127 Iowa 637 | Iowa | 1905
In June, 1892, a franchise was granted by tbe city of Marshalltown to A. T. Birchard, bis successors and assigns, to construct an electric street railway in tbe streets of the city. Tbe proposition to grant such a franchise was submitted to and approved by tbe electors of tbe city, and tbe ordinance was duly accepted by said Birchard and his assignee, tbe plaintiff in this action. Tbe ordinance contained tbe following provisions:
Section 8'. Whenever tbe said A. T. Birchard, bis successors and assigns shall make excavations upon tbe streets or alleys in tbe construction of said road, they shall put tbe street in as good repair as near as practicable as it was at tbe time of such excavation, but if said grantee, bis successors or assigns, shall desire to use cross ties and what is called a “ T ” rail, they may do so,- but where tbe said street is not paved they shall spike to the ties outside and inside tbe rails a strip of lumber four inches wide and of sufficient thickness to come within one-half inch from the top of tbe rail outside and inside; such strips to run tbe entire length of tbe railway and its switches where said streets are not paved and to be kept in good repair by said grantee, bis successors or assigns. But tbe said A. T. Birchard, his successor, assigns,*639 shall not in any case be required to pave, macadamize or make any improvement upon tbe streets, except as provided in this section.
Afterwards street car tracks were constructed by tbe plaintiff on tbe streets wbicb are referred to in these actions, and subsequently proper steps were taken by tbe city council to have said streets paved and tbe cost thereof taxed, as provided by law, to tbe abutting property owners and to tbe plaintiff. At tbe time this paving was authorized and provided for, wbicb was in 1902, tbe following statutory provisions, found in section 834 of the- Code, were in force and applicable to tbe defendant city:
All . . . street railway companies shall be required to make, reconstruct and repair all paving . . . between tbe rails of their tracks, and one foot outside thereof at their own expense, unless by ordinance of tbe city or by virtue of the provisions or conditions of any ordinance of tbe city, under wbicb 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, reconstruct and repair tbe paving odf that part of tbe street specified by such' ordinance.
At tbe time tbe franchise was granted to plaintiff’s assignor, there was no statutory provision applicable to cities of tbe second class, to wbicb class tbe defendant city belongs, requiring street car companies to pay any portion of tbe cost for paving streets on wbicb their lines were located, and tbe two questions presented by these appeals are: First, whether tbe provision in tbe franchise granted to plaintiff’s assignor exempting him and bis assigns from any requirement to pave except as provided in that franchise constituted a contract wbicb could not be affected by tbe subsequent legislation imposing such liability on all street car companies; and, second, whether tbe provision in tbe ordinance granting tbe franchise, that Birchard and bis assigns should spike strips of lumber four inches wide along each side of tbe rails of tbe
Section 1619. The articles of incorporaton, by-laws, rules and regulations of corporations hereafter organized under the provisions of this title, or whose organization may be adopted or amended hereunder, shall at all times be subject to legislative control, and may be at any time altered, abridged or set aside Ly law, and every franchise obtained, used or enjoyed, by such corporation may be regulated, withheld, or be subject to conditions imposed upon the enjoyment thereof, whenever the General Assembly shall deem necessary for the public good.
The construction of this provision was involved in a case where the city ordinance provided for assessing to a street railway company the cost of pgving between the rails, and the State statute subsequently required that such companies pay the expense of paving between the rails and for the space of one foot outside of the rails. Referring to the
Under section 1090 of the Iowa Oode (section 1619 of the present Code), tbe Legislature bad the power not only to repeal and amend the articles of incorporation of tbe company, but to impose any conditions upon tbe enjoyment of its franchise which tbe General Assembly might deem necessary for tbe public good. The reservation of this power was a condition of the grant. The city council could make no arrangement with the company which would not be subject, under that section, to tbe superior power of tbe General Assembly. . . . Moreover, the city derived from tbe State alone its power to grant a license to the company. The right to operate the railway in the streets is a franchise obtained through power given to the city by the State, but tbe State reserved the power to regulate such franchise and impose conditions upon it. It reserved the power to determine the question of the exemption of tbe company from*642 taxation, and to prescribe wbat burdens should be imposed upon it for the public good in the enjoyment of its franchise. Manifestly, such power of the State would exist if the right to occupy the streets with tracts was granted to the company directly by an act of the Legislature of the State; and the case is not changed by the fact that the franchise was granted by the city. There is nothing in the ordinance of the city council which takes away the power of the State and the city to impose additional taxes on the property of the company, or which indicates an intent that no further or different tax should be subsequently imposed on its property, -x- -x- * ]sy0 question can arise as to the impairment of the obligation of a contract, when the company accepted all of its corporate powers subject to the reserved power of the State to modify its charter and to impose additional burdens upon the enjoyment of its franchise.' TJnder the Act of March 15, 1884 (Laws 1884, page 18, chapter 20), it was made a condition of the enjoyment of its franchise by the company that, when the city should determine that the streets should be paved, the companjy should bear a certain portion of the cost thereof, and any prior contract between the company and the city in regard to paving was subject to the provisions of section 1090 of the Code. There was nothing in the ordinance of December 12, 1883, which bound or could bind the city not to exercise its statutory authority to impose other conditions upon the exercise of the rights of the company.
The only distinction which counsel attempt to draw between these cases and the case before us is that in the S'ioux City ordinance there was no express exemption; but the language of the opinions clearly indicates that the line of reasoning relied upon would have been equally satisfactory in those cases had there been an express exemption. The very point of the decision in those cases was that the city could not make a contract which would preclude legislation on the part of the State imposing additional burdens. The same principle is announced in Storrie v. Houston City Street R. Co., 92 Tex. 129 (46 S. W. Rep. 796, 44 L. R. A. 716). Tn that case the court adopts the views expressed in the Sioux City cases above cited. There is nothing in the case of Lacey v. Marshalltown, 99 Iowa, 367, inconsistent with the
Finding no errors in the conclusion reached by the distinct court, its judgment in each case is affirmed.