104 Ky. 35 | Ky. Ct. App. | 1898
delivered tite opinion of the court.
The indictment is under section 786, Ky. Stat., whicli reads as follows: “Every company shall provide each locomotive engine passing upon its road with a bell of ordinary size, and steam whistle, and such bell shall be rung, or whistle sounded, outside of the incorporated cities and towns, at a distance of least fifty rods from the place where the road' crosses upon the same level any highway or crossing, at which a sign-board is required to be maintained, and such bell shall be rung or whistle sounded continuously or alternately until the engine has'reached such highway crossing, and shall give- such signals in cities and towns as the legislative authorities thereof may require.” Under section 793, the penalty for violating the section quoted shall be not less than $100 nor more than $500. The evidence was sufficient to authorize the jury to find the appellant guilty, and the punishment was fixed at a fine of $400.
The sheriff who executed the summons which was issued upon the indictment had gone out of office when this case was called for trial. It appeared that he had failed to sign the return which he had written upon the summons. The summons was executed in December, 1897. The sheriff’s term of office expired January 1, 1898. Upon motion
The sheriff executed the summons upon the passenger
It is suggested that under- section 17 of the Constitution, which reads as follows: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishment inflicted,” — the fict under which the indictment' was found is unconstitutional. This section, in our opinion, is more for the guidance of the legislative department of the Government than of the, judicial; but cases might arise in which this court would feel bound, under that section of the Constitution, to refuse its sanction to laws which imposed excessive fines or inflicted cruel punishments. We do not think this is a case for the interposition of the court against the enforcement of the judg
It is charged that the appellant failed to ring the bell or sound the whistle upon the locomotive engine as it approached the crossing upon the Elizabethtown and Stephensport road, it being a public highway and crossing. The proof in this case shows that as early as 1828 this was recognized as a public road. For more than twenty years before the indictment was returned, under appropriate orders of the County Court of Meade county, surveyors and overseers were appointed, and hands allotted to work on it. Although the road may not have been established by an order of the County Court, still, under adjudications of this court, the facts which we have stated constitute it a public road by prescription. A continued, uninterrupted, and adverse use of a highway as such by the public, as a right, for the period of fifteen years, creates a conclusive presumption of dedication and acceptance of it. Besides, section 4287 Ky. Stat. expressly declares it a public road. ■ It reads as follows: “All public roads on which the several County Courts have heretofore appointed surveyors to work the same, and allotted hands therefor, which, have not been vacated according to law, are hereby declared public roads, without regard to any fbrmality in the orders of the county court by which they were established.” The judgment is affirmed.