Opinion
36351.
DECIDED SEPTEMBER 21, 1956.
Certiorari; violation of city ordinance. Before Judge Hicks. Floyd Superior Court. June 9, 1956.
Matthews, Maddox, Walton Smith, for plaintiff in error.
Chastine Parker, Solicitor-General, Horace T. Clary, Parker Clary, Kent Grubbs, contra.
A municipal ordinance providing without exception that "no person operating any locomotive engine shall blow the whistle thereof within the corporate limits of the city" is void as being unreasonable, contrary to public interest, public policy, and the general welfare of the public, where it appears without dispute that its application at certain grade crossings within the city would prohibit the operator of a locomotive engine from giving adequate warning to persons who may be in, near or about to enter a place of danger upon the tracks of the locomotive engine he is operating, and denies such persons proper protection from injury and such operator from the right lawfully to exercise ordinary care toward such persons and thus protect himself and his employer from liability.
DECIDED SEPTEMBER 21, 1956.
A summons issued by the Recorder's Court, City of Rome, was served on H. B. Cruise, plaintiff in error, commanding him to appear and answer the charge of violating Section 52-104 of the City Code of Rome providing that "No persons operating any locomotive engine shall blow the whistle thereof within the corporate limits of the city." The defendant urged a demurrer to the summons which was overruled, and a plea contending that he was not guilty for a number of assigned reasons which included the allegations that the ordinance in question is invalid, void and of no effect because "it is unreasonable and is an unreasonable exercise of the police power of the City of Rome" and because "it is contrary to public interest, public policy and the general welfare of the public" in that "it prohibits the operator of a locomotive engine from giving adequate warning to persons who may be in, near or about to enter a place of danger upon the tracks of the locomotive engine he is operating and denies such persons proper protection from injury and such operator from the right lawfully to exercise ordinary care toward such persons and to protect himself from liability." On the trial before the recorder, the Chief of Police of the City of Rome was the only witness to testify. After detailing instances on a given date on which the defendant blew the whistle of the locomotive he was then operating at grade crossings within the City of Rome, he further testified in substance that on occasions he had ridden on the engine with the defendant and other engineers within the city limits of Rome: that from the cab of an engine the viewpoint shows greater danger at grade crossings than appears when one is on the street or highway; that there are crossings within the limits of the City of Rome constituting places of danger where, under some circumstances and conditions, warning of the approach of a train cannot be given by the sounding of the bell alone, but in order to give such warning it is necessary to sound the whistle of the locomotive. After detailing a number of such crossings and the conditions under which the effectiveness of the warning given by the whistle of the locomotive is outlined, this witness continued to give his opinion as follows: "In my opinion, it seemed desirable that the sounding of the whistle be given as a warning in some of those hazardous locations that I saw. . . As to whether the blowing of the whistle is a more effective warning, in my opinion I say, it is a warning, yes, sir. There is no reason for a man to get hit with a train, if they blow the whistle. And, if they don't blow the whistle, it is possible there may be an occasion for a man to get hit. . ." The defendant made a statement in his own behalf in which he admitted blowing the whistle on the occasions testified to by the witness for the city. He also detailed circumstances under which the sounding of the bell would be insufficient as a warning, and further stated that in his opinion it is necessary as a safety factor to blow the whistle at some points within the city limits, there being no other means of giving adequate warning of the approach of the locomotive. The recorder entered a judgment finding the defendant guilty and the case was taken to the superior court by certiorari, and the judgment of the superior court overruling and dismissing the same is assigned as error.
The evidence demands the conclusion that the ordinance when applied to certain crossings in the City of Rome will in effect prohibit the operator of a locomotive engine from giving adequate warning to persons who may be in, near, or about to enter a place of danger upon the tracks of the locomotive engine he is operating, and denies such persons proper protection from injury and such operator from the right lawfully to exercise ordinary care toward such persons and thus protect himself and his employer from liability. Acts of a municipal body under a power vested in it are conclusive on the courts unless so unreasonable or oppressive of the rights of the citizen as to constitute an attempted abuse rather than a legitimate use of the power. McMaster v. City of Waynesboro, 122 Ga. 231 ( 50 S.E. 122). But the reasonableness of an ordinance is a question of law; municipal ordinances are reviewable by the courts as to reasonableness, and if found to be unreasonable they will be held void. Great Atlantic Pacific Tea Co. v. City of Columbus, 189 Ga. 458 ( 6 S.E.2d 320). An ordinance which infringes upon the common or statute law of the State is void. Haywood v. Mayor c. of Savannah, 12 Ga. 404 (4). The operation of a legally chartered railroad is a lawful business, and the railroad corporation, like any other real or artificial person in the State, has not only the duty to exercise ordinary care for the protection of itself and others ( Pollard v. Savage, 55 Ga. App. 470, 474 ( 190 S.E. 423), but the right to do those acts which are necessary in the exercise of such degree of care. This right it acquires under the common law of force in this State, and under art. 1 sec. 1, par. 2 of the Constitution of Georgia (Code, Ann., § 2-102) which provides as follows: "Protection to person and property is the paramount duty of government and shall be impartial and complete." A municipality is a political division of the State, having for its object the administration of a portion of the power of government delegated to it for that purpose. Penick v. Foster, 129 Ga. 217 ( 58 S.E. 773, 12 L.R.A. (NS) 1159, 12 Ann. Cas. 346). The municipality, like the State as a whole, therefore owes as its paramount duty to the citizen the protection of his person and property. Such duty is not fulfilled where the city passes an ordinance the effect of which is to deny to a citizen the right to protect his life and property, the property of his employer, and the lives and property of third persons in the only way in which, under the uncontradicted evidence in the case, such protection may be given in an adequate manner under certain circumstances. While nothing in the record indicates the reason behind the enactment of the ordinance, it may be assumed that it was done for the purpose of cutting down noise within the city limits, which noise might, if excessive, constitute a nuisance. But, as pointed out in City of Acworth v. W. A. R. Co., 159 Ga. 610, 622 ( 126 S.E. 454), "the installation of devices by railway companies for the safety and protection of persons and property, which pass over their crossings, is legitimate and commendable" and an ordinance which in effect constitutes such a safety device a "nuisance" under all conditions and circumstances without exception and as a matter of law is so unreasonable and arbitrary as to be void. Accordingly, the ordinance in question is void as contrary to the public policy and general welfare of the public, and the conviction is without authority of law.
The trial court erred in overruling and dismissing the petition for certiorari.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.