Chesapeake & O. Ry. Co. v. Harmon

• Decision Date: 15 May 1914
• Citation: 166 S.W. 786,159 Ky. 59
• Parties: CHESAPEAKE & O. RY, CO. v. HARMON.
• Court: Kentucky Court of Appeals

166 S.W. 786

159 Ky. 59

CHESAPEAKE & O. RY, CO. v. HARMON.

Court of Appeals of Kentucky.

May 15, 1914

Appeal from Circuit Court, Floyd County.

Action by the Chesapeake & Ohio Railway Company against D. O Harmon, as Police Judge, to enjoin enforcement of a certain ordinance. Heard on motion in the Supreme Court for a rule against the sheriff of Floyd county to show cause why he shall not make levy on defendant's private property to enforce payment of a judgment for costs. Motion overruled and judgment corrected.

See also, 153 Ky. 669, 156 S.W. 121, 45 L. R. A. (N. S.) 946.

Harkins & Harkins, of Prestonsburg, for appellant.

Will H Layne, of Prestonsburg, and Smith & Combs, of Hindman, for appellee and the sheriff.

HOBSON C.J.

The city council of Prestonsburg adopted an ordinance requiring railroad companies to provide and maintain safety gates at all roads and street crossings in Prestonsburg under a penalty of $100 for each day the ordinance was violated. The Chesapeake & Ohio Railway Company failed to provide and maintain gates as required by the ordinance, and warrants were issued against it by D. O. Harmon, as police judge. Following the issuing of the warrants, the railroad company instituted against Harmon, as police judge, an action to enjoin the enforcement of the ordinance by the warrants on the ground that it was invalid. The circuit court dismissed the petition, but on appeal to this court the judgment was reversed, and the case remanded, with directions to the circuit court to enter a judgment perpetuating the injunction. See Chesapeake & Ohio Railway Co. v. Harmon, 153 Ky. 669, 156 S.W. 121, 45 L. R. A. (N. S.) 946. In entering the judgment of this court, the clerk entered a judgment for cost in favor of the appellant against the appellee, and execution was issued on the judgment against D. O. Harmon, police judge. The sheriff of Floyd County, who received the execution, declined to levy it upon the personal property of Harmon, and the appellant has entered a motion for a rule against the sheriff to show cause why he shall not be required to make the levy on Harmon's private property. The case has been submitted on this motion.

Harmon as police judge, acted within his jurisdiction in issuing the warrants. The validity of the ordinance could under the statute be tested upon a writ of prohibition; or, if the ordinance was void, the police court, on the hearing of the case, could so decide. But the validity of the...