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W. W. MAYDWELL et al., A ppts., 59 S. W. 19; Com. v. Louisville, 20 Ky. L.

Rep. 893, 47 S. W. 865; Com. v. Makibben, City of LOUISVILLE.

90 Ky. 384, 29 Am. St. Rep. 382, 14 S. W.

372; Clark v. Louisville Water Co. 90 Ky. (......Ky.......)

522, 14 S. W. 502.

In opening and keeping the highways and The sprinkling of streets is a public streets therein in a reasonably safe condi

purpose within the meaning of a constitu- ' tion for travel thereon by the public, and in tional provision that taxes shall be levied keeping them clear and clean of all subonly for such purposes.

stances, animal and vegetable, calculated to (November 25, 1903.)

produce plagues or pestilence, or liable to be.

come a menace to the public health, or A

PPEAL by plaintiffs from a judgment of which, if permitted to remain thereon, a

the Chancery Division of the Circuit public nuisance, a municipal corporation is Court for Jefferson County dismissing a pe- exercising a government power,

and

pertition which sought to enjoin the collection forming a governmental duty. and disbursement of a tax for the purpose

Irvine v. Wayers, 9 Ky. L. Rep. 51; Covof the sprinkling of streets. Affirmed.

ington v. Bishop, 10 Ky. L. Rep. 939, 11 S. The facts are stated in the opinion.

W. 199; Cincinnati, N. 0. & T. P. R. Co. v. Messrs. Lane & Harrison, for appel. Clark, 11 Ky. L. Rep. 809; Barnes v. Dislants:

trict of Columbia, 91 U. S. 540, 23 L. ed. Taxes, state and municipal, general and 440; Alvrittin v. Huntsville, 60 Ala. 486, special, can be levied only for governmental 31 Am. Rep. 46; Jansen v. Atchison, 16 Kan. purposes.

358; Ehrgott v. New York, 96 N. Y. 264, 48 Const. $$ 157, 158, 162, 171, 180; Coving- Am. Rep. 622; Weed v. Ballston Spa, 76 N. ton v. Com. 107 Ky. 680, 39 S. W. 836; Bar. Y. 329; Dill. Mun. Corp. $8 789, 790. bour v. Louisville Bd. of Trade, 82 Ky. 648;

Sprinkling streets is for the comfort and Lancaster v. Clayton, 86 Ky. 373, 5 s. w. benefit of the persons using or traveling on 864; Levi v. Louisville, 97 Ky. 406, 28 L. the streets, and owning and occupying R. A. 480, 30 S. W. 973; Clark v. Louisville houses or residences fronting thereon, and it Water Co. 90 Ky. 522, 14 S. W. 502; Cooley, is not a governmental duty or function, and Taxn. pp. 42, 67; Burroughs, Taxn. p. 8, § consequently there is no power in the state 17; 1 Desty, Taxn. p. 15.

to levy taxes for any such a purpose. The test of whether a purpose is public or

Clark v. Louisville Water Co. 90 Ky. 520, governmental is the obligation, and conse- 14 S. W. 502. quently the power, of the state, or any of

Mr. H. L. Stone, for appellee: its local agencies under its authority, to

The levy of a tax for sprinkling streets is foster it by taxation in the exercise of a gov

valid because for a public or governmental ernmental function.

purpose. Barbour v. Louisville Bd. of Trade, 82 Ky.

1 Cooley, Taxn. 3d ed. p. 84; Owensboro v. 648; Lancaster v. Clayton, 86 Ky. 373, 5 Š. Com. 105 Ky. 344, 44 L. R. A. 202, 49 S. W. W. 864; Owensboro v. Com. 105 Ky. 344, 44 320; Reinken v. Fuehring, 130 Ind. 382, 15 L. R. A. 202, 49 S. W. 320; Citizens' Sav. L. R. A. 624, 30 Am. St. Rep. 247, 30 N. E. & L. A880. v. Topeka, 20 Wall. 655, 22 L. 414; Sears v. Boston, 173 Mass. 71, 43 L. R. ed. 455.

