Louisville & N. R. Co. v. City of Hazard

• Decision Date: 25 March 1947
• Citation: 304 Ky. 370,200 S.W.2d 917
• Parties: LOUISVILLE & N. R. CO. v. CITY OF HAZARD et al.
• Court: Kentucky Court of Appeals

200 S.W.2d 917

304 Ky. 370

LOUISVILLE & N. R. CO. v. CITY OF HAZARD et al.

Court of Appeals of Kentucky

March 25, 1947

Appeal from Circuit Court, Perry County; S. M. Ward, Judge.

Action by the Louisville & Nashville Railroad Company against the City of Hazard and others to have a city ordinance declared invalid and for a declaration of rights under the Declaratory Judgment Act. From a judgment invalidating the ordinance in part, the plaintiff appeals.

Judgment reversed with directions.

C. S. Landrum and C. E. Rice, Jr., both of Lexington, and Craft & Stanfill, of Hazard, for appellant.

W. E Faulkner and Jesse Morgan, both of Hazard, for appellees.

REES Chief Justice.

On February 28, 1944, the Board of Commissioners of Hazard, a city of the fourth class, passed the following ordinance:

'Be It Ordained by the Board of Commissioners of the City of Hazard, Kentucky,

1.

That all railroad companies owning and operating railroad lines engines, trains and cars within the corporate limits of the City of Hazard, be required to keep on all engines and trains which are operated over and across any street, alley or public way of the City of Hazard in addition to the engineer and fireman a yard conductor, foreman or road conductor and two brakemen or a yard foreman and two switchmen and that in moving and operating of engines and trains across streets alleys and public ways of the City of Hazard a guard or flagman be stationed at such crossings in each instance this to be interpreted that they may use a man from the regular crew to protect the movement over the crossing at this time.

Any railroad company or common carrier operating trains as aforesaid violating this ordinance shall be fined upon conviction not less than $5.00 nor more than $15.00 in each instance.

This ordinance is intended as a safety measure.'

The Louisville & Nashville Railroad Company owns and operates a line of railroad which passes through the City of Hazard and crosses some of its streets. The railroad is across the North Fork of the Kentucky River from the main business and residential sections of the City. The Railroad Company brought this action under the Declaratory Judgment Act, 639a-1 et seq., Civil Code of Practice, to have the ordinance declared invalid and for a declaration of rights. The circuit court declared all of section 1 of the ordinance invalid except the following: '* * * and that in moving and operating of engines and trains across streets, alleys and public ways of the City of Hazard a guard or flagman be stationed at such crossings in each instance * * *.' The Railroad Company appeals, and argues that (1) The invalid portion of the ordinance makes the whole of the ordinance invalid; and (2) the ordinance is invalid because it is unreasonable, arbitrary, and was enacted by the Commissioners without express authority from the Legislature.

There is no cross-appeal, but there can be no doubt that the circuit court correctly declared invalid the portion of the ordinance requiring railroad companies to keep certain crewmen on all engines and trains which are operating over and across any street, alley or public way of the City. There is no provision in the Statutes relating to cities of the fourth class which confers such power on the legislative body of a city. KRS 96.070 provides that the legislative body of any city of the fourth class may compel any railroad company to erect and maintain gates at street crossings and prevent railroads from obstructing public ways of the city, but nowhere is the city given authority to compel a railroad to employ additional crewmen on its engines or trains. A municipality possesses only such powers as are expressly granted to it, those which are necessarily implied in or incident to the powers expressly granted, and those which are essential to the accomplishment of the declared objects and purposes of the corporation. Miller v. City of Georgetown, 301 Ky. 241, 191 S.W.2d 403; George v. City of Raceland, 279 Ky. 316, 130 S.W.2d 825; Chesapeake & Ohio Railway Company v. Harmon, 153 Ky. 669, 156 S.W. 121, 45 L.R.A., N.S., 946.

Considerable proof was introduced,...