Des Moines St. R. Co. v. Des Moines Broad-Gauge St. Ry. Co.

• Decision Date: 27 June 1887
• Citation: 73 Iowa 513,33 N.W. 610
• Parties: DES MOINES ST. R. CO. v. DES MOINES BROAD-GAUGE ST. RY. CO. DES MOINES ST. R. CO. v. CITY OF DES MOINES AND OTHERS. DES MOINES ST. R. CO. v. DES MOINES BROAD-GAUGE RY. CO.
• Court: Iowa Supreme Court

73 Iowa 513

33 N.W. 610

DES MOINES ST. R. CO.

v.DES MOINES BROAD-GAUGE ST. RY. CO.

DES MOINES ST. R. CO.

v.CITY OF DES MOINES AND OTHERS.

DES MOINES ST. R. CO.

v.DES MOINES BROAD-GAUGE RY. CO.

Supreme Court of Iowa.

June 27, 1887.

Appeal from circuit court, Polk county.

These cases are submitted together as involving the question as to the respective rights of the plaintiff, the Des Moines Street Railroad Company, and the defendant the Des Moines Broad-Gauge Railway Company, to occupy certain streets of the city of Des Moines. The first case is an action to enjoin the defendant, the Des Moines Broad-Gauge Street Railway Company from interfering with the plaintiff in laying its tracks upon certain streets, and for a decree that it has no rights in those streets. The second is an action for an injunction to prevent the city and city officers from interfering with the plaintiff in laying its track. The third pertains to a different street, but involves substantially the same legal questions. The decree rendered is quite lengthy, and we cannot properly set it out in full. It enjoined the defendant, the Des Moines Broad-Gauge Railway Company from occupying a portion of one street, and gave the plaintiff an exclusive right therein. It allowed the defendant to occupy other streets, and made various provisions in regard to occupancy. Both the plaintiff and the Des Moines Broad-Gauge Railway Company appeal; the former perfecting its appeal first.

ADAMS, C. J., dissenting.Kauffman & Guernsey and Parsons & Perry, for appellant.

Baylies & Baylies, for appellee.

ADAMS, C. J.

The plaintiff's claim is that it has for the present, under the ordinances of the city, an exclusive right to furnish to the city of Des Moines its street-railway service, and to occupy for that purpose, without hinderance or competition by any other street-railway company, so many of the streets as may be necessary, and that it will continue to have such right for a limited time to come, if it complies with its obligations, express and implied, arising under the ordinances in question. If this claim shall be sustained, the determination thus made will dispose of the other questions in the case.

In 1866 the city council of Des Moines passed an ordinance whereby it granted to the plaintiff's assignor, a company organized as a street-railway company, the right to lay a single or double track along all its streets. The same ordinance provided that “the right herein granted to said company to operate said railway shall be exclusive for the term of 30 years.” Many other provisions were made, not important to be set out.

The plaintiff relies upon the provision above quoted as being sufficient, so far as its terms are concerned, to give the exclusive right claimed, and insists that the provision is valid, if not originally for want of legislative grant of power, yet subsequently by such grant by the legislature, and by ratification of the ordinance by the council.

The defendant company obtained an ordinance in 1886, and proceeded to occupy certain of the streets with its track. It denies that the right claimed by the plaintiff under the ordinance of 1866 appears to be given even by the terms of the ordinance. Its position is that the exclusive right granted pertains merely to the operation of the railroads which the plaintiff's assignor should build, and not to the streets, and that the plaintiff's right is not interfered with by occupancy of other or the same streets if the plaintiff is not hindered in the operation of its road.

In our opinion, however, the meaning of the provision is the same as if it read, “the right herein granted to said company to operate said railway shall be exclusive” of other street railways. It was not necessary to provide by ordinance that other persons should not run cars on the plaintiff's assignor's track, nor obstruct its cars; and no one, we think, looking at the ordinance, can suppose that that was all that was intended. So far, the plaintiff's assignor's right would be exclusive by reason of the mere right of property, and without any ordinance. If anything more were necessary we find it in the very section of the ordinance under consideration. It is provided in the same section and same sentence as follows: “And the said city of Des Moines shall not, until 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.” The right granted was to lay and operate a track on all the streets of the city. The construction and operation of a rival railway would impair the plaintiff's rights. It might not constitute a physical interference, but it would impair, if not destroy, the plaintiff's enterprise, so far as the profits were concerned; and those, we may assume, constituted the sole object of the enterprise. We cannot think that there is any reasonable doubt about the meaning of the ordinance. We think that the city undertook to exclude rival companies which would interfere with the profits of the company for whose benefit the provision was intended.

The defendant company's next position is that the provision in question is void for want of power in the city to make such provision. The fact is that there does not seem to have been, as early as 1866, any legislative grant to the city of power to confer upon an individual or corporation an exclusive right. The plaintiff contends that no such legislative grant was necessary, and adduces some very able arguments in support of its position. We do not find it necessary to determine this question. It was afterwards provided, in section 464 of the Code, that the city council shall have “power to authorize or forbid the location and laying down of tracks for railways and street railways.” The plaintiff contends that the power to forbid is sufficient to enable the city council to make a granted right practically exclusive for such time as it may see fit, by withholding the right from others. This, of course, cannot be denied. The doubt, if any, is as to whether the council, having the power to make a granted right practically exclusive, by withholding it from others, can bind itself by contract to withhold it for a limited time from others, if it shall deem it necessary to make such contract in order to secure a service to the public which it might not otherwise be able to do.

The question presented calls for a construction of the provision of the statute which gives the “power to authorize or forbid the laying down of tracks.” The plaintiff contends that we have virtually placed a construction upon this statute in the construction given to words of similar import in the charter of the city of Burlington. The case relied upon is Burlington & H. Co. Ferry Co. v. Davis, 48 Iowa, 133. In that case it was held that the power to grant or refuse a ferry license involved the power to make a granted ferry license exclusive for a limited time. The defendant contends that that construction is not authoritative even in respect to that charter, because the decision of the case might have been placed upon other ground, and, besides, it is said that the same or similar words should not be so construed when applied to a street railroad. The court having elected to put the decision in that case upon the ground upon which it did, it appears to us that the construction given should be deemed authoritative, so far as the precise question is concerned which was before the court. Whether the case of a ferry stands upon such peculiar ground that a court would be justified in finding, in given words, a power to grant an exclusive license, more readily than it would find in words of similar import respecting a street railway, the power to grant an exclusive right of construction and operation, is a question upon which much might be said. A ferry is looked upon as an extension of a highway. It must be maintained in a safe way, and at stated times, so that the public can rely upon it. It is not probable that the requisite service could always be secured without contract, and in some instances we presume a contract could not be obtained which did not provide for an...