Chesapeake & O. Ry. Co. v. City of Maysville

• Decision Date: 19 September 1902
• Citation: 69 S.W. 728
• Parties: CHESAPEAKE & O. RY. CO. v. CITY OF MAYSVILLE et al. [1]
• Court: Kentucky Court of Appeals

69 S.W. 728

CHESAPEAKE & O. RY. CO. v. CITY OF MAYSVILLE et al. ^[1]

Court of Appeals of Kentucky.

September 19, 1902

Appeal from circuit court, Mason county.

"Not to be officially reported."

Action by the Chesapeake & Ohio Railway Company against the city of Maysville and others to test the validity of a city ordinance. Judgment for defendants, and plaintiff appeals. Affirmed.

W. H Wadsworth, for appellant.

E. L Worthington, A. E. Cole & Son, and Thos. M. Wood, for appellees.

BURNAM J.

The board of councilmen of the city of Maysville passed the following ordinance:

"Section 1. Be it ordained by the board of council of the city of Maysville, that any and all railroad companies corporations or persons engaged in operating or in control of any line of railroad extending along and over Third street in the city of Maysville, and crossing Commerce, Poplar, Lexington or Wood streets in said city, shall at each and all of said crossings, where locomotives or trains are run, provide and maintain and properly operate safety gates of the design and mechanism suitable for the protection of persons riding, driving, or on foot from trains and locomotives approaching said crossings.

"Sec. 2. Be it further ordained, that any railroad company, corporation or person failing to provide and maintain and operate the safety gates as required by the provisions of the foregoing section shall be fined not less than ten nor more than fifty dollars for each day they fail to do so."

Warrants for violating the ordinance at the various streets named therein were taken against the appellant, and this suit was brought to test the validity of the ordinance, and to restrain the city from prosecuting appellant for violations thereof. The trial court sustained the validity of the ordinance, and dismissed appellant's petition, and from that judgment it has appealed.

It relies upon numerous alleged errors for reversal. First. It is contended that the city council had no authority to pass the ordinance; that the jurisdiction to do so was lodged alone with the railroad commission. Second. That the ordinance was not legally passed. Third. That it is arbitrary and oppressive, and for this reason an illegal and unconstitutional exercise of the police power. Subsection 25 of section 3490 of the Kentucky Statutes, which is a provision of the charter of cities of the fourth class, to which appellee belongs, expressly provides that the board of council may compel any railroad to erect and maintain gates at any and all street crossings. It is clear that under this provision of the charter the city council were authorized to adopt the ordinance complained of. The railroad commission are only authorized by section 774, Id., to require the erection and maintenance of gates at highway crossings within a file of the corporate limits of any city or town of this commonwealth. The city authorities are exclusively clothed with the power to regulate this matter within the city limits. The contention that the ordinance was not legally passed is based upon the averment of the petition that "On the 4th of March, 1897, the regular mayor of Maysville was absent from the city, and that the board of council elected as mayor pro tempore Mr. Henty L. Newell, member from the Fourth ward, who presided at the meeting of the council at said date; and your plaintiff charges that said Newell, upon the morning of the 5th of March, 1897, attested and approved said ordinance, and before the mayor, W. H. Cox, had been absent from the county as much as three days...