City of Versailles v. Kentucky Highland R. Co.

• Decision Date: 21 March 1913
• Citation: 153 Ky. 83,154 S.W. 388
• Parties: CITY OF VERSAILLES v. KENTUCKY HIGHLAND R. CO.
• Court: Kentucky Court of Appeals

154 S.W. 388

153 Ky. 83

CITY OF VERSAILLES v. KENTUCKY HIGHLAND R. CO.

Court of Appeals of Kentucky.

March 21, 1913

Appeal from Circuit Court, Woodford County.

Injunction by the Kentucky Highland Railroad Company against the City of Versailles. Judgment for plaintiff, and defendant appeals. Affirmed.

Harry A. Schoberth, of Versailles, and Samuel M. Wilson, of Lexington, for appellant.

Wallace & Harriss, of Versailles, and Benjamin D. Warfield, of Louisville, for appellee.

SETTLE J.

This action was instituted by appellee and an injunction obtained by it to prevent the enforcement by appellant of an alleged void ordinance, passed by its board of council and to prevent prosecutions threatened against appellee for failing to comply with its provisions. The ordinance in question reads as follows:

"Be it ordained, by the board of council of the city of Versailles:

"Section 1. That any and all persons, companies or corporations owning, possessing, operating or having charge or control of a railroad passing into or through any portion of the city of Versailles or engaged in locating, constructing or operating any proposed line of railroad or any part thereof, within or through the corporate limits of said city, shall be and they are hereby required to cover any cuts or excavations through which such railroad, or some part of it may pass inside said corporate limits with a solid, substantial arch of stone, concrete or other durable material of sufficient thickness and strength to furnish a safe and secure covering and to prevent the emission of smoke, soot, cinders, sparks and noxious vapors through such covering; provided, that the aforesaid requirements shall not apply to any excavation or cut through which any railroad may pass inside the corporate limits

of said city, unless such cut or excavation shall be twenty feet or more in depth, measuring from the level of the natural surface of the adjacent ground to the top of the rails, when laid at the established grade of such railroad and, further, unless such cut or excavation shall be located within five hundred feet of any dwelling, church, store, warehouse, public building or other similar structure.

"Sec. 2. Be it further ordained that at the approaches to any such arch or covering as is mentioned in section 1, of this ordinance, and for a reasonable distance, not exceeding one hundred feet from the face of such arch or covering, the side of any such open cut, wherever ten feet or more in height, shall be securely walled with substantial masonry for a height of at least three feet from the grade of the track of any such railroad.

"Sec. 3. Be it further ordained, that any open cut or excavations through which any railroad now existing or hereafter constructed within the corporate limits of the city of Versailles may pass, if such cuts exceed five feet in depth shall be securely inclosed with fencing, barriers or other suitable safe guards at least five feet in height, erected at the top of the sides of any such railroad cut or excavation.

"Sec. 4. Be it further ordained that any person, company or corporation owning, possessing, controlling, projecting, constructing or operating a railroad or a proposed railroad into or through any portion of the city of Versailles or engaged in any work connected therewith, who shall violate any of the provisions of the foregoing sections of this ordinance or any of them shall, for each offense, be fined not less than twenty-five dollars nor more than one hundred dollars, and each day during which any requirement hereof is not obeyed or provision hereof is not complied with, shall be deemed and shall constitute a separate offense."

Appellant filed a demurrer to the petition which the circuit court overruled. Appellant elected to stand upon the demurrer, and the court thereupon entered judgment in conformity to the prayer of the petition. From that judgment this appeal is prosecuted. The circuit court seemed to be of the opinion that appellant's city council were without power to pass the ordinance and that same is unreasonable, discriminatory, and oppressive, and therefore unconstitutional.

Appellant is a city of the fourth class, and to ascertain the powers of its counsel we must look to the provisions of the Kentucky Statutes, applicable to cities of its class. Subsection 6, § 3490, confers upon the board of council power to make all regulations necessary to secure the general health of the inhabitants of the city. Subsection 7 gives it the power to prevent and remove nuisances, and define and declare, by ordinance, what shall be a nuisance within the limits of the city. Subsection 25 provides: "The board of council may grant the right of way over the public streets or public grounds of the city to any railroad company or street railroad company, on such conditions 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 under like condition and supervision may grant the right of way that may be necessary to gas companies, water companies, electric light...