A. 834, 53 N. E. 138; Phillips Academy v. The judiciary is the exclusive and final Andover, 175 Mass. 118, 48 L. R. A. 550, 55 judge as to whether a purpose is public,- N. E. 841; State ex rel. Stateler v. Reis, 38 as to whether it is governmental.

Minn, 371, 38 N. W. 97. Barbour v. Louisville Bd. of Trade, 82 Ky. 648; Lancaster v. Clayton, 86 Ky. 373, 5 S.

Barker, J., delivered the opinion of the

court: W. 864; Sedgw. Stat. & Const. Law, 443; Al

The appellants, who are citizens and taxlen v. Joy, 60 Me. 124, 11 Am. Rep. 185; Jenkins v. Andover, 103 Mass. 94; Lowell v. the first class), instituted this action for

payers of Louisville, Kentucky (a city of Boston, 111 Mass. 454, 15 Am. Rep. 39. Taxes cannot be legally imposed, nor their disbursement of a tax of 3 cents on each

the purpose of enjoining the collection and collection enforced by involuntary aliena

$100 worth of taxable property for the purtions, except for a governmental purpose. Negley v. Henderson, 22 Ky. L. Rep. 913, claim the sprinkling of the streets is not a

pose of sprinkling the streets of the city. They NOTE.—As to right to impose on abutting public purpose, and that, therefore, so much owners expense of sprinkling streets, see, in of the ordinance as provides for the tax is un. this series, Chicago v. Blair, 24 L. R. A. 412, 'constitutional and void. This is the question and note; also Sears v. Boston, 43 L. R. A. 834, and Phillips Academy v. Andover, 48 L. involved in this litigation. R. A. 550.

Section 171 of the Constitution provides : "The general assembly shall provide by law It will thus be seen that there is ample an annual tax, which, with other resources, i statutory authority to uphold the sprinkling shall be sufficient to defray the estimated of the municipal highways at the public exexpenses of the commonwealth for each fis- pense. cal year. Taxes shall be levied and col- The Constitution forbids the collection of lected for public purposes only. They shall any tax except for a public purpose. Is the be uniform upon all property subject to tax- sprinkling of the streets a public purpose ? ation within the territorial limits of the au- If so, the city has a right to collect the tax; thority levying the tax; and all taxes shall if not, the ordinance, to the extent to which we levied and collected by general laws." it authorizes a levy for this purpose, is void. Section 181: "The general assembly shall Cooley, in his work on Taxation, 3d ed. vol. not impose taxes for the purposes of any 1, p. 211, says: “It is not doubted that the county, city, town, or other municipal cor- preservation of the public health is a public poration, but may, by general laws, confer purpose of prime importance. Sanitary reg. on the proper authorities thereof, respective ulations are indispensable in large towns, ly, the power to assess and collect such but they may be made for every locality. taxes.” These two sections comprise the The right to provide for draining low lands constitutional provisions regulating the sub- for the purpose is well settled, and the right ject in hand. The charter provisions ap- to protect low lands from overflow may also plicable to the question are as follows: be justified on the same reasons."

"Sec. 2980. Each city shall raise a rev- It cannot be doubted, at this day, that enue from ad valorem taxes, and a poll tax whatever is necessary for the preservation and license fees, and to that end the common of the public health and safety is a public council of each city is hereby authorized purpose, within the meaning of § 171 of the and empowered to provide each year, by or- Constitution. For the purpose of furnish. dinance, for the assessment of all real and ing the citizens with pure water, waterpersonal estate within the corporate limits works may be established, and public wells thereof subject to taxation for state pur-dug and maintained. That the public highposes, and shall levy an ad valorem tax on

ways may, without peril, be traveled at same, not exceeding the rate and limits pre night, they may be lighted at the public exscribed in the Constitution, and for school purposes not exceeding 50 cents on each $100 ient and wholesome places for resort, public

pense. That the people may have convenof taxable property therein, or such portion parks may be established and kept. For of poll tax or license fees as the council may the education of the young, public schools are designate; to levy a poll tax not exceeding $1.50 on each adult male inhabitant thereof. conducted. For the support of the indigent

