Commonwealth v. Ill. Cent. R. R. Co.

• Citation: 138 Ky. 749
• Parties: Commonwealth v. Ill. Cent. R. R. Co.
• Decision Date: 03 June 1910
• Court: Kentucky Court of Appeals

138 Ky. 749

Commonwealth v. Ill. Cent. R. R. Co.

Court of Appeals of Kentucky.

June 3, 1910.

Appeal from Ballard Circuit Court.

R. J. BUGG, Circuit Judge.

From a judgment overruling a demurrer to its answer the Commonwealth appeals. — Affirmed.

JAS. BREATHITT attorney general and TOM B. McGREGOR assistant attorney general for Commonwealth.

TRABUE, DOOLAN & COX, C. L. SIVLEY, ROBBINS & THOMAS and CORBETT & WHITE for appellee.

OPINION OF THE COURT BY JUDGE LASSING — Affirming.

Appellee was indicted in the Ballard circuit court, charged with constructing and maintaining a public nuisance by building and operating its roadbed across the junction of Fourth and Illinois streets, in the town of Wickliffe, a city of the fifth class. To this indictment appellee filed a written plea, in which it set up that it was not guilty for the reason that its roadbed and crossing at the point in said town complained of in the indictment had been built and maintained under and by virtue of an ordinance of the town of Wickliffe, duly enacted, whereby its lessor, its successors, and assigns had, for a valuable consideration, been granted the right to construct and maintain its road on said crossing exactly as it had been done and was then doing. A demurrer was filed to this answer and overruled. The commonwealth declined to plead further, and judgment was entered for the defendant. The commonwealth appeals.

The demurrer admits the facts pleaded in the answer to be true, but, it is contended for the commonwealth, although appellee was acting under an ordinance of the city as claimed, still no protection is afforded it thereby, for the reason that the city had no power or right to pass such an ordinance or grant appellee such a privilege. The trial judge was of opinion that the facts pleaded constituted a good defense, and so held. We are called upon to review his finding upon this point. The questions presented for consideration, in their logical order, are: First, had the council of the town of Wickliffe the right or power to pass the ordinance in question; and, second, if it had such right, and passed the ordinance, as it is conceded was done, may appellee still be proceeded against by indictment for obstructing the street?

Section 156 of the Constitution divides all cities of the state into classes, and the Legislature has by appropriate laws made provision for their government. In the laws enacted for the government of cities of the fifth class, we do not find that the Legislature has specifically given to the council the right or power to open, close, or alter streets as it has done in regard to cities of some other classes. Still the city is an arm or branch of the state government, and authority must rest somewhere for the opening, closing, or altering of streets. Certain it is that the Legislature did not intend that cities of the fifth class should be without power to make such changes in their streets as the necessity of the occasion from time to time required. In the absence of any special authority delegated to the city in its charter, the general laws enacted for the government of cities of the fifth class must be looked to. In subsection 7 of section 3637, defining the powers of the city council, we find that the council is empowered "to do and perform any and all acts and things necessary and proper to carry out the provisions of this chapter, and to enact and enforce, within the limits of such city, all other local, police, sanitary, and other regulations as do not conflict with general laws." This provision is certainly broad enough to enable the city council to pass any ordinance that is necessary for the public good, so long as it is not in conflict with the general laws. The city authorities have control over the streets of the city, and neither the state nor county authorities can interfere with the city government in the management of its streets. The council are the judges of the necessities and wants of the city. The members thereof are elected by the inhabitants of the city, and it is presumed that they will act for its best interests. Their conclusions and acts, so long as within the scope of their authority, are not open to question. Of course, if it were shown that the city council had acted maliciously or corruptly, a case might be presented which would justify judicial interference; but no such showing is made here. If, in opening, closing, or altering a street individuals are injured in their property rights, they have their remedy in an action at law for damages, and the fact that the street has been opened, closed, or altered by an ordinance duly enacted cannot operate to deprive the individual of his right to be compensated for the injury which he sustains by reason thereof. But the right of the individual to damages for the injury sustained does not enter into the consideration of the question here, for it is the right of the general traveling public, and not of the individual, that is involved in this litigation. The county court is given the right and power to open, close, or alter public roads. The county is a branch of the state government, and enjoys this right by express statutory provision. The various cities sustain the same relation to the state that the...