152 Iowa 18 | Iowa | 1911
Lead Opinion
The solution of the question presented depends upon the construction which shall be placd upon section 834 of the Code, which, so far as material, reads as follows:
All railway and street railway companies shall be required to make, reconstruct and repair all paving, graveling or macadamizing between the rails of their tracks, and one foot outside thereof, at their own expense, unless by ordinance of the city, or by virtue of the provisions or conditions of any ordinance of the city under which said railway or street railway may have been constructed or may have been maintained, it may be bound to pave, macadamize or gravel other portions of said street, and in that case said railway or street railway shall make, reconstruct and repair the paving, graveling or macadamizing of that part of the street specified by such ordinance; and such improvement, or -the reconstruction or repair thereof, shall be of the material and character ordered.by said city, and shall be done at the same time the remainder of said improvement is made,' reconstructed or repaired. . . . They shall keep the paving, graveling or macadamizing between said rails, and one foot outside thereof, or such other part as they are liable to construct or maintain, up to grade and in good repair, using for such purpose the same material as used for the original paving, graveling or macadamizing, or such other material as the council may order. . .
This statute as it now reads was framed by the Code Commission as a codification of the law theretofore existing as found in McClain’s Annotated Code of Iowa, 1888, sections 725 and 829, and the Acts of the Twenty-Third General Assembly, chapter 9, section 1, and of the Twenty-Fifth General Assembly, chapter 7, section 10. On the general subject of street improvements, etc., and of the laws
The present law as to construction of street improvements and sewers is in the greatest confusion. The attempt is made in this chapter to reduce the whole legislation on the subject to a system, preserving the beneficial features of all the statutes (including in instances provisions found in statutes which relate at present only to cities under special charter) and to make the procedure as to the street improvements and sewers harmonize as far as practicable. The powers are made uniform in all cities of five thousand. . . . McClain’s Code, sections 817, 853,, are omitted as covered by these general provisions.
In the general report of that Commission we find the following expression as to its purposes, aims, and accomplishments :
In the exercise of the duty of rewriting the law and improving its phraseology, the commission has made many verbal changes, but has done so with great care in order that the meaning of the statutes should not be thereby materially changed. The language of the act as above quoted indicates, however, that some alterations in the law for the purpose of securing completeness, and to improve, systemize, and harmonize it and make it clear and intelligible, were contemplated as within the scope of the duties of the Commission, and it has therefore recommended some changes, having in view, however, the unification and perfection of the system of the written law as it now is, rather than the enlargement of it or its change in material matters. . . . Wherever the Code as reported does not exactly follow the present statutory language the new words are underscored,or if a whole section has been rewritten it is all underscored. The underscoring therefore does not necessarily indicate any new law, but if provisions are new, they are necessarily underscored. ... It must be distinctly understood that a change of language does not necessarily indicate any intention to change the meaning of the law. The Commission is authorized to rewrite the sections of the Code and statutes for the purpose of improving the expression of the law, and it has faithfully done so, omitting
With this in mind, then, it becomes important to go to the law as it existed at the time the act under consideration was framed. The Twentieth General Assembly passed an act known as chapter 20, containing a section reading in part as follows:
All railway companies and street railway companies in cities of the first class as provided in section one of this act, shall be required to pave, or repave between rails and one foot outside of their rails, at their own expense and cost. Whenever any street, highway, avenue or alley shall be ordered paved or repaved by the council of any such city, such paving or repaving between and outside the rails shall be done at the same time and shall be of the same material and character as the paving or repaving of the street, highway, avenue or alley upon which said railway track is located, or of §uch other material as said council may order, and when said paving or repaving is done said companies shall lay in the best approved manner the strap or flat rail, such railway companies shall keep that portion of the streets, highways, avenues or alleys between and one foot outside of their rails, up to grade and in good repair, using for such purpose the same material with which the street, highway, avenue or alley is paved upon which the track is laid, or such other material as said council may order.
It may be that this act did not have reference to the city of Des Moines; but it is part of the legislative history of the state, and from that standpoint should be considered.
