City of Ashland v. Ashland Supply Co.

• Decision Date: 15 June 1928
• Citation: 225 Ky. 123,7 S.W.2d 833
• Parties: CITY OF ASHLAND et al. v. ASHLAND SUPPLY CO.
• Court: Kentucky Court of Appeals

7 S.W.2d 833

225 Ky. 123

CITY OF ASHLAND et al. v. ASHLAND SUPPLY CO.

Court of Appeals of Kentucky

June 15, 1928

Appeal from Circuit Court, Boyd County.

Suit by the Ashland Supply Company against the City of Ashland and others. Decree for plaintiff, and defendants appeal. Reversed, with directions to dismiss.

John T Diederich, Jno. P. Brady, and A. W. Mann, all of Ashland, for appellants.

Woods Stewart & Smoot, of Ashland, for appellee.

REES J.

On May 1, 1928, the general council of the city of Ashland adopted an ordinance limiting in certain respects the use of the city streets by commercial motor vehicles. Section 3 of the ordinance reads:

"No motortruck, tractor, trailer or motor vehicle used for commercial purposes shall be loaded or operated upon the streets, highways, thoroughfares or alleys of the city of Ashland, if the combined weight of vehicle and load exceed ten tons, unless permission for the operation of said motor vehicle upon the streets of the city shall have been obtained in writing from the superintendent of public works of the city, which permit shall designate what streets may be used by the applicant and said applicant shall not use any other street or route. The said permit shall be kept by the person driving said motor vehicle at all times during the period for which it is granted and shall be subject to examination by the police department of the city of Ashland at any time."

Section 4 provides that, before permission to operate any motor vehicles of a gross weight exceeding ten tons over the streets of the city shall be issued, the person, firm, or corporation making application therefor shall execute bond to indemnify the city against any damage. Section 5 gives the superintendent of public works authority to close any street or part of a street to motortrucks, tractors, trailers, or motor vehicles used for commercial purposes when in his judgment the use of such streets or parts of streets would be injurious thereto.

Appellee operates a number of motortrucks having a capacity of more than ten tons, and, conceiving the ordinance in question to be in conflict with chapter 113 of the Acts of the General Assembly of 1926 and for that reason void, it brought this action, in which it sought to enjoin the city, its officers and agents, from enforcing the ordinance. Upon a final hearing the lower court granted the plaintiff the relief sought and the city has appealed.

Subsection (b) of section 2, c. 113, of the Acts of 1926, now section 2739g33, subsec. (b), Kentucky Statutes, reads:

" Width of Tire-No person shall operate a vehicle on a public highway which has a greater weight on any tire per inch of width of same which is in contact with the surface of the highway than: For iron or steel tires, 500 lbs. For solid rubber or rubber compounded tires, 800 lbs."

Section 1, subsec. (f), of chapter 113, Acts of 1926, now section 2739g1, subsec. (f), Kentucky Statutes, defines highways as follows:

"Whenever and wherever the word 'highway' is used herein, it shall mean any and all public highways, roads and passways, no matter of what type of construction, and all boulevards, parkways, streets and public alleys of any and all incorporated cities and towns, as well as the same in unincorporated towns and villages of this commonwealth."

Section 2 of chapter 111, Acts of 1926 (section 4346a1, Kentucky Statutes), provides:

"That it shall be unlawful for any person, firm, association or corporation to haul over any turnpike, macadam, gravel or other hard surfaced road, at any season of the year, on * * * any vehicle with solid rubber or rubber-compounded tires, any load the combined weight of which load, vehicle and driver shall be more than eight hundred pounds per inch of combined tire width, all tires included, and such combined with calculated as the sum of the width of the four tires as per manufactures' list."

Section 5 of the same act (section 4346a4, Kentucky Statutes), reads:

"No load, except the emergency load or loads herein provided for, shall exceed in width of either truck or load ninety inches; and no single vehicular unit of four wheels or less (tractors and semi-trailers to be regarded as separate units) shall exceed a total weight of twenty-eight thousand pounds; or exceeding eighteen thousand pounds on any one axle of the vehicle or any additional axles of semi-trailers or trailers."

Chapters 111 and 113 of the Acts of 1926 became effective on the same day, and they must be read together, and must be so construed, if possible, as to give effect to each. Naylor v. Board of Education, 216 Ky. 766, 288 S.W. 690.

Ordinarily the use of public highways is subject to reasonable regulations by the authorities charged by law with the care and maintenance of such highways, and it is only reasonable that the weight of loads to be hauled over the highways should be subject to the control of these authorities. In Home Laundry Co. v. City of Louisville, Ky., 168 Ky. 499, 182 S.W. 645, this court said:

"It is within the authority of a city, if beneficial to the public, to control by reasonable regulations the use which may be made of certain streets, as by limiting the weight of loads which may be hauled over them upon vehicles having tires beneath a prescribed width, and it has also been held that

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