRAN & BROWNING and F. T. D. WALLACE for appellant.
MAY & MAY, B. F. COMBS, JNO. C. HOPKINS, JR., WILL H. LAYNE and S. C. FERGUSON for appellee.
On January 7, 1913, the board of council of Prestonsburg, a city of the fifth class, passed the following ordinance.
This ordinance went into effect and became operative at the expiration of thirty-six hours after its passage.
Appellant, Chesapeake and Ohio Railway Company, owns and operates a line of railroad which passes through the City of Prestonsburg, and in doing so crosses some of its streets or highways.
It failed to erect and maintain gates at any of such crossings and because of such failure a warrant, or warrants, were issued against it for the violation of the ordinance in question, by the appellee D. O. Harmon, Police Judge of Prestonsburg. Following the issuance of such warrant or warrants, appellant brought this action in the Floyd Circuit Court attacking the validity of the ordinance, seeking by injunction to restrain the city authorities from enforcing it and the Police Judge from proceeding with the prosecutions set on foot by the warrants issued against it. A temporary injunction was granted as prayed in the petition. Appellee answered traversing the averments of the petition, alleging the proper passage of the ordinance, the necessity therefor, and the authority of the city council to enact it. Evidence was taken by both parties and, upon a hearing, the circuit court by its judgment sustained the validity of the ordinance, the prosecutions instituted for its enforcement and dissolved the temporary injunction. From that judgment this appeal is prosecuted.
Appellant's attack upon the ordinance is bottomed upon numerous grounds, of which only the following need be mentioned.
First: That the council were without authority to pass it, and it is unreasonable and oppressive in meaning and effect because it requires of appellant the performance of duties unnecessary to the safety of the citizens of Prestonsburg.
Second: That it was unreasonably made operative in so short a time after its passage that it was impossible for appellant to comply with its provisions before the prosecutions were set on foot against it, as it would take three months' time for it to install for operation at its crossings in the city the safety gates required by the ordinance.
Third: That the ordinance is unreasonable and oppressive because its enforcement would impose upon appellant, unnecessary, unreasonable and unusual cost, to erect and maintain the safety gates and thereby deprive it of its property without due process of law, contrary to the Constitution of the United States and that the State of Kentucky. We have repeatedly held that if a city ordinance is invalid, one who is affected by it has a right, in order to prevent an irreparable injury and multiplicity of prosecutions, to go into a court of equity for relief. Boyd v. Board of Council of City of Frankfort, 117 Ky., 212; Newport v. Newport Bridge Company, 90 Ky., 193; South Covington, et al. v. Berry, et al., 93 Ky., 43. Therefore in bringing the present action appellant has not mistaken its remedy.
If appellant's first contention, that the common council of Prestonsburg were without authority to pass the ordinance, should be sustained, a decision upon the other grounds urged will be unnecessary. While the ordinance by its terms requires the erection of safety gates at all railroad crossings within the city limits, it appears from the record that the prosecutions instituted against appellant were because of its failure to provide such gates at only one of these crossings, which is situated near the end of a bridge for pedestrians and vehicles, which crosses the Big Sandy River and connects the two sections of the city lying on either side of the stream.
The crossing referred to is used more than any other in the city, and the danger attending its use seems to be materially increased by the noises emanating from a coal tipple near it, which tend to prevent persons using the crossing from hearing the noises and signals made by approaching trains. Although it appears that an accident has never happened at this crossing during the more than eight years appellant's trains have been running through Prestonsburg, it must be conceded that the crossing is a dangerous one at which accidents are at all times probable; and whatever may be said as to the unreasonableness of the ordinance in requiring safety gates at all railroad crossings in the city, as applied to this particular crossing, its provisions, if enforceable, are not unreasonable. But this feature of the case will be laid aside for consideration of the more important question, had the council the power to require the erection and maintenance of the safety gates at any railroad crossing within the limits of the city? We must look to the provisions of the Kentucky Statutes with respect to cities of the fifth class to ascertain whether the council of Prestonsburg possess the power attempted to be exercised by them, in adopting the ordinance complained of, and, after a careful examination of those provisions we are constrained to hold that they fail to disclose the existence of such power.
It seems to be conferred by the statutes, though in differing language, upon cities of each class above that of the fifth, but withheld from those of the fifth and sixth class. Thus in section 3490, subsection 25, Kentucky Statutes, relating to cities of the fourth class, we find it provided:
"The board of council may grant the right of way over the public streets or public ground of the city to any railroad company or street railroad company, on such condition as to them may seem proper, and shall have a supervising control over the use of same, and shall regulate the speed of cars and signals and fare on street cars; * * * and may compel any railroad company to erect and maintain gates at any or all street crossings, and to prevent railways from blocking or obstructing the streets or public ways of the city, and to fix penalties for the violation of these provisions: Provided, That nothing herein shall be...
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