Stange v. City of Dubuque
| Decision Date | 08 December 1883 |
| Citation | 62 Iowa 303,17 N.W. 518 |
| Parties | STANGE AND OTHERS v. CITY OF DUBUQUE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Dubuque circuit court.
The case is a continuation of that of Stange v. Hill & West Dubuque Street Ry. Co. 54 Iowa, 669; [S. C. 7 N. W. REP. 115.] Upon the remanding of the foregoing case to the court below, the plaintiff filed an amended and substituted petition, making the city of Dubuque a party defendant, and claiming of said city damages for authorizing and permitting Julian avenue, in said city, upon which plaintiff's property abuts, to be occupied by a street railway operated by steam, to the plaintiff's damage. The defendant answered, denying all the allegations of the petition, and alleging, in substance, that the legislature of the state of Iowa had legalized the ordinance of the city of Dubuque granting to said company authority to occupy said street. The plaintiff's demurrer to the affirmative portion of this answer was sustained. The cause was tried to a jury, and the trial resulted in a verdict and judgment for the plaintiff for $675. The defendant appeals.James H. Shields, for appellant.
Pollock & McNulty, for appellee.
1. The city of Dubuque, operating under a special charter, on the twenty-eighth day of April, 1877, passed an ordinance conferring upon the Hill Street & West Dubuque Street Railway Company authority to construct upon certain streets in the city, including Julian avenue, a street railway, and to operate the same with either steam or horse power. In Stanye v. Hill & West Dubuque Ry. Co. 54 Iowa, 669, [S. C. 7 N. W. REP. 115,] it was held, following Stanley v. City of Davenport, 54 Iowa, 463 [S. C. 6 N. W. REP. 706,] that the city had no power to pass this ordinance. The eighteenth general assembly of the state of Iowa, passed an act, approved March 24, 1880, which is as follows: “That the ordinance of the city council of the city of Dubuque, passed April 28, A. D. 1877, granting to the Hill & West Dubuque Street Railway Company right of way for its railroad on certain streets of said city, mentioned in said ordinance, be, and the same is hereby, validated and made as effective in law as if said council had full power and authority to pass the same at the time said ordinance was passed.”
The defendant relies upon this curative statute. The plaintiff insists that it is unconstitutional. The defendant concedes that no express power is given to the city of Dubuque, by its charter, to authorize the occupancy of its streets by railroads operated by steam. The appellant contends that “the power of the legislature to ratify a contract entered into by a municipal corporation for a public purpose, which is ultra vires, results from its power to have originally authorized the very contract to be made.” This proposition we concede to be correct. Could the legislature, then, have passed an act authorizing the city of Dubuque to pass the ordinance in question? Article 3, § 30, of the constitution provides:
It has been held that this section of the constitution prohibits the passing of a special law for the amendment of the charter of a city. Ex parte Pritz, 9 Iowa, 30;Davis v. Woolnough, Id. 104; Hetherington v. Bissell, 10 Iowa, 145;Baker v. The Steam-boat Milwaukee, 14 Iowa, 214;Town of McGregor v. Baylies, 19 Iowa, 43. As the legislature could not, by special act, have authorized the city of Dubuque to pass the ordinance in question, it follows that it cannot, after the passage of the ordinance,...
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