118 Iowa 287 | Iowa | 1902
The facts essential to an understanding of this controversy may be stated as follows:
For many years prior to 1879, a public highway connected the 'cities of Oedar Eapids and Marion. Beginning as early at least as the year 1874, the property owners along that portion of said route now under consideration dedicated or attempted to dedicate additional land to the public for the use of said highway, making it 120 feet in width, and as thus enlarged such highway was thereafter known as “The Boulevard” and later as “First Avenue.” In the year 1879, a corporation formed for that purpose undertook the construction between the two cities of a street railway to be operated by animal or motor power, and to lay the same within the boundaries of said highway as enlarged by the dedications above mentioned. In furtherance of this purpose the property owners along the route, or many of them, in May, 1879, signed a written instrument, the body of which is as follows: “We, the undersigned property owners on the boulevard between Oedar Eapids and Marion hereby consent, grant, and assign, right of way. for the purpose of a street railway between the said cities of Oedar Eapids and Marion on and upon said boulevard to the Marion hnd Oedar Eapids Improvement Oo., said railway to be in operation in one year from May 1st, 1879;, otherwise our permission as above to be null and void.” Just when the railway was completed is not entirely clear, but probably in the spring or summer of 1880; the track being laid -within the 120 feet aforesaid, but near the southern boundary thereof. March 12,1880, the legislature of the state passed an act, which, while general in form, bears evidence of having been framed with special reference to this enterprise. That , portion of said act having any bearing upon the result of this case' is as follows: “Section 1. That any street railway company now or
.But it is urged that the board of supervisors refused to accept the dedication of the extra width of street. We think, however, that fact is not necessarily decisive of the legal existence of the boulevard. The dedication of a street may be accomplished without any deed or formal act by the dedicator, and without any formal declaration of acceptance •by the public authorities. Morrison v. Marquardt, 24 Iowa 35; Fisher v. Beard, 32 Iowa, 346; Mosier v. Vincent, 34 Iowa, 479; Getchell v. Benedict, 57 Iowa, 121; Manderschid v. City of Dubuque, 29 Iowa, 73; Gear v. Railroad Co., 39 Iowa, 23; Bayliss v. Supervisors, 5 Dill. 549 (Fed. Cas. No. 1,142). The dedication may be shown by the verbal declarations of the owner, by his act in filing the plat, by his silence in the face of known adverse possession by the public, or by any other act or omission from which the intention to dedicate may fairly be inferred. Acceptance
II. Much argument has been submitted upon the validity of Ordinance No. 409, and upon the power of the city generally to enact ordinances of that nature. In view of the conclusion we have reached that the judgment of the district court.may be affirmed upon another proposition,
The case of State v. St. Paul City R. Co., (Minn.) 81 N. W. Rep. 200, is also in point. The railway company, acting under an ordinance of the city, had constructed and was operating a system of street railways. Thereafter the city ordered a material change in the manner of operation. This was resisted by .the company on the theory that the original ordinance was a contract and that the later ordinance was an attempt to impair the obligations of such contract. The trial court held with the company, but its judgment was reversed on appeal. We quote from the opinion: “The trial seems to have been conducted upon the theory that the ordinance or franchise was to be construed precisely as if it was a contract between Wo private individuals. This, however, is a too narrow, and even erroneous, view of the case. We shall assume, without discussion, that Ordinance No. 1,227 contains a valid contract between the city and the railway company, the obligations of which the former cannot impair. But this
There is an important distinction to be drawn in speaking of municipal contracts, — a distinction which has, not always been duly considered by courts and law writers, but it is nevertheless fundamental, and cannot, with safety, be disregarded. A municipal corporation may be said to possess a dual character. In one capacity it is a property holder, a mere business agency, and is charged with the management of the financial and business interests of the municipality. In another capacity it is an arm of sovereignty, and is charged with legislative and governmental powers. Contracts lawfully made by it in the first capacity are as obligatory and inviolable as contracts made between private individuals; but, in the absence of statutory authority, any contract or agreement, whether in the form of an ordinance or otherwise, which directly or indirectly surrenders or materially restricts the exercise of a governmental or legislative function or power, may at any time be terminated or annulled by the municipality; though, as we have already noted, such action may, under some circumstances, involve liability for compensation to persons who have acted upon faith of the validity of such contract. The power given to cities and towns to control their streets,
YI. The decree of the district court as it appears in the record is not entirely clear as to the time when and the manner in which the railway company shall be required to pave. We think that, to avoid all ambiguity and
The additional relief asked by the city’s amendment to its cross-petition concerning the company’s line between Twentieth street and the city limits was properly dismissed by the district court. When such improvement is deemed necessary, the city should order it in the usual manner by its constituted authorities, and we cannot assume in advance that it will not be observed by the company.
With the modification above indicated, the decree of the district court is affirmed.