Sioux City St. Ry. Co. v. City of Sioux City

• Decision Date: 09 October 1889
• Citation: 43 N.W. 224,78 Iowa 367
• Parties: THE SIOUX CITY STREET RAILWAY COMPANY v. THE CITY OF SIOUX CITY et al
• Court: Iowa Supreme Court

43 N.W. 224

78 Iowa 367

THE SIOUX CITY STREET RAILWAY COMPANY v. THE CITY OF SIOUX CITY et al

Supreme Court of Iowa, Des Moines

October 9, 1889

Decided October, 1889

Appeal from Woodbury District Court.--HON. C. H. LEWIS, Judge.

THIS is a proceeding by certiorari to determine the validity of a certain action of the defendant city in requiring plaintiff to pave that part of the streets whereon its street railway is built, which is of the breadth of one foot on the outside of its street railway track. A demurrer to the petition was sustained, and, plaintiff electing to plead no further, its petition was dismissed, and thereupon it appealed to this court. The cause has before been in this court (see post, p ).

AFFIRMED.

J. H. & C. M. Swan, for appellant.

C. L Wright and S. J. Quincy, for appellees.

OPINION

BECK, J.

I.

After the decision of this cause when before in this court it was remanded for further proceedings to the district court. The petition was amended by the addition of allegations to the effect that the statutes of the state and the ordinance and other action of the city under which the pavement was constructed, and an assessment made therefor, are in conflict with article 1, section 10, of the constitution of the United States, in that they have the effect to impair the obligation of a contract. The claim of plaintiff in support of this allegation of its petition is based upon the position that the requirement to build the pavement in controversy, and the assessment therefor, is a burden additional to those imposed by the statute and ordinance under which plaintiff built its street railway, which are recited in our former opinion in this case. The ordinance of the city, the plaintiff insists, was a contract under which plaintiff undertook to build the street railway upon the condition of paving between the rails, and doing other things which need not be specified. The paving outside of the track of the railway was not provided for by the ordinance, and is therefore a burden additional to those imposed by ordinance granting plaintiff authority to build its railway. It may be that the ordinance of the city requiring the paving in question does not affect the franchise of the plaintiff as claimed by counsel. Possibly the term "franchise," when used in connection with corporations, is limited to designate the privilege and rights conferred by the charters, or the equivalent thereto under our statutes,--their articles of incorporation. We need not here determine whether the assessment in question is in harmony or in conflict with what is called the "franchise" of plaintiff, and may assume that counsel's position, to the effect that it pertains to a contract between plaintiff and the city, is correct, if it be found such a contract exists, and is preserved unimpaired by the provision of the constitution of the United States above referred to.

It will be remembered, as is shown in our former opinion in this case, that plaintiff, a corporation organized under the laws of the state, with the object of constructing and operating street railways in Sioux City, was, by ordinance of the city authorized to construct and operate a street railway upon certain streets of the city, on specified terms, among which was the requirement that the plaintiff should pave the space between the rails when the street upon which the railway is constructed is ordered to be paved. The plaintiff proceeded, under this authority, to build its street railway. Subsequently chapter 20, Acts, 1884, was enacted, which requires street railways, in cities of the class (the first) to which defendant belongs, to pave between the rails of their street-railway tracks, and a space of one foot in breadth outside of the rails. After the enactment of this statute the city, by ordinance, required the plaintiff to make such pavement outside the rails of its railway track, and, in proper form, proceeded to...