57 Iowa 393 | Iowa | 1881
The principal question involved in this case is to what extent and in what manner is the defendant, which succeeded to the rights of the Des Moines Yalley Railroad Company, affected by this change in the statute? It is insisted upon the part of the appellant that when the Des Moines Yalley Railroad Company, under a legally conferred authority, constructed the line of its railway upon Market street, that it thereby acquired the right at any future time to construct upon that street such necessary side tracks and switches as its increasing business might demand, and that the exercise of this right cannot be restricted or controlled by any amendment of or change in the law. Appellant cites and relies upon Cleveland & Pittsburgh Railroad Co. v. Speer, 56 Penn. St., 326, as in its essential features like the case at bar. This case, however, is not in point upon this question as there had been no change in the general law intermediate the date of the construction of the main line and the switch complained of. The points determined were, that a charter authorizing the construction of a railroad necessarily confers the power to construct side-tracks and switches, and that for the construction of a railway over a street in a town, pursuant to provisions of the charter, the owner of an abutting lot cannot recover damages. Section 464 of the Code is in terms applicable to all railway tracks which may be constructed in the streets of a city after its passage. It applies to the defendant, we think, unless to allow it
There is no implied contract between a State and a corporation that there shall be no change in the laws existing at the time of the incorporation which shall render the use of the franchise more burdensome or less lucrative, any more than there is between the State and an individual that the laws existing at the time of the acquisition of property shall remain perpetually in force. Thorpe v. The Rutland & Burlington Railroad Co., 27 Vt., 140; Rodemacher v. The Milwaukee & St. Paul Railroad Co., 41 Iowa, 297. It is conclusively presumed that the Des Moines Valley Railroad Co. constructed its line of railway upon Market street with knowledge that the State might repeal or modify the existing law as to the manner in which any more of that street might in the future be appropriated, and that it impliedly consented that the State might do so. Neither it, nor its grantee, can justly complain that this privilege has been exercised. The company may insist that its right to the property which it has acquired shall be recognized and respected. But it cannot lawfully demand that all the provisions of the statute in force when this property was acquired shall be continued for the purpose of rendering its use more convenient and profitable.
The ordinance relied upon by defendant does, it is true, purport to constitute a contract between the city of Des Moines and the Des Moines Valley Railroad Company. But the city
It is apparent from an examination of section 464 of the Code that the legislature had two distinct objects in view, namely: first, to give to the cities complete control over their streets, and to impower them to forbid their occupation by lines of railway; second, to provide that the streets could be occupied by railway tracks only after compensation for the injury to abutting property. Now, if it should be conceded that the first object, as to the defendant, cannot be accomplished, this is no reason why the second object may not be attained. The law may, as to the defendant, be unconstitutional and inapplicable so far as the first object is concerned, and perfectly constitutional and applicable as to the second. In Cooley on Constitutional Limitations, fourth edition, page 215, it is said: “Where a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning, that it cannot be presumed the legislature would have passed the one without the other'. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall.” If it should even be conceded that, under the facts alleged in the sixth count, the defendant cannot be denied the right to construct the switch in
By chapter 6, laws of Fifteenth General Assembly, section 464 of the Code, was amended by striking out the words above indicated in italics, and substituting in lieu thereof the following words: “Taking private property for works of internal improvements, in chapter 4, of title 10, of the Code of 1873.” Whatever may have been the proper construction of the section before the amendment, we are clearly of the opinion that now the compensation to be made can not be limited to damages arising from a change of grade, but that it extends to all legitimate damages arising under chapter. 4, title 10 of the Code.
IV. The seventh count of the answer alleges that plaintiff has failed to take any steps to have the damages assessed or appraised as provided by law, and that the remedy of plaintiff, if any he have, is to have his damages assessed according to the statutes relative to proceedings for condemnation of right of way. In Daniels v. The Chicago & N. W. Railroad Co., 35 Iowa, 130, 135, it is said: “It has been quite uniformly held, and may now be regarded as the settled doctrine in this country, under statutes such as ours, that the statute furnishes the only mode of ascertaining the damages consequent upon
It follows that the demurrer, as to all the counts of the answer, was properly sustained.
Affirmed.