The Twenty-Second General Assembly passed an act which, among other things,, contained the following provision :
By the acts of the Twebty-Bifth General Assembly, chapter 7, it was provided, in section 10 thereof, that:
Whenever any railroad or street railroad may have been constructed, and shall remain upon any street which the council may direct to be paved, at the time when such direction shall be given, and when the owner of such railroad or street railway may be bound to pave any portion of said street by law or ordinance of the city, or by virtue of the provisions or conditions of any ordinance of the city,' under which said railway or street railway may have been constructed or may be maintained, and if the owner shall fail or refuse to comply with the order of the council to do such paving, then the portion of the cost of paving such street assessable upon such railroad or street railway shall be ascertained, and shall be assessed against such street railway.
■Such was the condition of the written law of the state when the Code Commission came to rewrite the same. These acts passed the scrutiny of the courts, and it was held that they were constitutional and might be made to apply to street railway companies whose franchises were granted before the law took effect. See Sioux City R. R. Co. v. Sioux City, 78 Iowa, 367, and same case, 78 Iowa, 742.
Again in Marshalltown Light, P. & R. Co. v. Marshalltown, 127 Iowa, 637, which was decided long after section 834 of the Code was adopted, it was held that the provisions of a franchise ordinance exempting a street railway company or its assigns from any duty to pave, macadamize,
The result of the whole matter, then, is that, unless section 834 as it now appears changed the law theretofore existing, the trial court was in error in holding that the street railway company was not required to pave more than five feet in width of the street. Going now directly to this section, it will be observed that the primary duty of the street railway company is to pave between the rails of its track and one foot outside thereof. This it must do, unless, by ordinance of the city or in virtue of the provisions or conditions of the ordinance under which the street railway was constructed or is being maintained, it may be bound to pave other portions of said street. In that event the railway company shall pave that part of the street specified by such ordinance. They are also required to keep the paving between the rails and one foot outside thereof or such other parts as they are liable to construct or maintain in good repair, etc.
It is a cardinal rule for the construction of statutes that all parts thereof shall be given force and effect if •this can consistently be done.
Claim is made that, to determine what ordinance is to govern, we must look to the conditions as they existed when section 834 of the Code was adopted; that is to say, that the date of the adoption of this section fixed the conditions, and that thereafter no ordinance could be passed with reference to the subject of the width of a street that a, street railway may be required to maintain. If this be the
The words used in this connection are “unless it may be bound to pave other portions of said street.” The words “other portions of said street,” it seems to me, should be construed to mean, not something less which would be included in what was greater, but something more than the statute requires. This may perhaps be a little forced, but it is confirmed somewhat by the provision as to how much the railway company is required to keep in repair. It says “the part between the rails and one foot outside thereof or such other part (which means to my mind some different part) as they are liable to construct or maintain.” My opinion in this respect is not concurred in by all the
Looking to the legislative history of this act; to the report of the Code Commission, to the language used, and remembering the fundamental canon of construction that all parts of it should be permitted to stand and be given effect, we are of opinion that the ordinance, passed by the city after the adoption of section 834 of the Code, requiring the company to be at the expense of the paving between the rails and one foot outside thereof, was a valid exercise of power, and that the city is not bound by conditions as they existed when section 834 went into effect, nor is it bound by the terms of the original franchise ordinance. Prior to the adoption of section 834, the city had the right to change the terms of the franchise ordinance with reference to the subject of paving, an,d we do not think that section 834 deprived it of the power to make changes thereafter. If such was the intent, it was most carefully concealed, and we feel sure in affirming that the Code Commission had no intent to change the law in the manner suggested by counsel for the street railway company. Certainly there was no thought on the part of any one that by the adoption of section 834 the duty of the street railway to pave was fixed by the terms of its original franchise ordinance, if perchance it should be found that in that ordinance the subject of paving was covered.
We do not believe that it was the intent to fix conditions with reference to any arbitrary date. The thought was to require the paving between the rails and one foot outside thereof unless the city having plenary power over the matter should require some other width, and as the writer believes some greater or other width.
From this it follows that the decree rendered by the trial court is wrong, and that it should be reversed.
Dissenting Opinion
(dissenting). — I am not able to concur in tbe majority opinion. Tbe case turns upon tbe construction to be put upon the exceptions contained in section 834 of the Code. So far as material for our consideration, such section is as follows:
All . . . street railway companies shall be required to make . . . all- the paving . . . between the rails of their tracks, and one foot outside thereof, at their own expense, (1) unless by ordinance of the city or (2) by virtue of the provisions or conditions of any ordinance of the city under which said . . . street railway may have been constructed or may be maintained, it may be bound to pave . . . other portions of said street, and in that case said . . . street railway shall make . . . the paving ... of that part of the said street specified by. such ordinance.
