Des Moines City Ry. Co. v. City of Des Moines

• Citation: 151 F. 854
• Parties: DES MOINES CITY RY. CO. v. CITY OF DES MOINES.
• Decision Date: 20 February 1907
• Court: U.S. District Court — Southern District of Iowa

151 F. 854

DES MOINES CITY RY. CO. v. CITY OF DES MOINES.

United States Circuit Court, S.D. Iowa, Central Division.

February 20, 1907

N. T Guernsey, W. L. Read, and George H. Carr, for complainant.

W. H Bremner, Howard J. Clark, and Wm. H. Baily, for defendant.

McPHERSON District Judge.

This is a case by a bill in equity without a diversity of citizenship. The jurisdiction of the court is challenged, the defendant city insisting that there is no federal question while the plaintiff contends that its property is sought to be taken without due process of law, and that its contract with the city, as to the duration of its franchise, is sought to be impaired, and will be impaired if the city is not restrained. Jurisdiction is most generally acquired, when acquired at all, in cases between citizens or corporations of different states; but in this case, as both parties are Iowa corporations, jurisdiction cannot thus be acquired. If this court takes jurisdiction, it is by reason of article 3, Sec 2, of the United States Constitution and the statutes of Congress enacted thereunder. The Constitution in part recites, with reference to the United States courts:

'The judicial power shall extend to all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made or which shall be made under their authority.'

The enactments of Congress conferring jurisdiction are pursuant to the constitutional provision. If both the state and federal courts would have jurisdiction the plaintiff has the election of bringing it in either, and such election is not a subject of criticism. It is a right. And the fact that the other party prefers to have the litigation in a court of another jurisdiction is not a reflection on any court, nor a subject of criticism. No judge will seek to acquire jurisdiction. And no judge with the slightest courage will seek to avoid the responsibilities, to the end that he may lighten his work.

The only possible practical question as to the disputes between these parties as to what court shall enter a decree is as to what court on appeal the case may be carried. If the city is right in its contention that the state district court only can take jurisdiction, then on appeal the Iowa Supreme Court will decide all questions of fact and all questions of law, except questions pertaining to the United States Constitution, which alone will finally be decided by the United States Supreme Court. But if the street railway company is correct in its contention that this court has jurisdiction, then the case can be taken direct to the United States Supreme Court, and that court will determine all questions of fact and all questions of law, including all constitutional questions. But with matters of appeal this court has nothing to do, and they are only referred to because of the arguments. But it is not a question of labor nor responsibility, nor shirking of either, but is a question of jurisdiction, and that depends upon the question of whether there is a 'federal question' in the case.

In 1866 Des Moines was a city of about 6,000 people. It had no street cars, and quite likely no other city of the state had. Up to that time there was no statute on the subject. The only statute that could be referred to as at all germane to the subject was section 1064 of the Revision of 1860, which in the most general terms gave city councils power over the streets. Under that statute, no doubt, the city council assumed authority to pass an enactment in the form of an ordinance of date December 10, 1866, referred to as the Dr. Turner ordinance, and is as follows:

'Section 1. That consent, permission, and authority is hereby given and granted to and duly vested in the Des Moines Street Railway Company, and their successors and assigns, to lay a single or double track for passenger railway lines, with all necessary and convenient tracks for turnouts, side tracks, and switches in, upon, and along all the streets, and such alleys only fronting on which said company have depots, stables or car houses, and over the bridges and such streets in the city of Des Moines, with their present and future extensions and connections, and authority is hereby given said company, their successors and assigns, to keep, maintain, use, and operate thereon railway cars in the manner and for the time, and upon the conditions hereinafter mentioned and prescribed.'

Section 2 provides that the cars shall be operated by animal power. Section 3 provides that the same shall be used for carrying passengers and baggage. Sections 4, 5, 6, 7, and 8 are not material to this inquiry. Section 9 provides within what time the first mile shall be completed and in operation. Section 10 which, with section 1, more than all other matters are the subject of this litigation, is as follows:

'Sec. 10. The right herein granted to said company to operate said railway, shall be exclusive for the term of thirty (30) years from the time the first mile of said track is laid and cars running thereon, and the said city of Des Moines shall not, until after the expiration of said term, grant to or confer upon any person or corporation any privileges which will impair or destroy the rights and privileges herein granted to said company.'

