Cedar Rapids & Marion City Railway Co. v. City of Cedar Rapids

• Citation: 76 N.W. 728,106 Iowa 476
• Parties: THE CEDAR RAPIDS & MARION CITY RAILWAY COMPANY, Appellant, v. THE CITY OF CEDAR RAPIDS, et al
• Decision Date: 20 October 1898
• Court: United States State Supreme Court of Iowa

76 N.W. 728

106 Iowa 476

THE CEDAR RAPIDS & MARION CITY RAILWAY COMPANY, Appellant, v. THE CITY OF CEDAR RAPIDS, et al

Supreme Court of Iowa, Des Moines

October 20, 1898

Appeal from Linn District Court.--HON. WILLIAM G. THOMPSON, Judge.

THIS action is before us on an appeal by the plaintiff from a judgment rendered by the district court on an assessment for taxation made against the plaintiff, for the year 1895. The issues and facts appear in the opinion.--Modified and Affirmed.

MODIFIED and AFFIRMED.

Charles A. Clark for appellant.

Warren Harmon for appellees.

OPINION

GIVEN, J.

I.

On the first day of January, 1895, the plaintiff owned and was operating a line of railway from a point within the limits of Cedar Rapids, through the incorporated town of Kenwood, and over certain unincorporated territory into the incorporated city of Marion. It also owned and operated in connection therewith certain other lines or branches entirely within the limits of the city of Cedar Rapids. These tracks were laid upon and at the grade of the streets of these municipalities, and upon and at the grade of the public highway connecting said cities, over the unincorporated territory, including certain county bridges in said highway. Originally, the line to Marion started at Fifteenth street, in Cedar Rapids, then a boundary street of said city, and was operated by steam engines, under chapter 32, Acts Eighteenth General Assembly, authorizing any street railway company extending its lines beyond the limits of the city to build and operate its road over and along any portion of a highway of a width of one hundred feet or more. On and for some time prior to January, 1895, the tracks within the city of Cedar Rapids and that to Marion were operated together; electricity, applied by the overhead or trolly system, being used as the motive power. One or more of the steam engines formerly used were kept in a motor house near Indian creek, for use in case of deep snows or other emergency rendering their use desirable. Cars were operated on these tracks mainly for the carriage of passengers in the manner practiced by street railways. Plaintiff had four cars which it used in carrying freight between said cities, and it also carried such express matter as was offered at either end of the line or at any point between. The power house and principal car sheds were in Cedar Rapids, and most of the rolling stock was kept therein when not in use, the other cars being kept in Marion for convenience in starting from that end of the line in the mornings. Plaintiff did not have freight nor passenger depots and agents along the line, as commercial railroads have, but took up and discharged passengers and express matter at cross streets and other convenient points. In short, it was operated in all its branches as street railways are operated except that it received and carried freight and express matter, to a limited extent, between the two cities. The assessor of the defendant city assessed the plaintiff's property within that city, for the year 1895, at one hundred and fifty thousand dollars, including therein three certain lots that did not belong to the plaintiff, and omitting therefrom parts of two other lots that did belong to the plaintiff, and were used in the operation of the road. On application to the board of equalization, said assessment was reduced to one hundred thousand dollars; and, on appeal to the district court, said three lots were stricken from the assessment, and the parts of said two lots owned by the plaintiff added thereto, and the assessment sustained at one hundred thousand dollars.

II. The Code of 1873 provides as follows: "Section 1317. On the first Monday of March in each year, the executive council shall assess all the property of each railway corporation in this state, excepting lands, lots, and other real estate belonging thereto not used in the operation of any railway." Plaintiff's first contention is that it is a "railway corporation," within the meaning of said section, and subject only to assessment by the executive council. So maintaining, it made returns to, and asked to be assessed by, that body; but the council held, on advice of the attorney general, that it had no power to assess the plaintiff's said property. Plaintiff's counsel state the question thus: "Whether appellant's main line with or without the lines in the streets of Cedar Rapids, is subject to assessment and valuation by the local authorities, or whether such assessment must be made by the executive council of the state of Iowa." That plaintiff is a "railway corporation," in the broadest signification of that term, may be conceded, but our inquiry is as to the sense in which those words are used in said section 1317. We need not quote the many provisions of the statute with respect to railroads which show that a distinction is recognized between what we may call "commercial railroad corporations" and "street railroad corporations." That there is a distinction is not questioned, but the dispute is as to which class the plaintiff corporation belongs. See Fidelity Loan & Trust Co. v. Douglas, 104 Iowa 532, 73 N.W. 1039. The development of railways in and about towns and cities has brought the question before the courts whether a particular railway was a street or commercial railway, and the question has always been determined in the light of the statute and the facts of the particular case. The part of this road extending from Cedar Rapids to Marion was constructed and operated by the plaintiff corporation, under authority of chapter 32, Acts Eighteenth General Assembly. See Linn County v. Hewitt, 55 Iowa 505, 8 N.W. 340. The act relates expressly to street railways, and authorizes the extension of such railways beyond the limits of the city or town, the location thereof along any portion of a highway which is of a width of one hundred feet or more, and the operation of the railway by either animal or...