Eor convenience of reference I have interpolated the numbers 1 and 2. The italics also are mine. The clauses Nos. 1 and 2 are the two exceptions contained in the statute Which we are required to -construe. Stating each exception separately, it would read in its completeness as follows:
(1) Unless by ordinance of the city it may be bound to pave other portions of said street, and in that case said . . . iStreet railway shall make . . . the paving . . . of that part of the said street specified by such ordinance. (2) Unless by virtue of the provisions or conditions of any ordinance of the city under which said street railway may have been constructed or may be maintained it may be bound to pave other portions of said street, and in that case said street railway -shall make . . . the paving ... of that part of the said street specified by such ordinance.
In the discussion of the case by the parties, exception No. 2 has been treated as referring to a franchise ordinance and exception No. 1 as referring to a general ordinance not connected with the franchise. This distinction is in
Before proceeding to a consideration of the statute and ■ its exceptions, a word of history is necessary.
The original franchise ordinance of Des Moines providing for the construction of street railways was enacted in 1866. This required the railroad company to pave the space between its rails. The extent of such space was three feet on a narrow-gauge track and five feet on a standard-gauge. In 1888 chapter 16 of the Acts of the Twenty-Second General Assembly was enacted. This chapter conferred power upon cities to require street railway companies to pave not exceeding three and one-half feet on each side of the center line between the rails. This legislation appeared later as section 725 of McClain’s Code. Prior to this enactment there was no power in the city to require the city railway company to pave to any extent except by franchise ordinance. Such was the holding in Land Co. v. Oshaloosa, 99 Iowa, 496. (It should be noticed here that chapter 20 of the Acts of the Twentieth General Assembly, codified as section 829 of McClain’s Code, was so framed as to be applicable to Sioux City alone.)
The power so conferred by the legislation of 1888 was permissive only and not mandatory. It could be exercised or not, or to such an extent as the city council saw fit. Lacey v. Marshalltown, 99 Iowa, 367.
The absence of such legislation prior to 1888, however, did not prevent a city from making such requirement as to ■ paving as it saw fit in a franchise ordinance. Sioux City Street R. R. Co. v. Sioux City, 78 Iowa, 742; Sioux City Street R. R. Co. v. Sioux City, 78 Iowa, 367; Sioux City Street R. R. Co. v. Sioux City, 138 U. S. 98 (11 Sup. Ct. 226, 34 L. Ed. 898).
Prior -to the legislation of 1888, the Street Bailway Company of Des Moines operated wholly under the franchise ordinance of 1866. After the legislation of 1888,
(1) Does this section 834 confer power on a city council to enact a general ordinance (not a franchise ordinance) fixing the extent of paving to be required of a street railway company?
(2) Does the word “ordinance,” in exception No. 1, refer to a then existing ordinance, or does it apply also to any general ordinance on that subject which might thereafter be enacted by any city council?
(3) What is meant by “other portions” of said street ? Does- it necessarily mean more than seven feet, or may is mean less than seven feet?
(4) In the nature of the case, can the exceptions 1 and 2 both be applicable at the same time if they differ in their requirements, or does one necessarily supersede the other ? If the latter, which one shall be deemed to control ?
The conclusion of the majority is, in substance, that -section 834 conferred power on the city council to enact future general ordinances prescribing the paving requirements from the street railway company, and that exception No. 1 is applicable to any such ordinance whether enacted prior to this statute or thereafter; that “other portions of said street” is to be construed as more than seven feet;
Section 125, McClain’s Code, 1888, was as follows: “All cities of first class . . . shall have power . . . to compel street railway companies, whenever any street is ordered paved, to pave and maintain in width three and one-half feet each way, commencing at the center of the space between the rails. . . .”
