City of Harrodsburg v. Southern Ry. Co. in Ky.

• Decision Date: 25 April 1939
• Citation: 278 Ky. 10
• Parties: City of Harrodsburg et al. v. Southern Ry. Co. in Kentucky.
• Court: United States State Supreme Court — District of Kentucky

278 Ky. 10

City of Harrodsburg et al. v. Southern Ry. Co. in Kentucky.

Court of Appeals of Kentucky.

April 25, 1939.

1. Action. — The circuit court had jurisdiction of railway company's action under Declaratory Judgment Act against city and officers thereof for declaration of rights and injunction against prosecution of criminal proceedings against plaintiff for violating city ordinance requiring electric gongs and signals at all street crossings in city (Civil Code of Practice, sec. 639a — 1 et seq.).

2. Injunction. — An action for injunctive relief to prevent multifarious prosecutions can be maintained when validity of statute or ordinance is involved, and such relief may be granted in proceeding under Declaratory Judgment Act (Civil Code of Practice, sec. 639a — 1 et seq.).

3. Municipal Corporations. — A city ordinance, adopting and codifying certain enumerated ordinances, but providing that adoption thereof should not be held to repeal or modify ordinances governing operation of municipal water plant, repealed all ordinances not so enumerated or mentioned in saving clause, including ordinance requiring railroads to erect and maintain electric gongs and signals at all street crossings in city.

Appeal from Mercer Circuit Court.

F. DOUGLASS CURRY for appellants.

EDWARD P. HUMPHREY and C.E. RANKIN for appellee.

Before Kendrick S. Alcorn, Judge.

OPINION OF THE COURT BY JUDGE REES.

Affirming.

In 1901 the Board of Council of the city of Harrodsburg enacted an ordinance requiring railroads operating upon the streets of the city to erect and maintain at all street crossings electric gongs and signals similar to those then in use on the Cincinnati, New Orleans & Texas Pacific Railroad in Mercer County. The ordinance provided a fine of not less than $5 nor more than $50 for each day any railroad failed to comply with its provisions.

The Southern Railway in Kentucky operates a railroad through the city of Harrodsburg, and its tracks cross seven streets within the corporate limits of the city. After the passage of the ordinance of 1901, it installed electric gongs, or signals, at all street crossings, and maintained them until 1909, when, as it claims, they were damaged and rendered inoperative by citizens of Harrodsburg who objected to their operation because of the noise incident thereto. They were never repaired, and have not been in operation since 1909. In 1938 some of the officers of the city of Harrodsburg were threatening to enforce the ordinance of 1901, and on April 4, 1938, the Southern Railway in Kentucky brought this action in the Mercer circuit court against the city of Harrodsburg, the city attorney, the judge of the police court, the mayor, and the chief of police of the city to enjoin them from instituting or causing to be instituted and from prosecuting or trying or causing to be tried and prosecuted any criminal proceeding or penal action against it for violating any of the provisions of the alleged ordinance of 1901. The action was brought under the Declaratory Judgment Act, Section 639a — 1 et seq., Civil Code of Practice, and the plaintiff asked for a declaration of rights. It averred in its petition that the Board of Council of the city of Harrodsburg adopted an ordinance on September 19, 1911, requiring all persons or corporations operating a line of railroad through Harrodsburg to erect and thereafter maintain safety gates at points where the railroad crossed certain streets; that this ordinance was entirely inconsistent with and repealed the alleged ordinance of 1901; that, if wrong in this, the ordinance of 1901 was certainly repealed by an ordinance adopted by the Board of Commissioners of the city of Harrodsburg on February 20, 1923, to become effective March 1, 1923, which repealed all prior ordinances except certain ordinances specifically mentioned in section 68 of the 1923 ordinance. It further averred that the defendants, other than the judge of the police court, were threatening to and would, unless restrained by the court, cause to be instituted in the police court in the city of Harrodsburg approximately 2,555 criminal proceedings or penal actions charging that the plaintiff had, within the period of limitations, violated the provisions of the alleged ordinance of 1901, seven times every day, once at each of the seven places where its railroad intersects a street of the city, for a period of 365 days. A special demurrer and a general demurrer to the petition...