78 Iowa 367 | Iowa | 1889
I. After the decision of this cause when before in this court it was remanded for further proceedings to the district court. The petition was amended by the addition of allegations to the effect that the statutes of the state and the ordinance and other action of the city under which the pavement was constructed, and an assessment made therefor, are in conflict with article 1, section 10, of the constitution of the United States, in that they have the effect to impair the obligation of a contract. The claim of plaintiff in support of this allegation of its petition is based upon the position that the requirement to build the pavement in controversy, and the assessment therefor, is a burden additional to those imposed by the statute and ordinance under which plaintiff built its street railway, which are recited in our former opinion in this case. The ordinance of the city, the plaintiff insists, was a contract under which plaintiff undertook to build the street railway upon the condition of paving between the rails, and doing other things which need not be specified. The paving outside of the track of the railway was not provided for by the ordinance, and is therefore a burden additional to those imposed by ordinance granting plaintiff authority to build its railway. It may be that the ordinance of the city requiring the paving in question does not affect the franchise of the
It will be remembered, as is shown in our former opinion in this case, that plaintiff, a corporation organized under the laws of the state, with the object of constructing and operating street railways in Sioox City, was, by ordinance of the city, authorized to construct and operate a street railway upon certain streets of the-city, on specified terms, among which was the requirement that the plaintiff should pave the space between the rails when the street upon which the railway is constructed is ordered to be paved. The plaintiff proceeded, under this authority, to build its street railway. Subsequently chapter 20, Acts, 1884, was enacted, which requires street railways, in cities of the class (the first) to which defendant belongs, to pave between the rails of their street-railway tracks, and a space of one foot in breadth outside of the rails. After the enactment of. this statute the city, by ordinance, required the plaintiff to make such pavement outside the rails of its railway track, and, in proper form, proceeded to make an assessment against plaintiff and its property to pay therefor. This action by certiorari is brought to test the validity of the city’s action.
II. It will be remarked that, under the statutes of the state and the ordinance of the city, when the corporate franchises were assumed by the plaintiff, and authority to construct its street railway was conferred upon it, it was required to pave between the rails of its
Counsel for plaintiff do not deny that, if the legislation in question pertains to or affects the rights and powers conferred by the articles of incorporation — what is called the’ “ franchises ” — of plaintiff, it is authorized by the section of the Code just quoted. Indeed, that could not well be denied, for the legislation authorizing the alteration and abridgment of the rights and powers —the franchises — of the plaintiff became a part of its charter, and was an express limitation upon its franchises. But counsel insist that the obligation of the plaintiff to construct pavements was imposed by a contract between plaintiff and the city. We have said that the correctness of this proposition may be assumed for the purpose of the discussion in hand. What was that contract ? It was this : The city conferred upon plaintiff the authority to construct and operate a street railway, on condition, among others, that plaintiff should