As already indicated, it was expressly 'held in the. case of Land Co. v. Oskaloosa, supra, that prior to this statute there was no power in a city council to enact an ordinance taxing the cost of paving to a street railway company except in accord with a franchise ordinance. The above section was repealed when section 834 was enacted. If any power of enactment on that subject for the future was conferred upon the city council after the repeal of that section, it must be found, if at all, in section 834, which I have already quoted. Clearly no express terms can be found therein which purport to confer such power. If such section is to be deemed as conferring such power, it must be found from the merest implication. Even such implication can find no place in the main provision of this statute. The implication is based solely upon exception No. 1 and upon the use of the word “ordinance” therein. In order to give rise, to such implication, the word “ordinance” is construed or referring not only to a then existing ordinance, but also to any future ordinance. The implication arises, therefore, not as a necessity out of the terms used in the statute, but arises out of an adopted construction which presupposes the very implication sought. To put it in another way: > The word “ordinance” as used therein can easily be held to apply to a then existing ordinance. It could also 'be construed to apply to a future ordinance if power of enacting a future ordinance was conferred. But
Tbe following quotation adopted in Land Co. v. Oskaloosa, 99 Iowa, 502, is quite in point here: “It is tbe policy of tbe law to require of municipal corporations strict observance of their .powers.” 15 Am. & Eng. Enc. Law, 1039, 1041. “Tbe grant of authority, from tbe Legislature of tbe state to tbe council of tbe city, to levy an assessment for improvement, is as sacred as that wbicb authorizes tbe imposition of taxes. Tbe authorization should be explicit, and not leave tbe city council too wide discretion, because of vague language in tbe legislative grant.” 10 Am. & Eng. Enc. Law, 277.
I can not avoid tbe conclusion that section 834 can not fairly be construed as conferring any power upon tbe city council to enact future ordinances requiring of a-street railway company an area or extent of paving “other” or different than tbe statutory seven feet. ' It seems clear to me that tbe exceptions noted in tbis section have reference to then existing ordinances, and that “other portions” of said street means “other” than seven feet whether more or less. Section 725, McClain’s Code, was not mandatory. Tbe Legislature did not purport therein to prescribe tbe duties of tbe railway company in that respect. But it expressly conferred power upon tbe city council to do so by ordinance subject to a limit of seven feet.
On tbe other band, section 834 of tbe present Code is mandatory. It prescribes the duty of tbe railway company and fixes tbe space at seven feet, neither more nor less,
Section 834 was a step in advance of section 725 of McClain’s Code, in this, that it made mandatory that which was only permissive under section 725. That is to say, section 834 enacted the paving requirement which section 725 permitted the city council to enact. The public interest, therefore, was protected hy the enacted provision, while the power of the city council in that respect was eliminated. What power the city council had prior to the enactment of section 725 in 1888, such power it has now; no more, no less.
II. Turning now to another phase of the discussion, and applying the statute to the particular facts of this case, it is the theory of the majority, that the ordinance of 1899, enacted after section 834 went into effect, constituted exception No. 1 within the meaning of such section. . The ordinance in existence prior to the enactment of section 834 required the railway company to pave a width of five feet; whereas, the ordinance of 1899 purported to require paving for the width of seven feet. It is also the theory of the majority that this ordinance as exception No. 1 supersedes exception No. 2 and controls the case. I will assume for this part of the discussion that one of these exceptions must supersede the other. I will also assume that if exception No. 1 is shown to exist, it will supersede exception No. 2, although there is much to be said against this assumption and in favor of the assumption that a franchise ordinance which would constitute exception No. 2 should supersede a general ordinance enacted thereafter. But I do not care to deal with that question now. What I desire to point out here is that the ordinance of 1899 does not come within the terms of exception No.'1 and does not,
The argument of the majority has treated exception No. 2 as superseded by the assumed existence of exception No. 1. It does not deny the applicability of the existence of exception No. 2 in the absence of exception No. 1. Neither can it be denied that the facts constituting exception No. 2 are found in this case. The ordinances of 1866 and of 1889 of the city of Des Moines were the ordinances under which, the street railway was constructed upon the streets in question. Dnder such ordinances the railway company was required to pave a space extending two and one-half feet from the center line of its track. It is not claimed that the street railway was constructed over any of the streets in question subsequent to the enactment of seciton 834. These ordinances, therefore, come within the terms of exception No. 2, in that thereby the company was bound to pave “other portions” of the street in the sense that five feet was “other” or different than seven feet.
This is perhaps a sufficient discussion to indicate the grounds of my dissent. I think the trial court reaches a correct conclusion and that its decree ought to be affirmed.