Incorporated Town of Huxley v. Conway

• Decision Date: 14 February 1939
• Docket Number: 44412.
• Citation: 284 N.W. 136,226 Iowa 268
• Parties: INCORPORATED TOWN OF HUXLEY v. CONWAY et al. (CHICAGO, M., ST. P. & P. R. CO., Intervenor).
• Court: Iowa Supreme Court

284 N.W. 136

226 Iowa 268

INCORPORATED TOWN OF HUXLEY v. CONWAY et al. (CHICAGO, M., ST. P. & P. R. CO., Intervenor).

No. 44412.

Supreme Court of Iowa.

February 14, 1939

Appeal from District Court, Polk County; Russell Jordan, Judge.

This is an appeal from an order quashing a writ of certiorari sued out to test the jurisdiction of the board of railroad commissioners, and dismissing plaintiff's petition at its cost. The facts appear in the petition.

Reversed.

Lee & Walsh, of Ames, for appellant.

John DeMar, of Des Moines, for appellees.

Hughes O'Brien & Hughes, of Des Moines, for intervenor and appellee.

SAGER Justice.

For convenience, the defendant, Board of Railroad Commissioners and its constituent members, will be referred to as the board, and their co-defendant, as the railroad. The plaintiff will be spoken of as the town.

On June 28, 1935, on application of the railroad, resisted by the town, the defendant board made an order affecting a certain overhead crossing over Third Avenue in the plaintiff town. Something is said in argument to the effect that Third Avenue had not been legally established, and that the town itself had not been shown to have been legally incorporated. Since both of these propositions were expressly or tacitly admitted below, we pass them without comment.

We can perhaps give a clear understanding of the controversy by taking the order of the board as correct with reference to its finding of facts. It follows in substance, omitting such parts as are not pertinent:

At the time the railroad was built, that part of the town which lies south of the railroad tracks, along Third Avenue, and which was later platted, had several industries which have since disappeared, leaving only one resident owner thereon. The railroad claims that the bridge needs rebuilding. The town denies this, but for the purposes of this opinion it makes no difference what the fact is. The cost of rebuilding or repairing is thought to be out of proportion to the purposes the bridge serves, and it is the claim of the railroad that it can build a cinder road or driveway on its right of way extending east on Third Avenue to a point where this cinder road extended to the north would connect with Main Street which " dead ends" at the right of way. This would involve the building of approximately 600 feet of roadway. The town resisted the railroad's application for permission to make the change on various grounds, the chief of which is, perhaps, that the crossing proposed would be downgrade and dangerous to traffic; and because of the slope, would be a lure for children to skate or slide thereon down the incline to the railroad tracks. The bridge which the railroad seeks to abandon is 145 feet in length, and its floor 25 feet above the rails, and spans a cut 16 feet deep. The board, after analyzing the contentions of the parties as to costs, sight distances from the old and proposed crossing, and the purpose the overhead crossing serves, proceeds to say:

" It is the trend at the present time to separate grades wherever consistent and particularly at locations where railroad and/or highway traffic is heavy. The traffic over this bridge is acknowledged very light and it is difficult to justify the retention of an overhead at a considerable cost where traffic will only average three or four vehicles per day. The expense of replacement or reconstruction of bridge amounts to a considerable sum-more than appears justifiable for the traffic involved; the bridge is in need of replacement in most of its parts; and it appears that a reasonably adequate, safe and convenient grade crossing can be established and maintained."

The conclusion arrived at by the board is stated to be that the railroad " should be permitted to abandon the overhead structure now located at Third Avenue and in lieu thereof said railroad company should be required to place barricades at either approach to the overhead bridge at or near their north and south right of way lines, and that a serviceable cinder roadway and crossing be constructed from the south approach of the bridge easterly to the intersection with Main Street extended and thence northerly connecting with Main Street as presently located. The roadway shall be cindered and shall be hereafter maintained with a serviceable cinder surface, shall be 16 feet in width, shall have grades in either direction from track as nearly uniform and as nominal as is consistent, and the crossing shall be planked. Crossbuck signs shall be erected, and all other things shall be done to afford an adequate, safe and convenient roadway and crossing at this location.

It is our further opinion that the roadway now leading from Main Street to the depot platform and facilities be maintained with a reasonably smooth cindered surface, this in order that children sliding on this grade may be enticed to use this roadway rather than to use the roadway leading directly to tracks."

To test the validity of this order, the town made application to the district court for a writ of certiorari. A return having been made by the board, the railroad intervened. A trial was had and evidence, in addition to the written return, was taken. This hearing, resulted in the following entry by the trial court:

" * * * quashing and annulling the writ of certiorari issued in this cause, and dismissing plaintiff's petition at plaintiff's costs * * *."

It is from this order the town appeals.

We address ourselves to applicable rules. At the outset, it is apparent that the board has no powers except those expressly given and those incidental to or implied in the power granted. Reed v. Iowa State Highway Commission, 221 Iowa 500, 266 N.W. 47.

In Board of Railroad Commissioners v. Oregon Ry. & Nav. Co., 17 Or. 65, 19 P. 702, 2 L.R.A. 195, the rule is thus stated:

" A power conferred by the legislature upon a board of commissioners, required to be exercised with reference to the affairs of certain corporations, will not be extended by implication; and the acts which the board attempts to do under the power will not be upheld, unless the authority to do them is affirmatively shown to be included in it."

See, also, Monroe v. Railroad Commission, 170 Wis. 180, 174 N.W. 450, 9 A.L.R. 1007; Portsmouth v. Virginia, etc., Power Company, 141 Va. 54, 126 S.E. 362, 39 A.L.R. 1510; Chippewa Power Company v. Railroad Commission, 188 Wis. 246, 205 N.W. 900; Sparta Foundry Company v. Michigan Public Utilities Commission, 275 Mich. 562, 267 N.W. 736; 22 R.C.L. section 39; Taylor v. Michigan Public Utilities Commission, 217 Mich. 400, 186 N.W. 485.Appellant cites cases which might be added, but these are sufficient.

A search for statutory...