aged, almshouses are provided. For the ref. “Sec. 2981. In the ordinance fixing for ormation of vicious young, reformatories are any year the tax rate, the general council maintained. For the relief of the sick, hosshall subdivide its levy as follows: A levy pitals are provided. For the protection of for schools, a levy for the sinking fund, a the public health, nuisances are abated, levy for police purposes, a levy for the fire streets and sewers are flushed and cleaned. department, a levy for street and sewer As a protection against conflagration, fire cleaning, a levy for sprinkling streets, a departments are established; and as a safelevy for reconstruction of streets, a levy for guard for life and property, police departstreet repairs, a levy for construction and ments are organized. It cannot be successrepairs of sewers, a levy for the house of re- fully denied that the dust upon the streets form, a levy for charitable institutions, a of large cities is a fruitful source of disease, levy for parks, a levy for library purposes, as well as of annoyance, to the citizens. The and a levy for general purposes and a deficit same principle which authorizes the streets tax. The general council shall cause the to be cleaned for the purpose of preventing foregoing levies to be made for the purpose noisome odors and epidemics of disease austated by an ordinance fixing the tax rate

thorizes them to be sprinkled. each year.”

The cases cited by counsel for appellants "Sec. 2825. The board of public works shall have exclusive control over the con

are not pertinent to the question in issue.

Clark v. Louisville Water Co. 90 Ky. 515, 14 struction, reconstruction, cleaning, repairing, platting, grading, improving, sprinkling, S. W. 502, establishes the principle that the lighting and using of all streets, alleys, ave- property of that corporation is subject to nues, lanes, market-houses, bridges, sewers, state taxation; but it does not thereby follow drains, wells, cisterns, ditches, culverts, that the city may not contract with the corcanals, streams and water courses, side-poration for the furnishing to its citizens walks, curbing, and the lighting of public pure water. This reasoning on the part of places.”

counsel confounds the public service with

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the instrumentalities by which that service J. M. CRADDOCK, Admr., etc., of Isaac is effectuated. Whatever public service the

Goodman, Appt., municipal corporation may itself perform it may hire others to perform for it, if it ap. LOUISVILLE & NASHVILLE RAILROAD pears that the latter method is the cheapest

COMPANY. and the best, unless there be some constitutional or statutory inhibition. In the case

(........ Ky.........) of Louisville v. Com. 1 Duv. 295, 85 Am.

a locomotive Dec. 624, it was held that the fire engines of 1. Those in charge of

are not bound to discover at the earllthe city of Louisville were not exempt from

est possible moment the presence of infants state taxation; but no one has ever doubted

on the track at a place remote from highthat the maintenance of a fire department way crossings, or other places where their for the purpose of preventing conflagrations presence might not be anticipated, nor to is a public service, or that the levy of taxes stop the train upon discovering an object

upon the track until it is seen to be a perfor its maintenance is authorized.

son; the duty in such cases being the same It is the duty of cities to clean its public

as in case of adults. highways, that they may not become a nui. 2. The

occasional passage of sance. If, in their wisdom, they see fit to pedestrians along an inclosed railhire others to perform this service, it does

road track with the knowledge of the rail

road company is not sufficient to convert a not follow that the carts used by the con

trespasser into a licensee, or to change the tractors are exempt from taxation; nor can

degree of care due him by the railroad comit be deduced therefrom that, because they pany. are not exempt, the cleaning of the streets is not a public service. And yet this is the

(December 1, 1903.)" sole contention of appellants. Logic could not be more faulty or inconsequential. The A!

PPEAL by plaintiff from a judgment of Louisville Tramway Company is a corpora

the Circuit Court for Hart County in fation organized for the purpose of sprinkling

of defendant in an action brought to the public streets more rapidly and cheaply, recover damages for the alleged negligent by utilizing the street-car tracks, than could killing of plaintiff's intestate. Affirmed. otherwise be done. We are able to perceive

The facts are stated in the opinion.

Messrs. McCandless & James, for apno reason why the municipality may not

pellant: contract with it to perform this service, so essential to the health, happiness, and con- defendant ought not to have been given.

The peremptory instruction to find for the venience of all its citizens.

