Van Horn v. City of Des Moines
| Decision Date | 15 December 1922 |
| Docket Number | 35194 |
| Citation | 191 N.W. 144,195 Iowa 840 |
| Parties | GRANT VAN HORN, Appellee, v. CITY OF DES MOINES et al., Appellants; FRANK M. HARRIS, Intervener |
| Court | Iowa Supreme Court |
REHEARING DENIED APRIL 3, 1923.
Appeal from Polk District Court.--JAMES C. HUME, Judge.
ACTION in equity by a citizen, taxpayer, and patron of the Des Moines City Railway Company, to restrain the defendant city and its officers from giving effect to or enforcing an ordinance of said city known in the record as Ordinance No 3147, which ordinance repeals a former ordinance and grants a new franchise to said street railway company. Frank M Harris, also a resident and taxpayer of said city, and a stockholder of said street railway company, intervened, and joined the defendant city in resisting the petition of appellee. There was a decree in the court below for plaintiff, as prayed. All material facts are stated in the opinion.
Reversed.
John Halloran, Reson S. Jones, Chauncey A. Weaver, J. G. Gamble, and Ralph Read, for appellants.
H. W. Byers, J. G. Myerly, and M. J. Mulvaney, for appellee.
I.
Plaintiff, appellee herein, a citizen, a taxpayer, and a patron of the Des Moines City Railway Company, sought and obtained a decree in the court below, permanently enjoining the defendant city and its officers from putting into effect and enforcing Ordinance No. 3147 of said city. Ordinance No. 3147, by its terms, grants to the Des Moines City Railway Company, a corporation, a franchise to operate a street railway system in said city for a term of 25 years. Prior to the enactment of this ordinance, and in 1915, an ordinance known in the record as No. 2406, granting to the same street railway company a franchise to operate a street railway system upon the streets of said city for a like term, was enacted, and adopted by the voters of said city. Ordinance No. 2406 fixed the fare which the street railway company might charge at five cents each way for a single passenger; whereas, the later ordinance permitted the company to charge a fare of eight cents for the same service. Ordinance No. 3147 by its terms repeals Ordinance No. 2406, and is designed to be a complete substitute therefor. The proposition to repeal Ordinance No. 2406 and to adopt Ordinance No. 3147 was submitted to the voters of appellant city at a special election on November 28, 1921. A majority of the electors voted in favor of the new ordinance. Before the date fixed therefor, appellee commenced this action, and obtained a temporary injunction restraining the appellant city and its officers from holding said election. An immediate appeal was taken to this court, upon application of the city, and an order was made modifying or suspending the temporary writ so as to permit the election to be held and the votes canvassed, without prejudice to the rights of the parties to the litigation. Upon final hearing, this order was approved, and the temporary writ dissolved. Van Horn v. City of Des Moines, 192 Iowa 1313, 186 N.W. 193.
Six propositions are set forth in appellee's brief, upon which he relies to sustain the decree of the court below. Briefly summarized, they are as follows: (1) That appellee has vested interests in and growing out of Ordinance No. 2406, which will be impaired or lost by the repeal thereof or the enforcement of Ordinance No. 3147, and that the said ordinance is not subject to repeal by the city council without specific legislative authority, or the reservation of authority in said ordinance to do so, neither of which exists; (2) that said Ordinance No. 3147 violates Section 681 of the Code, which provides that "no ordinance shall contain more than one subject, which shall be clearly expressed in its title;" (3) that said Ordinance No. 3147 by its terms grants to the Des Moines City Railway Company an exclusive franchise, in violation of Section 955 of the Code; (4) that the election held on November 28, 1921, was illegal, for the reason that the notices required by Sections 955 of the Code and 1056-a37 of the 1913 Supplement were not properly published.
Appellants admit that the notice referred to in Section 1056-a37 was not published, but otherwise they join issue upon the above propositions, and challenge the jurisdiction and authority of a court of equity to hear and determine the issues involved or to grant the relief prayed; challenge the right of plaintiff to maintain this action; and assert that there is a defect of parties, in that the Des Moines City Railway Company is not joined as a party defendant. No issue as to the reasonableness of Ordinance No. 3147 or of the right of the street railway company to collect fares in excess of five cents is involved upon this appeal. The issues for our decision are, therefore, the alleged illegality in the proceedings of the city council, and the right of appellee to maintain this action, and of a court of equity to grant him relief.