Section 11 is with reference to building to fair grounds. Section 12 requires annual statements, and is with reference to taxes. Section 13 need not be stated, while section 14 is with reference to acceptance of the terms of the ordinance.

The ordinance was timely accepted, and by January 1st, 1868, sufficient tracks had been constructed and in operation as to be the beginning of the 30 years referred to in section 10. Complainant shows that by assigns, transfers, etc., it is the successor of the company named in the ordinance. The 30-year period referred to in the ordinance expired January 1, 1898, and whether the rights and franchises of the company expired 9 years ago, or the exclusive and monopoly period only, is the real question of the case; the city contending that all rights then ended, and the street car company, that the exclusive period only, with its rights as perpetual in common with such other companies as may desire with the consent of the city to go into business.

The Des Moines Street Railway Company named in the Dr. Turner ordinance operated the lines until 1886, when it sold and conveyed the property, franchise included, to the Des Moines Railroad Company. About that time another company was organized, referred to as 'Broad Gauge Company,' with a purpose to construct and operate lines by horse power. Litigation ensued between the two companies to which the city was a party. The litigation resulted: (1) The exclusive provision of section 10 of the ordinance of December 10, 1866, was upheld, and the Broad Gauge Company was enjoined from operating. (2) It was held that whether the city under the revision of 1860 had authority to pass the ordinance of 1866 was not important, as the Legislature had since recognized and ratified it. Des Moines Street Railroad Cases, 73 Iowa, 513, 33 N.W. 610, 35 N.W. 602; Des Moines Street Railroad Cases, 74 Iowa, 585, 38 N.W. 496. Thereupon the city granted authority to the Broad Gauge Company to operate by electric power; and the courts held that operating by electric power was not a violation of the exclusive right to operate for 30 years by horse power. Teachout v. Des Moines Street Car Co., 75 Iowa, 722, 38 N.W. 145. The two companies disputed with each other and the city until 1889, when a settlement was effected by a consolidation resulting in the Des Moines Street Railroad purchasing the electric company. Suits were settled and dismissed, the city council adopting a resolution imposing certain conditions, and the company accepting them.

It will be recalled that section 2 of the Turner ordinance of December 10, 1866, required the moving of cars by animal power. But March 8, 1890, the city council amended it by providing that the power used could be electric or other practical motor power. And the terms of that ordinance were accepted by the street car company. Less than two months thereafter the Legislature by chapter 11, p. 19, Acts 23d Gen. Assem., approved April 24, 1890, with a publication clause, legalized said ordinances as follows:

'Sec. 2. All ordinances or resolutions of such cities or incorporated towns heretofore enacted granting to any person or company the right to propel its cars by electricity are hereby declared legal and valid.'

So that from the foregoing it will be seen that we have a case as though the ordinance of December 10, 1866, was passed under full statutory authority, with section 2 reading that the power shall be electric 'or other practical motor power,' and as though the Des Moines Street Railroad Company was named in the ordinance.

Still later on complainant herein, by purchase, became the owner, including the franchises, of other lines constructed in adjacent municipalities, now a part of the city of Des Moines. In 1898 when the 30-year exclusive period of the Turner ordinance expired, complainant had about 40 miles of road, and when the resolution now to be mentioned was passed, it had about 70 miles of road, all in operation. November 21, 1905, the city council adopted a resolution. The wording thereof was the result of several efforts in phrasing. But by passing it, it became the work of the council, and the resolution is as follows:

One 'whereas' is that questions have been raised as to the rights of the complainant to maintain its tracks and operate its lines on the streets; and the other 'whereas' is that to preserve the rights of the city, and that such questions be speedily determined. Then:

'Be it resolved

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