State ex rel. County Attorney & Fullerton v. Des Moines City Railway Co.

• Decision Date: 22 March 1913
• Citation: 140 N.W. 437,159 Iowa 259
• Parties: STATE OF IOWA, ex rel., County Attorney and ROBERT FULLERTON, et al., Appellants, v. DES MOINES CITY RAILWAY COMPANY, Appellee, and CITY OF DES MOINES, Appellant
• Court: Iowa Supreme Court

140 N.W. 437

159 Iowa 259

STATE OF IOWA, ex rel., County Attorney and ROBERT FULLERTON, et al., Appellants, v. DES MOINES CITY RAILWAY COMPANY, Appellee, and CITY OF DES MOINES, Appellant

Supreme Court of Iowa, Des Moines

March 22, 1913

Appeal from Dallas District Court.--HON. J. H. APPLEGATE, Judge.

THIS is a quo warranto proceeding instituted by certain private citizens on behalf of the State of Iowa and thereafter joined in by the County Attorney against the Des Moines City Railway Company to test the right of the defendant company to maintain and operate its street railway upon the streets of the city of Des Moines. The city was made a party to the original proceedings on the theory that it was its duty to oust the defendant from its streets, and that it had failed and neglected to do so. Both the street railway company and the city answered; the former asserting its right to maintain and operate its railway under various ordinances passed by the city, and because of the conduct of the city in recognizing its right to use and occupy the streets, and for various other reasons which will appear in the body of the opinion. The city answered, denying that it had in any manner failed in its duty; and it also averred and admitted that the relief prayed in the petition should be granted, and it joined in asking the relief prayed by plaintiff. That relief was that the Street Railway Company be declared to have no franchise to construct, operate, or maintain a street railway upon the streets of the city of Des Moines; that it be ousted therefrom and deprived of the use of the said streets for its railways, and declared to have no franchise or other rights thereon or therein. The case was tried to a jury, and, at the conclusion of the testimony both parties moved for a directed verdict. The motion of the street railway company was sustained, and the plaintiff and the city of Des Moines appeal.

Reversed.

Robert O. Brennan, H. W. Byers, Howard J. Clark, J. M. Parsons, E C. Carlson and E. W. Dingwell, for appellants.

Guernsey Parker & Miller and Reed & Reed and White & Clark, for appellee.

OPINION

DEEMER, J.

The case was before us at a former term upon some interlocutory orders made by the trial court, and it was there held, in effect, that quo warranto would lie, and that the action was commenced by proper parties. See State v. Railway Co., 135 Iowa 694. The opinion in that case recites the nature of the proceedings at length, and we need only notice in this connection that the action was commenced September 5, 1905. It was allowed to drag along for some reason, and was not finally tried in the district court until the latter part of the year 1910; the defendant City Railway Company assuming the burden of proof at that trial. Cases involving to some extent, at least, the franchises under which defendant claims reached this court many years ago; one of them, entitled, Des Moines Street R. R. Co. v. Des Moines Broad-Gauge Street Ry. Co., having been decided as early as the year 1887, the opinion being found in 73 Iowa 513. Another under the same title was decided later, the opinion being found in 74 Iowa 585; and still another, under a different title, came here later, and an opinion was filed, which is reported in Teachout v. Des Moines Broad-Gauge St. Ry. Co., 75 Iowa 722, 38 N.W. 145; and still another at a much later date, the opinion being found in Des Moines City Ry. Co. v. City of Des Moines, 90 Iowa 770, 58 N.W. 906. We shall have more to say of these opinions as we proceed. Reference is made to them now because they give some insight into the history of this litigation.

As defendant admitted that it was operating a street railway upon the streets, highways, and bridges of Des Moines, and assumed the burden of showing its right to do so, we may materially shorten the issues by stating its claim of right in the premises. It avers that it is operating under a franchise granted by the city of Des Moines in virtue of an ordinance, known as No. 63, regularly adopted by the city of Des Moines on the 10th day of December, 1866; that, while the ordinance did not grant any rights to this defendant, it became the owner and possessor of said rights by assignment from the Des Moines Street Railway Company, the grantee therein, and is entitled to all the rights and privileges of the grantee company in virtue of its assignment. It claims that, by the terms of this ordinance, it was granted an exclusive franchise for the term of thirty years after the passage thereof, and a perpetual franchise thereafter in competition with any other companies to whom franchise might perchance be granted. It also claims that, if these rights were not expressly conferred, the ordinance is ambiguous, and that the parties thereafter put such a practical construction thereon as to indicate that all parties to the ordinance understood its duration as to time, was as claimed by the company, and that, in virtue thereof, it should be given this construction. Again it is claimed for the street railway company that, acting upon the assumption that the ordinance was unlimited as to time, it, by express direction and orders of the city, made extensive and valuable improvements upon the streets, and complied with all the orders of the city authorities in the belief and with the understanding of all parties that the ordinance was unlimited in its duration, and that, by reason of these facts, the city is estopped from asserting to the contrary, or that plaintiffs are at least estopped from claiming that a judgment of ouster should be presently entered against it. It further claimed that all matters now in controversy have been adjudicated in the prior decisions of this court to which references have been made. These claims were each and all denied by plaintiff, save, it is admitted, that the city council passed the ordinance on which the company relies in the year 1866; but it says that at that time the city had no authority to grant any franchise to the company authorizing it to use or occupy the streets of the city for street railway purposes. Responding to this, counsel for the street railway assert that, assuming this to be true, the original ordinance was in effect re-enacted in the year 1874, after the Legislature had given cities and towns of the state authority to grant franchises to street railway companies, and that, upon its re-enactment, it became as efficient as if power had been granted in the first instance to the city to pass it. This latter contention must be considered foreclosed by the opinion filed in one of the prior cases to which we have referred. See 73 Iowa 513. In that opinion it is said:

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 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 of 1873, 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. . . .

Having reached the conclusion that, under the section of the Code above cited, the power had been conferred to make the contract in question, we have to consider whether it appears that the city council, after the Code took effect, ratified the contract which it had previously (and, as we will assume, without power) undertaken to make. There is no question but that the council undertook to adopt an ordinance purporting to revise and re-adopt certain ordinances including the one under which the plaintiff's assignor commenced the construction of the road. It is claimed, however, that this ordinance is void, because it embraced as many subjects as there were ordinances referred to. For the purposes of the opinion, it may be conceded that what purports to be an ordinance did not take effect as such. But it appears to us that it has the force, at least, of a resolution, so far as the provision in question is concerned. The plaintiff's assignor acted upon it, and expended money, not only in laying additional tracks, but in paying for street pavement. We feel justified in saying that every one understood that the ordinance of 1866 was ratified and binding upon the city and the plaintiff's assignor, and that what was done afterwards was done with that understanding.

It is true that it is provided in the so-called ordinance, relied upon as an act of ratification, that 'all ordinances granting privileges, or which expired after a term of years shall not be enlarged or abridged by their incorporation into these revised ordinances.' The defendant relies in part upon this provision. It insists that, if the plaintiff is sustained, it would follow that an ordinance granting a privilege would be enlarged. In one sense this might be true, but not, we think, in the sense of the provision....