138 Ky. 749 | Ky. Ct. App. | 1910
Opinion op the Court by
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
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 lii's finding upon this point. The questions presented for consideration, in their logical order, are: First, had the council of the town of Wicldiffe 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
Counsel for appellee rely upon the case of Henderson v. City of Lexington, 111 S. W. 321, 33 Ry. Law Rep. 703, 22 L. R. A. (N. S.) 20, as being conclusive of the rights of the city to pass such an ordinance; while counsel for appellant contend that this case is not authority, for the reason that the charters of cities of the second class give to council express authority to open, close, or alter streets, and it is contended that this opinion is rested upon this charter right. An examination of the opinion, however, shows that this position is not well taken, for it is therein said: “But municipalities and counties are agencies and subdivisions of the state. The streets, alleys, and highways of a municipality are public places. They are under the exclusive control of the municipality. And, when the properly constituted authorities declare that the necessities, welfare, comfort, and convenience of the public demaud that private property shall be taken or that public ways shall be closed, the municipality is merely exercising a public .function, such as the county courts exercise in the opening or closing of pub-
This brings us to a consideration of the question as to whether or not the commonwealth may prosecute, by indictment, the railroad for having obstructed the street under such circumstances. A criminal prosecution presupposes some wrongdoing. In this case the street has been obstructed, and, while appellee admits that it placed the obstruction therein, it pleads that in so doing it violated no law and did no wrong, for the reason that the city authorities, with full power to act, closed the street, and authorized and directed the obstruction placed therein. The city being a branch of the government, its acts, in so far as they are within the scope of its authority, are the acts of the commonwealth. "We are cited to no authority which would justify the state in punishing one for doing an act which it had, for a valuable consideration, authorized to be done. .Such a proceeding would not only be unsupported by precedent, , but would be most oppressive and unjust to the subject, who had acted in perfect good faith with the government. In Beach on Municipal Corporations, the rule is laid down that, where a public corporation acts under municipal or legislative license, it cannot be prosecuted for obstructing a highway or street of a town, although it may be made answerable in a suit for damages to.any individual for damages
The judgment is affirmed.