Iowa Ry. & Light Corp. v. Lindsey

• Decision Date: 23 June 1930
• Docket Number: 39893
• Parties: IOWA RAILWAY & LIGHT CORPORATION, Appellant, v. J. L. LINDSEY, County Engineer, Appellee
• Court: Iowa Supreme Court

231 N.W. 461

211 Iowa 544

IOWA RAILWAY & LIGHT CORPORATION, Appellant, v. J. L. LINDSEY, County Engineer, Appellee

No. 39893

Supreme Court of Iowa, Des Moines

June 23, 1930

REHEARING DENIED DECEMBER 13, 1930.

Appeal from Greene District Court.--M. E. HUTCHISON, Judge.

Plaintiff is a public service corporation, holding a franchise granted to it by the state board of railroad commissioners permitting it to erect an electric transmission line in certain highways in Greene County. This action was commenced by it to compel the defendant county engineer to locate a line for its poles and to restrain him from so locating it as to prevent the plaintiff from placing its entire line within the limits of the highway. Decree dismissing the petition and plaintiff appeals.

Reversed.

Graham & Osborn, for appellant.

John Fletcher, Attorney-general, Maxwell O'Brien, Assistant Attorney-general, and W. E. S. Hutcheon, County Attorney, for appellee.

ALBERT, J. FAVILLE, DE GRAFF, KINDIG, and GRIMM, JJ., concur. STEVENS, EVANS, MORLING, and WAGNER, JJ., dissent.

OPINION

ALBERT, J.

The plaintiff is an Iowa corporation, engaged in the business of generating, transmitting, distributing, and selling electricity for light, heat, and power purposes. It filed a petition with the board of railroad commissioners for a franchise to construct a 6,600-volt transmission line on a highway in Greene County. The petition, as required by law, was accompanied by certain specifications as to material, manner, and method of construction, which provided, among other things, for a 6-foot and 7-inch cross arm on the poles, for the purpose of carrying wires conducting electrical energy. There is no question as to the regularity of this proceeding, which resulted in the granting of the prayer of the petition of the defendant and the issuing of a franchise accordingly, which, so far as material, reads as follows:

"This franchise is issued and permission and authority thereunder are hereby granted unto the above-named Iowa Railway & Light Corporation to erect, maintain and operate a 6,600-volt line for the transmission, distribution, use and sale of electric current outside cities and towns, and for such purpose to erect, use and maintain poles, wires, guy wires, towers, cables, conduits and other fixtures and appliances necessary for conducting electric current for light, heat and power over, along and across any * * * highways, along a road particularly described as follows:" (Here follow a description of the highway along which this line was to be built, and also a designation on which side of the highway the line was to be constructed, the length of the line being approximately 5 1/2 miles.)

The franchise further provides that it is subject to the provisions, conditions, and requirements of Chapter 383, Code, 1924, and to all of the provisions, rules, and regulations of the board of railroad commissioners as now exist or may be hereafter ordered or required, and the board of railroad commissioners is to retain jurisdiction and may at any time make such further orders and regulations as may be necessary, and as said board may authorize by law.

The county engineer designated the location of the poles of this line at a point one foot from the line which marks the boundary between the highway and the adjoining property. The plaintiff was constructing, or starting to construct, its line by placing poles at a point four feet from the line between the highway and the adjoining property.

Some elementary principles in relation to this matter are well settled. Primarily, the right to establish, regulate, and control highways rests in the state. It is equally true that the state has the right to delegate such powers to boards, commissions, public or municipal corporations. Originally, these rights were all delegated to the boards of supervisors of the respective counties of the state, but later, the power of the boards of supervisors respecting the construction and maintenance of primary roads was vested in the state highway commission. Chapter 101, Section 8, Acts of the Forty-second General Assembly.

