State ex rel. Fullerton v. Des Moines City Ry. Co.
| Decision Date | 20 November 1906 |
| Parties | STATE EX REL. FULLERTON ET AL. v. DES MOINES CITY RY. CO. ET AL. STATE EX REL. FULLERTON ET AL. v. INTERURBAN RY. CO. ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; James A. Howe and Hugh Brennan, Judges.
The above-entitled actions at law are brought to test the corporate right of the defendants to maintain and operate lines of railway upon the streets of the city of Des Moines. The cases are so similarly related, and depend so nearly upon similar states of fact that they can be conveniently disposed of in a single opinion. Affirmed in part, and reversed in part.N. T. Guernsey, Read & Read, and Carr, Hewitt, Parker & Wright, for appellants.
Wm. H. Bremner, M. H. Cohen, and W. H. McLaughlin, for appellee city of Des Moines.
Jesse A. Miller, Co. Atty., William H. Baily, and Thos. A. Cheshire, for appellees.
On September 4, 1905, the relators herein presented to Jesse A. Miller, then county attorney of Polk county, Iowa, a written notice alleging that the Des Moines City Railway Company, a corporation organized under the laws of this state, was wrongfully and in excess of its lawful power and authority assuming the right to construct, maintain, and operate upon the public streets of the city of Des Moines, a system of street railways without having been granted any franchise or privilege so to do, and was thereby wrongfully obstructing and incumbering the streets of said city with its tracks, poles, wires, and cars. Said notice further alleged that on December 10, 1866, said city by ordinance granted to the Des Moines Street Railway Company, also a corporation organized under the laws of this state, an exclusive franchise for the term of 30 years to construct and operate a system of street railways upon the streets of Des Moines, and that on March 8, 1890, said ordinance was so amended as to permit the use of electricity as a motive power in the operation of said system, after which time the grantee of said franchise attempted to transfer or assign the same to the Des Moines City Street Railway Company, but that such assignment or transfer was never consented to, or authorized by, said city, and was and is inoperative and void. Said notice further alleged that notwithstanding the invalid character of said pretended transfer, and notwithstanding the further fact that whatever right or franchise had been granted by the original ordinance of 1866 and its amendments has long since expired and ceased to be of any force or effect, said last-named company, pretending to base its claims thereon, wrongfully continues to enter upon and subject the streets of the city to its occupation and use as aforesaid. Said notice also called attention to other city ordinances, the details of which we will not stop to set out, under which the railway company seeks to justify its continued occupation of the streets, but these ordinances it is charged have no legal force or effect to create such a franchise in said company or to extend or renew the franchise originally granted by the ordinance of 1866. It is further alleged that said company has constructed and is operating its railway in many streets in violation of the ordinances under which it claims its alleged franchise, and is thereby acting in excess and in violation of its lawful rights and powers. Said notice concludes with the statement that the relators are citizens and taxpayers in said city and owners of real property abutting on streets so wrongfully occupied and used by said railway company, and they request the said county attorney to bring and prosecute an action under chapter 9 of title 21 of the Code to oust and exclude said railway company from the franchises and privileges by it unlawfully usurped and exercised. The county attorney declined to comply with the request of the relators and indorsed his refusal in writing upon the notice served on him. Thereupon the relators applied to one of the judges of the district court of Polk county for leave to bring an action to test the right by which said corporation assumed to exercise said franchise, which application was granted, and an order entered by which the relators were authorized to institute such proceedings and prosecute the same to final judgment.
The petition in the action thus begun repeats in substance the matters stated in the notice to the county attorney, and need not again be rehearsed. It is also alleged that the city of Des Moines has failed to take proper actions for the protection of the public interests affected by the matters complained of, and is therefore joined as a party defendant. Original notice was served on September 6, 1905, and on September 19, 1905, defendants entered appearance to the action. On September 23d they asked and were given until October 17th following to plead. On the last day named the defendant railway company filed a motion to set aside the order granting the relators leave to bring the action, alleging as grounds therefor: (1) The order was improvidently granted. (2) It was granted without notice to defendants. (3) The relators have no interest in the matters alleged entitling them to bring this action as relators. (4) No action is shown to have been taken by the city to terminate the company's right in the streets. (5) The controversy involves no question of franchise or corporate power, but the determination of the construction of a contract between the city and railway company. (6) The action brought is not the action authorized by the order granting leave to sue. (7) The statements upon which the order was granted are inaccurate and misleading. (8) The state has no interest in the controversy revealed by the application. (9) That the provision of the Code authorizing the granting of such orders without notice violates the fourteenth amendment to the Constitution of the United States. (10) The alleged right of action is barred by the statute of limitations. (11) The relators and the public are barred by their laches and their acquiescence in the acts and claims of the railway company. This motion plaintiffs moved to strike from the files for reasons which it is not material to now state. While these motions were pending and undecided, the county attorney appeared in the proceeding by filing what he denominated an “amendment to the petition,” which pleading is prefaced with the statement that said county attorney “enters his appearance herein as relator and as attorney for the state of Iowa, plaintiff, and elects to bring and prosecute on behalf of the state of Iowa this action.” This amendment adopts the allegations made in the petition filed by the relators first named, and alleges that the railway company is maintaining and operating its system in the city of Des Moines without any franchise, right, or authority. To this amendment is also attached certain interrogatories to be answered by the defendant. On December 12th an amended and substituted petition was filed by the county attorney reasserting the various matters alleged in the prior petition of the relators and amendments thereto and asking judgment that defendant company has no franchise to occupy or use the streets of the city for its railway. Of this filing, original notice was duly served upon the defendants.On December 16, 1905, the court overruled the plaintiff's motion to strike, and sustained the defendants' motion to vacate and set aside the order, granting leave to the relators to bring and prosecute the action, and dismissed said action in so far as said private relators were concerned.
At the time of the filing of the substituted petition aforesaid the plaintiff by the county attorney filed a motion asking an order upon the defendants to plead thereto, and to answer the interrogatories attached. On December 18, 1905, the last-mentioned motion was sustained, and defendants were required to plead to the amended and substituted petition on or before noon of the second day of the January, 1906, term of said court. On the same day, on application by the county attorney, the court entered an order permitting W. H. Baily, Esq., and Thomas A. Cheshire, Esq., counsel who represented the original relators, to assist the county attorney in prosecuting the action. On January 3, 1906, the railway company moved to strike the amended and substituted petition, and dismiss the action on the following grounds: (1) The state of Iowa is not the real party in interest. (2) There is no showing made which entitles the state to the relief demanded. (3) The city of Des Moines is vested with the sole power to permit or forbid the construction of a street railway within its limits, and therefore the question whether the defendant is rightfully occupying the streets is purely one of local interest, and does not in any manner concern or affect the state or its interests. (4) The controversy pertains solely to matters of contractual rights between the city and the railway company. (5) Nothing is shown to have been done or omitted which can work a forfeiture of the company's rights and privileges. (6) The order, permitting the action to be brought by the private relators, was improvidently granted, and when that order was vacated the action was thereby abated, and could not be continued or further prosecuted by the county attorney. (7) The filing of the amended and substituted petition by the county attorney is an attempt on his part to commence an original action without compliance with the requirements of the law in that respect. (8) The court has no power or jurisdiction to authorize the amended and substituted petition or to require defendant to plead thereto. This motion was overruled, and thereupon said defendant appealed to this court from the order denying its motion to dismiss “and from all other rulings adverse to the defendant.” Afterward and at the same term the trial court, on motion of said defendant, entered an order...
To continue reading
Request your trial