Illinois C. R. Co. v. Walters, 22 Ky. L. The owners of property abutting upon the Rep. 137, 56 S. W. 706; Eskridge v. Cincinhighways sprinkled may get some local ad-nati, n. 0. & T. P. R. Co. 89 Ky. 372, 12 S. vantage distinguishable from that of the

580; Fugate v. Somerset, 97 Ky, 48, 29 traveling public; but this always happens in S. W. 970; Morris v. Louisville & N. R. Co. the performance of public duties. If a park 22 Ky. L. Rep. 1593, 61 S. W. 41; Dolfinger is established, those who own property near v. Fishback, 12 Bush, 474. by enjoy an increased value thereof by rea- The evidence was sufficient to justify the son of its proximity to the public pleasure jury in finding that those in charge of the ground, bụt it does not follow that the estab- train saw the peril of the deceased in time lishing of parks is any less a public purpose to have prevented his injury by the exercise for this reason.

The establishing of a state of ordinary care. college in a given city affords that city a lo- Shearm. & Redf. Neg. $$ 58, 59, 483; cal advantage not enjoyed by other cities of Becker v. Louisville & N. R. Co. 110 Ky. the commonwealth; but no one would ques. 474, 52 I. R. A. 267, 96 Am. St. Rep. 459, 61 tion that education is a public purpose be S. W. 997: Meeks v. Southern P. R. Co. 56 cause of this fact. All the citizens have a

Cal. 513, 38 Am. Rep. 67; East Tennessee & right to travel the public streets, and, in G. R. Co. v. St. John, 5 Sneed, 524, 73 Am. order that their health and convenience may 56 Mich. 390, 33 N. W. 867; Vanarsdell v.

Dec. 149; Keyser v. Chicago & G. T. R. Co. be conserved, the city may provide that they are reasonably safe, clean, and free from NOTE. As to care required of rallway comsubstances deleterious to the public health. pany to prevent injuring children on track, see

also, in this series, Bottoms v. Seaboard & R. As sprinkling the public ways clearly R. Co. 23 L. R. A. 784, and note; Barney v. comes within the constitutional requirement | Hannibal & St. J. R. Co. 26 L. R. A. 847; Roth of a public purpose, the judgment of the v. Union Depot Co. 31 L. R. A. 855 ; Gunn v. lower court dismissing the petition seeking South Bound R. Co. 40 L. R. A. 679; Trudell

Ohio River R. Co. 36 L. R. A. 575; Mack v. to enjoin the levy and collection of the tax v. Grand Trunk R. Co. 53 L., R. A. 271 ; and for that purpose is affir.ned.

Tason v. Southern R. Co. 53 L R A. 913.

Louisville & N. R. Co. 23 Ky. L. Rep. 1666, 26 N. E. 916; Nagle v. Allegheny Valley R. 65 S. W. 858.

Co. 88 Pa. 35, 32 Am. Rep. 413; Shearm. & It was within the province of the jury to Redf. Neg. $ 73a; Cleveland, C. C. & St. L. determine whether or not the deceased had R. Co. v. Tartt, 12 C. C. A. 625, 24 U. S. suflicient discretion to be an actual trespass-App. 304, 64 Fed. 831; Krenzer v. Pittsburg, er; and, if they should find that he did not C. C. & St. L. R. Co. 151 Ind. 587, 68 Am. have this discretion, the railroad company St. Rep. 252, 43 N. E. 649, 52 N. E. 220. was liable, if by the exercise of proper care, There was no negligence on the part of those in charge of the train could have seen those in charge of the train, and, therefore, the deceased in time to have prevented his aside from the question of contributory injuries.

