City of Lansing v. Chicago, Milwaikee & St. Paul Railway Co.

• Decision Date: 17 May 1892
• Citation: 52 N.W. 195,85 Iowa 215
• Parties: CITY OF LANSING, Appellant, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY Co., Appellee
• Court: Iowa Supreme Court

52 N.W. 195

85 Iowa 215

CITY OF LANSING, Appellant, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY Co., Appellee

Supreme Court of Iowa, Des Moines

May 17, 1892

Appeal from Allamakee District Court.--HON. L. O. HATCH, Judge.

THIS is an action at law to recover the sum of seven hundred dollars in the way of penalty for the alleged violation of an ordinance of the plaintiff city. There was a demurrer to the petition, which was sustained, and the plaintiff appeals.

Affirmed.

James H. Trewin, for appellant.

Noble & Updegraff, for appellee.

OPINION

ROTHROCK, J.

The ordinance under which the plaintiff seeks a recovery is as follows:

"Be it ordained by the city council of the city of Lansing, Iowa Section 1. That the Chicago, Milwaukee & St. Paul Railway Company is hereby required to station three flagmen in the city of Lansing, Iowa, where their railway track or tracks cross the public highways and streets. One of said flagmen shall be stationed at the railway crossing in North Capoli (now in said city of Lansing) at or near the stone building formerly used for a grist mill, and being nearly opposite the Village Creek road where the same intersects with Front street; one of said flagmen to be stationed at the crossing of Main and Front streets, and one of said flagmen to be stationed at or near where the railway crosses Front street, above the steam saw and lumber mill owned by W. A Manger; and that said flagmen shall be at their stations from six A. M. to eight P. M. each and every day except Sundays. When said railway company runs its train or trains on Sunday said company are required to station its flagmen at said crossings. Section 2. If said company fails or refuses to keep said flagmen at such stations as provided in section 1 of this ordinance, it shall forfeit ten dollars for each and every day said flagmen are absent from said duty to said city of Lansing, which sum may be recovered by action in the name of said city, and for its use and benefit. Section 3. This ordinance shall take effect and be in force from and after its passage and publication as provided by law. Passed and approved this twenty-seventh day of May, A. D. 1886."

It is averred in the petition that the defendant "failed and refused to station a flagman at or near the crossing named in said ordinance as being near where the railway crosses Front street above the steam saw and lumber mill owned by W. A Manger, each and every day from the twelfth day of October, 1888, up to the twenty-first day of December, 1888--in all seventy days--in violation of the provisions of said ordinance. That no part of the penalty forfeited by reason of such failure has been paid, but the whole amount, to-wit, the sum of seven hundred dollars, is now due the plaintiff. Wherefore the plaintiff demands judgment against said defendant for seven hundred dollars and costs." The demurrer to the...