No one would dispute the proposition that the primary purpose of establishing and maintaining highways is for the benefit of the general traveling public; but whether the highways are those established by direct act of the legislature, as they were in the early history of the state, or by bodies or commissions or corporations authorized so to do by the state, it (the state) yet has a reserve right over the whole subject, by which it may enlarge, reduce, or take away any powers thus conferred. The legislature of this state has seen fit, in the exercise of this right, to grant to telegraph and telephone companies the right to construct their lines upon the highways within the state, and this power has been enlarged to include electric transmission lines. With the wisdom of this legislation (allowing highly charged electric lines to be constructed upon the highway) we have no concern, as that rests within the sound discretion of the legislature. The legislature later created a board of railroad commissioners, and conferred upon it the power of determining whether or not high-tension transmission lines should be placed upon any of the highways of the state. The board is given a discretion to determine this question, and their determination is final, unless appealed from. See Section 7874, Code, 1924, where the board of railroad commissioners is given "general supervision of * * * all lines for the transmission, sale, and distribution of electrical current for light, heat, or power, except in cities and towns."

Under Section 8309, Code, 1924, all such companies are prohibited from erecting, maintaining, or operating any of these lines without first procuring a franchise.

As provided by Chapter 383, Code, 1924, they acquire this franchise by the filing of a petition, in conformity with Sections 8310 and 8311. Upon the filing of this petition, the railroad commissioners are required to fix a date, and to publish notice to the citizens of each county through which the proposed line or lines will extend.

Section 8313 provides that "any person, company, city, town, or corporation whose rights or interests may be affected, shall have the right to file written objections to the proposed improvement or to the granting of such franchise," and that, after being fully advised in the matter, the board of railroad commissioners "may grant such franchise in whole or in part upon such terms, conditions, and restrictions, and with such modifications as to location and route as may seem to it just and proper."

It is obvious, therefore, from this enactment that the board of railroad commissioners has the power to grant the franchise, specifying the terms, conditions, and restrictions thereof, and designating the location and route of these lines, as they may deem just and proper. Any person is given the right to appear before the board on such hearing, and file written objections to the proposed improvement or the granting of such franchise. No objections appear to have been made in the instant case, and we turn to the requirements of the statute as to what was legally included in the franchise.

Section 8310 says, among other things, that they may petition for "a franchise, to erect, maintain, and operate a line or lines for the transmission, distribution, use and sale of electric current outside cities and towns and for such purpose to erect, use and maintain poles, wires, guy wires, towers, cables, conduits, and other fixtures and appliances necessary for conducting electric current for light, heat, or power over, along, and across any public * * * highways." It is quite apparent, therefore, from this section that the franchise covers more than simply the line of poles, because it so specifies in terms. It follows necessarily, therefore, that the board of railroad commissioners had the power to grant this franchise for the erection of this transmission line, and upon the terms, conditions, restrictions, and limitations therein set out. It also had power to designate the route and location of this line which it did.

It is provided in Section 8313 that the board of railroad commissioners may examine the proposed route, or cause an engineer selected by it to do so, and it may grant such franchise, in whole or in part, upon such terms, conditions, and restrictions, and with such modifications as to the location and route as may seem to it just and proper; and such franchise, according to Section 8314, shall be subject to such rules, not inconsistent with the statute, as the board of railroad commissioners may establish from time to time.

By Section 8318 the board is required to keep a record showing all franchises granted, and to whom issued, with a general statement of the location, route, and termini of the line or lines covered thereby.

It is to be noticed that this chapter of the Code (383) is headed "Electric Transmission Lines," and from a study of all of the sections it is apparent that they all purport to deal with electric transmission lines.

Chapter 174, Acts of the Thirty-fifth General Assembly (Sections 2120-n to 2120-t, inclusive, Code Supplement, 1913), was approved April 11, 1913, and published April 16, 1913. Many of the electric lines in the state were built and operated before 1909, when the board of supervisors was given power to locate these lines.

A state highway commission was created by Chapter 122, Acts of the Thirty-fifth General Assembly, and Section 18 thereof (Section 1527-s17, Code Supplement, 1913), provides, among other things, that the "county and township boards, charged with the duty of improving public highways, shall have...