negligence, there can be no recovery. Cincinnati, N. 0. & T. P. R. Co. v. Dicker- 2 Shearm. & Redf. Neg. $ 48la; Roseberry son, 102 Ky. 560, 44 S. W. 99; Kentucky 0. v. Newport News & M. Valley R. Co. 19 Ky. R. Co. v. Gastineau, 83 Ky. 125; McDermott L. Rep. 194, 39 S. W. 407; Louisville & N. v. Kentucky C. R. Co. 93 Ky. 408, 20 S. W. R. Co. v. Vittitoe, 19 Ky. L. Rep. 613, 41 S. 380; Conley v. Cincinnati N. 0. & T. P. R. W. 269. Co. 89 Ky. 402, 12 S. W. 764; East Tennes- The fact that the engineer or some other see Coal Co. v. Harshaw, 16 Ky. L. Rep. servant on the engine sees an object which 526, 29 S. W. 289; Heilman v. Com. 84 Ky. on closer approach turns out to be a human 457, 4 Am. St. Rep. 207, 1 S. W. 731; 7 An. being does not impose the duty of stopping & Eng. Enc. Law, 2d ed. p. 405; Willet v. the train until it is discovered as such. Com. 13 Bush, 230; South Covington & C. Louisville, N. 0. & T. R. Co. v. Williams, Street R. Co. v. Herrklotz, 104 Ky. 400, 47 69 Miss. 631, 12 So. 957; Missouri P. R. Co. S. W. 265.

v. Prewitt, 59 Kan. 734, 54 Pac. 1067; Mr. B. D. Warfield, with Messrs. J. A. Chrystal v. Troy & B. R. Co. 105 N. Y. 164, Mitchell and Edward W. Hines, for ap- 11 N. E. 380; Vanarsdell v. Louisville & n. pellee:

R. Co. 23 Ky. L. Rep. 1666, 65 S. W. 858. The case of Louisville & N. R. Co. v. Hunt, 11 Ky. L. Rep. 825, 13 S. W. 275, is Burnam, Ch. J., delivered the opinion of directly in point. There the court held that the court: plaintiff was a trespasser though he was The appellant, J. M. Craddock, as adminonly eleven years old, and that the fact that istrator of

Isaac

Goodman, deceased, defendant's servants might have seen him brought this suit to recover damages for the constituted no neglect. The court further death of his intestate. The petition alleges said that, as the injury resulted from the that "on the 27th day of August, 1901, the boy's own neglect, the peremptory instruc- defendant, its agents and servants, neglition should have been given.

gently and carelessly ran one of its freight In Louisville & N. R. Co. v. Webb, 99 Ky. trains over the body of said Isaac Goodman, 332, 35 S. W. 1117, this court held that age inflicting upon him injuries which instantis not the only test of the degree of care re- ly resulted in his death.” Defendant, the quired of children; and further, that the Louisville & Nashville Railroad Company, mere immature age of the person injured denied the alleged negligence, and in a seccannot be allowed to have the effect to raise ond paragraph pleaded that the death of a duty where none otherwise existed. plaintiff's intestate was the direct result of

On the pleadings alone the judgment his own contributory negligence. The reply should be allirmed.

'was a traverse of the plea of contributory I'mbry v. Louisville & N. R. Co. 18 Ky. negligence. The trial in the circuit court L. Rep. 434, 36 S. W. 1123.

resulted in a peremptory instruction to find Deceased was not of such tender years as for the defendant and a judgment dismissto exempt him from the charge of contrib- ing the action, from which this appeal is utory negligence. His capacity, or want of prosecuted. capacity, was an issuable fact, and was not It is complained that the trial court erred raised in the pleadings.

in the peremptory instruction, and also in Pratt Coal & I. Co. v. Brawley, 83 Ala. rejecting competent evidence which was of371, 3 Am. St. Rep. 751, 3 So. 555; Krenzer fered by the defendant. It appears from v. Pittsburg, C. C. & St. L. R. Co. 151 Ind. the bill of evidence that the decedent was 587, 68 Am. St. Rep. 252, 43 N. E. 649, 52 run over and instantly killed by one of apN. E. 220.

pellee's south-bound freight trains 2 miles The court should have directed a verdict north of Horse Cave station, and 230 yards because there was no proof showing want of south of a public road crossing, and about capacity of deceased.