The principal grounds upon which appellants challenge appellee's right to relief in equity and to prevent the attempted repeal of Ordinance No. 2406 and the enactment of the proposed new ordinance are that, in the enactment thereof, the city council acted in a strictly legislative capacity, and that appellee has no such vested interest under Ordinance No. 2406 as to prevent its repeal and the enactment and adoption of a new ordinance, with the consent of the street railway company. So far as the action of the city council in the enactment and adoption of franchise ordinances is legislative, it may be conceded that it is not, ordinarily at least, subject to the control of a court of equity. But appellee does not in this case seek the aid of a court of equity to prevent the city council from validly exercising legislative functions, but to enjoin certain alleged illegal acts and procedure in the matter of the enactment thereof. A clear distinction must be recognized between the right of a citizen and taxpayer to maintain an action to restrain the valid exercise by a city council of its legislative functions, and an action in which an injunction is sought to restrain such officers from acting or proceeding illegally in the exercise thereof. We have repeatedly held that a court of equity may, in certain cases, at the suit of a taxpayer, restrain the illegal action of public officers. McLaughlin v. City of Newton, 189 Iowa 556, 178 N.W. 540; Erickson v. City of Cedar Rapids, 193 Iowa 109, 185 N.W. 46. In any event, the validity of Ordinance No. 3147 may be tested by an appropriate remedy; and we shall not too closely scrutinize the right of appellee to maintain this action, but will pass at once to a discussion of the legal questions which are, as we view them, decisive of this case, and which we find against him.
II. Ordinance No. 2406 contained a provision empowering the appellant city to forfeit the rights granted thereby to the Des Moines City Railway Company; but no right of repeal is reserved therein, and no such right has been delegated to it by statute. Under the statutes of this state, a franchise ordinance does not go into effect, even after it has received the approval of the electors, until it is accepted by the grantee. By acceptance thereof, a contractual relationship between the municipality and the grantee is created. This is, of course, conceded by counsel for appellant, but see Cleveland v. Cleveland Elec. R. Co., 194 U.S. 538 (48 L.Ed. 1109, 24 S.Ct. 764); Columbus R. P. & Lt. Co. v. City of Columbus, 249 U.S. 399 (63 L.Ed. 669, 39 S.Ct. 349).
It is well settled by authority that a city council may not repeal an accepted franchise ordinance without the consent of the other party,--this for the reason that to permit it to do so would sanction a violation of the Federal Constitution, which prohibits the impairment of the obligations of contracts. The appellant city council, however, in this case, enacted Ordinance No. 3147 and submitted it to the electors for approval, with the consent of the street railway company. Two questions are thereby suggested for decision: First, did the appellant city possess authority to repeal Ordinance No. 2406 and to re-enact and put in force another ordinance, the provisions of which conflict in many particulars with the provisions of the prior ordinance, with the consent of the street railway company, as against the claims of third parties having vested interests which have accrued under said ordinance; and second, did appellee have a vested interest therein, which he could assert against the right of the council to repeal said original ordinance with the consent of the street railway company?
The law is well settled that a city council is without authority to repeal a franchise ordinance, in the absence of a reservation therein giving it such right, without the consent of the grantee, or where vested rights have accrued thereunder that will be affected by such repeal. Baltimore Tr. & Guar. Co. v. City of Baltimore, 64 F. 153; Africa v. City of Knoxville, 70 F. 729; Levis v. City of Newton, 75 F. 884, 897; City of Belton v. Head, (Tex. Civ. App.) 137 S.W. 417; City of Santa Barbara v. Davis, 6 Cal.App. 342 (92 P. 308); Grand Trunk W. R. Co. v. City of South Bend, 227 U.S. 544 (57 L.Ed. 633, 33 S.Ct. 303); City of Owensboro v. Cumberland Tel. & Teleg. Co., 230 U.S. 58 (57 L.Ed. 1389, 33 S.Ct. 988); City of Des Moines v. Chicago, R. I. & P. R. Co., 41 Iowa 569; City of Burlington v. Burlington Street R. Co., 49 Iowa 144; 2 McQuillin on Municipal Corporations, Section 825. The general doctrine that the power to enact carries with it the power to repeal is not applicable where vested interests intervene.
It is however, equally well settled that a franchise ordinance may be repealed, with the consent of the...
To continue reading
Request your trial