Teachout v. Des Moines Broad-Gauge St. Ry. Co.

• Decision Date: 17 May 1888
• Citation: 75 Iowa 722,38 N.W. 145
• Parties: TEACHOUT v. DES MOINES BROAD-GAUGE ST. RY. CO.
• Court: Iowa Supreme Court

75 Iowa 722

38 N.W. 145

TEACHOUT

v.DES MOINES BROAD-GAUGE ST. RY. CO.

Supreme Court of Iowa.

May 17, 1888.

Appeal from district court, Polk county; MARCUS KAVANAUGH, Jr., Judge.

This is a proceeding under section 3408 of the Code, by which the parties thereto presented to the court below an agreed statement of facts, and sought the determination of the question whether the Des Moines Broad-Gauge Railway Company has legal power and authority to operate street railroads in the city of Des Moines by electricity or other motive power other than animal power. The issue presented by the agreed statement of facts was in the nature of an action in equity, and the object was to enjoin the Broad-Gauge Railway Company from expending its money and resources in applying the said motive power to propel its cars upon its railroad tracks now constructed, and from constructing other lines of road to be operated by said power. The Des Moines Street-Railway Company appeared, and sought to intervene in the proceeding. The right to intervene was denied, and upon a final hearing there was a decree enjoining the defendant from equipping and operating its lines of street railway, now in the streets of the city, with electric or other motive power other than animal power, and from expending the funds and moneys of said company in the construction of other lines of street railway in said city to be so operated. The defendant appeals from this decree, and the Des Moines Street-Railway Company appeals from the order denying it the right to intervene in the proceeding.Read & Read, for H. E. Teachout, appellant.

Parsons & Perry and Kauffman & Gurnsey, for the Des Moines Street-Railway Company, appellant.

Baylies & Baylies, for appellee.

ROTHROCK, J., ( after stating the facts as above.)

1. This proceeding grows out of the litigation which originated between the Des Moines Street-Railway Company and the Des Moines Broad-Gauge Railway Company, two rival street railways in the city of Des Moines. It is in fact another feature of the contention between said companies which was so elaborately considered by this court in the case of Railroad Co. v. Railway Co., and other cases, 33 N. W. Rep. 610, and 35 N. W. Rep. 602. After the filing of the opinion on rehearing in the cases named, the city council, by certain resolutions duly passed, determined that the accommodation of the city, and the welfare of its inhabitants, required that improved motive power, other than animal power, and by which cars can he moved at an average speed of not less than eight miles an hour, should be used upon all broad-gauge street car lines then in operation in the city, and upon all present and future extensions of said lines; and, by an ordinance passed by the council, authority was given to the Broad-Gauge Company to change its motive power from animal power to electricity, or to such other motive power as may be found practicable to move its cars at the required rate of speed. These acts of the city council were done in pursuance of an application made by said railway company to the council. The plaintiff, Teachout, is a stockholder in the Broad-Gauge Company, and is surety for it upon some of its indebtedness. He was active in procuring permission from the city council to the company to change its motive power. After the permission and authority were secured, he instituted this proceeding, in which he claimed that the corporation in which he was a stockholder could not acquire any valid authority from the city council to operate a street railroad in said city by any propelling power. He was overruled by act of the corporation before this proceeding was commenced. The agreed statement of facts sets forth this matter of difference, and the question presented to the court for its determination was whether the city council had any power or authority to confer the right upon the company, in view of the decision of this court in the cases above cited. The Des Moines Street-Railway Company, being what is known as the “Narrow Gauge-Railway Company,” appeared, and filed what was denominated a “petition of intervention,” in which it was claimed that the proceeding was fictitious, and a fraud upon the rights of the Narrow-Gauge Company, and that it was not a real controversy between the parties, and demanded that it be dismissed. A motion was made by the parties to the proceeding to strike the petition of intervention from the files, for the reason, among others, that the cause had been submitted to the court for its decision, and that there was no right to intervene in the action, and make demands which would delay its determination. This motion was sustained, and the application to intervene was overruled; but, inasmuch as it had been suggested to the court that the controversy was not real and in good faith between the parties, it was ordered that the plaintiff and the officers of the Broad-Gauge Company appear at a time named, and submit to an examination touching the question of good faith and the real nature of the controversy, and that the Des Moines Street Railway should be permitted to appear, and examine the said parties touching the controversy, and to introduce other proof on said question material thereto. Thereupon an investigation was had, evidence was introduced, and the cause was submitted to the court, and at the same time, or about that time, another petition of intervention was filed by the Des Moines Street-Railway Company, in which a demand was made that it be allowed to intervene in the merits of the case. On the final submission the following orders were made:

“This cause having been heretofore submitted to the court by and between the parties, upon the written submission and statement of facts filed with the clerk on the 4th day of February, 1888, and the court, being fully advised in the premises, finds that the equities are with the plaintiff, H. E. Teachout. It is therefore ordered and decreed by the court that the defendant, the Des Moines Broad-Gauge Street-Railway Company be restrained and enjoined from equipping and operating its lines of street railway, now laid in the city, with electric or other motor power other than animal power, and from expending the funds and moneys of said company in so equipping said line of road, or in construction, for operation in said city, other lines of street railway, and that the costs of this proceeding be taxed against the defendant. The Des Moines Broad-Gauge Street-Railway Company excepts. And the Des Moines Street-Railroad Company is refused leave to file its petition of intervention, to which the said Des Moines Street-Railroad Company excepts, and has five days in which to file its bill of exceptions.

MARCUS KAVANAUGH, JR., Judge.”

“Now, upon this 11th day of February, 1888, this cause coming on to be further heard upon the petition and motion of the Des Moines Street-Railroad Company that the court decline to receive and determine this cause upon the submission and agreed statement of facts by the said Teachout and the said Des Moines Broad-Gauge Street-Railway Company, for the reason that there is no real controversy between said parties, but the same is a fraud upon both the court and the said Des Moines Street-Railroad Company, pursuant to the order of this court made thereupon on the 6th day of February, 1888; and the said Des Moines Street-Railroad Company appearing by its counsel, Galusha Parsons, and the said H. E. Teachout by his counsel, W. L. Read, and the said Des Moines Broad-Gauge Street-Railway Company by its counsel, R. N. Baylies, and the same having been taken under advisement: Now, upon this 13th day of February, 1888, it is ordered that the said petition and motion be, and the same are hereby, in all things denied; to which ruling and decision the said petitioner, by its counsel in open court, duly excepted. And the said Des Moines Street-Railroad Company having presented its petition for leave to intervene to the merits of the said submission, the said petition and motion are denied; to which ruling and decision the said petitioner, by its counsel in open court, duly excepted. It is further ordered and adjudged that the said H. E. Teachout recover of and from the said Des Moines Street-Railroad Company his costs of said proceeding, taxed at ______, to which the said Des Moines Street-Railroad Company duly excepted; and it is further ordered that, in the taxation of such costs, the clerk of this court will not tax, as a part thereof, any fees for the said Teachout, or the other officers of the said Des Moines Broad-Gauge Railway Company.

MARCUS...