the same dis ce from a private crossing Wendell v. New York C. & H. R. R. Co. 91 on the north, in a cut 7 or 8 feet deep. It N. Y. 420; Tucker v. New York C. & H. R. is further shown that the deceased was an R. Co. 124 N. Y. 308, 21 Am. St. Rep. 670,' ordinarily intelligent boy, eleven years of age, and that he went upon the railroad to have crossed over before the arrival of right of way with a bag for the purpose of the train. The appellant also cites the case picking up pieces of coal which had fallen of the Cincinnati, N. 0. & T. P. R. Co. v. from the tender of passing engines, and Dickerson, 102 Ky. 560, 44 S. W. 99, as authat he had been in the habit of doing this, thority for the contention that a higher deand had been cautioned, both by his father gree of care is required for railroad comand older brother, about the danger of pass- panies where the trespassers upon their ing trains. Robert Wilkerson, a brakeman tracks are infants of tender years than in the employ of the railroad company, was where such trespassers are adults. In that the only witness to the accident who testi- case a little girl, two years of age, was playfied. He was called by plaintiff, and testi- ing upon the railroad track; and, while the tied that he was sitting in the cab of the en- engineer testified that he did not see her ungine on the opposite side from the engineer, til he was within 20 feet of her, and too and gave the usual signals of the approach late to avoid the injury, he admitted that of the train to the public crossing; that the he saw the mother of the child running totrain was traveling at between 32 and 35 wards the track, waiving her hands, her hair miles an hour, and consisted of 28 loaded streaming in the air, apparently greatly exfreight cars; that after he had passed the cited. It also appeared that there was a public road crossing he saw an object on the straight track and nothing to obstruct the track about 150 yards ahead, which looked view for about 800 yards from where the like a piece of paper, but that when the en- accident occurred. It was decided in that gine had approached within about 30 feet of case that the motions and action of the inthe object he discovered the deceased lying fant's mother were sufficient to have apon the track between the rails; that the en-prised the engineer in charge of the gineer iinmediately applied the brakes, and train of the presence of some obstruction upstopped the train after it had run about on the track, and to have authorized the two car lengths farther than the length of jury to believe that he actually became the train (or, in other words, that the body aware of the danger of the infant in time to of the boy was about two car lengths behind have stopped the train before striking her. the caboose); and that it could not have The facts in this case are not analogous to been stopped any sooner, or in time to have those in the Dickerson Case. Here deceased avoided running over the deceased after it was entirely familiar with the danger of gowas discovered that the object upon the ing upon the track of the railroad. He had track was the deceased. The plaintiff intro- been sent there frequently upon the same duced testimony tending to show that it was mission as that he was on when killed. He possible for the deceased to have been dis- was old enough to appreciate the danger or covered by the engineer at the public cross the situation, and his view was unobstructing, which was about 230 yards from the ed in both directions. He would have had point where he was lying at the time he was ample time to have gotten off the track if killed and it is contended that this was he had been using ordinary care after he sufficient evidence to have justified the jury might have discovered an approaching train. in believing that decedent was seen by the In broad daylight he laid down between the defendant's agents in charge of the train in rails, and it certainly cannot be said that it time to have avoided the accident; or that, was negligence in the engineer in charge of in any event, it was sufficient evidence to the train not to have discovered his position have authorized the submission of the case of peril at the very first moment when it to the jury. In response to this conten- might have been discovered by one who went tion, it may be said that this court has re- there for the express purpose of ascertainpeatedly held that a railroad company owes ing whether such discovery was possible. no duty to trespassers upon its track at Trains must be run on schedule time, and no places not frequented by the public by right duty is imposed upon those in charge to or permission, until their peril has been dis- stop or slow up at the appearance upon the covered. And we do not understand that track of objects the nature of which is only this well-grounded rule was changed by the discernible upon near approach. If the obdecision in Becker v. Louisville & N. R. Co. ject seen by Robert Wilkerson had been at a 110 Ky. 474, 53 L. R. A. 267, 96 Am. St. highway crossing, or in the street of a town Rep. 459, 61 S. W. 997. That case was de or city, where the presence of small chilcided upon the ground that the testimony dren might be suspected, a different case was sufficient to have authorized the belief would be presented, and a different standard that defendant's agents saw the children up-ot diligence could have been required. Apon the bridge in ample time to have avoided pellee's engineer had no more reason to supinjuring them, but negligently failed to take pose an infant would be upon its track at the the necessary steps to do so, under the belief point where the accident in this case occurred that the children upon the bridge had time' than an adult, and owed no higher degree of

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