Stange v. City of Dubuque

• Decision Date: 08 December 1883
• Citation: 17 N.W. 518,62 Iowa 303
• Parties: STANGE ET AL. v. THE CITY OF DUBUQUE
• Court: Iowa Supreme Court

17 N.W. 518

62 Iowa 303

STANGE ET AL. v. THE CITY OF DUBUQUE

Supreme Court of Iowa, Des Moines

December 8, 1883

Appeal from Dubuque Circuit Court.

THIS case is a continuation of that of Stange v. Hill & West Dubuque Street Railway Company, 54 Iowa 669. Upon the remanding of the foregoing case to the court below, the plaintiff filed an amended and substituted petition, making the city of Dubuque a party defendant, and claiming of said city damages for authorizing and permitting Julian avenue, in said city, upon which plaintiff's property abuts, to be occupied by a street railway operated by steam, to the plaintiff's damage. The defendant answered, denying all the allegations of the petition, and alleging, in substance that the legislature of the state of Iowa had legalized the ordinance of the City of Dubuque, granting to said company authority to occupy said street. The plaintiff's demurrer to the affirmative portion of this answer was sustained. The cause was tried to a jury, and the trial resulted in a verdict and judgment for the plaintiff for $ 675. The defendant appeals.

AFFIRMED.

James H. Shields, for appellant.

Pollock & McNulty, for appellee.

OPINION

DAY, CH. J.

I. The City of Dubuque, operating under a special charter, on the 28th day of April, 1877, passed an ordinance conferring upon the Hill Street and West Dubuque Street Railway Company authority to construct upon certain streets in the city including Julian avenue, a street railway, and to operate the same with either steam or horse power. In Stange et al v. Hill & West Dubuque Street Railway Company, 54 Iowa 669, 7 N.W. 115, it was held, following Stanley v. City of Davenport, 54 Iowa 463, 2 N.W. 1064, that the city had no power to pass this ordinance. The Eighteenth General Assembly of the state of Iowa passed an act, approved March 24th, 1880, which is as follows: "That the ordinance of the city council of the city of Dubuque, passed April 28th, A. D., 1877, granting to the Hill & West Dubuque Street Railway Company right of way for its railroad on certain streets of said city, mentioned in said ordinance, be and the same is hereby validated, and made as effective in law as if said council had full power and authority to pass the same at the time said ordinance was passed." The defendant relies upon this curative statute. The plaintiff insists that it is unconstitutional. The defendant concedes that no express power is given to the city of Dubuque by its charter to authorize the occupancy of its streets by railroads operated by steam. The appellant contends that "the power of the legislature to ratify a contract entered into by a municipal corporation for a public purpose, which is ultra vires, results from its power to have originally authorized the very contract to be made." This proposition we concede to be correct. Could the legislature, then, have passed an act authorizing the city of Dubuque to pass the ordinance in question? Article 3, section 30, of the constitution provides: "The general assembly shall not pass local or special laws in the following cases:

"For the assessment and collection of taxes for state, county or road purposes;

"For laying out, opening and working roads or highways;

"For changing the names of persons;

"For the incorporation of cities and towns;

"For vacating roads, town plats, streets, alleys or public squares;

"For locating or changing county seats.

"In all the cases above mentioned, and in all other cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the state." It has been held that this section of the constitution prohibits the passage of a special law for the amendment of the charter of a city. Ex parte Pritz, 9 Iowa 30; Davis & Bro. v. Woolnough, 9 Iowa 104; Hetherington v. Bissell, 10 Iowa 145; Baker & Griffin v. The Steamboat Milwaukee, 14 Iowa 214; Town of McGregor v. Baylies, 19 Iowa 43. As the legislature could not, by special act, have authorized the city of Dubuque to pass the ordinance in question, it follows that it cannot, after the passage of the ordinance, legalize it by a special act. The legislature cannot do indirectly what it is inhibited from doing directly.

II. Section 464 of the Code confers upon cities, acting under the general corporation law, power to authorize or forbid the laying of tracks for street railways...