South Covington & C.R. Co. v. City of Covington

• Decision Date: 06 February 1912
• Citation: 146 Ky. 592,143 S.W. 28
• Parties: SOUTH COVINGTON & C. R. CO. v. CITY OF COVINGTON.
• Court: Kentucky Court of Appeals

143 S.W. 28

146 Ky. 592

SOUTH COVINGTON & C. R. CO. v. CITY OF COVINGTON.

Court of Appeals of Kentucky.

February 6, 1912

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

Action by the South Covington & Cincinnati Railway Company against the City of Covington. From a judgment for defendant plaintiff appeals. Affirmed.

Ernst Cassatt & Cottle, for appellant.

Jno. E Shepard and Stephens L. Blakely, for appellee.

HOBSON C.J.

The general council of the city of Covington passed the following ordinance, which was duly approved by the mayor on October 24, 1910:

"An ordinance to further regulate the operation of street cars and street car lines in the city of Covington, and providing for the health, comfort and safety of passengers using said cars and providing penalties for the violation thereof.

"Be it ordained by the general council of the city of Covington:

"Section 1. That it shall be unlawful for any person, corporation or company owning or operating street cars for the carriage of passengers for hire in or through or over the public streets of the city of Covington, to permit more than one third greater in number of passengers to ride or to be transported within such cars over and above the number for which seats are provided in the same, provided that this section shall not apply to or to be enforced on the days celebrated as Fourth of July, Decoration Day or Labor Day.

"Sec. 2. No such person, company or corporation shall suffer or permit any passenger or person to ride upon the rear platform of any such car unless the same be provided with a suitable rail or barrier so arranged as to provide an open space reasonably sufficient for egress and ingress of passengers to and from such car, and no one shall be permitted to stand in such place so provided for such ingress and egress but the same shall at all times be kept clear, free and open. Any person refusing to vacate such open space provided for egress and ingress upon request of the conductor in charge of said car shall be guilty of a misdemeanor and be subject to a fine of not less than five dollars nor more than fifty dollars, recoverable in the police court of said city.

"Sec. 3. No such person, company or corporation shall suffer or permit any person or passenger to ride upon the front platform of any such car unless a rail or barrier be provided, separating the motorman from the balance of said front platform, said space allowed for the motorman shall in all cases be sufficient to permit him to properly and conveniently operate the mechanism controlling said car without interfering or crowding from the other person upon said platform, if any, and no person or passengers shall ever be permitted to stand by or remain within the enclosure thus provided for the motorman.

"Sec. 4. It shall be the duty of every such person, company or corporation to at all times keep its cars thoroughly cleaned and ventilated, and shall at least once a week fumigate the inside of said cars with efficient disinfectant, and the board of health of the city of Covington shall have power and authority to prescribe reasonable rules providing for the cleanliness, ventilation and fumigation of such cars, and all such persons, companies or corporations shall comply with such reasonable rules.

"Sec. 5. The temperature of such cars shall never be permitted to be below 50 degrees Fahrenheit.

"Sec. 6. It is hereby made the duty of every company, person or corporation, operating street cars and the street car lines within the corporate limits of the city of Covington, to run and operate cars in sufficient numbers at all times to reasonably accommodate the public within the limits of this ordinance as to the number of passengers permitted to be carried, and the general council of the city of Covington, may by resolution at any time direct that the number of cars operated upon any line or route be increased to a sufficient number to so accommodate the public, if there is a failure in that respect. Any such person, company or corporation failing or refusing to run or operate sufficient cars as by this section provided shall be subject to the penalties provided by section 2 hereof.

"Sec. 7. Any person, company or corporation, violating either of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and shall be punished by a fine of not less than fifty nor more than one hundred dollars for each offense, recoverable in the police court of the city of Covington, and each car operated in violation of this ordinance shall constitute a separate offense for each day it is so operated, and it is hereby made the duty of all police officers of such city and others exercising police power to see to the enforcement of this ordinance, and to arrest or to cause the arrest of all persons guilty of its infraction. And the chief of police is hereby directed to assign at least one police officer to the special enforcement of this ordinance. It shall be the duty of such officer to examine and observe street cars in operation and to make arrests and cause proper prosecutions to be started against offenders violating this ordinance.

"Sec. 8. Nothing contained in this ordinance shall be held or construed to be or to effect a renewal or an extension or enlargement of the right of any person, company or corporation to use or occupy the streets and highways of the city of Covington for street railway purposes.

"Sec. 9. This ordinance shall take effect thirty days from and after its passage and approval by the mayor."

On November 22, 1910, the South Covington & Cincinnati Street Railway Company brought this suit against the city and its authorities to enjoin the enforcement of the ordinance on several grounds. The circuit court on final hearing dismissed the action. The railway company appeals.

1. It is insisted that the city is without power to pass the ordinance. The statute regulating cities of the second class including Covington, contains, among other things, this provision: "The general council shall have power by ordinance *** to license, tax and regulate *** street railway companies or corporations." Section 3058, Ky. St., subsec. 2 (Russell's St. § 1042, subsec. 2). "To pass all such ordinances, not inconsistent with the provisions of this act or the laws of the state, as may be expedient in maintaining the peace, good government, health and welfare of the city, its trade, commerce and manufactures, and to enforce the same by fines and penalties; and...